Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments
When assessing damages for injuries the BC Supreme Court will not address the injuries as ‘items on a grocery list’. ¬† The exact label attached to an injury is far less important than the ways in which an¬†injury¬†compromises a Plaintiff’s life. ¬†This was highlighted in a recent judgement from the BC Supreme Court, Kamloops Registry.
In the¬†recent¬†decision (McKay v. Powell) the Plaintiff was¬†involved¬†in three rear-end collisions. ¬†As a result she suffered from a chronic pain disorder. ¬†As is often the case, in the course of her lawsuit the Plaintiff was assessed by a variety of physicians who had competing diagnoses for the Plaintiff’s symptoms,¬†namely¬†fibromyalgia vs thoracic outlet syndrome. ¬†Demonstrating¬†that whatever the correct diagnosis, the symptoms were caused by the collision and the plaintiff was entitled to¬†appropriate¬†compensation, Mr. Justice Meiklem provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel‚Äôs diagnosis of fibromyalgia is correct, the plaintiff‚Äôs condition will wax and wane, but there will be no full recovery…
¬†¬†¬†¬†¬†¬†¬†¬†¬†Considering the cited cases, the individual circumstances in the present case, and the factors relevant to assessing this head of damages as set out in¬†Stapley v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of $65,000.