ICBC Law

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  From a fit, very active person, she has become withdrawn, moody, and deconditioned.  Her friends and her husband find her to be a different person, no longer active and happy go lucky.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.

Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.

In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.

The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000.  In arriving at this figure Mr. Justice Grist provided the following reasons:

[38] It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…

[47] On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix’s personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.

It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim.  Despite this, the case still has value as a precedent for non-pecuniary damage assessments for chronic pain following a motor vehicle collision.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, providing comments critical of the practice of obtaining medical opinion evidence without accompanying physical examination of a Plaintiff.

In this week’s case (Ruscheinski v. Biln) the Plaintiff was involved in three collisions.  She sustained soft tissue injuries to her her neck and shoulder in the initial crash.  The following crashes had a ‘cascading effect‘ on these injuries resulting in chronic pain with partial disability.  Non-Pecuniary Damages of $85,000 were assessed.

In the course of the trial the Court heard from competing expert witnesses.  The Defendant’s expert never examined the Plaintiff.  For this reason the Court preferred the evidence of the Plaintiff’s experts and provided the following critical comments:

[82] Dr. Turnbull, a neurosurgeon, provided expert evidence on behalf of the defendants. He was the only medical expert whose opinion was adduced as part of the defendants’ case. His assessment is set out in his report dated April 26, 2011.  In his report, Dr. Turnbull opined:

Ms. Ruscheinski evidently suffered soft tissue injuries in the MVA of February 24, 2006 which may have been aggravated by the MVAs of September 9 and September 17, 2006.

[83] In my opinion, Dr. Turnbull’s choice of the word “evidently” results from the fact that he did not conduct an examination of Ms. Ruscheinski. Dr. Turnbull has not met, nor has he ever examined Ms. Ruscheinski. His opinions are based solely on his review of medical records.

[84] Dr. Turnbull also expressed in an opinion, in his report, that although Ms. Ruscheinski’s “soft tissue injuries have had ample time to heal”, her “symptoms may persist for some time.” He does not recommend any further treatment because, he explained, “passive treatments conducted more than two years after soft tissue injury are recognized as having little value.”

[85] I prefer the evidence of Drs. Feldman and Wasti over the defence expert, Dr. Turnbull. I accept Dr. Feldman’s opinion (supported by Dr. Wasti) that meeting a patient, obtaining their history directly, and conducting a thorough examination are essential to provide an accurate diagnosis of a patient’s injuries and to determine an appropriate prognosis.

[86] In my opinion, when dealing with cases where chronic pain is suggested or suspected, an examination of a patient that is designed to look for objective evidence of injury, such as muscle spasm, as opposed to feigned pain behaviour, coupled with an appropriate and thoughtful approach to taking a patient’s history, will lead to a diagnosis and prognosis that is much more reliable than a records review. I accept Dr. Feldman’s evidence that without a physical examination of Ms. Ruscheinski, it would not have been possible to detect the winging of her scapula.

[87] Dr. Turnbull agreed in cross-examination that muscle spasm and tenderness provide an objective basis for a diagnosis and prognosis. Those objective findings were found by Drs. Feldman and Wasti. Dr. Turnbull is not in a position to contradict the findings of Drs. Wasti and Feldman because he did not examine Ms. Ruscheinski. Further, Dr. Turnbull did not address Dr. Feldman’s findings, the findings from the flexion/extension x-rays, nor the focused treatment recommended by Dr. Feldman that consists of active and passive treatments. Finally, I wish to note that Dr. Turnbull acknowledged that most of his patients with neck and back pain do not have a history of being involved in motor vehicle accidents.

[88] My view of the matter is also supported by the remarks of Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 549, 73 B.C.L.R. (4th) 177, where he wrote at paras. 2-3:

[2]        The role of an expert is to assist the Court. I am not assisted by receiving the “opinion” from a psychiatrist who has not seen a person and who bases his opinion only on documentation made available to him where much of that documentation will ultimately not be in evidence. Ordinarily, counsel will provide the factual assumptions to the expert that counsel will then proceed to prove in evidence. Those factual assumptions should be clearly stated in the statement of the expert. It is not for an expert to merely review a number of documents, many of which will not be in evidence and make certain findings of fact. …

[3]        As well, the Court has commented a number of times on it being inadvisable to rely on the opinion of a medical advisor who has not seen a plaintiff: see for instance Parish v. Scott, [1966] B.C.J. (Q.L.) No. 2839 (B.C.S.C.) at paras. 5 and 29. …

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with fault for a collision involving a jaywalking pedestrian.

In last week’s case (Wong-Lai v. Ong) the elderly Plaintiff and her husband where involved in a serious collision in 2009.  It was a dark and rainy Vancouver Autumn evening.  As they crossed the street to return to their car they were struck by a vehicle driven by the Defendant.  The Plaintiff was not in a marked cross-walk at the time.  Her husband died and the Plaintiff suffered severe injuries.

The Court found that while the Plaintiff was jay-walking she should have been visible to the Driver.  The Court found that the driver was not paying sufficient attention and assessed him 25% at fault.  In reaching this conclusion Mr. Justice Sewell provided the following reasons:

[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries…

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%.  Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

The Plaintiff’s damages were assessed at just over $307,000.  $200,000 of this assessment were for the Plaintiff’s non-pecuniary loss.  In arriving at this figure Mr. Justice Sewell provided the following summary of the Plaintiff’s injuries:

[65] In this case Ms. Lai suffered very grievous injuries. She was struck by a car which I have found to be travelling at close to 60 kilometres per hour.  A good summary of her injuries is found in the report of Dr. Ng.  It is as follows:

1) Gross bleeding from urine requiring emergency urological consultation. A CT cystogram ruled out bladder rupture. Ct scans of the kidneys did not show any severe renal damage and she only required observation and support. However angiogram showed the pelvic fractures has ruptured blood vessels and she had bleeding in the blood supply to the pubic bone and these required embolisation to stop the bleeding.

2] Cervical Cl C2 unstable fracture. This required immobilisation and stabilisation in a collar and traction for the first eight weeks. She also has a moderate central cervical disc protrusion at level C6-7 which indented her cervical spinal cord.

3] Chest contusions left upper lobe, right middle lobe, and multiple rib fractures of the left 3 to 6 ribs and left 8 rib.

4) Multiple pelvic comminuted fractures bilaterally, namely superior and inferior pubic rami. She required immobilisation for her neck and leg fractures as well as for these fractures for the first eight weeks. She remained in the intensive care unit for a few weeks for treatment and stabilisation of all her injuries.

5) The left Tibial and left Fibular fractures require manual reduction and internal fixations on December 1, 2009. She returned to the intensive care unit post operatively.

6) Brain injury, which on CT scan showed multiple bleeding present inside areas of her brain and a small subdural hematoma (within the skull but outside the brain), located in between the cerebral hemispheres. There is a large left scalp hematoma. Her conscious levels and neurological state were monitored in intensive care over the next few weeks

…

[83] In my view the most important factors in this case are the severe and painful injuries suffered by Ms. Lai, the marked degree of permanent disability, the loss of independence and the increased risk of morbidity and mortality identified in Dr. Guy’s opinion.  I also note that Ms. Lai’s stoicism and determination to make the best of her predicament should not diminish the amount of damages awarded to her.

[84] I have reviewed the numerous decisions on pecuniary damages involving serious injuries cited to me by counsel.  These cases are all of course fact specific.  My review of them, coupled with a consideration of the principles restated in Stapley, leads me to conclude that an award of non pecuniary damages in the amount of $200,000 is appropriate in this case.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding global damages of just over $90,000 as a result of injuries sustained in a motor vehicle collision.

In this week’s case (Lorenz v. Gosling) the Plaintiff was injured in 2006 collision.  Fault was admitted.  The Plaintiff’s symptoms included chronic neuropathic pain which was brought on following the collision as a result of “severe narrowing of the cord due to degeneration of the disc and facet joints at the C3-4 level of her cervical spine“.

The 56 year old plaintiff was left with chronic pain and limitations in her vocational and domestic responsibilities.   The Plaintiff was able to continue working despite her pain and nothing was awarded for diminished earning capacity.  Despite this her non-pecuniary damages were assessed at $80,000 with Mr. Justice Verhoeven providing the following reasons:

[30] Dr. Berkman’s opinion was that Mrs. Lorenz was suffering from persistent pain and weakness in her arms, and neck pain, resulting from the accident.  He says that she suffered a “significant injury to her spinal cord at the C3-4 level, with consequential development of neuropathic pain in her neck and upper limbs.”

[31] Dr. Berkman defined “neuropathic” as meaning a change in the perception of pain, and change in the processing of pain by the patient. In his opinion the pain had become “ingrained in her nervous system”.

[32] He suggested pain education, psychological support and occupational therapy.

[33] Dr. Berkman also suggested a consultation with a neurosurgeon in order to consider the advisability of surgery.  In the absence of neurosurgery, he suggested treatment such as Botox or subcutaneous Lidocaine, or a spinal cord stimulator…

[42] On the medical evidence, therefore, I am left with a substantial lack of clarity as to whether the complaints of Mrs. Lorenz are essentially permanent.  Nonetheless, I am obliged to make findings on the evidence as it is.  I conclude that there is a substantial risk that she will not experience a significant improvement in her present symptoms and complaints.  I am unable to find that this is a probable outcome.

[43] There is no question in this case that her complaints arise from the motor vehicle accident…

[97] After considering all of the authorities cited to me, and on the findings that I have made, I consider that the sum of $80,000 represents a fit and proper award for non pecuniary loss in this case.

Adding to this site’s chronic pain non-pecuniary damages archives, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain and depression.

In this week’s case (Tsalamandris v. MacDonald) the Plaintiff was involved in two collisions, the first in 2004 and the second in 2006.  The Defendants admitted fault in both claims.  The Plaintiff suffered from “chronic pain and a depressive disorder which is quite debilitating“.  The cause of the Plaintiff’s disability was the main focus of trial with the Plaintiff arguing the collisions were responsible while the Defendants pointed to other explanations.

Ultimately the Court found that the the collisions were responsible for the Plaintiff’s injuries.  These were expected to be largely disabling for the duration of the Plaintiff’s career.  In assessing non-pecuniary damages at $100,000 Madam Justice Griffin provided the following reasons:

[223] I therefore conclude that but for the Accidents, the plaintiff would not have suffered the chronic pain and depression she suffered following the Accidents and continuing to this day and into the future.  The plaintiff has proven that the Accidents caused her conditions of chronic pain syndrome and depression…