BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Back Injury (soft tissue) Cases’ Category

$70,000 Non-Pecuniary Assessment for Chronic Low Back Injury

October 17th, 2016

Adding to this site’s archived posts of ICBC back injury claims reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry assessing damages for a chronic low back injury.

In today’s case (O’Brien v. Cernovec) the Plaintiff was involved in a 2011 T-bone intersection collision caused by the Defendant.  The Plaintiff sustained a variety of soft tissue injuries that resolved in short order however he was left with a chronic low back injury that continued to the time of trial and was expected to persistent indefinitely.  In assessing non-pecuniary damages t $70,000 Mr. Justice Pearlman provided the following reasons:

[93]         Here, the plaintiff has been consistent in reporting his symptoms and the progress of this recovery to each of the medical experts, and in his testimony at trial.  Mr. O’Brien readily acknowledged that he had recovered from the soft tissue injuries to his mid-back, shoulders, neck, legs, knees and wrists within two months of the accident.  I find that at trial the plaintiff did his best to provide an unembellished, matter-of- fact account of his injuries as he recalled them, and as they persist.  Drs. Adrian and Horlick both agreed that the plaintiff’s history, his description of the accident, their findings on physical examination and the results of the medical imaging are consistent with the plaintiff having sustained injuries, whether described as mechanical or myofascial, to the tissues of his lower back.  I am satisfied that Mr. O’Brien experiences the chronic low back pain he described in his testimony.

[94]         Since October 2012, Mr. O’Brien has completed all of his regular full-time shifts, occasionally with accommodations from his current employer or assistance from fellow employees.  However, as a result of his low back pain, he tires as the day progresses, experiences pain and discomfort, and sometimes struggles to complete his shifts. Mr. O’Brien no longer derives the same enjoyment from his work as he did before the accident.  He is a stoic who does his best to get on with and complete the work assigned to him.

[95]         I also take note of the fact that the plaintiff, while frequently turning down overtime, has worked 14 overtime shifts since August 1, 2015. The fact that the plaintiff has worked some overtime is consistent with the evidence that his symptoms fluctuate and that some work days are better than others.

[96]         I attach little weight to the fact that Mr. O’Brien has not used prescription painkillers, anti-inflammatories or muscle relaxants since a month or so after they were last prescribed in late July 2012.  Mr. O’Brien prefers to limit his use of prescription medications.  Since the summer of 2012, he has used over-the-counter Advil and Tylenol to assist in managing flares in his low back pain. He copes with considerable discomfort in the workplace and does his best to fulfil the requirements of a physically demanding job.

[97]         The plaintiff has experienced frustration with his failure to make a full recovery from his injuries. His frustration at times leads him to withdraw into himself, and to limit his social contacts.

[98]         The plaintiff, at age 23, will probably continue to experience his persistent low back ache, intermittent numbness in his left leg, and flares of low back pain of varying intensity indefinitely, and with no significant improvement.  Fortunately, he is unlikely to suffer any progressive deterioration of his low back injury.

[99]         Mr. O’Brien is able to perform all housekeeping tasks, when asked.  However, chores such as mowing the lawn or cleaning his bathroom cause some discomfort and take longer than before the accident.  When Mr. O’Brien and Ms. Allison have their own home, the plaintiff’s responsibilities for housekeeping and home maintenance will increase.  He will experience discomfort and occasional pain in performing tasks that require prolonged bending or stooping.

[100]     Mr. O’Brien continues to take part in a range of recreational activities but participates in some at a lower level of intensity, and with less frequency than before the accident.  The plaintiff and Ms. Allison walk their dogs together and attend yoga classes.  Mr. O’Brien goes on lighter hikes but is unable, as a result of his persistent back pain, to join his friends on overnight treks.  Since the accident, he had played baseball and football occasionally.  While he is able to throw a ball, batting aggravates his back pain.  The plaintiff performs home-based stretching exercises four times a week and attends a gym where he works on both cardio exercises and core strengthening to alleviate his back pain.  He has attempted horseback riding, a favourite activity of Ms. Allison, but finds it aggravates his back pain.  On a recent trip to Ireland, he was able to ride a horse, at a walk, for 90 minutes, with considerable discomfort.  He has modified or reduced some activities in order to minimize his lower back pain.  When he and Ms. Allison watch television or a movie together, he will shift his sitting positions, and after 30 minutes or so will stand up and stretch in order to relieve discomfort from prolonged sitting.

[101]       As a result of the defendant’s negligence, the plaintiff has suffered some diminution in his enjoyment of life.

[102]     The plaintiff’s mother corroborated his evidence that he is frustrated by his persistent symptoms of low back pain, and his lack of progress toward recovery.

[103]     While Mr. O’Brien’s still socializes with his friends, he does so less frequently than before the accident.  His mood declines when his pain flares.

[104]     Ms. Allison corroborated the plaintiff’s evidence that his symptoms vary, and that he has some bad days when he experiences significant pain.  On those occasions, the plaintiff becomes more reserved and withdrawn.  However, both the plaintiff and Ms. Allison confirmed that they have a committed relationship. 

[105]     The plaintiff continues to enjoy a close relationship with his family and with Ms. Allison. His injuries have not resulted in any significant impairment of his family and emotional relationships.

[106]     Taking into account the plaintiff’s particular circumstances, all of the Stapley factors, including the probability that Mr. O’Brien, at age 23, will continue to experience persistent low back discomfort and intermittent flares of pain indefinitely, and after considering all of the authorities cited by counsel, I assess damages for the plaintiff’s pain and suffering and loss of enjoyment of life in the amount of $70,000.

$90,000 Non-Pecuniary Assessment for Lumbar Facet Joint Syndrome

October 12th, 2016

Adding to this site’s archived posts of ICBC back injury claims, reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic, partly disabling back injury.

In today’s case (Klein v. Sangha) the Plaintiff was injured in 2 collisions.  Fault was admitted and the trial focused solely on the quantum of the Plaintiff’s claim.  In finding the collisions resulted in a lumbar facet joint injury giving rise to chronic pain the Court provided the following reasons in assessing non-pecuniary damages at $90,000 –

[51]         It is clear on the medical evidence, particularly Dr. Rickards’ evidence, that Mr. Klein probably suffered Lumbar Facet Joint Syndrome as a result of the first accident and that, as a 39 year old male who had suffered “some” degenerative disc disease to his cervical back area, he was susceptible to such an injury…

[57]         Considering the inexhaustive list of common factors influencing an award of non-pecuniary damages referred to above, I note the following factors are particularly applicable:

(a)      The age of the plaintiff. Mr. Klein was in his late thirties at the time of the first accident in a well-established occupation which provided financial and personal satisfaction to him. But for the accident, Mr. Klein would have had many more years of job satisfaction.

(b)      The nature of the injury. Mr. Klein’s injury, specifically to his spine, affects all aspects of life including work, play, sleep and everyday chores.

(c)      The severity of pain. Mr. Klein’s pain has left him bed-ridden for prolonged periods of time, interfered with his graduated return to work and led to much pain and frustration over four years.

(d)      The disability. Mr. Klein’s disability meant he could only return to work on a part-time basis before the second accident. He has only been able to undertake some of the tasks he was able to complete before the accident and only with resulting pain.

(h)      Impairment of physical abilities. This is obvious from Mr. Klein’s evidence and Dr. Rickards’ report.

(i)       Loss of lifestyle. Mr. Klein is no longer able to participate in sporting activities, except for a very short period of time. He cannot continue his chosen line of work which gave him great satisfaction in the past, i.e. working with his hands. He has suffered loss of sleep and cannot maintain a home without assistance. He now relies on friends for help whereas he was previously very independent. He has expressed considerable frustration in spite of his efforts to improve including physiotherapy, exercise, acupuncture and more. Nonetheless, he has been told to expand his efforts at establishing an exercise program.

(j)       The plaintiff’s stoicism. Mr. Klein has exemplified stoicism by attempting to return to work, to establish and restore a construction business  in a modified scenario from his pre-accident work and to continue to support his daughter who was suffering from depression while Mr. Klein was dealing with his injuries. Every aspect of his life has been affected by his injuries…

[62]         Mr. Klein expressed considerable frustration at his inability to function at work and in all other aspects of his life. I found his evidence in this respect to be credible. He also thinks, quite reasonably, considering his experiences since the accident, that he will likely be affected by the injuries for a considerable time to come.

[63]         I have also considered Dr. Rickards’ evidence about a rehabilitation program he proposed to Mr. Klein to minimize or possibly overcome the effect of his injuries. I have considered his injuries to date and the likelihood that he may never totally recover from them in the above assessment of non-pecuniary damages. Considering all of the evidence and authorities, I find an appropriate award of non-pecuniary damages to be $90,000.

$110,000 Non-Pecuniary Assessment for Concussion and Chronic Low Back Pain

September 30th, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion and chronic soft tissue injuries sustained in a collision.

In today’s case (Purewal v. Li) the Plaintiff was involved in a 2012 intersection collision.  The court found the Defendant fully responsible for the crash.  The Plaintiff suffered a concussion, chronic headaches, chronic low back pain and aggravation of some pre-existing injuries.  The collision resulted in substantial time away from work along with lingering injuries at the time of trial.  I assessing non-pecuniary damages at $110,000 Mr. Justice Greyell provided the following reasons:

[156]     The impact sustained by the plaintiff’s vehicle during the Accident was unexpected and substantial. The injuries sustained by the plaintiff included a concussion when he struck his head, ongoing headaches and substantial soft tissue injuries to his shoulder, upper, mid and lower back. I find the Accident aggravated injuries sustained by Mr. Purewal in the Prior Accident. In addition, I find Mr. Purewal had interrupted sleep and developed a depressed mood as a result of his ongoing pain and discomfort which has affected his family life, including his relationship with his daughters and his wife. While Mr. Purewal has returned to work he will likely continue to suffer from lower back pain which will, over time, limit his ability to work the amount of overtime as he has in the past.

[157]     Based on the principles set out in Stapley and on my review of the cases cited by counsel Mr. Purewal’s non-pecuniary loss should be assessed at $110,000, which includes a consideration of the degenerative condition of Mr. Purewal’s lower back.

$65,000 Non-Pecuniary Assessment for “Persistent Myofascial Pain”

August 23rd, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic back injury.

In today’s case (Cirillo v. Mai) the Plaintiff was involved in a 2012 collision where her vehicle was struck and pushed into oncoming traffic where she was struck a second time.  The Plaintiff suffered a chronic back injury with symptoms continuing at the time of trial and expected to likely persist into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Hinkson provided the following reasons:

[41]         Dr. Khalfan commented in her report of April 20, 2016 that:

a)       The plaintiff’s diagnosis at that time was persistent myofascial pain as a result of the Collision.

b)       The plaintiff’s range of motion in her spine was good, other than her spinal extension, which demonstrated significant impairments.

c)       The plaintiff had first received trigger point injection treatment on January 26, 2016. Other than experiencing some short-term flare-ups in pain for after treatment, the plaintiff responded well to the injections, and reported 50% improvement in her pain by the fifth treatment.

d)       By the sixth trigger point injection on April 12, 2016, the plaintiff had plateaued with that treatment, and decided to pursue ultrasound-guided injection treatment, which would require a series of diagnostic tests.

e)       Because the plaintiff responded well to trigger point injections, Dr. Khalfan was optimistic that the plaintiff would continue to experience improvement with ultrasound-guided injection treatment. Dr. Khalfan expected that the plaintiff would experience appreciable improvement of her symptoms in the future, but was unable to predict with precision the degree to which the plaintiff would recover.

f)        Given the fact that the plaintiff has experienced pain for years after the Collision, it is unlikely that she will experience full recovery of all symptoms. Dr. Khalfan opined that it was likely that the plaintiff would have ongoing pain well into the future and possibly indefinitely.

g)       Dr. Khalfan recommended a focused strengthening and stabilizing exercise program as a possible management tool for mitigating the plaintiff’s limitations and pain…

[92]         The authorities relied upon by the plaintiff are all cases where the injured parties suffered from chronic pain. Although I accept that Ms. Cirillo continues to experience back pain, I am unable to accept that it rises to the level of chronic pain as that term is used in the cases that she relies upon. While she may experience the improvement in her pain that is hoped for by Dr. Khalfan, I do not regard that as likely. I consider that the injuries and ongoing difficulties that she experiences are more consistent with the difficulties described in the awards cited by the defendant, with the exception of the loss of her ability to participate in the sport that she pursued with such devotion and considerable success before the Collisions.

[93]          As I have already found, it is unlikely that she would have been able to continue with her level of activity in the sport for much longer than she did, but the choice to do so was taken from her by her injuries from the Collisions, and this, in my view, elevates her damages from the range that can be derived from the cases relied upon by the defendant. I therefore assess her non-pecuniary damages at $65,000.

$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

June 23rd, 2016

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.

In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.

In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.

$75,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

June 7th, 2016

Adding to this site’s soft tissue injury case archives, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic low back and neck soft tissue injuries.

In today’s case (Lampkin v. Walls) the Plaintiff was involved in a 2009 rear-end collision caused by the Defendant.  The Defendant admitted fault.  The Plaintiff suffered injuries to his neck and back which remained symptomatic at trial, were expected to carry on to the future and resulted in a permanent partial disability.  I assessing non-pecuniary damages at $75,000 Madam Justice Watchuk provided the following reasons:

[129]     I substantially agree with the application by Mr. Lampkin of the factors as set out in Stapley v. Hejslet. I accept the following facts with respect to these factors:

(a)  Age of the Plaintiff:  Mr. Lampkin is currently 46 years old. Both he and his wife are involved in raising their two children, Lexxus and Nathaniel. Prior to the accident, Mr. Lampkin enjoyed taking Lexxus to the park and playing soccer with him. As a family, they enjoyed going to the beach for barbeques and attending festivals. A great deal of this enjoyment has not been possible since the accident. Given his age, Mr. Lampkin has less opportunity to heal or find alternative ways to enjoy recreational activities.

(b)  Nature of the Injury:  Mr. Lampkin has been experiencing pain primarily in his neck and back for over 6 years. He reported those and other injuries immediately following the accident, and he continues to experience them although in lesser degrees. The pain affects his work and his day-to-day activities including driving, playing sports and playing with his children. At the end of a work day, Mr. Lampkin’s injuries are aggravated leaving him with little energy or patience to pursue his usual after work activities.

(c)  Severity and duration of the pain:  Mr. Lampkin’s injuries tend to vary depending on his activities. When he has had time to rest, the severity of his pain is manageable. However, after a work day, Mr. Lampkin requires pain medication to manage the pain. His symptoms are focused in his neck and back. The medical evidence supports that, in particular, Mr. Lampkin’s low-back symptoms are unlikely to resolve.

(d)  Disability:  Mr. Lampkin is partially restricted in many of his activities and has not been able to return to cricket. He is careful not to aggravate his neck or back. He now takes much longer to do things than he used to and is frustrated by his lack of energy.

(e)  Emotional suffering:  There is no doubt that Mr. Lampkin is clearly frustrated by his injuries. Ms. Rouse explained that Mr. Lampkin is much more irritable than he used to be.

(f)    Impairment of life:  Mr. Lampkin no longer plays cricket and is less interested in hobbies such as attending festivals, going to the beach or playing soccer. Doing too much tends to aggravate his symptoms.

(g)  Impairment of family, marital and social relationships:  Although Mr. Lampkin and Ms. Rouse have reconciled since the accident, Mr. Rouse has noted a significant change in Mr. Lampkin. He often does not have energy or is in too much pain to play with Lexxus. He is also much more irritable than he used to be.

(h)  Impairment of physical and mental abilities:  The injuries to his neck and back have directly impacted his ability to play soccer, basketball and cricket. Mr. Lampkin used to enjoy staying active but is now concerned that these activities will aggravate his symptoms.

(i)    Loss of lifestyle:  Mr. Lampkin and Ms. Rouse were carefree people. They now have to deal with their continued loss of income, particularly with raising a young family. Mr. Lampkin is also worried about his ability to partake in his sons’ lives and wants to be able to play sports with them.

(j)    The plaintiff’s stoicism:  Mr. Lampkin is resilient and hardworking. He takes pride in his ability to provide for his family and his skills. Despite the continued pain, Mr. Lampkin has continued to work in physical jobs, working as many as seven days per week. He was fortunate to have two employers in landscaping who made accommodations to assist him.

[140]     It is necessary to consider each case individually and I find that all of the cases relied on by the plaintiff have important differences with the plaintiff’s circumstances here. However, I find that those cases are informative for circumstances where the plaintiff has somewhat similar injuries and is limited to varying degrees in both their jobs and recreational pursuits. Mr. Lampkin is no longer able to perform the heavy tasks that he has relied upon to learn a living. In addition, he had excelled in cricket for his entire life and is no longer able to play this sport that was central to his identity both in St. Vincent and Canada. Considering all of the factors, I find that an appropriate award for non-pecuniary damages is $75,000.

$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

May 5th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.

In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.

In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:

63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…

[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.

$45,000 Non-Pecuniary Assessment for “Persistent Episodes of Low Back Pain”

May 1st, 2016

Reasons for judgment were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a persistent low back injury.

In the recent case (Jones v. McLerie) the Plaintiff was involved in a 2011 rear-end collision that the Defendant admitted fault for.  The collision caused a low back soft tissue injury that persisted to the time of trial with symptoms flaring with heavier physical activity.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[37]         I find that Mr. Jones continues to be significantly affected by persistent episodes of low back pain triggered by heavier physical exertion. Mr. Jones struck me as a somewhat stoic individual, inclined to understate the impact of his condition. He is the sole breadwinner of his young family, and he seems determined not to let his symptoms substantially interfere with his life. That having been said there have been some restrictions imposed on his physical activities and his enjoyment of life has been negatively impacted, to a relatively minor though not insignificant extent, and his relationships with family members has been adversely affected….

[39]         Exercise – or the lack thereof – has been and will be a key component in his recovery. I am struck by Dr. Helper’s opinion that Mr. Jones has a “good probability of maintaining his low back symptoms at a mild degree of severity with a dedication to fitness…”. I am not, contrary to the submission of the defence, going to reduce Mr. Jones’ damages award for a failure to mitigate by reason of him not having undertaken a regular exercise program; the strains of coping with a young family and with changes in his employment have, in my view understandably, led to him not making exercise a priority. However Dr. Helper’s assessment has brought home how critical exercise will be. Mr. Jones, with a young family to care for her, would appear to be strongly motivated to dedicate himself to exercise recovery program that will, as Dr. Helper says, maintain his symptoms at a mild degree of severity.

[40]         There is, of course, a risk that he will not do so, but in that eventuality any worsening of his symptoms would, going forward, substantially arise from his own failure to mitigate, limiting the defendant’s responsibility…

[50]         I assessed his general damages in the amount of $45,000.

$90,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

March 31st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.

In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012.  The Defendants admitted fault for both.  As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future.  The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice.  In reaching this assessment Madam Justice Baker provided the following reasons:

[147]     I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident.  The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident.  She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain.  These complaints resolved within a short time.  Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.

[148]     I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident.   She did not miss work as a security guard after the first accident.  She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months.  She was sufficiently recovered to travel to India three months after the accident and remained there for about two months.  On her return from India she resumed working as a security guard and doing janitorial work.  She attempted to return to the Sears job but was not re-hired.

[149]     Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial.  Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.

[150]     The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.

[151]     I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial.  Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time.  I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength.  I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…

[194]     Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted.  I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500. 

$80,000 Non-Pecuniary Assessment for Chronic and Permanent Low Back Injury

January 13th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury sustained in a collision.

In today’s case (Gunson v. Sekhon) the Plaintiff was involved in a 2010 collision caused by the Defendant.  The plaintiff suffered a chronic and permanent low back injury.  The lingering symptoms caused some difficulties for the Plaintiff at work but did not outright disable him.  In assessing non-pecuniary damages at $80,000 Mr. Justice Grauer provided the following reasons:

[12]         It is not contested that Mr. Gunson suffered soft tissue injuries to his neck and back with symptoms including dizziness, headache and sleep loss, most of which problems were resolved within a year of the accident.  On his physician’s advice, Mr. Gunson took 28 days off work and underwent a course of physiotherapy.  I accept that he also suffered an exacerbation of pre‑existing situational depression related to his marital and financial difficulties. 

[13]         What did not resolve and is unlikely ever to resolve is injury to Mr. Gunson’s lower back, which I find has become chronic in the form of ongoing intermittent lower back pain and was caused by the accident.  An MRI taken at the request of Dr. Hershler demonstrated “mild changes consistent with facet joint arthropathy and ligamentum flavum hypertrophy at L3/4 and L5‑S1″, as well as shallow posterior disc bulge with a “minimal central canal encroachment but…mild encroachment on the left L4 nerve root”.  I am satisfied that these changes are part of the lower back injury caused by the accident.

[14]         Dr. Waiz recommended physiotherapy and approved a course of chiropractic treatment, while Dr. Hershler recommended a supervised one‑on‑one active exercise program to assist with further pain management. 

[15]         Apart from the first course of physiotherapy immediately following the accident, which was helpful, Mr. Gunson has not pursued these recommended treatments.  The defence does not, however, allege a failure to mitigate.  Rather, it points to this as indicative of Mr. Gunson’s ability to work without the need of such therapy.

[16]         What is the result of this chronic lower back injury?  Mr. Gunson concedes that he did not do housework before the accident, but he did do yard work and does less now.  He advances no claim for loss of housekeeping capacity.  As his counsel submitted, his real focus in life has been his work. 

[17]         Mr. Gunson continued to work full‑time, but testified that he has had to adjust how he has carried out his job, which is clearly a physically‑demanding one, delegating more of the heavy physical work to junior crew members and resting as required.  I will have more to say about this in relation to his claim for loss of income earning capacity.  At this point, I observe that, notwithstanding the injury he has clearly suffered, he has maintained full‑time employment for over five years, has taken no time off as a result of the injury beyond the first 28 days, has not found it necessary to undergo physical therapy or take pain medication, and was able to change employers twice, by choice, without any impediment arising from his physical condition.

[18]         Mr. Gunson also testified that his injury interferes with his ability to play with his growing children, particularly his three‑year‑old, so that he is unable to be as close to them as he would like.  If his back discomfort is aggravated by his work, it interrupts his sleep.  He has not been able to engage in activities such as snowmobiling and golf, and finds that long rides on his Harley cause a flare‑up of the lower back pain. 

[27]         In all of the circumstances of this case, I conclude that an appropriate award would be $80,000.