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$85,000 Non-Pecuniary Assessment For Chronic Neck Pain and Headaches

Reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic neck pain and headaches following two vehicle collisions.

In the recent cast (McCully v. Moss) the Plaintiff was involved in two separate collisions with the Defendants accepting fault for both.  The collisions caused a neck injury with associated headaches which continued to the time of trial.  The symptoms were expected to continue and flare with heavier household and vocational duties.  In assessing non-pecuniary damages at $85,000 Madam Justice Devlin provided the following reasons:

[99]         Ms. McCully is 66 years-old and she suffers some limitation and restriction as a result of her persistent neck pain and headaches caused by the accidents. However, I do not agree that the injuries have a profound or life altering affect on Ms. McCully. I do find that she continues and will continue to experience some pain and discomfort and the medical experts confirm this. Although the medical evidence does not foreclose the possibility that she can increase her work hours or certain activity levels, I find that even where she does attempt these pre-accident activities, her injuries would increase her discomfort and pain.

[100]     While she is able to continue to work as an esthetician, she does experience discomfort if she exceeds working for a comfortable amount of time. Fortunately for her, her schedule is flexible and ultimately she is the one who will determine when she will work and for how long. While she may resort to the use of the TENS machine at the end of a long day to deal with the discomfort in her neck, she appears to be pleased to be able to continue to work for and service her clients.

[101]     I note that she has also returned to playing bridge a few times per week and has participated in a bridge tournament over the weekend albeit with the assistance of her pain medication. Participating in these bridge games is particularly important for Ms. McCully as it provides her an opportunity to engage socially. She continues to engage with her family and while she does not take her grandchildren to the pool she does babysit them at her residence. In a similar vein as Buckle, I note that Ms. McCully’s injuries restrict her from engaging in her domestic and work activities with the same energy and ability she had before the accidents. However, as I discussed earlier, despite having the chronic neck pain and headaches she continues to travel and has done so since shortly after the accidents.

[102]     In the following reasons, I will specifically address the parties’ arguments in relation to a segregated loss of housekeeping capacity damages. However, as I will re-state below, the impact of Ms. McCully’s injuries on her ability to perform household tasks informs my assessment of her non-pecuniary damages. I note also that she keeps a fairly large 2,900 sq. ft. house on a 12,000 sq. ft. lot. Overtime I find that Ms. McCully has been able to do some light housekeeping although she cannot do some of the more physically demanding tasks. Additionally, it is clear that she is more limited in performing yard maintenance.

[103]     There is no doubt that her neck pain and headaches have and will continue to have an impact on Ms. McCully in every aspect of her life to varying degrees. I am satisfied that Ms. McCully is entitled to compensation for the impact the injuries have had on her general well-being.

[104]     Having reviewed the cases provided by both parties, I assess Ms. McCully’s non-pecuniary damages at $85,000.

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