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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 Chronic Pain Cases’ Category

$65,000 Non-Pecuniary Assessment for Chronic “Low Level” Pain

June 21st, 2018

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which resulted in chronic, albeit ‘low level’ pain for a Plaintiff.

In the recent case (McGoningle v. Parada) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered various soft tissue injuries which largely improved however she was left with chronic low level pain.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bracken provided the following reasons:

[56]         I find that the plaintiff suffered a soft tissue injury to her neck, back and shoulders in the accident.  She experienced pain and restricted movement for a few months before things began to improve…

[59]         I find the plaintiff’s condition has clearly improved, but she still suffers a level of pain that impacts her ability to do any heavy lifting or carving of large pieces.  She is able to create small crafts and perform light duties at the soup kitchen…

[61]         I am satisfied on the evidence that the plaintiff still suffers from a low level of pain that interferes with her daily life and limits her ability to perform heavy work and causes some pain in her work creating small crafts.  It appears that a program of physiotherapy, massage therapy and acupuncture did result in improvement, but the plaintiff was either unable or unwilling to follow the recommended course of treatment…

[69]         I agree with the defendant to the extent that the plaintiff’s injuries have improved significantly since the date of the accident and, even though the plaintiff suffers from chronic pain, she has made significant progress to the point that she has almost full range of motion of her upper body, neck and shoulders with pain only at the extremes of rotation.  I find the appropriate amount for non-pecuniary damages is $65,000.


$125,000 Non-Pecuniary Assessment for Neck and Back Fractures

March 22nd, 2018

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a neck and back fracture caused by a vehicle collision.

In today’s case (Sommerville v. Munro) the Plaintiff was involved in a near head-on collision in 2015.  The Defendant admitted fault.  The crash caused a fracture to the Plaintiff’s neck at the C2 level and in his low back at the L4 vertebrae.  The Plaintiff was left with chronic and limiting back pain following the crash.

ICBC argued he would have been saddled with similar problems even if the crash never happened.  The Court found this position unpersuasive.  In assessing non-pecuniary damages at $125,000 Mr. Justice Smith provided the following reasons:

[17]        There is no question that the plaintiff suffered major trauma in the accident. The defendants do not dispute his evidence of symptoms and limitations, but say that he is overweight, in his sixties, and was previously engaged in back-breaking labour despite pre-existing back problems. They say there is at least a measurable risk that he would have suffered similar back pain even if the accident had never happened.

[18]        The defendants rely on the opinion of Dr. Julio Padilla, a neurosurgeon, whose report says the accident disabled the plaintiff for at least six months, but the spinal fractures are stable and the ongoing pain is the result of the progressing, pre-existing degenerative condition.

[19]        On cross-examination, Dr. Padilla agreed that, as a matter of logic, the accident likely contributed to the plaintiff’s current pain, but the degree of that contribution is impossible to quantify. He also agreed that it is impossible to predict when degenerative changes shown on an x-ray or CT scan will become symptomatic and it is reasonable to assume trauma will cause symptoms to appear sooner than they otherwise would.

[20]        In closing argument, counsel for the defendants conceded that the accident “triggered” the onset of pain.

[21]        Dr. Helper agrees there are multiple causes for the plaintiff’s current pain, but injuries caused by the accident are “a significant contributing factor” to the plaintiff’s back and leg pain. Although there was a previous history of some low back pain, he says the plaintiff would be unlikely to have his current symptoms but for the accident.

[22]        Dr. Helper relies in part on the fact that the facet block injections provided some relief. That shows the lumbar facet joints are a significant source of the plaintiff’s pain, which is consistent with the spinal fracture he sustained in the accident. He said the degenerative or arthritic changes in the low back would not necessarily have caused pain to the facet joints in the absence of the accident.

[23]        While Dr. Helper said that a degenerative spine can become painful with trauma, he agreed on cross-examination that such trauma could also come from activities like lifting or twisting.

[24]        Based on the medical evidence, it is likely that the plaintiff’s current pain comes partly from areas of the spine injured in the accident and partly from areas that were already compromised. However, I also accept the plaintiff’s evidence that, in the years between his retirement and the accident, any back pain he had was not significant. It clearly did not limit his activities.

[25]        The fact that severe back pain began so soon after the accident supports the inference, which the defendants concede, that the accident caused the pre-existing condition to become symptomatic. While the plaintiff was clearly at risk for increased back pain, there is no evidence that it was likely to develop either as quickly or to the same degree…

[34]        I have considered the cases put forward by both parties and the general considerations referred to in Stapley and find an appropriate award of non-pecuniary damages in this case to be $150,000, less a 10% reduction for the pre-existing condition. The net award for non-pecuniary loss is therefore $135,000.


$80,000 Non-Pecuniary Assessment for Chronic and Disabling Soft Tissue Injuries

February 23rd, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and partly disabling injuries caused in a collision.

In today’s case (Senger v. Graham) the Plaintiff was involved in a 2014 collision.  The Defendant accepted fault.  The crash caused chronic soft tissue injury which disabled the Plaintiff from her chosen profession as a dental hygienist.  In assessing non-pecuniary damages at $80,000 Madam Justice Murray provided the following reasons:

[43]        Taking into account all of the evidence I find the following:

               i.                  The injuries suffered in the accident have interfered with Ms. Senger’s schooling, work, household and recreational activities and will continue to do so;

              ii.                  She is limited in her capacity to work as a dental hygienist and will not be able to sustain a career in that field;

             iii.                  Ms. Senger will likely never be able to work full-time;

            iv.                  Her injuries will continue to plague her for the rest of her life. It is unlikely that she will ever be pain free;

              v.                  She has reached her maximum rehabilitation;

            vi.                  Ms. Senger will always require assistance with housekeeping and yard work; and

           vii.                  She will never be able to engage in many of the activities she previously enjoyed.

[49]        Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.


$70,000 Non-Pecuniary Assessment for Chronic, Non-Debilitating Soft Tissue Injuries

October 30th, 2017

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

In the recent case (Dosangh v. Xie) the Plaintiff was involved in a rear-end collision in 2013.  The Defendant admitted fault.  The crash caused soft-tissue injuries which lingered to the time of trial and had a guarded prognosis for full recovery.  In assessing non-pecuniary damages at $70,000 Mr. Justice Weatherill provided the following reasons:

[96]         I accept that the plaintiff continues to suffer the consequences of the Accident and that her condition has developed into one of chronic pain, the severity of which depends on her level of activity, particularly at work and at home. The more active she is and the more she pushes herself, the more significant her pain.

[97]         But, I also find that the plaintiff is moving in a positive direction in terms of her recovery despite her daughter’s and Ms. Hundal’s evidence to the contrary. My assessment is that they were both doing their best to help the plaintiff’s case and were perhaps not as objective as they could have been…

[101]     I accept that the plaintiff received soft tissue type injuries in the Accident that have not resolved. I accept that she continues to be in pain, although not the type of pain that is debilitating. The plaintiff is able to function at work and at home, but with ongoing limitations. She can perform the duties she did before the Accident, but in pain, some days worse than others.

[102]     The fact that the pain moves around her body depending on what she is doing, for example from the left shoulder to the right shoulder and back depending on if she is over-using an area, is, in my view, not overly significant. That is the nature of chronic pain, which could be non-organic and psychologically based.

[103]     I accept that the past four years since the Accident have taken a toll on the plaintiff. She struck me as somewhat of a perfectionist at work and at home and she has been unable to meet her own expectations. Her energy is reduced. That has no doubt affected her psychologically resulting in her depressed mood…

[108]     In the end, the assessment of general damages is based on the individual plaintiff and how the injuries have affected him or her physically, psychologically, vocationally, socially and recreationally. I have considered the plaintiff’s particular circumstances here, the fact the Accident occurred over 4 years ago, my assessment of the plaintiff as a witness, the chronicity of her pain together with the fact that she is improving but with a somewhat guarded prognosis. I am satisfied that with the continued counselling and therapies that I am ordering, she will continue to improve, will continue to function, but will experience ongoing pain to some degree.

[109]     I assess general damages at $70,000.


$150,000 Non-Pecuniary Assessment for Chronic Facet Joint Syndrome

October 19th, 2017

Reasons for judgement were release today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a motor vehicle collision.

In today’s case (Zwinge v. Neylan) the Plaintiff was invoked in a head on crash that the Defendant admitted responsibility for.  The collision resulted in a chronic facet joint syndrome of the spine, various soft tissue injuries and chronic pain leading to psychological difficulties.  This was imposed on pre-existing a substance abuse disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $150,000 Mr. Justice Branch provided the following reasons:

[68]         In this case, I would summarize the significant factors as follows:

1.     The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.

2.     The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.

3.     The plaintiff’s pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.

4.     The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.

5.     The plaintiff’s anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.

6.     While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard’s confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.

7.     The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.

8.     Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.

9.     The plaintiff’s quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.

10. The plaintiff has been able to live independently and care for himself since the accident.

[71]         Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000.


Chronic Pain and Depression With Guarded Prognosis Leads to $180,000 Non-Pecuniary Assessment

October 18th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries caused by a collision.

In the recent case (Ali v. Padam) the Plaintiff was a passenger in a vehicle struck by a commercial van.  Fault was admitted by the offending motorist.  The crash resulted in chronic physical and psychological injuries with a poor prognosis for substantial recovery.  In assessing non-pecuniary damages at $180,000 Mr. Justice Blok provided the following reasons:

[230]     From the evidence at trial I conclude that in the immediate aftermath of the accident Ms. Ali had pain in her right chest, right wrist, right shoulder and her back.  The other areas resolved reasonably soon but the back pain gradually increased to the point, three months post-accident, of periods of very severe pain.  This pain worsened and she began to have symptoms in her left leg.  She could not walk or stand for any extended length of time.  She soldiered on at work but avoided lifting or bending, and by the end of the work day she was exhausted.

[231]     Ms. Ali’s left leg symptoms became worse.  She was now dragging her leg as she walked.  Her back pain became worse as well.  She had disc decompression surgery, focused on her leg symptoms, in June 2014.  Her left leg symptoms improved although her back pain remained.

[232]     Ms. Ali fell into depression, and was ultimately diagnosed with major depressive disorder.  She has anxiety and nightmares and in that respect has been diagnosed with PTSD.  Her chronic pain and depression combine and aggravate one another.  She does little in the way of activities with her son aside from walking him to and from school.  She is at least somewhat dependent on others for such things as bathing, dressing and going to the toilet.

[233]     As noted earlier, Ms. Ali’s reports of her physical difficulties are, to some extent, at odds with her actual level of functioning, particularly as shown in surveillance video.  I do not suspect she is being untruthful, but instead I conclude that she sees herself as more disabled than she actually is.

[234]     Formerly a cheerful and active person, Ms. Ali has isolated herself from her loved ones.  She is irritable and ill-tempered.  Her relationship with her husband is poor.  She feels a sense of worthlessness and has had thoughts of suicide.  She does, however, have some good days when she is happy.

[235]     In brief, as a result of the accident Ms. Ali has chronic pain, PTSD and major depressive disorder that combine in a debilitating fashion and have severely affected all aspects of her life.  Although there is a consensus amongst the medical professionals that Ms. Ali should have and participate in a comprehensive, multidisciplinary rehabilitation program, those professionals essentially agree that her prognosis for recovery is “guarded” and her prognosis for a substantial recovery is poor.

[237]     I conclude that the plaintiff’s cases, in particular Sebaa and Pololos, were broadly similar to the present.  In both cases non-pecuniary damages of $180,000 were awarded.  Accordingly, I conclude that $180,000 is a proper assessment of non-pecuniary damages in this case.


$110,000 Non-Pecuniary Assessment For Chronic Low Back Pain

September 6th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic back pain caused by a collision.

In today’s case (Teunissen v. Hulstra) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The crash caused a soft tissue injury which was chronic and partly disabling in nature.  In assessing non-pecuniary damages at $110,000 Madam Justice Burke provided the following reasons:

[67]         I conclude the medical evidence clearly establishes Mr. Teunissen suffered a soft tissue injury in the accident and continues to suffer from chronic back pain. It also establishes the accident is a material contributing cause to Mr. Teunissen’s back injury, pain and resulting disability…

[92]         Mr. Teunissen is a determined and stoic individual who has persisted in trying to work and support his family, despite the chronic pain. He has demonstrated this more than once, attempting work opportunities that he previously would have had no difficulties with and which he unfortunately cannot continue.

[93]         The assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Teunissen’s age, the nature of the injuries, the severity of his symptoms and the fact they have been ongoing for five years, the poor prognosis for recovery, and the authorities, I am of the view the appropriate award for non-pecuniary damages is $110,000.


$115,000 Non-Pecuniary Assessment for Chronic Disabling Mechanical Back Pain

August 29th, 2017

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling injury following a vehicle collision.

In the recent case (Carver v. Or) the Plaintiff was involved in a 2011 collision which the Defendants were found liable for.  The crash resulted in chronic and disabling mechanical back pain.  In assessing non-pecuniary damages at $115,000 Madam Justice Gray provided the following reasons:

[191]     I would summarize the significant factors regarding Mr. Carver as follows:

a)         Mr. Carver was 56 years old at the time of the Accident, and 62 years old at the time of the trial;

b)         The Accident caused Mr. Carver to suffer injury to the tissues of his spinal column which has resulted in chronic disabling mechanical lower back pain;

c)          Mr. Carver’s pain has disabled him from working in any capacity, has reduced his ability to care for himself, and has significantly reduced the quality of his life;

d)         Mr. Carver is completely disabled from working and his walking is impaired;

e)         Mr. Carver has suffered emotionally from the loss of his ability to work and care for himself and from chronic pain;

f)           Mr. Carver’s life has been impaired by his loss of function and the presence of pain;

g)         Mr. Carver’s injuries have impaired his ability to spend time with his daughters in activities like camping and fishing and watching them play sports, and diminished his pleasure in life because of the loss of such activities and other activities like gardening;

h)         Mr. Carver’s ability to walk, sit, stand, and twist have been reduced by the injuries he suffered in the Accident;

i)            Mr. Carver’s factors relating to loss of lifestyle are described above, but fortunately have not made it impossible for him to continue to live by himself; and

j)           Mr. Carver has been stoic. He tried for over a year to return to full-time work, and engaged extensively in physiotherapy, exercise therapy, and pool therapy.

[192]     If the Accident had not occurred, it is most likely that Mr. Carver would have simply suffered periodic waxing and waning of his lower back pain and radiation into his legs, without progression and without loss of the ability to walk, sit, and stand comfortably or the loss of the ability to work. There was a small risk that his pre-Accident condition might have worsened, but it would not likely have affected his function or resulted in significant pain until he was over 70 years old.

[193]     I have taken into account the fact that Mr. Carver suffered pneumonia, with a two month hospitalization in February through April 2015, which was not a result of the Accident.

[194]     If Mr. Carver had not suffered back pain prior to the Accident, an appropriate award would have been in the range of $130,000. Considering that there was a risk his pre-Accident condition might have worsened, a reduction of about 10% is appropriate. Mr. Carver is entitled to an award of $115,000 for his non-pecuniary damages resulting from the Accident.

 


Road Rage Assault Leads to $800,000 Civil Judgement

August 22nd, 2017

Reasons for judgement were published this week assessing damages for a plaintiff who sustained serious injuries following a road rage assault.

In this week’s case (McCaffery v. Arguello) the parties were involved in a road rage incident resulting in the Defendant existing his vehicle and  repeatedly striking the Plaintiff  “with the baseball bat, causing him serious but non-life-threatening injuries to his head, chest, left arm, hand, and wrist.

The Defendant was criminally convicted for his actions.  In the civil lawsuit damages of just over $800,000 were assessed with findings that the assault caused Complex Regional Pain Syndrome along with other partially disabling injuries.

In assessing non-pecuniary damages at $200,000 Madam Justice MacNaughton provided the following reasons:

[37]         Dr. Negraeff examined Mr. McCaffery on March 9, 2016 and diagnosed the following injuries:

a)    Complex Regional Pain Syndrome Type 1: Left Hand (“CRPS”);

b)    persistent headache attributed to mild traumatic injury to the head;

c)     moderate to severe sleep disturbance secondary to chronic pain and headaches; and

d)    moderate to severe mood disturbance with anxiety and depression secondary to chronic pain and headaches.

[38]         Dr. Negraeff explained the CRPS is a form of chronic pain that usually develops in a limb after an injury to it. There are two types of CRPS depending on whether a distinct nerve injury is confirmed. In the first type, there is no confirmed nerve injury and in the second, such a nerve injury is confirmed. The hallmarks of CRPS are pain which is out of proportion to the injury and a combination of symptoms that can include swelling, skin colour and temperature changes, sweating, hair and nail growth changes, and disturbances to the movement or coordination of the limb…

[45]         I conclude that at the age of 28, in the few moments in which the Incident occurred, Mr. McCaffery became a different person. The effects of the assault will redefine Mr. McCaffery for the rest of his life, both physically and psychologically. He no longer sees himself as a “big strong guy” who could do, and did, nearly everything.

[46]         Mr. McCaffery’s personality change has also affected what had been a very positive, close, and harmonious family relationship among Mr. McCaffery, his wife, and their three children. All of Mr. McCaffery’s family witnesses testified about how his symptoms have affected his relationship with Ethan, who has been most affected by his father’s personality change and physical limitations. Ethan was old enough to have experienced and remembered his father’s much more engaged and affectionate relationship with him before the Incident. Ethan misses the activities he used to do with his father and is cautious about not hurting him.

[47]         Mr. McCaffery’s continuing pain has caused sleeplessness, and his headaches are often accompanied by dizziness…

[56]         Based on all this evidence, I conclude that Mr. Arguello’s actions have caused Mr. McCaffery to suffer debilitating and disabling injuries which have had significant life-changing effects and that, as a result, he should be compensated with a substantial award of non-pecuniary damages…

[79]         Taking all these considerations into account, I have concluded that an appropriate award for Mr. McCaffery’s pain, suffering, and loss of enjoyment of life is $200,000.

The Court went on to note that punitive damages were warranted even though the Defendant was criminally convicted.  In assessing punitive damages at $30,000 the court provided the following reasons:

[122]     At para. 33 of Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA 277, referring to Whiten v. Pilot Insurance Co., 2002 SCC 18, Justice Gerow reviewed the factors a court should consider when determining whether to award, and the quantum of, punitive damages. In addition to the overall purpose of such damages, in relevant part, the factors she outlined included that:

a)    punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, and any advantage or profit gained by the defendant;

b)    punitive damages should take into account any other fines or penalties suffered by the defendant for the misconduct in question;

c)     punitive damages should generally only be awarded where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence, and denunciation;

d)    the purpose of punitive damages is to give the defendant her or his “just desert”, deter the defendant, and others, from similar misconduct, and to mark the community’s collective condemnation about what has happened. Punitive damages are only awarded when compensatory damages are insufficient to accomplish these objectives;

e)    punitive damages are awarded in an amount that is no greater than necessary to accomplish their purposes and are generally moderated; and

f)      the court should assess whether the conduct of a defendant should be punished over and above the requirement to pay non-pecuniary, pecuniary, and aggravated damages.

[123]     In this case, Mr. Arguello was prosecuted and convicted of assault with a weapon and assault causing bodily harm. He was sentenced to a six-month conditional sentence, during which for three months he was subject to a curfew, and one year of probation. At the sentencing hearing, Mr. Arguello’s criminal counsel submitted to Judge Moss that the fact that Mr. Arguello was facing a civil lawsuit for damages should be a factor in favour of a conditional sentence. In his sentencing reasons, Judge Moss considered the fact of the civil lawsuit.

[124]     The compensatory damages I have awarded are significant, but they compensate Mr. McCaffery for his actual losses and damages. In the circumstances of this case, I am satisfied that an award of punitive damages is also necessary to make it clear to the public that Mr. Arguello’s conduct departed so markedly from the ordinary standards of decent behaviour as to be worthy of further punishment.

[125]     Mr. Arguello’s decision to follow Mr. McCaffery’s vehicle for five kilometres up the Upper Levels Highway, cut aggressively in front of it, slam on his brakes and cause a collision, and then to exit his vehicle with a baseball bat with which he repeatedly hit Mr. McCaffery, cannot be countenanced in civil society where hundreds of thousands of drivers use our roads and encounter driving manoeuvres which upset or anger them. Road rage incidents are increasingly common in our busy lives and on our busy roads as drivers’ jockey for position. They cannot be tolerated.

[126]     I accept that Mr. Arguello expressed regret for the injuries he caused by his behaviour, but at the same time, he asked for consideration for the legal fees he expended to defend himself criminally and the impact of the Incident on his family. As the person determined to be fully responsible for the Incident, both criminally and civilly, his submissions indicated to me that he had not entirely understood the community’s condemnation of his behaviour.

[127]     Therefore, in addition to the compensatory damages I have ordered, I award Mr. McCaffery the sum of $30,000 in punitive damages.


$120,000 Non-Pecuniary Assessment for Chronic Pain with Somatization Issues

May 2nd, 2017

Adding to this site’s archived postings of ICBC chronic pain cases, reasons for judgement were released this week by the BC Supreme Court, reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain in a Plaintiff pre-disposed to somatization.

In the recent case (Alafianpour-Esfahani v. Jolliffe) the Plaintiff was involved in a 2012 rear end collision that the Defendant was responsible for.  The Plaintiff alleged brain injury altogether this claim was not proven at trial.  The court found the plaintiff was pre-disposed to somatization and suffered from a chronic pain disorder following the collision.  In assessing non-pecuniary damages at $120,000 Madam Justice Sharma provided the following reasons:

[123]     In light of the following factors, I find Ms. Alafianpour-Esfahani is entitled to $120,000 in non-pecuniary damages:

a)    the accident caused soft tissue injuries to her neck, back and shoulder that resulted in headaches and developed (in combination with her predisposition to somatization) into chronic pain;

b)    she has not likely reached maximum medical improvement of her physical symptoms, but any further improvement depends upon the success of addressing the reactivity of her nervous system, which will be challenging;

c)     her physical symptoms have been prolonged because of her psychiatric condition characterization by a vulnerability to somatization and pathological nervous system reactivity;

d)    her prognosis for improving her condition by following a thorough program of desensitization is fair, but that is tempered by the chronicity of her condition because it has been left untreated fro 3 ½ years;

e)    the accident has negatively impacted all aspects of her life, including her relationship with her family, her social interaction, her ability to work, her recreational activities, her ability to maintain her home and yard, her ability to cook for family and friends; her ability to provide emotional support to her children, especially her daughter and her ability to travel.