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This Blog is authored by British Columbia personal injury 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 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
July 16th, 2014
Reasons for judgement were released today addressing damages for lingering soft tissue injuries compounded by pre-existing emotional distress.
In today’s case (Adkin v. Grant) the Plaintiff was involved in a 2010 rear end collision. ¬†She was 66 at the time of the crash and 69 at the time of trial. ¬†She suffered a variety of soft tissue injuries and some of her symptoms continued to the time of trial. ¬†A perpetuating factor for this was pre-existing emotional distress which exacerbated her symptoms. ¬†In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:
209] ¬† ¬† As mentioned, I find that the motor vehicle accident of September 3, 2010 caused injury to the soft tissues of the plaintiff‚Äôs neck and upper back and that the injury was of moderate degree. As a result of this injury, the plaintiff suffered pain in these areas and, for a limited period of time, suffered headaches. I find that the injury did not aggravate or worsen the plaintiff‚Äôs pre-existing physical conditions, but was super-imposed over them. There may have been minimal injury to the soft tissues of the plaintiff‚Äôs lower back, but if so, that injury had healed within six weeks of the accident…
¬†¬†¬†¬†¬†Both Dr. Salvian and Dr. Kemble agree that the plaintiff is still suffering some neck, upper back and shoulder pain as a result of the soft tissue injury she received in the car accident. It is implicit in Dr. Salvian‚Äôs opinion that he says the accident is still causing all of the pain that the plaintiff continues to experience in the soft tissues of her neck, upper back and shoulders. I have rejected that all-encompassing opinion. Dr. Kemble seems to say that most of the soft tissue pain that the plaintiff continues to experience in her neck, upper back and shoulders is being caused (intensified and perpetuated) by her emotional distress (and he says that the emotional distress was a pre-existing condition and was not caused by the accident). I have not accepted those opinions of Dr. Kemble where they conflict with the opinions of Dr. Allison.
¬†¬†¬†¬†¬†Both Dr. Salvian and Dr. Kemble agree that the plaintiff will continue to suffer physical symptoms as a result of her injury, for an indefinite period of time into the future (although they differ as to the frequency and intensity of such symptoms).
¬†¬†¬†¬†¬†I accept Dr. Kemble‚Äôs opinions to the extent previously identified. I find that some of the plaintiff‚Äôs ongoing symptoms of pain in her neck, upper back and shoulders are being caused by the injury from the accident. And I find that she will continue to experience episodes of increased pain in the future, as a result of her injury on September 3, 2010.
¬†¬†¬†¬†¬†I find that the plaintiff had a pre-existing condition of emotional distress which was affecting her to some extent at the time of the accident. I find also that the plaintiff‚Äôs experience of being involved in the motor vehicle accident, her physical injury, and her emotional reaction to that injury caused additional emotional distress to her. That emotional distress adversely affected the plaintiff‚Äôs powers of concentration and memory for at least a year, and perhaps longer. However, the effects of the plaintiff‚Äôs distress on her memory and concentration was minimal (almost non-existent) by the end of May 2011 when she was examined by Dr. Allison. The plaintiff was continuing to feel emotional distress at the time of trial, and I find that some of that ongoing stress is being caused by the accident of September 3, 2010…
¬†¬†¬†¬†¬†In all of the circumstances, it is my opinion that a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount.
June 27th, 2014
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries following multiple collisions.
In today’s case (Jiwani v. Borodi) the Plaintiff was involved in four collisions. ¬†He was not at fault for any of these. ¬†The initial collision caused soft tissue injuries to his neck and back. ¬†The back injury was aggravated by some of the subsequent collisions and his symptoms lingered to the time of trial. ¬†In assessing non-pecuniary damages at $65,000 Mr. Justice Sigurdson provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I conclude that the neck problems and the headaches resolved within about six months of the first accident, and that the back pain continues to some degree now five years after the first and most significant accident.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that the back pain is soft-tissue related and has affected the plaintiff‚Äôs mood, his ability to sleep, and to some degree, his disposition and in turn his relationship with his family and friends, including his nephew. ¬†I think that the accident has had an impact on the plaintiff‚Äôs family and social life and restricted the pleasure he had received from his friends and family in the past.¬† The burden is on the plaintiff to prove the extent of his injuries.¬† While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends. ¬†The plaintiff‚Äôs soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†That said, I am not persuaded that the plaintiff is completely pain free.¬† I think that the plaintiff would benefit, as suggested by Dr.¬†Grypma, from an active rehabilitation program. ..
52]¬†¬†¬†¬†¬†¬†¬†¬†¬†Given my findings and after considering the authorities relied upon by the parties and the factors mentioned in¬†Stapley, the plaintiff is entitled to the sum of $65,000 for non- pecuniary damages.
June 17th, 2014
Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.
In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010. ¬†Fault was admitted. ¬†She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal. ¬†In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff‚Äôs consulting orthopedic surgeon, Dr.¬†Markland, recommends that these treatments continue.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Markland also recommended that the plaintiff avoid ‚Äúforceful activities‚ÄĚ at or above shoulder level, but observed that she ‚Äúis fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.‚ÄĚ While acknowledging that there is still a chance that the plaintiff‚Äôs condition may improve, Dr.¬†Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.
June 16th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.
In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision. ¬†She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete. ¬†She sustained soft tissue injuries which impacted her education and training. ¬†Her symptoms lingered to the time of trial and were expected to continue. ¬†The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:
¬†¬†¬†¬†¬†In summary, and having taken into account all the evidence, I make the following findings:
¬∑¬†¬†¬†¬†¬†¬†¬†Ms.¬†Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.
¬∑¬†¬†¬†¬†¬†¬†¬†Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms.¬†Kirkham.
¬∑¬†¬†¬†¬†¬†¬†¬†Ms.¬†Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.
¬∑¬†¬†¬†¬†¬†¬†¬†Ms.¬†Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms.¬†Kirkham‚Äôs myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.
¬∑¬†¬†¬†¬†¬†¬†¬†Ms.¬†Kirkham‚Äôs soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms.¬†Kirkham‚Äôs left hip girdle pain, which is an indivisible injury.
¬∑¬†¬†¬†¬†¬†¬†¬†Ms.¬†Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms.¬†Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms.¬†Kirkham‚Äôs leave of absence from her PhD studies.
¬∑¬†¬†¬†¬†¬†¬†¬†As a result of the concussion, Ms.¬†Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.
¬†¬†¬†¬†¬†Having regard to the case law cited and the¬†Stapley¬†factors,¬†I assess Ms.¬†Kirkham‚Äôs non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.
June 10th, 2014
Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries.
In yesterday’s case (Pichugina v. Matula) the Plaintiff was involved in a T-bone type collision in 2010. ¬†The Defendant admitted fault. ¬†The Plaintiff had pre-existing symptoms in her neck, shoulder and back. ¬†The collision aggravated these and her increased symptoms continued to the time of trial and were expected to linger on for several more years. ¬†In assessing non-pecuniary damages at $45,000 Mr. Justice Cohen provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†On the totality of the evidence before me, I find that, as a result of the accident, the plaintiff sustained aggravation to her already symptomatic neck, right shoulder, and low back and sustained aggravation to her pre-existing headaches.¬† In my opinion, there is no evidence to support a conclusion that the accident caused the minimal winging of the plaintiff‚Äôs right scapula.¬† Although the plaintiff returned to work full-time by the end of two months following the accident, and experienced much improvement in her condition by the spring of 2011, she cannot take advantage of a flexible work schedule, and, while she remains physically active, some activities are no longer comfortable for her.
¬†¬†¬†¬†¬†¬†¬†¬†¬†According to Dr. Vorobeychik, the plaintiff‚Äôs symptoms have improved, but she still experiences migraine headaches and problems with her right shoulder, neck, and back when she is active or upon exertion.¬† The overall medical evidence, and that of the plaintiff, is that there has been gradual improvement in her condition post-accident, and she appears to be handling her headaches better.¬† According to Dr.¬†Robinson, the plaintiff will probably continue to have gradual improvement over the next three to five years, but she remains at risk for persisting neck and right shoulder pain, which would act as an aggravator to her migraine predisposition.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Upon my consideration of the whole of the evidence, the parties‚Äô submissions, and the authorities relied upon by them, I find that a fair and reasonable award to the plaintiff for general damages is $45,000.
April 4th, 2014
Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for chronic soft tissue injuries.
In this week’s case (Lewis v. Scheer) the plaintiff was involved in a “significant” collision in 2010. The Defendant admitted liability. The collision caused various soft tissue injuries and headaches which lingered at the time of trial. ¬†The Plaintiff had some pre-existing symptoms which left her susceptible ¬†to developing chronic pain. ¬†Her symptoms were expected to carry into the future with optimism that they can be reduced with weight loss and exercise. ¬†In assessing non-pecuniary damages at $70,000 Mr. Justice Funt provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†In general terms, the plaintiff‚Äôs injuries involve her back, spine, shoulders and neck.¬† She has daily headaches and has chronic pain…
¬†¬†¬†¬†¬†¬†¬†¬†¬†The three doctors were in general agreement that the plaintiff‚Äôs ongoing symptoms of daily headaches and pain affecting her neck, chest, shoulders and spine were caused by the MVA.¬† Dr.¬†Travlos noted in his November¬†14, 2011 report that the plaintiff ‚Äúwas likely vulnerable to injury and the development of more chronic symptoms, given some of the pre-accident complaints she had‚ÄĚ…
¬†¬†¬†¬†¬†¬†¬†¬†¬†The medical evidence recognizes that the pain will be ongoing although it may reduce as a result of the recommended steps to be taken.¬† These steps include losing weight, a focus on functionality and not on pain, a regimen of exercise and activity, and the reduction of the medication the plaintiff is currently taking…
¬†¬†¬†¬†¬†¬†¬†¬†¬†As noted, the plaintiff will have ongoing pain.¬† The focus for the future is on improving function.¬† In particular, the pain has affected and will affect her enjoyment of life, family and social relationships, and lifestyle.¬† The Court will award $70,000 inclusive of housekeeping capacity.¬† The plaintiff will be able to perform housekeeping functions, albeit with degrees of pain depending on the particular activity.
February 18th, 2014
Adding to this site’s archived case summaries addressing soft tissue injury damages, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a lingering whiplash injury.
In this week’s case (Kelly v. Kotz) the Plaintiff was involved in a 2009 collision. ¬†The Defendant admitted fault. ¬†The Plaintiff suffered a whiplash type injury which caused chronic headaches. ¬†Although there was improvement with time some symptoms still lingered at the time of trial. ¬†In assessing non-pecuniary damages at $45,000 Madam Justice Hyslop provided the following reasons:
¬†¬†¬†¬†¬†I do find that in the accident the plaintiff suffered neck and upper back injuries, and that headaches are a symptom of those injuries…
¬†¬†¬†¬†¬†She stated that six months after the accident there were days that she felt normal, though there were times that the headaches got worse as to severity and duration and affected her level of concentration. These descriptions are consistent with her reporting to Sarah Robson and Carey Jones.
¬†¬†¬†¬†¬†When Dr. Brownlee saw the plaintiff, she had normal range of motion and some pain with flexion, particularly with the extension of her neck. The plaintiff told Dr. Brownlee that her symptoms gradually improved, but never resolved themselves completely…
¬†¬†¬†¬†¬†I conclude that the plaintiff‚Äôs symptoms have improved as she described to Dr. Brownlee and will continue to improve.
¬†¬†¬†¬†¬†In assessing non-pecuniary damages, I considered the plaintiff‚Äôs special circumstances and the case law cited to me by both plaintiff and defendants.
¬†¬†¬†¬†¬†I award $45,000.00 for non-pecuniary damages.
November 29th, 2013
Reasons for judgement were released earlier this month by the BC Supreme Court, ¬†New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010. ¬†She sustained soft tissue injuries to her low back and sacroiliac region. ¬† These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms. Hatch continues to have back pain.¬† She finds it particularly bothersome after physical exercise and towards the end of the work week.¬† She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy.¬† Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse.¬† The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is now more than three years since the Accident.¬† Ms. Hatch has reached a plateau in her recovery.¬† Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012.¬† This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time.¬† The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time.¬† The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times.¬† As such, there is no mitigation issue.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury.¬† The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores.¬† The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. ..
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages.¬†
November 26th, 2013
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision. ¬†The Defendant admitted fault. ¬† The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back. ¬†Her symptoms carried on to the time of trial and were expected to continue indefinitely. ¬†Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function. ¬†In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I also find that her back condition has had a moderate impact on Ms. Nair‚Äôs lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
¬†¬†¬†¬†¬†¬†¬†¬†¬†With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is apparent from the evidence that Ms. Nair‚Äôs personality is such that she ‚Äúsoldiered on‚ÄĚ despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In assessing Ms. Nair‚Äôs claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in¬†Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain¬† four years after the accident, the impact on Ms. Nair‚Äôs lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.
November 19th, 2013
Adding to this site’s archives addressing damages for collisions triggering symptoms in pre-existing degenerative changes, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with such an injury.
In last week’s case (Savoie v. Williams) the Plaintiff was injured in a collision when the Defendant ran a stop sign. ¬†Although fault was not admitted the Defendant was found fully at fault. ¬†The 53 year old plaintiff, who was fit and active, suffered soft tissue injuries. ¬†She also had degenerative changes in her neck which pre-existed the collision. ¬†Following the crash these became symptomatic and the symptoms were expected to linger into the future. ¬†In assessing non-pecuniary damages at$75,000 Mr. Justice Johnston provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Maloon agreed that there was no indication that the plaintiff had any complaints arising from these areas of her body prior to the accident, and described as a ‚Äúmillion dollar question‚ÄĚ the reason some people with similar wear and tear will have pain or other symptoms from the wear and tear, whereas others will not.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Maloon also said that once there are wear and tear changes to the neck, nothing can be done to change the natural course of that condition; it is a mechanical problem and treatment is largely symptomatic.
¬†¬†¬†¬†¬†¬†¬†¬†¬†At page¬†6 of his written opinion Dr.¬†Maloon says:
It is possible that the soft tissue strain that she sustained initiated the symptoms of degenerative changes that have persisted to date.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I conclude that Ms.¬†Savoie‚Äôs initial soft tissue injuries, which I consider moderate to severe, have plagued her from the time of the accident until the date of trial. I also find that these injuries precipitated symptoms from the pre-existing (but asymptomatic) degenerative state of her neck and upper back, that the combination of the injury and the degeneration has created more discomfort than either would alone, and that to the extent that the continuing symptoms come from the degenerative neck condition, it is unlikely they will ever completely go away.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I have reviewed the authorities tendered by each counsel and consider that the facts of this case more nearly approximate the facts in¬†Ortega v. Pena, 2012 BCSC 1884, and¬†Thomas v. Wormsley, 2009 BCSC 919.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In personal injury litigation there never are identical plaintiffs, circumstances or injuries and consequently authorities are, at the best, guidance on the question of damages.
¬†¬†¬†¬†¬†¬†¬†¬†¬†On the evidence before me, I assess Ms.¬†Savoie‚Äôs non-pecuniary damages at $75,000.