ICBC Law

Reasons for judgemet were released last week by the BC Supreme Court, New Westminster Registry, assessing damags for injuries sustained in multiple collisions.

In last week’s case (Bansi v. Pye) the Plaintiff was involved in two collisions, the first in 2005, the second in 2008.  The Plaintiff was faultless for both collisions focussing the trial on an assessment of damages.  The Plaintiff suffered varoius injuries which were recovering when they were aggravated by the secod crash.  These included various soft tissue injuries and headaches which were expected to last indefinatly and to limit the Plaintiff in his trade in construction management.  In assessing non-pecuniary damages at $75,000 Mr. Justice Jenkins provided the following reasons:

[33] Also at page 7 of her report of January 11, 2011, Dr. Caillier listed “The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation of pre-existing symptoms involving the neck, upper back, and lower back regions.

5.         Soft tissue musculoligamentous injury involving the neck, upper back, and posterior shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to participate in the functional, recreational, and vocational activities of his choosing.

[34] Further at page 9, Dr. Caillier stated:

It is my opinion, given the chronicity of Mr. Bansi’s physical symptoms, both following that of the first motor vehicle accident as well as ongoing since the time of the second motor vehicle accident, the likelihood of him becoming pain-free is very poor…

[42] The two MVAs have had a significant negative impact on Mr. Bansi’s lifestyle and quality of life. Mr. Bansi had previously been very active and energetic whether in working on home renovations, exercising at the gym, cycling, washing family vehicles, participating in family events, services and prayers at the temple, working at household chores including maintenance of the gardens and yard, driving family members for appointments, shopping and much more.

[43] Since the MVAs, he has had considerable difficulty driving for any significant time, he no longer looks after the family gardens and yard, rarely socializes with family or at the temple, lacks motivation, spends more time alone in his suite at the family home, rarely takes care of his young niece and nephew, no longer goes on bike rides with his sister and has clearly had significant problems in carrying out his duties on construction sites. Not only has he had difficulty performing the work, his productivity is considerably impaired and what were simple physical tasks now take much longer. His employers have also noted his decrease in production and energy on the work site which I will address further in his claim for past loss of income and diminished earning capacity…

[52] …Considering that the injuries sustained by Mr. Bansi are not seriously challenged, his lower back injury is likely permanent, having to start his rehabilitation over again after the 2008 MVA will have an impact on his psyche, the difficulties he is having in performing previously simple tasks which were part of his job as a construction manager, the likelihood of him having to persevere with chronic pain in the future, and the resulting loss of enjoyment of life, I find an appropriate award of non-pecuniary damages to be $75,000.

When assessing damages in a tort claim, the labels attached to injuries are far less important than the actual consequences of the injuries.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this in the context of a chronic pain case.

In this week’s case (Cantin v. Petersen) the Plaintiff was involved in an intersection collision in 2004.  Fault was admitted by the offending motorist.  The crash caused injuries resulting in chronic pain which persisted to the time of trial and was expected to continue indefinitely.  The medical labels attached to the injuries varied from ‘fibromyalgia‘ to ‘chronic pain syndrome‘.  The Plaintiff argued that “it is unnecessary to label the injuries” in the pursuit of lawful compensation.

Madam Justice Bruce accepted that, whatever the label, the Plaintiff’s symptoms were related to the collision and awarded the Plaintiff $150,000 in non-pecuniary damages.  In doing so the Court made the following findings:

[12] While there is generally a consensus among the medical experts regarding the initial diagnosis of Ms. Cantin’s injuries stemming from the accident, there is a considerable division of opinion as to the causes of her current complaints and symptoms. None of the physicians who examined Ms. Cantin and provided expert medical opinions doubted the veracity of her complaints of pain. The dispute among the experts lies in the cause of her current symptoms. While Ms. Petersen argues Ms. Cantin’s physicians have become advocates for her claim rather than independent experts, it is significant that none of the experts had any doubt that Ms. Cantin was suffering real and substantial pain symptoms. In addition, I cannot agree that Ms. Cantin’s physicians were advocates for her claim. They were passionate about their work in the field of chronic pain, and disagreed with the opinions of the defence experts concerning the cause of Ms. Cantin’s continuing symptoms. In my view, this does not render their opinions less reliable or less credible…

[22] There is no question that Ms. Cantin continues to suffer pain in her upper back, shoulders and neck. None of the medical experts believed she was fabricating her complaints or was malingering. There is no evidence of an intervening event that would break the chain of causation between the aggravation of Ms. Cantin’s chronic pain and the collision. The possibility that Ms. Cantin would have experienced the same symptoms in any event is a factor taken into account in determining damages; it is not relevant to causation. Thus I find that Ms. Petersen is liable for the continuing injury to Ms. Cantin’s upper back, shoulders and neck. A comparison of her condition before and after the accident will determine the quantum of damages and the extent of Ms. Petersen’s responsibility for Ms. Cantin’s present condition.

[23] Similarly, I find Ms. Petersen liable for Ms. Cantin’s continuing headache pain as these are causally connected to her chronic pain syndrome in her upper and lower body. The extent of Ms. Petersen’s responsibility will be determined by a comparison of Ms. Cantin’s past experience with headaches and her current experience…

[45] The soft tissue injuries occasioned by the accident have led to the development of serious, chronic pain in Ms. Cantin’s upper and lower spine, hips, and legs. Despite many types of therapy, she has continued to experience serious pain and a drastic reduction in her functional mobility for almost eight years since the accident. Ms. Cantin has lost the ability to work in a competitive labour market; she has no social life outside her home and her relationship with family members has deteriorated substantially as a result of her constant pain and mental distress. She is unable to achieve restful sleep; has suffered a cognitive decline in memory; and has become a social recluse. Her prognosis for any level of recovery is extremely guarded.

[46] While I believe the quantum of damages suggested by Ms. Cantin, adjusted for inflation, is more reflective of her loss than the range posited by Ms. Petersen, a lower amount is appropriate given the risks inherent in her pre-existing condition. Therefore, I award $150,000 in general damages for pain and suffering.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for bilateral thoracic outlet syndrome and other chronic soft tissue injuries.

In yesterday’s case (Olson v. Ironside) the Plaintiff was involved in a ’signigicant collision’ in 2008.  ICBC admitted fault on behalf of the Defendant. The Court heard competing evidence with respect to the extent of the Plaintiff’s injuries and ultimately sided with the Plaintiff’s experts noting ICBC’s expert failed “to consider significant material facts“.

The 19 year old Plaintiff suffered multiple injuries, the most serious of which was bilateral thoracic outlet syndrome.  These were expected to cause a permanent partial disability limiting the Plaintiff for the balance of her working years.  In assessing non-pecuniary damages at $100,000 Mr. Justice Josephson provided the following reasons for judgement:

[60] The plaintiff has proved that, but for the accident, she would have continued her healthy, active and outgoing life style. I accept the plaintiff’s submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission; and

9.       permanent right temporomandibular joint dysfunction.

[61] The accident had a dramatic effect on all aspects of this young plaintiff’s life because of the symptoms listed in the previous paragraph. She has learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62] Of the several case authorities cited by the plaintiff to assist the Court in determining non-pecuniary damages in the case at bar, the most helpful are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010 BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335;Prince-Wright v. Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211.  The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63] After reviewing the authorities cited to me and considering the impact of the proven injuries on the plaintiff’s daily life, I award the plaintiff $100,000 for non-pecuniary damages, which I consider to be a mid-range award for the circumstances of this case.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing causation and quantum of damages for chronic pain syndrome.

In this week’s case (Mohan v. Khan) the Plaintiff was involved in a 2007 collision in Vancouver, BC.  Although ICBC denied the issue of fault the Defendant was ultimately found fully liable for the crash.  The Plaintiff suffered various soft tissue injuries and went to suffer from a chronic pain disorder.  Despite some concerns about the Plaintiff’s ‘exaggeration‘ and a further finding that the Plaintiff failed to mitigate her damages the Court assessed non-pecuniary damages at $100,000.  In doing so Mr. Justice Bowden provided the following reasons:

[158] This case went to trial approximately 4½ years after the motor vehicle accident in which the plaintiff was injured. There is no question that the plaintiff suffered soft tissue injuries from the accident. Had those injuries taken three or four months to resolve, this litigation would most likely not have taken place. What has led to this court case and a substantial claim for damages is that the plaintiff asserts that she suffers from what is described as chronic pain disorder long after her physical injuries from the accident have resolved.

[159] Based on the evidence of the medical experts it is apparent that chronic pain disorder is a condition that involves both physical trauma and psychological factors…

[163] Based on the testimony of the medical experts I am satisfied that the pain described by the plaintiff, in large part, is real and I do not find her to be dishonest. However, in my view, she has exaggerated her symptoms to some degree…

[168] Having considered these opinions and the opinions of the other experts, I am satisfied that the motor vehicle accident, which I have already determined to have resulted from the defendant Mohan’s negligence, was largely, although not exclusively, the cause of the plaintiff’s “constellation” of conditions. The plaintiff has established on a balance of probabilities that the defendant’s negligence materially contributed to her condition. I am also satisfied that the plaintiff’s condition is not motivated by a desire for secondary gain. By that I mean the third principle stated by Lambert J. I accept that the plaintiff wishes to be free from her pain; however, her failure to mitigate, much like the exaggeration of her symptoms, in my view should be considered in the determination of damages.

[169] Dr. Anderson and Dr. Caillier both expressed the opinion that the plaintiff suffered from chronic pain disorder. None of the medical experts said that the plaintiff does not suffer from chronic pain disorder. The defendant’s expert neurologist Dr. Teal opined that the plaintiff’s primary problems were related to symptoms of pain which are significantly amplified by psychological factors. At the same time, he agreed with counsel for the plaintiff that some of his observations were consistent with someone with chronic pain disorder.

[170] I am satisfied that the plaintiff’s condition is properly described as chronic pain disorder…

[187] Having considered the cases referred to by counsel for both parties, and factoring in the failure of the plaintiff to mitigate as well as her exaggeration of her symptoms, I have concluded that an award of non-pecuniary damages should be $100,000.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic pain disorder caused by a motor vehicle collision.

In yesterday’s case (Loveys v. Fleetham) the Plaintiff was involved in a significastn 2006 collision.   The Plaintiff was struck by an out of control large truck driven by the Defendant.  The force of impact pushed the Plaintiff’s vehicle off the road.  The Plaintiff alleged she suffered physical and psychiatric injuries as a consequence of the crash.

Mr. Justice Armstrong found that the Plaintiff did suffer from physical injuries which went on to cause a chronic pain disorder.  The court did not find the Plaintiff’s psychiatric difficulties were related to the collision finding these had their origin in other life events.  The reasons for judgement are useful for the Courts lengthy discussion of causation and indivisible injuries.  In assessing non-pecuniary damages at $65,000 Mr. Justice Armstrong provided the following reasons:

[191] I am satisfied that Ms. Loveys suffered soft tissue injuries to her neck, back and shoulder and that those areas of complaint have evolved into a chronic pain disorder. I accept the plaintiff’s chronic pain was caused by the accidents. I also accept that she experienced an exacerbation of her pre-existing symptoms of depression and bulimia after the accident; the plaintiff has not proven that “but for the accident” she would have suffered the recurrent bulimia, acute stress disorder and/or depression.

[192] Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents’ illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.

[193] In my view Ms. Loveys’ psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted…

[214] I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.

[215] Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.

[216] Even on an intermittent basis, chronic pain deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys’ recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for chronic pain following a motor vehicle collision.

In this week’s case (Azuma-Dao v. MKA Leasing Ltd.) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  Following the crash the Plaintiff suffered from chronic pain from soft tissue injuries possibly with “spinal facet joint or disk pathology”.  Her injuries compromised her ability to work in her chosen profession and, despite room for improvement, were expected to continue to cause problems for the foreseeable future.  In assessing non-pecuniary damages at $65,000 Madam Justice Humphries provided the following reasons:

[80] The plaintiff’s life has changed substantially as a result of the accident, and she suffers chronic pain.  From a fit, very active person, she has become withdrawn, moody, and deconditioned.  Her friends and her husband find her to be a different person, no longer active and happy go lucky.  She endures pain every day, but she works very hard at her exercises.  Her work with disabled adults was very important to her and required a fit strong body, which she no longer has.  Despite her withdrawal, she maintains a social life, but the activities she and her friends do are now more sedentary.

[81] I set her non-pecuniary damages at $65,000

Another point of interest was the Court’s discussion of the Adverse Inference principle.  In the course of the lawsuit the Plaintiff obtained and produced clinical records from her GP.  She did not call the doctor in support of her case.  The Defendant argued that an adverse inference should be drawn but the Court refused to do so finding that it was open to the Defendant to call this physician if they wished.  Madam Justice Humphries provided the following reasons:

[45] I will mention the issue of adverse inference at this point.  Since all of Dr. Frank’s clinical notes were provided to the defence and Ms. Azuma-Dao admitted the relevant portions on cross-examination, I am not prepared to draw an adverse inference against the plaintiff for failing to call Dr. Frank, who was of course available to either side and was in fact on the defendants’ witness list.  However, since the defence gained what they required on cross-examination of the plaintiff, they cannot be faulted either for not calling Dr. Frank.

Reasons for judgement were released this week providing feedback on valuing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) noting that injuries cannot be addressed in a piece-meal fashion and instead the total consequences need to be considered.

In this week’s case (Engqvist v. Doyle) the Plaintiff was involved in two collisions.  She was not at fault for either.  The crashes caused various soft tissue injuries which required diagnostic medial nerve blocks and depending on the result the possibility of facet rhizotomies.  The Plaintiff also sustained a dental injury.   Given the planned further medical intervention there was likelihood of improvement but also a good chance that the Plaintiff’s injuries would pose permanent difficulties.  Global Non-Pecuniary Damages of $70,000 were assessed for the Plaintiff’s injuries.

In arriving at this figure Mr. Justice Rogers provided the following comments addressing the fact that it is wrong to stack injuries in assessing non-pecuniary damage awards:

[28] The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.

[29] I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.

[30] I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.

For a discussion of the factors BC Courts do consider in assessing non-pecuniary damages you can click here for a podcast I uploaded last year.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for motor vehicle related injuries.

In yesterday’s case (Kardum v. Asadi-Moghadam) the Plaintiff was involved in 2 collisions.  He was not at fault for either.   The Plaintiff’s physicians provided evidence that he suffered from chronic soft tissue injuries as a result of these crashes.  ICBC’s expert (Dr. Grypma) provided evidence minimizing the Plaintiff’s injuries.  Mr. Justice Armstrong preferred the Plaintiff’s physicians and concluded that the collisions were responsible for the Plaintiff’s ongoing pain.  In assessing non-pecuniary damages at $70,000 the Court made the following findings:

[112] I conclude that Mr. Kardum suffered a chronic soft tissue injury to his neck, shoulder, and upper back region caused in the accidents of 2007 and 2009. In addition to those injuries Mr. Kardum suffers ongoing chronic headaches and disrupted sleep secondary to his neck pain. His prognosis is guarded and it is unlikely that he will become symptom free. The intensity of these symptoms will vary over time and he will likely achieve some improvement over the next one to two years. The measure of that improvement is unknown but may be a function of his efforts in pursuing the recommendations of Dr. Caillier…

[161] I conclude that Mr. Kardum suffers from chronic pain involving his left posterior lateral neck, his posterior shoulder, and upper back region. He continually has headaches and disrupted sleep secondary to the pain involving his neck. He has some prospect of improvement in symptoms but will likely have a measure of pain or discomfort for the balance of his life…

[173] I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.

[174] I conclude that Mr. Kardum is entitled to non-pecuniary damages of $70,000.

This decision is also worth reviewing for the Court’s comments on the various expert witnesses that testified.  In rejecting ICBC’s independent medical examiner Mr. Justice Armstrong provided the following reasons:

[111] Dr. Grypma is an orthopaedic surgeon. He is not a specialist in rehabilitation medicine. His opportunity to observe and examine Mr. Kardum was restricted to a single 1.5 hour examination on January 31, 2011. He confirmed that Mr. Kardum did not demonstrate any nonorganic symptoms. He was not aware of the amount of damage to the defendant’s vehicle in the first accident. He did not make the same observations of Mr. Kardum’s physical symptoms noted by Drs. Caillier and Schukett. Where there are conflicts between his opinions and the evidence of Drs. Caillier and Schukett, I accept the opinions of the latter two doctors.

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, assessing global damages at $836,000 for injuries and loss flowing from a motor vehicle collision.

In last month’s case (Gilbert v. Bottle) the Plaintiff was a passenger in the Defendant’s vehicle.  His careless driving caused the vehicle to lose control ejecting the Plaintiff from the vehicle.  She sustained numerous physical injuries the most significant of which was described as a ‘complicated‘ traumatic brain injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Madam Justice Dickson made the following findings:

190] I conclude that Ms. Gilbert suffered a complicated mild traumatic brain injury with significant and permanent sequelae as a result of the accident…

[191] I also conclude that the change in Ms. Gilbert’s substance abuse pattern is substantially connected to her brain injury symptoms.  Dulling physical and emotional pain with crack cocaine shows markedly poor judgment and poor self-control.  Ms. Gilbert’s already inadequate functioning in these areas has been further compromised by her injuries.  In consequence, her substance abuse problem has altered in a significantly negative way…

[195] I further conclude that Ms. Gilbert suffers from chronic pain disorder as a result of the accident.  The pain includes frequent neck, shoulder and back pain, together with cervicogenic headaches which originate from soft tissue injuries to her neck.  I am satisfied that her pain is genuine in the sense that it is not feigned or goal-directed, although it has a significant psychological, as well as physical, component.  In particular, Ms. Gilbert’s pre-existing emotional vulnerability and increased emotional disturbance caused by her brain injury are both substantially connected to the severity and maintenance of her ongoing pain.  The onset of the pain is a result of the accident…

[198] The extent of Ms. Gilbert’s loss due to her accident-related injuries is substantial.  She is, in my view, a thin skull plaintiff.  Before the accident, she lived a borderline existence due to her harsh environment, disorganized lifestyle and poor general health and habits.  As Dr. Travalos points out, however, she was nonetheless able to work with New Directions.  She was also able to participate in and enjoy intimate personal connections.

[199] As a result of the accident, Ms. Gilbert can no longer do either.  In effect, she has lost the two major sources of pleasure, purpose and meaning in an already difficult life.

[200] Ms. Gilbert is and will probably remain competitively unemployable due to the effects of her traumatic brain injury.  Although her post-accident functional change is more substantial than Dr. Travalos assumed, I accept his view that her injuries tipped her over the edge in a vocational sense.  I also accept that Ms. Gilbert’s quality of life may improve with appropriate support and treatment.  I am satisfied, however, that, even with support, she will probably never work for pay again…

[220] I conclude that an award of $200,000 in non-pecuniary damages is appropriate in all of the circumstances.  Ms. Gilbert’s permanent loss of capacity to work and engage emotionally with others is a great loss given their central significance in her difficult life.  In my view, Ms. Gilbert’s consequent need for solace is also great.  Nevertheless, she is entitled to compensation for only the change to her original position.  The award should not extend to her pre-existing difficulties that would have persisted or deteriorated further regardless of her injuries.  In other words, the award must be fair and reasonable to both parties.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury.

In this week’s case (Milliken v. Rowe) the 37 year old plaintiff suffered a variety of injuries in a 2007 collision.  The Defendant motorist admitted fault.  The Plaintiff’s most serious injury resulted in chronic shoulder pain the cause of which was described as “one of two things or both in combination which include biceps tendonitis and AC joint antropathy“.

The Plaintiff endured a variety of medical interventions none of which meaningfully resolved her injury.  Surgery was expected to have no better than a 50/50 chance of improving her injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Davies made the following findings:

[65] I find that the totality of the evidence establishes that the neck and shoulder pain as well as the headaches, back pain and right leg pain which Ms. Milliken has suffered since August 2007 were caused by the defendant’s negligence…

[83] Ms. Milliken was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort (primarily at work). The effects of those injuries were largely resolved within about two years.

[84] Ms. Milliken also, however, suffered from right shoulder pain that did not resolve and has now been ongoing for four years. The only potential end in sight for the amelioration of the pain and suffering concerning her right shoulder is invasive surgery with about an even chance of success. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.

[85] I find that the pain Ms. Milliken has endured has been debilitating.

[86] While she has worked through much of it of necessity, the cost to her of doing so has been great.

[87] Her life has become a one-dimensional one in which activities unrelated to work have largely had to be put aside. She no longer has the stamina or physical ability to care for her home as she previously did and has become socially reclusive because of that and her constant tiredness.

[88] Ms. Milliken is no longer able to play with her grandchildren as she once did due to pain and discomfort in her shoulder. She no longer participates in making crafts or enjoying recreational pursuits with her family.

[89] Her injuries have also exacerbated the physical challenges which she now faces in caring for her husband and that prevented her from taking on some of the work around the home and yard for which he was previously responsible…

[91] Ms. Milliken’s suffering will also not end with this litigation.

[92] At minimum she must endure complex shoulder surgery and a lengthy period of rehabilitation in which she will continue to be unable to enjoy life as she once did. Her likely future enjoyment of life is also compromised by the prospect that the surgery may be wholly or partially unsuccessful.

[93] The totality of the evidence satisfies me that there is no question that Ms. Milliken will continue to suffer pain and suffering as well as loss of her enjoyment of life at least until after rehabilitation from surgery to her shoulder.

[94] There is also a substantial likelihood that she will suffer ongoing pain and suffering and loss of enjoyment into the future after the shoulder surgery…

[105] I award Ms. Milliken non-pecuniary damages of $85,000.