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Non-Pecuniary Assessments for Athletically Active Individuals Discussed

A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.

In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision.   Fault was admitted by the Defendant focussing the case on an assessment of damages.   The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“.  Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.

Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events.  The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“.  In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:

[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.

[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…

[54]         Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.

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