BC Injury Law and ICBC Claims Blog

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

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Archive for the ‘ICBC Soft Tissue Injury Cases’ Category

$14,000 Non-Pecuniary Assessment Following “Mild to Moderate” Soft Tissue Injuries

October 9th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for relatively modest injuries sustained in a collision.

In today’s case (Zhibawi v. Anslow) the Plaintiff was involved in a minor collision caused by the Defendant.  The Defendant acknowledged fault but argued the collision was so minor no injury could have been sustained.  The Court rejected this argument.  The court did, however, have some difficulties with the Plaintiff’s privately retained expert witness noting his opinions “did not comply with the duty” owed to the Court.  Mr. Justice Williams did conclude that the Plaintiff suffered ‘mild to moderate’ soft tissue injuries.  In assessing non-pecuniary damages at $14,000 the Court provided the following reasons:

40]        With all that said, I have reached certain findings concerning the injuries that were sustained by the plaintiff and the effect that they have had upon her. I conclude that she sustained a mild to moderate soft tissue injury. That resulted in some neck and back discomfort. Within approximately two weeks, she was able to return to work.

[41]        The injuries had a limiting effect upon her activities for a time, including her running and housework. I find that, within a few months, their impact on her ability to work at her job was manageable and modest.

[42]        There were complaints of headache following the accident, but it is in my view quite relevant that Ms. Zhibawi had been experiencing significant headaches as part of a long-established neurological condition that also included fainting and light-headedness. While the plaintiff sought to draw a distinction between the pre-accident headaches and those she had after, I find that the headaches that are attributable to the defendant’s negligence are modest.

[43]        I conclude the bulk of the plaintiffs discomfort resulting from the motor vehicle accident was substantially resolved within six to nine months.

[44]        I do not accept that the injuries she sustained have continued in any meaningful way to the time of trial, and I find no basis to conclude that she will suffer any effects into the future…

[50]        I conclude that a fit and appropriate award of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life is $14,000.

$70,000 Non-Pecuniary Assessement For Largely Recovered but “Vulnerable” Soft Tissue Injuries

September 28th, 2015

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

In today’s case (Boysen-Barstow v. ICBC) the Plaintiff was injured in a 2011 collision caused by an unidentified motorist. ICBC accepted statutory fault for the collision.  The Plaintiff sustained various soft tissue injuries which enjoyed significant recovery but remained susceptible to aggravation.  In assessing non-pecuniary damages at $70,000 Mr. Justice Williams provided the following reasons:

25]         My conclusion is that the plaintiff sustained moderate soft tissue injuries in the accident, causing her neck and back pain and headaches. The headaches resolved within a few months, and the other physical discomfort gradually resolved to the point that, by taking appropriate care, Ms. Barstow was substantially pain free by the end of 2013. I accept that she has a certain vulnerability to back discomfort with prolonged sitting and that requires some management; that is a condition which has not fully resolved, although it is certainly not characterizable as an acute disability. It is a relatively minor artefact of the accident requiring some accommodation.

[26]         It follows that I am not fully able to accept the opinion of Dr. le Nobel as an accurate view of Ms. Barstow’s condition and prognosis. With respect, it simply does not accord with the substantial body of evidence that is before me.

[27]         As for the psychological aspect of the effects of the accident, the phobia experienced while travelling in a motor vehicle, both as a passenger and a driver, I accept that was, certainly initially, a problem that caused serious difficulties for the plaintiff. It contributed to her difficulties in carrying out her duties at work when she returned and was, I am sure, a factor in her decision to end that employment. However, I am also satisfied that by the time of trial, that has substantially resolved and whatever lingering unease she may have in an automobile is of a quite minor magnitude.

[28]         I accept the evidence of the plaintiff and Mr. Barstow that the plaintiff’s disposition and temperament was adversely affected to an extent by the accident, though that has diminished over time. I also acknowledge that the plaintiff’s marriage was, during that time, made more difficult as a result.

[29]         In terms of determining the appropriate quantum of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life, the role of the court is to arrive at a sum which is fair to both the plaintiff and the defendant, and which provides a full and proper one-time compensation for all of the effects that have been caused by the defendants’ negligence—effects past, present, and future…

[35]         In my respectful view, when the circumstances are considered in their totality, together with the cases relied upon, the quantum of the award sought by the plaintiff is excessive. I find that an appropriate award for pain, suffering, and loss of enjoyment of life is $70,000.

$20,000 Non-Pecuniary Assessment For Modest and Lingering Soft Tissue Injuries

September 14th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries sustained in a collision.

In today’s case (Hall-Smith v. Yamelst) the Plaintiff was involved in a so called ‘low velocity’ collision in 2009.  Fault was admitted by the offending motorist.  The Plaintiff alleged she sustained fairly serious injuries from the collision with detrimental consequences.  The Court had issues with the Plaintiff’s credibility but did accept the collision caused some level of lingering injures.  In assessing non-pecuniary damages at $20,000 Madam Justice Dillon provided the following reasons:

[50]         The plaintiff lacked credibility about the nature of her injuries. The physical complaints were out of proportion to the severity of the accident. While this court appreciates that not all plaintiffs respond the same way to a minor incident and that a minor accident does not in itself define injury, this plaintiff’s response was so unrealistic as to affect credibility. The plaintiff was vague or could not remember when asked about post-accident activities in cross-examination and her answers were contrary to other witnesses. The documentary evidence that the plaintiff completed herself in April and May 2009 belied the suggestion that she was still considerably disabled from injury sustained in the accident or that she was suffering back and knee pain. ICBC and Turning Point documents completed by the plaintiff mentioned only pain in her neck. She misled Mr. Nordin by attributing her relapse back into drugs shortly after the accident as due to taking prescribed medication, by implying that her UBC employment was permanent and that she left due to increased back pain, and by telling him that she left the licensed practical nurse programme due to back pain and financial difficulty.

[51]         The preponderance of medical opinion does not find that knee or groin pain was caused by the accident. The plaintiff’s fiancé was unaware of any knee pain.

[52]         It is accepted that the plaintiff suffered soft tissue injury to her neck and mid back as a result of the accident. Dr. O’Connor also said initially that she suffered exacerbation of a pre-existing degeneration of the spine that caused low back pain that had not existed prior to the accident. However, the doctor changed this view when faced with the suggestion of no complaint of back pain until the plaintiff saw Dr. Harjee in October 2009 and the plaintiff’s failure to report back pain in important documentation in April and May 2009. In these circumstances that were brought to Dr. O’Connor’s attention, he concluded that the farther the low back pain complaint was from the accident, the less likely that it had been caused by the accident. But, the plaintiff had reported back pain in her first visit to the doctor immediately after the accident. In this circumstance, Dr. O’Connor’s initial opinion still prevails and it is accepted that the plaintiff suffered exacerbation of her pre-existing degenerative condition as a result of the accident and began to have pain in her lower back that did not exist prior to the accident. In any event, the injury to the plaintiff’s neck and back had largely resolved by the time that the plaintiff saw Dr. O’Connor in December 2011. At that time, any residual pain was as a result of the exacerbation of the pre-existing degenerative disc condition and heightened pain from chronic anxiety unrelated to the accident. The plaintiff would have suffered back pain at an early age eventually in any event of the accident. In all of the circumstances, it cannot be concluded that all of the plaintiff’s present symptoms are as a result of the accident. The prognosis of Dr. O’Connor is accepted, however, so that at least a small part of her ongoing back and related pain is attributable to the accident and there is no prospect for resolution with time.

[53]         Despite her injuries, the plaintiff was able to enter and succeed in a rehabilitation programme for the first time within two months of the accident. She felt sufficiently secure in her physical wellbeing to engage in dodgeball and other activities. She was able to work at a shoe store where she maintained part time employment for the first time. She completed a nine month medical office assistant programme that was rigorous in time demands. She was able to get work as a medical office assistant but did not keep the work for reasons that were not related to injury from the accident. She eventually found employment suited to her and has successfully worked full time since June 2014. Given the plaintiff’s pre-accident background and her dependence upon social assistance due to chronic anxiety, she has done quite well since the accident despite injury. The plaintiff has managed despite the injuries. From all of this, the nature of the injuries suffered in the accident, and the existence of other non-accident related physical ailments, it is concluded that the injuries suffered in the accident were relatively minor and did not prevent the plaintiff from establishing herself away from a troubled past…

[55]         It is important to remember that non-pecuniary damages are awarded to compensate an individual for the pain, suffering and loss of enjoyment of life and loss of amenities caused by the accident and that the compensation awarded should be fair and reasonable to both parties (Miller v. Lawlor, 2012 BCSC 387 at para. 109 (Miller)). The fact that this was a low velocity collision does not rule out injury (Dao v. Vance, 2008 BCSC 1092 at para. 19; Naidu v. Gill, 2012 BCSC 1461 at paras. 33-34). The inexhaustive list of factors to be taken into account in the assessment of non-pecuniary damages is well established as listed in Miller at para. 105 and Buttar v. Brennan, 2012 BCSC 531 at para. 35. These factors have been considered in coming to the conclusion here.

[56]         The plaintiff had substantially recovered from the effects of the accident by December 2011 when she first saw Dr. O’Connor, except for aggravation of the pre-existing degenerative disc disease. The impact of the accident upon the life of the plaintiff was not significant. She was able to recover to the extent that only her neck pain was worthy of her comment by the spring of 2009. She was able to rehabilitate and educate herself for the first time. She was able to start serious work and eventually get and maintain full time employment that she never had before. She started and has maintained a stable family life. As in Sevinski v. Vance, 2011 BCSC 892 at para. 84, it not possible to determine here the extent of the plaintiff’s participation in sports and other activities prior to the accident based upon her evidence and prior lifestyle. There is no evidence of prior regular participation that was hindered by the accident.

[57]         The plaintiff is awarded $20,000 for her non-pecuniary damages.

$67,500 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Depression

August 4th, 2015

Reasons for judgement were released today assessing damages for chronic soft tissue injuries with secondary depression following a collision.

In today’s case (Dhanji v. Holland) the Plaintiff pedestrian was struck in a marked cross walk by a vehicle driven by the Defendant.  The Defendant admitted fault for the collision.

The Plaintiff suffered a variety of soft tissue injuries, some of which were chronic in nature and developed depression secondary to this.  In assessing non-pecuniary damages at $67,500 (a figure which was arrived at following a 10% deduction in damages for the Plaintiff’s failure to mitigate damages by refusing to attend recommended counselling) Mr. Justice Pearlman provided the following reasons:

[108]     The plaintiff is 39 years old.  As a result of the soft tissue injuries she sustained in the accident, Ms. Dhanji has experienced constant back pain, usually of mild to moderate intensity, but at times severe.  While her low back pain had substantially resolved within 14 months of the accident, she continues to suffer from neck pain, which at times is severe.  According to Dr. O’Connor, whose opinion I accept, the plaintiff will probably experience mild to occasionally moderate mid back pain indefinitely.  If she is able to maintain an active exercise regime, and improve her mood through the treatment of her depression, she may realize some reduction in pain.  There is however a very real chance that if her mood and conditioning do not improve, her pain may persist in the moderate to occasionally severe range.  It is more probable than not that Ms. Dhanji will have to cope with mild to occasionally moderate chronic mid back pain throughout her life.

[109]      As a result of her chronic pain, the plaintiff has experienced persistent mild to moderate depression since the accident.  With the benefit of psychological counselling there will likely be some improvement in the plaintiff’s mood, and her ability to manage her pain.  However, given the persistence of her symptoms of depression over the past three and a half years, there is a real possibility that she will experience intermittent bouts of depression or low mood indefinitely.  

[110]     The pain and discomfort the plaintiff experiences during prolonged periods of sitting required her to undertake a graduated return to work over a six-month period. Ms. Dhanji is capable of working full-time with the accommodations available to her at the forensic lab.  Through the use of an ergonomic chair, the application of heat, and taking short breaks during long periods of sitting, she is able to manage the pain and discomfort she experiences during the workday. However, by the end of the week she is fatigued and requires the weekends to recover.  Ms. Dhanji is resilient and dedicated to her work.  However, the pain and discomfort she experiences during the work day have diminished her enjoyment of her work.

[111]     While the plaintiff’s contact with some of her friends has reduced as a result of changes in their lives, I find Ms. Dhanji’s chronic mid back and neck pain has also impaired her social life.  As a result of her fatigue, she tends to stay at home more on the weekends.  Her friends, Ms. Woodall, Ms. Hutchinson and Ms. Ostenall all corroborated Ms. Dhanji’s evidence that she has been less outgoing since the accident.  Although she continues to host dinners from time to time, and to travel with her friends, she does so at a diminished level.

[112]     With respect to physical activities, she is capable of exercising but her tolerance for repetitive activities involving the use of her shoulders and arms is reduced.  Her recreational activities are restricted.  Ms. Dhanji no longer hikes.  She found that activity aggravated her back pain…

[124]     Taking into account the plaintiff’s particular circumstances; all of the Stapley factors, including the probability that the plaintiff will live with chronic mid back pain indefinitely; my finding that her depression is largely but not entirely caused by the defendant’s negligence; and after considering all of the authorities cited by counsel, I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the amount of $75,000.  I reduce that amount by 10% for the plaintiff’s failure to mitigate and award Ms. Dhanji non-pecuniary damages of $67,500.

$110,000 Non-Pecuniary Assessment for Fractured Ribs, Knee Injury and Chronic Pain

July 7th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a host of injuries resulting from a collision.\

In the recent case (Grewal v. Naumann) the Plaintiff was involved in a 2007 T Bone collision.  The collision was significant and resulted in 3 broken ribs, a knee injury requiring surgical intervention and a variety of soft tissue injuries resulting in some chronic symptoms.  In assessing non-pecuniary damages at $110,000 Mr. Justice Masuhara provided the following reasons:

[120]     My findings of the injuries suffered by the plaintiff from the Accident are:

(a)            three fractured ribs two of which were comminuted, and internal injuries which physically healed by January 2008;

(b)            chondromalacia patella and a small tear to the anterior horn of medial meniscus; which was repaired by surgery; there is some risk of arthritic degeneration but only slightly greater than the general population.  The range of motion in his right knee has always been normal; though at times there has been the presence of fluid buildup which has never been assessed as more than minimal.

(c)            soft tissue injuries to neck, right shoulder, lower back, right wrist and right ankle.

(d)            chronic pain.  While I find that there is chronicity to some of Mr. Grewal’s reported pain.  I find that the pain is at the low end of the range. 

(e)            the recurrence of a major depression which is now in remission.  Mr. Grewal had a pre-Accident history of depression, including major depression and that the Accident caused him to experience significant depression and anxiety.  The Accident related depression arose in around June 2009 and became a major depression in April 2011, gradual improvement was occurring which by February 2013 no depression was detected and was deemed to be in remission by December 2013 where Mr. Grewal was found to be in a “happy stable state”.  Mr. Grewal’s sleep was said to be “good” by September 2012.  He has remained in remission since and that reducing his medications is a potential.  Mr. Grewal however is at higher risk to suffer from recurrence of anxiety and depression as a result of the Accident. 

[132]     Based on my findings of Mr. Grewal’s injuries from the Accident including the likelihood of future effects, my view is that the defence cases cover injuries which are not as extensive as the plaintiff’s and that the injuries approximate closer to the cases handed up by the plaintiff.  However, his depression continued for some time before going into remission; the knee injury and resulting surgery, and ongoing chronic pain (though at the low end) are factors which require added recognition. 

[133]     I assess damages at $110,000. 

$55,000 Non-Pecuniary Assessment for Chronic Neck and Back Soft Tissue Injuries

May 11th, 2015

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

In today’s case (Espinoza v. Espinoza) the Plaintiff was injured in a 2011 single vehicle collision.  He was a passenger in a vehicle that lost control and struck a lamp post.  The driver admitted fault.  The Plaintiff alleged the collision caused a traumatic thoracic outlet syndrome.  The Court did not accept this claim and found that the Plaintiff had “at times exaggerated his injury“.  Despite this the Court accepted the collision caused chronic soft tissue injuries and in assessing non-pecuniary damages at $55,000 Mr. Justice Grauer provided the following reasons:

[106]     Nevertheless, I am satisfied that Mr. Espinoza was indeed injured in the motor vehicle accident, and the defendant does not contest this.  I find that he sustained soft tissue injuries to the neck and back, and that these indeed have become chronic, though not as disabling as he would suggest.  In this regard, I rely most upon the evidence of Dr. Vinnitsky, whose examinations disclosed at least some objective symptoms and who had the opportunity to assess Mr. Espinoza over a period of time both before and after the accident.  I found the evidence of Dr. le Nobel and Dr. Salvian less helpful on this issue given their total reliance on Mr. Espinoza’s reports, and my concerns with the reliability of Mr. Espinoza as a historian.  As indicated, the evidence as a whole leads me to conclude that Mr. Espinoza has at times exaggerated his injury, attributing more to the motor vehicle accident than the evidence other than his own can support.  I do accept, however, the reality of the problem of chronic pain as a syndrome, a reality rejected by Dr. McPherson. 

[107]     I do not accept that Mr. Espinoza has suffered traumatic thoracic outlet syndrome as a result of the accident, as opined by Dr. Salvian.  The best evidence of his course after the accident, being the reports of Dr. Vinnitsky, is inconsistent with what Mr. Espinoza reported to Dr. Salvian, and does not support such a diagnosis.  Mr. Espinoza submits that Dr. Vinnitsky’s finding on March 8, 2012, of pain in the left wrist and “volar aspect of the left forearm” could properly be interpreted as due to numbness and tingling consistent with a developing post-traumatic thoracic outlet syndrome.  Dr. Salvian suggested as much.  I disagree.  It is clear that Dr. Vinnitsky related this to a sprained wrist.  I find that Mr. Espinoza has failed to demonstrate, on a balance of probabilities, that he suffered a thoracic outlet injury at all, or that, if he did, it relates to the accident…

[115]     I consider the Rutledge case to be much closer to this one, as it involved a chronic pain situation where a diagnosis of thoracic outlet syndrome was rejected.  Considering all of the necessary factors, and taking into account the evidentiary difficulties, I assess the plaintiff’s non-pecuniary damages at $55,000.

“The Standard of Proof Does Not Change” For Subjective Soft Tissue Injuries

April 20th, 2015

Sensible reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, confirming that the standard of proof does not change for a tort claim based on subjective soft tissue injuries.

In last week’s case (Rabiee v. Rendleman) the Plaintiff was involved in a 2008 rear end collision.  The Defendant admitted fault but disputed injury pointing in part to the fact that the collision was minor.  In accepting the Plaintiff sustained soft tissue injuries and assessing non-pecuniary damages at $40,000 Madam Justice Sharma provided the following comments about the standard of proof in low velocity impact prosecutions:

[62]         Given the findings of fact above, I am satisfied that the plaintiff has established on a balance of probabilities that the accident caused soft tissue injuries. The accident was clearly “a cause” of the soft tissue injuries…

[64]         The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock, [1981] B.C.J. No. 31 (B.C.S.C.) that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”

[65]         I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock, [1983] B.C.J. No. 1490 (B.C.C.A.) clarified:  “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”

[66]         The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors…

71]         Taking into account all of the cases and my conclusions about the evidence in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary damages.

$50,000 Non-Pecuniary Assessment for Aggravation of “Active Back and Neck Pain”

April 7th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing injuries.

In today’s case (Dhaliwal v. Pillay) the Plaintiff was involved in two collisions, the first in 2010, the second in 2011.  The Defendants admitted fault for both crashes.  Prior to the collisions the plaintiff fell off a ladder and injured his neck and back and had ongoing symptoms from this injury.  The Court found the collisions aggravated these pre-existing injuries.  In assessing non-pecuniary damages at $50,000 Mr. Justice Truscott provided the following reasons:

[223]     I am completely satisfied from the medical evidence that Mr. Dhaliwal hurt his back and neck in the 2008 ladder fall and it caused him significant continuing pain right up to and including to the time of the first motor vehicle accident.

[224]     It is my conclusion the two motor vehicle accidents only aggravated or exacerbated his existing active back and neck pain that preceded the first accident.

[225]     The applicable law has been set out by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458 where Mr. Justice Major, writing for the Court, said this at p. 473:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[226]     Mr. Dhaliwal has pre-existing active back and neck pain which was due to degenerative changes in his spine and injury from the ladder fall, as well as arthritis in his hands and knees, and with Mr. Dhaliwal having only aggravated his back and neck pain in the two motor vehicle accidents and sustained headaches and right groin pain and right ankle pain, I consider an appropriate award for pain and suffering to be $50,000.

$100,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Psychological Component

April 2nd, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain condition stemming from collision related soft tissue injuries.

In today’s case (Karim v. Li) the Plaintiff was injured in a 2011 collision.  The defendant accepted fault for the crash.  The Plaintiff suffered various soft tissue injuries which, coupled with psychological consequences, resulted in an ongoing chronic pain condition.  In assessing non-pecuniary damages at $100,000 Mr. Justice Abrioux provided the following reasons:

(a) prior to the Accident, Mr. Karim was a hard-working and industrious man who had overcome significant obstacles in his past. He was satisfied with his life both personally and professionally;

(b) Mr. Karim’s “original position” included a significant difficulty with stuttering which, although considerably improved from what it had been in the past, was in a fragile or vulnerable state. Had the Accident not occurred, regression was likely were he faced with stressful conditions either in his personal or vocational life;

(c) although I found the plaintiff generally to be credible, he has embellished certain events. For example, he advised Dr. Nader that the defendants’ vehicle was travelling at approximately 80 kph when it struck him. Common sense leads to the conclusion that his vehicle would not have been drivable after the Accident had this been the case and that emergency vehicles would have attended the Accident scene, neither of which occurred. There are also examples of embellishment in his work and educational history;

(d) the plaintiff has a tendency to see things in their worst light. Dr. Gouws characterized this as “pain catastrophization”. This has resulted in the perception that he is much more disabled from a pain and functioning perspective than he is in reality;

(e) the plaintiff sustained moderate to moderately-severe soft tissue injuries in the Accident. He was essentially totally incapacitated from a physical perspective for a period of approximately one year and at intermittent times thereafter. As such, his condition, which includes psychological factors, does satisfy the criteria for “chronic pain” being pain that persists for more than six months. The psychological factors have had a significant negative effect on his ability to recover;

(f) despite the plaintiff’s presentation and the history he has provided to the various professionals who have assessed him, he is capable of much more than what he perceives. I accept Dr. Gouws evidence in cross-examination to that effect;

(g) a component of the plaintiff’s perception of his inability to function may be his psychological makeup. He has, however, demonstrated the ability to overcome disability through his own resources or willpower. An example is his ability to control his stuttering to which I have referred above;

(h) with appropriate professional assistance including a further intensive course at Columbia together with a 16 session cognitive behavioural therapy program as recommended by Dr. Riar, Mr. Karim will largely return to his level of personal and professional functioning experienced prior to the Accident; and

(i) in that regard, I accept Dr. Gouws’ and Dr. Paramonoff’s opinions which identified “catastrophization” and “confounding factors” as the main limitation to Mr. Karim’s recovery. This is the basis for their recommendation that he obtain psychological assistance….

[126]     Based on my findings of fact, I am satisfied that Mr. Karim, who was 25 years old at the time of the accident, suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. I also find that the consequences of the Accident were instrumental in the termination of his relationship with Ms. Azimi which resulted in an increase in his stress and greatly affected his quality of life for a period of time.

[127]     I have also found that with an appropriate course of treatment both physical and psychological that Mr. Karim should largely return to his pre-Accident level of functioning. Thereafter, there will still, in my view, be some occasions in the future when the consequences of the Accident will affect the plaintiff both professionally and personally.

[128]     I conclude that the authorities referred to by the defendants in particular Andrusko resemble more closely the plaintiff’s circumstances. But that award of $80,000, in my view, should be increased to reflect the contribution that the Accident had on the plaintiff’s relationship with Ms. Azimi. The award should also reflect that although I have concluded that the plaintiff does have the ability to overcome his negative perceptions of how the Accident has affected his life this will take some real effort on his part.

[129]     I award the plaintiff $100,000 under this heading.

$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries and Headaches

March 25th, 2015

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.

In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC.  The Defendant admitted fault.  The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve.  In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:

[3]             The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder.  She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder.  She has suffered from headaches since the accident, some of which are debilitating…

[131]     The plaintiff is a young woman.  More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches.  Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.

[132]     The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]     She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134]     She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.

[135]     In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.