ICBC Law

BC Injury Law and ICBC Claims Blog

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

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

Archive for the ‘ICBC Soft Tissue Injury Cases’ Category

Court Critical of Doctor’s “Self Diagnosed” Personal Injury Claim

April 10th, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, making critical findings in a personal injury claim.

In today’s case (Nagaria v. Dhaliwal) the Plaintiff, a physician, was injured in a 2014 rear end collision.  The Defendant admitted fault.  The Plaintiff received little medical care following the crash instead relying largely on self diagnosis and self treatment.  The Court rejected the severity of the Plaintiff’s advanced claim finding “the plaintiff is not a reliable witness nor a competent historian. There is considerable exaggeration in his evidence.”

The Court criticized the Plaintiff’s self-treatment and credibility with the following comments:

[42]         The plaintiff repeatedly testified that he chose not to follow the course of medical treatment against the advice of Dr. Strovski because he said that it would leave his patients wanting for his medical care. Leaving aside prescribed medication entirely, I find this explanation to be inconsistent with the policy of the College of Physicians on “Treating Self” and contrary to the simple skills of organization that following the prescribed treatment regime would have required.

[43]         The “Treating Self” policy is clear that self-treatment may affect the objectivity of the medical treatment which a doctor provides. Exceptions, according to the policy, may be made when “the medical condition is minor or emergent; and no other physician is readily available.” Curiously, when this passage was read to the plaintiff during cross-examination, he ignored the above quoted lines and spoke only about self-prescribing narcotic medications which had nothing to do with the case at bar. The plaintiff was evasive in failing to respond to the fact he had self-diagnosed a soft tissue injury and self-prescribed a course of treatment. The circumstances did not involve an emergent situation. The alleged medical condition was not minor; as had it been a minor condition, this action would not have been commenced in this Court. I do not accept the explanation that following the advice of Dr. Strovski would have left the plaintiff unable to practice medicine or otherwise provide services to his patients.

[46]         In this case, the plaintiff did not follow the policy of his profession as he failed to record any of his own symptoms, their occurrence, development, or resolution. Further, he refused a prescribed treatment regime in favour of self-treatment. As noted above, the explanation for self-treatment by the plaintiff lacks objectivity, the very flaw recognized by the College of Physicians and Surgeons.

Mr. Justice Ball found the Plaintiff suffered only minor soft tissue injury and assessed damages at $19,000.  In reaching this assessment the Court provided the following reasons:

[81]         The plaintiff was not a reliable nor a credible witness for the reasons which I have outlined above. The prognosis of Dr. Rickards — if the prescribed treatment plan were followed — expected the reduction or resolution of the symptoms of the plaintiff within a two to four month period. On the evidence before this Court, I am satisfied that the injury caused by the accident, which has been proven on a balance of probabilities, was a minor soft tissue injury. Had the prescribed treatment regime — initially prescribed by Dr. Strovski in 2011 — been followed by the plaintiff, the injury and its symptoms would have resolved in the two to four month period suggested by Dr. Rickards. The failure of the plaintiff to follow the prescribed treatment regime was unreasonable as found above, and constitutes a failure to mitigate.

[82]         The soft tissue injury did not interfere with the ability of the plaintiff to continue his medical practice six days a week or otherwise interfere with his chosen medical speciality. The activities of the plaintiff outside of his practice — sporting activities in particular — have been reduced to some degree, but it is not possible to speculate how those activities have been affected by the soft tissue injury given the lack of evidence on this topic. Further, without completion of the prescribed treatment regime by the plaintiff, the extent and duration of the reduction of activities cannot be predicted and has not been proven.

[83]          In these circumstance, and after a review of the authorities cited above and by counsel, the award of non-pecuniary damages in this case is $19,000. The failure of the plaintiff to mitigate his loss will result in a reduction of that award by ten per cent (10%). The total award for non-pecuniary damages is therefore $17,100. Based on my findings above, the claim for special damages has not been made out and there will accordingly be no award of special damages in this case.


$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.


$75,000 Non-Pecuniary Assessment for Chronic Myofascial Injuries

January 24th, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic injuries sustained as a result of two collisions.

In today’s case (Anderson v. Gagnon) the Plaintiff was involved in two collisions that the Defendants were responsible for.  The collisions resulted in chronic myofascial injury which lingered to the time of trial several years later with a prognosis of some likely lingering symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Armstrong provided the following reasons:

[93]        In this case, I am satisfied that the plaintiff has suffered a myofascial injury to the paraspinal muscles of the back of her neck, the trapezius rhomboid muscles of the upper back that are chronic and will be ongoing. There are no findings of underlying disc injury or nerve root impingement or other potential injuries.

[94]        The plaintiff’s complaint of chest symptoms is not significant and likely reflect changes as a result of her myofascial pain.

[95]        I accept Dr. Travlos’ conclusion that the hip symptoms cannot be attributed to the accident. The plaintiff has been diligent in participating with various treatment opportunities and those therapists have been the mainstay of her treatment and pain management. The optimum strategy is to continue her exercise activity although she may not respond positively given the length of time the symptoms have persisted since the accident.

[96]        Intermittent massage therapies, physiotherapy and acupuncture are reasonable treatments for the plaintiff to pursue as a means to minimize the interference in her life activities caused by pain. She may also benefit from the use of some anti-inflammatory medications in the case of flare-up of pain.

[97]        Although there is medical evidence that her ongoing symptoms might last indefinitely, or may not resolve in the near future, there are possibilities for improvement as evidenced by Dr. Travlos’ and Dr. Arthur’s recommendations and opinions.

[98]        Overall, the plaintiff is capable of doing chores and activities around her home but must be cognizant of the pain management techniques necessary to enable her to be active. Although she is capable of working full-time, some reduction in work hours may assist her with better pain management. I accept Dr. Travlos’ opinion that she is capable of working longer hours but may benefit from reducing the number of days worked during the week work. This reduction in work is essentially another tool Ms. Anderson has to manage her pain. It contributes to her overall enjoyment of life.

[99]        I am satisfied the plaintiff endures intermittent variable pain that is most taxing on days when she is more physically active or working. The plaintiff’s symptoms tend to worsen between physiotherapy or massage treatments. The symptoms rise to very discomforting levels and are ameliorated by those treatments and it would appear this pattern will continue for the foreseeable future. These injuries have limited her ability to enjoy dancing, skiing, snowshoeing, prolonged cycling, and activities with her children. The evidence suggests that she is fit and works consistently at maintaining her physical condition notwithstanding the symptoms of her injuries.

[100]     As a result of her inability to consistently and thoroughly clean and maintain her house, she has received housekeeping assistants; initially this happened every two weeks but has since been reduced to help once a month due to the cost…

112]     Taking into account the plaintiff’s age, the severity and duration of her pain, the absence of actual disability and emotional suffering, the impact on her family, the limits to her physical abilities, and her stoicism, I award non-pecuniary damages of $75,000.


$135,000 Non-Pecuniary Damages for Chronic, Partly Disabling Soft Tissue Injuries

December 11th, 2017

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

In today’s case (Slater v. Gorden) the Plaintiff was involved in a 2014 rear-end collision.  The Defendant accepted fault.  The crash caused various soft tissue injuries which turned into a chronic problem.  The Plaintiff’s injuries disabled her from her general duties as a police officer and limited her to administrative work.  In assessing non-pecuniary damages at $135,000 Madam Justice Forth provided the following reasons:

[84]         As stated earlier, Ms. Slater suffered soft tissue injuries to her neck, left shoulder, lower back and left hip area. She continues to suffer from daily pain and stiffness primarily in her low back and left hip area.

[85]         Ms. Slater presented as someone who likes to be in control, and it appears that the ongoing symptoms and their lack of resolution have been particularly difficult for her to adjust to. She testified as to the impact that the accident has had on her life, in that she feels she has lost everything that she worked “super hard” to achieve: her career, her personal life, and her physical well-being.

[86]         With respect to her career, she has lost the ability to perform the type of police work that provided her the greatest enjoyment, that is, general duty police work out on the road. The accident has caused a significant change to Ms. Slater’s ability to undertake general police duties. She has not been medically cleared to work, and the medical opinion supports that Ms. Slater currently cannot return to general police duty. Further, it appears unlikely that she will be able to do so in the future. She has been able to remain an RCMP officer but on administrative duties only.

[87]         She is concerned that she will not have the same opportunity for advancement. She does not find her job in the Serious Crime Unit as enjoyable as her previous role, and she finds it more depressing and mentally draining as she has to deal with serious files for extended periods. Her current role mainly involves computer work in the office, which she finds far less stimulating than the general duty work.

[88]         Ms. Slater has become more withdrawn from her work colleagues, family and friends; her relationship with her common-law husband has ended; and she has not been able to participate in her children’s activities to the same extent. Her sleep is affected and she frequently wakes up at night.

[92]         I have reviewed the various cases provided, and in assessing the particular circumstances of Ms. Slater, I am of the view that the appropriate award for non-pecuniary damages is $135,000.


$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.


Soft Tissue Injuries “Substantially Resolved” After 5 Years Given $45,000 Non-Pecuniary Assessment

August 31st, 2017

Adding to this site’s soft tissue injury database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries that “substantially resolved” in about 5 years.

In the recent case (Nguyen v. Bhatti) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The Plaintiff suffered various soft tissue injuries which, the court found, were largely improved by the time of trial.  The Court assessed non-pecuniary damages at $45,000 and reduced this by 10% finding the Plaintiff failed to mitigate damages by not seeking out some treatments which could have assisted.

In arriving at this assessment Madam Justice Fitzpatrick provided the following reasons:

[126]     Having considered the entirety of the evidence, I conclude the following in relation to the injuries asserted by Mr. Nguyen:

  1. a)Pre-existing injuries: I find that Mr. Nguyen had snoring and sleep issues well before the accident which negatively affected his mental cognition (ability to concentrate, memory issues and his reported “fogginess”) and caused fatigue and lethargy. I do not accept the evidence of the Nguyens that there were no sleeping problems prior to the accident. Ms. Nguyen describes her husband’s sleeping patterns before the accident as “normal”. Nevertheless, the medical records reveal a significant snoring problem. Even Ms. Nguyen confirmed that when he snored, she often had to poke him to wake him up and stop. This could only have contributed to a less than restful sleep, which he now attributes solely to the accident. Finally, there is no medical evidence to support that these sleeping and cognition issues, to the extent that they continued after July 2012, are linked to the accident: Deo v. Wong, 2008 BCCA 110 at paras. 19-20, leave to appeal refused [2008] S.C.C.A No. 229;
  2. b)Neck, back and right shoulder: I accept that Mr. Nguyen suffered soft tissue injuries in these areas, which was an aggravation of his injuries arising from the 2009 accident which were continuing to some extent in July 2012. I find that Mr. Nguyen was greatly improved in these areas by late 2014/early 2015 and that he continued to improve after that time. I reject Mr. Nguyen’s evidence that he remains in constant daily neck, shoulder and back pain at this time. Largely based on the testing of Dr. Marks in April 2017 and Dr. Wee’s notes arising from the May 2017 visit, I find that his symptoms were substantially resolved by the spring of 2017;
  3. c)Other injuries: the defence made submissions regarding complaints identified by Dr. Wee relating to Mr. Nguyen’s right arm and elbow. As Mr. Nguyen did not assert these as a compensable injury at this trial, I will not address them further. Mr. Nguyen did assert injury to both shoulders, although Dr. Wee confirmed only injury to his right shoulder arising from the accident. Dr. Lee’s opinion does not provide any clarification in respect of this alleged injury. I accept that the first indication of any left shoulder injury only arose in September 2015 when he reported to Dr. Rapoport that he was having trouble in that area only 5-6 weeks prior. There is no medical evidence to support that he had any ongoing left shoulder injury as of September 2015 arising from the accident. I agree with the defence that if such an injury arose in 2015, it was unrelated to the accident.

[161]     In my view, the cases cited by the defence are more in line with Mr. Nguyen’s injuries, the effects on his life and the extent of his recovery, as per my findings above. I award the sum of $45,000 for non-pecuniary damages, less a 10% reduction for the failure to mitigate, resulting in a net award of $40,500.


$85,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries with Anxiety and Depression

July 5th, 2017

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

In today’s case (Ponsart v. Kong) the Plaintiff was involved in 2 collisions for which the Defendants were responsible.  These resulted in chronic soft tissue injuries to her neck and back with some psychological overlay.  In assessing non-pecuniary damages at $85,000 Mr. Justice Butler made the following findings and provided these reasons:

[76]         With these conclusions in mind, I make the following specific findings about the nature and extent of Ms. Ponsart’s injuries and symptoms:

·       She suffered a Grade II strain of her neck and low back in the First Accident. At the time of the First Accident, she had recovered from the injuries suffered in the May 2011 accident. The pain in her thoracic spine around that time was primarily caused by breast enlargement that was alleviated by the surgery in 2013.

·       The First Accident also caused the plaintiff to experience significant anxiety and depression, which affected her ability to take part in work and leisure activities. Nevertheless, as her physical condition improved, she was able to take part in many activities. By 2013, she was doing strenuous training. While she functioned marginally at times, that was primarily a result of her psychological condition.

·       Her anxious nature predisposed her to experiencing anxiety and depression. However, there is no evidence suggesting that she would have experienced the emotional problems she faced without the First Accident.

·       The plaintiff was functioning reasonably well before the Second Accident, although she was still experiencing some neck and low back pain. Her emotional condition had improved from the summer of 2014.

·       The Second Accident aggravated the plaintiff’s soft tissue strain to the cervical and lumbar spine. The injury was not as serious as what she experienced in the First Accident, although she was partially disabled for two to three months. The Second Accident had a significant impact on her emotional well-being. It caused additional anxiety and depression, although not to the extent of a major depressive disorder.

·       By the time of the Third Accident, the plaintiff’s physical condition was manageable, although she was still experiencing minor neck and low back pain, which by that time had become chronic.

·       The Third Accident caused a further aggravation of the injuries from the two prior accidents. It had a significant impact on her, both physically and emotionally because of her increased headaches. She now suffers from chronic headaches including severe migraines. The exacerbation of her neck and back symptoms lasted for approximately six months before returning to the pre-accident status.

·       As a result of the accidents, the plaintiff is left with a minor degree of chronic neck and low back pain. She is able to manage all tasks of daily living and most of her recreational pursuits most of the time. However, because of the accidents, she is more susceptible to anxiety and depression than she was before the First Accident.

·       As will be evident from these conclusions, much of the plaintiff’s suffering was emotional. As I have described, there is no doubt it was caused by the First and Second Accidents.

[84]         As I have described, a major component of the plaintiff’s injury is emotional or mental. As the Supreme Court of Canada recently affirmed in Saadati v. Moorhead, 2017 SCC 28, such losses are compensable where, quoting Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, they are “’serious and prolonged and rise above the ordinary annoyances, anxieties and fears’ that come with living in civil society”. The plaintiff has clearly met the burden of proving serious and prolonged disturbance to her emotional well-being arising from the injuries in the First and Second Accidents.

[85]         When I consider the facts I have found about the nature and extent of the plaintiff’s injuries, I conclude that a fair award for non-pecuniary loss is $85,000. This award does not include any amount for two discrete injuries or symptoms: the exacerbation of the plaintiff’s neck and shoulder pain that occurred in the six-month period after the Third Accident; and the headache symptoms that the plaintiff suffered after that accident.


$100,000 Non-Pecuniary Assessment for Breast Pain and Chronic Neck Pain

May 16th, 2017

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

In today’s case (Kingston v. Warden) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The crash resulted in chronic neck pain along with a breast injury that did not subside until surgical intervention.  The Plaintiff chose to have breast augmentation during the surgery and the Court found that only a percentage of the cost of the procedure was compensable.

In assessing non-pecuniary damages at $100,000 for these injuries Madam Justice Duncan provided the following reasons:

[126]     I find on a balance of probabilities that the accident caused an injury to the plaintiff’s neck which has not fully subsided. With a focussed exercise program and possibly some injection treatments, the plaintiff may improve but there was no evidence the neck pain would ever go away. The complaint of neck pain is subjective, but the medical experts for both parties largely agreed that the plaintiff presented with soft tissue injury to her neck.  

[127]     I find on a balance of probabilities that the accident caused the plaintiff to feel pain in her left breast which was not alleviated until after the revision surgery. I acknowledge Dr. Malpass’s expert report was not as detailed as it should have been, in that he did not include with it the depiction of asymmetry he described in his evidence. I also acknowledge that the plaintiff appears to have taken advantage of surgical intervention to increase the size of the implants and re-position her nipples, rather than simply seek to be restored to her pre-accident appearance. Nonetheless, I do not accept the plaintiff was making up the pain or concerns about asymmetry to take advantage of surgery that might be eventually covered by a damage award stemming from the accident.

[128]     I find on a balance of probabilities that the accident intensified the plaintiff’s headaches and caused them to be more frequent, but that in the time since the accident they have essentially returned to the pre-accident level, based on her report to Dr. Sovio…

[136]     Before the accident the plaintiff was an active, fit person. While the defendant, Mr. Warden, characterized the accident as fairly minor, I accept the plaintiff’s perception of the accident as frightening to her. The plaintiff suffered soft tissue injuries in addition to a worsening of headaches. Her neck pain continues to limit her activities, although the experts have said she can return to her usual activity level, bearing in mind she may not be able to snowboard or do other activities for as long or as vigorously as before the accident. 34

[137]     The plaintiff underwent surgery to address pain and the appearance of her left breast, which conditions resulted from the accident. The plaintiff suffered a loss of self-esteem and increased her consumption of alcohol to cope with her pain, although I cannot find she has proven an addiction to alcohol stemming from the accident. I accept that the plaintiff has isolated herself from her formerly active social life and her relationship with her husband is not as close as it was before the accident.

[138]     In all the circumstances I am satisfied an award of $100,000 for non-pecuniary damages is fit in the plaintiff’s case.


$90,000 Non-Pecuniary Assessment for Chronic Neck Injury With Headaches

April 19th, 2017

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing non-pecuniary damages of $90,000 for a long standing neck injury with associated headaches.

In today’s case (Willett v. Rose) the Plaintiff was involved in a 2010 collision.  At trial, some 7 years later, the Plaintiff continued to suffer from neck pain with associated headaches.  In assessing non-pecuniary damages at $90,000 Mr. Justice Smith provided the following reasons:

[42]         In summary, the evidence is undisputed that the plaintiff’s headaches, including migraine headaches, are more frequent since the accident. The events with which those headaches were associated before the accident–monthly menstrual periods–no longer occur. I also accept the plaintiff’s evidence that her headaches are more severe and usually associated with neck pain. All of the medical evidence acknowledges the mechanism by which neck pain can evolve into headaches, including migraines and confirms the existence of objective signs of neck injury.

[43]         All of that evidence leads to the conclusion that, on the balance of probabilities, there is a causal link between the plaintiff’s neck pain and stiffness and her migraines. I find the neck pain and stiffness to have been solely caused by the accident.

[44]          As for the migraines, the governing principle is that stated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458: causation is established if an injury was caused or contributed to by the accident. Given the plaintiff’s long history of migraines, it may well be that some other factor is also playing a role in their onset, but I find that the injuries the plaintiff suffered in the accident are at least a major contributing cause of the migraines she now has. Or, to use the language of the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, “but for” accident, the plaintiff’s migraines would not be as frequent or severe as they now are.

[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future…

[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.


$40,000 Non-Pecuniary Assessment for Intermittent, Lingering Soft Tissue Injuries

March 7th, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for lingering intermittent soft tissue injuries.

In today’s case (Erwin v. Buhler) the Plaintiff was involved in a 2011 rear end collision that the Defendant was responsible for.  The Plaintiff alleged that he suffered from bursitis in his hip due to the crash but the Court found this condition was most likely caused by other factors.  The Court did find the Plaintiff suffered various soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.

In assessing non-pecuniary damages at $40,000 Mr. Justice Armstrong provided the following reasons:

[117]     I am, however, satisfied that the plaintiff suffered neck, low back and shoulder injuries as a result of the car accident. Notwithstanding Dr. McGraw’s assessment that the plaintiff no longer experiences headaches or neck pain, I find that he has in fact been troubled by these symptoms on an intermittent basis. His low back was really sore for about a month after which Dr. McGraw assumed the pain was resolved. I also accept that he has intermittent low back and neck pain.

[122]     I have concluded from all of the evidence that the plaintiff suffered neck, shoulder and low back injuries at the time of the accident. Although the symptoms seem to have mostly resolved within one year of the accident, he has continued to experience intermittent back, neck and shoulder problems related to activity.

[123]     It is difficult to discriminate between the impacts on the plaintiff’s life arising from the trochanter bursitis and the other soft tissue injuries he suffered. Nonetheless, I accept that he is at an age where the severity and duration of ongoing pain, albeit intermittent, is troublesome for him. His compensable injuries co-exist with his non-compensable injuries. I am satisfied that the demands of his work elevate his trochanter bursitis symptoms but also his neck and back symptoms. It is hard to estimate whether he will eventually become asymptomatic in his neck and back areas but I find that they will continue to impact his life in the near future. The defendant need not compensate the plaintiff for his hip complaints but, his overall quality of life seems to be affected by the compensable injuries on an intermittent but troublesome basis for him.

[124]     The cases cited by the plaintiff did not provide much assistance in assessing the plaintiff’s non-pecuniary damages. In my view, the circumstances described in Stein are most helpful to my assessment of the plaintiff’s claim in this case.

[125]     Overall, I am satisfied that the plaintiff is entitled to non-pecuniary damages of $40,000.