ICBC Law

BC Injury Law and ICBC Claims Blog

$85,000 Non-Pecuniary Assessment for Chronic Persisting Headaches

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for long standing headaches caused by a vehicle collision.

In today’s case (Woelders v. Gaudette) the Plaintiff was involved in a rear end collision that the Defendant admitted fault for.  The Plaintiff suffered a variety of injuries some of which recovered and some of which did not.  By the time of trial, some 8 years following the collision, the Plaintiff continued to suffer with ongoing headaches and associated symptoms which were expected to continue into the future.  In assessing non-pecuniary damages at $85,000 Madam Justice Ballance provided the following reasons:

[150]     Ms. Woelders was 31 years old when the Accident happened.  For more than six years, she has been plagued by headaches and pain in her neck/upper back/right shoulder region and in her face and jaw, together with a simmering muscle tension that can transform into pain.  The intensity and frequency of Ms. Woelders’ chronic symptoms have declined over the years and her overall condition has improved in large measure due to her sheer grit and determination (to her credit) coupled with her diligent rehabilitation efforts and implementation of pain management strategies.  Even so, and while there is a slim chance she may enjoy some marginal improvement going forward, her symptoms are enduring and continue to be problematic and remain susceptible to exacerbation by commonplace tasks and maneuvers at work, at home and recreationally.

[151]     The ill‑effects of the Accident have negatively impacted the quality and enjoyment of Ms. Woelders’ interactions with her children.  She experienced pain and difficulty nursing her youngest and lifting and carrying both her children.  She is reluctant to pick them up for fear she will trigger her symptoms.  She goes through much of her life on-guard, evaluating whether certain movements will activate her symptoms and trying to make the modifications that may be required.

[152]     Ms. Woelders is from a close‑knit family.  Since the Accident, she has curtailed her participation in family gatherings, has all but ceased organizing them, and feels the need to leave get‑togethers early when her symptoms flare.

[153]     I accept the evidence of Ms. Woelders’ twin sister, Ann Pimentel, to the effect that Ms. Woelders was in peak physical condition before the Accident.  Ms. Pimentel spoke with emotion about how her sister’s injuries have visibly aged her and that she had lost her “spark” after the Accident.  Ms. Woelders’ husband and mother gave similar testimony, which I also accept.

[154]     Ms. Woelders’ formerly high-energy and optimistic personality has been overshadowed by a less positive, more serious self with less energy and spark.  I accept her mother’s evidence that she has recently made a point of taking the children after school on Fridays primarily because her daughter is drained at the end of the work week and needs time to rest and rejuvenate.

[155]     The medical evidence indicates that Ms. Woelders will be prone to headaches and periods of aggravation of her unresolved symptoms for years to come, and likely indefinitely to one degree or another.  In prior cases, I have observed that enduring pain, even when it is intermittent, can compel unfavourable adjustments to one’s work life and lifestyle and cloud the pleasures of life, as it clearly has in Ms. Woelders’ case.  Taking care to not aggravate her residual symptoms and trying to manage her pain, even during the times that things seem to be under control, has become part of Ms. Woelders’ everyday life or, as she aptly put it, her “new normal”.  This is an unwelcome new reality for Ms. Woelders and her family.

[156]     Ms. Woelders finds certain kinds of housework difficult.  Although she continues to perform most of her pre‑Accident share of the housekeeping, it is not done to her pre‑Accident standards.  The evidence concerning her compromised housekeeping capacity was under‑developed at trial.  I accept that she has impairments in this regard but am not persuaded that they justify a stand-alone award of damages as Ms. Woelders has urged.  Instead, I have considered it as a factor in the assessment of her non-pecuniary damages.

[157]     I have reviewed the authorities placed before me by counsel.  The cases submitted by the defendant are, for the most part, factually distinguishable in material ways and are less instructive than those relied by Ms. Woelders.  In any event, the case law only provides rough guidelines for what is, at its core, a highly individualized assessment: Karim v. Li, 2015 BCSC 498 at para. 120.  Having regard to the Stapley factors and to the other case authorities in the context of the evidence in the case at hand, in my opinion, a fair and reasonable award for Ms. Woelders’ non-pecuniary damages is $85,000.

Be Sociable, Share!

Tags: , ,