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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
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.
November 18th, 2013
Adding to this site’s archived case summaries addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injuries.
In last week’s case (Smith v. Both) the Plaintiff was injured in a “not particularly severe” collision in 2009. ¬†She sustained soft tissue injuries which remained symptomatic at the time of trial and were expected to have some lingering consequences. ¬†In assessing non-pecuniary damages at $45,000 Madam Justice Russell provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is clear from the evidence that the impact in the Accident was not particularly severe. In coming to this conclusion, I have considered the fact that the damage to the vehicles was negligible, neither vehicles‚Äô airbags deployed, the defendant‚Äôs seatbelt did not lock, and the plaintiff‚Äôs car did not move forward far enough to hit the car in front of it.
¬†¬†¬†¬†¬†However, on the basis of the evidence before me I find that the plaintiff has demonstrated that the pain in her neck, shoulders, and lower back, as well as headaches, were caused by the Accident. These symptoms emerged after the Accident, and according to both the plaintiff‚Äôs and the defendant‚Äôs medical experts, these pain symptoms are consistent with soft tissue injuries…
104]¬†¬†¬†¬†¬†I find it is likely she will continue to have some pain resulting from the soft tissue injuries she suffered in the Accident.
¬†¬†¬†¬†¬†However, I am not satisfied the plaintiff has demonstrated that this pain will not improve or that the residual pain will be severe…
¬†¬†¬†¬†¬†In the circumstances of this case, considering Ms.¬†Smith‚Äôs age, pre-Accident activity level, injuries, severity and duration of pain, interference with lifestyle, and impairment of life and of social relationships, I award the plaintiff $45,000 in non-pecuniary damages.
November 13th, 2013
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries sustained by a Plaintiff who sought very little medical treatment.
In this week’s case (Baker v. Clark) the Plaintiff was injured in a collision for which the Defendant was at fault. ¬†He suffered soft tissue injuries and was assessed by his family physician. ¬†By the time of trial the Plaintiff still had symptoms but had not seen his physician for over two years. ¬†The Court accepted that this was due to the plaintiff’s stoic ‘old school’ attitude. ¬†In assessing non-pecuniary damages at $30,000 Mr. Justice Crawford provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am satisfied Mr.¬†Baker sustained soft-tissue injuries to his neck and upper-back. He attended physiotherapy, but no report was tendered from the physiotherapist. That treatment evidently was for his neck and upper-back. Mr.¬†Baker made no complaint of headaches. He was off work for three months and returned in late July 2011. After experiencing difficulty with both his neck and his low-back that became evident with the hours of sitting required of a taxi driver, he purchased an ObusForme to help his seated posture. He found that getting in and out of the cab regularly when he would stand-up and stretch eased his neck and back pain.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†McKenzie‚Äôs independent assessment confirmed the neck injury though the doctor was somewhat guarded in his ongoing opinion. However, regarding Mr.¬†Baker‚Äôs low-back pain, the doctor concluded the pain was due to de-conditioning and not because of the car accident. I am driven to an opposite conclusion for it seems equally sensible, if not more sensible, that Mr.¬†Baker‚Äôs de-conditioning was because of the car accident…
¬†¬†¬†¬†¬†¬†¬†¬†¬†A fair conclusion is that Mr.¬†Baker is a ‚Äúold-school‚ÄĚ man: he is robustly built and of few words; he does not complain, and indeed, he rarely saw a doctor before the accident and then only to get his health check as the taxi company requires.
¬†¬†¬†¬†¬†¬†¬†¬†¬†He also has not seen his family doctor about his injuries for some two years. Dr.¬†Jones, his family doctor, wrote his letter of opinion in December 2011, some eight months after the accident. Both Dr.¬†Jones and Dr.¬†McKenzie were guarded about the long-term prognosis for complete recovery of Mr.¬†Baker‚Äôs soft-tissue injuries. I conclude they were guarded due to Mr.¬†Baker‚Äôs age and the likelihood that patients in their sixties are not going to recover from soft-tissue injuries as they might have in their earlier decades…
¬†¬†¬†¬†¬†¬†¬†¬†¬†Counsel provided a number of cases, and of course, none are precisely alike. But I do find the defendant‚Äôs cases more on point or more similar to Mr.¬†Baker‚Äôs situation. On the other hand, Mr.¬†Baker‚Äôs leisure activities in his retirement are being substantially affected. I accordingly award him $30,000 general damages.
November 8th, 2013
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury of two year’s duration.
In this week’s case (Visona v. Stewart) the Plaintiff was injured in a 2009 collision. ¬†The Defendant admitted fault. ¬†The Court accepted that the collision, despite being relatively minor, caused soft tissue injuries which lasted for up to two years. ¬†The Plaintiff’s most serious concern was chronic tailbone pain although the Court rejected the submission that this was caused by the collision. ¬†In assessing non-pecuniary damages at $30,000 for the soft tissue injuries Mr. Justice Jenkins provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Based on the statements above and Ms. Visona‚Äôs evidence at trial, her suffering and the effects of the soft tissue injuries likely lasted no longer than two years from the date of the accident. In making this determination, I am not taking into account the ‚Äútailbone‚ÄĚ injury which Ms. Visona claims was caused by the November 23, 2009 accident. The evidence supports a finding that Ms. Visona continued suffering from her tailbone injury long after the soft-tissue injuries appear to have healed. I am considering the tailbone injury separately because on the evidence of the nature and severity of the accident, all of the medical practitioners‚Äô evidence and Ms. Visona‚Äôs evidence, I find it unlikely that her tailbone injury was caused by the accident.,,
¬†¬†¬†¬†¬†¬†¬†¬†¬†As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona‚Äôs marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual‚Äôs situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven‚Äôs decision in¬†Carter v. Zhan,2012 BCSC 595, and Madam Justice Maisonville‚Äôs decision in¬†Vela v. MacKenzie,¬†2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages¬†of $35,000 and $27,000, respectively.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.
November 4th, 2013
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009. ¬†The Defendant admitted fault. ¬†The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain. ¬†The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived. ¬†In reaching this decision the Court was influenced by video surveillance evidence. ¬†In commenting on this Mr. Justice McEwan provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian‚Äôs suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses ‚Äúbiomechanically correct posture‚ÄĚ, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff‚Äôs daily routine does not require either. She works from home and is quite free to move about.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. Surgenor, the plaintiff‚Äôs family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Again, the distinction seems rather forced. The plaintiff‚Äôs exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff‚Äôs condition. I largely accept what he had to say about the plaintiff‚Äôs reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff‚Äôs evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
¬†¬†¬†¬†¬†¬†¬†¬†¬†As I have said, I accept Dr. Miki‚Äôs analysis as descriptive of the plaintiff‚Äôs psychological condition, and think it may account, in part, for the plaintiff‚Äôs heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.
October 24th, 2013
Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Johal v. Conron) the Plaintiff was involved in a 2009 collision. ¬†The Defendant admitted fault. ¬†At the time of the accident the plaintiff had significant pre-existing issues including bilateral rotator cuff tendinitis, complex regional pain syndrome and underlying degenerative arthritis. ¬†The collision caused soft tissue injuries which aggravated these conditions. ¬†In assessing non-pecuniary damages at $35,000 Madam Justice Donegan provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†In his July 26, 2011 report, Dr. Wade opined:
The global clinical picture of Mrs. Surinder Johal is complex. It would be my opinion that she had significant musculoskeletal complaints prior to a motor vehicle accident of June 10, 2009. As a result of the accident of June 10, 2009 she had an aggravation of neck and back complaints likely because of a mild soft tissue injury of the cervical and lumbar spine. Over time she has had persistent and increasing problems in a number of areas.
It is unclear to me whether her right shoulder pathology [tear] is any way directly related to the motor vehicle accident of June 10, 2009; however her global pre-existing musculoskeletal complaints have been aggravated by the soft tissue injury of the cervical and lumbar spine as a result of the accident of June 10, 2009.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:
In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.
¬†¬†¬†¬†¬†¬†¬†¬†¬†He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Accepting Dr. Wade‚Äôs evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant‚Äôs negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body…
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life. In the unique circumstances of this case, I find that the appropriate award for non-pecuniary damages is $35,000.00.
October 3rd, 2013
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for collision related injuries which interfered with a Plaintiff’s ability to breastfeed her infant.
In this week’s case (Mezo v. Malcolm) the Plaintiff was injured in a 2010 rear end collision. ¬†She was three months pregnant at the time. ¬† She suffered a variety of soft tissue injuries which not only made her pregnancy more difficult but also interfered with her ability to care for her newborn with the Court noting that the Plaintiff “¬†could not comfortably lift her baby or hold her to breast feed. Her neck hurt from bending down over the baby and her headaches returned.”
The plaintiff remained symptomatic at the time of trial and her symptoms were expected to continue into the future. ¬†In assessing non-pecuniary damages at $60,000 Madam Justice Russell provided the following reasons:
¬†¬†¬†¬†¬†The plaintiff was a young, fit woman at the time of the Accident.
¬†¬†¬†¬†¬†The plaintiff‚Äôs pregnancy at the time of the Accident added to the fear she felt and impacted on her ability to achieve any pain relief. I accept her evidence that she chose to endure the pain rather than risk damage from medication to her unborn child.
¬†¬†¬†¬†¬†After the baby‚Äôs birth, her neck, back and arm pain interfered with her ability to care for her baby. She lost the opportunity to breastfeed her baby after a short period of time. For a conscientious contemporary mother, this was a serious loss.
¬†¬†¬†¬†¬†Her ability to lift the baby was compromised due to her back and neck pain. One of the joys of motherhood is to hold the infant close. Losing this opportunity is another serious loss. Having her mother enjoy this pleasure no doubt was helpful to the baby‚Äôs wellbeing, but it does not replace the disappointment suffered by the plaintiff.
¬†¬†¬†¬†¬†The athletic lifestyle enjoyed by the plaintiff, Florin, and the plaintiff‚Äôs mother is now beyond the ability of the plaintiff due to her injuries. It is all well and good for Dr.¬†Bishop to say that it is likely her pain will increase with more activity but that does not mean re-injury, but the continuing pain does and will interfere with her activities. Not every accident victim is able to ignore pain to the extent Dr.¬†Bishop seems to suggest is desirable.
¬†¬†¬†¬†¬†I agree with Dr.¬†Adrian that she will continue to suffer some degree of disability for the foreseeable future….
145]¬†¬†¬†¬†¬†Taking into account the circumstances of this case, I award the plaintiff the amount of $60,000 for non-pecuniary damages.