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.

Posts Tagged ‘chronic pain’

$110,000 Non-Pecuniary Assessment For Chronic Pain Coupled With Psychological Injury

September 26th, 2018

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

In today’s case (Evans v. Keill) the Plaintiff was involved in a 2013 rear end collision that the Defendants admitted fault for.  The crash caused a variety of soft tissue injuries which developed into chronic pain coupled with psychological injury.  The consequences impacted her vocationally with a poor prognosis for recovery.  In assessing non-pecuniary damages at $110,000 Madam Justice Matthews provided the following reasons:

[166]     I have concluded that as a result of the accident, Ms. Evans has suffered pain and a loss of enjoyment of life, which will continue into the foreseeable future and from which she is unlikely to ever fully recover.

[167]     As a result of the injuries she sustained in the accident, Ms. Evans suffered from soft tissue injuries to her mid-back, upper back, neck and shoulder. She now has chronic pain in her neck and upper back. The pain is exacerbated by lifting and many different postures, including sitting, standing, certain neck angles and some yoga postures. It is exacerbated by physical activities where her neck or back bears weight, or involves lifting or working with her arms above a certain height. She experiences headaches and migraines. Over the course of two years after the accident the pain has gradually improved by about 60% but has plateaued at its present level. It is permanent and not likely to improve. She has been prescribed analgesics and has taken over-the-counter medications to cope with her pain.

[168]     Before the accident, Ms. Evans’ mood was good and she enjoyed being physically active and social. She hiked several times a week, sometimes with friends, and regularly did yoga. She had a career that she enjoyed and was justifiably proud of given her eligibility for further promotion and that she achieved it without graduating high school. Her injuries rendered her unable to do her job.

[169]     Due to the accident injuries, Ms. Evans suffered two major depressive episodes and somatic symptom disorder. She withdrew socially from her friends. She attempted suicide twice. She drank excessively.

[170]     Overall, Ms. Evans’ life is very different from what she enjoyed prior to the accident. However, after a significant and challenging struggle, she has reworked her life into a place where she is happy.

[171]     The most significant of the Stapley factors in this case are Ms. Evans’ age; the severity and duration of the pain; the impairment of her physical abilities; her associated loss of lifestyle; and the impairment of her relationships. Ms. Evans is relatively young. She was 34 years old at the time of the accident and she was 39 years old at trial. She faces the prospect of a lifetime of chronic pain and associated functional limitations. One of the most significant impacts of her injuries has been the impact on her ability to do her job as a produce manager, which she enjoyed and which was a source of pride…

[181]     In summary, some of the cases cited by Ms. Evans involve other injuries, such as thoracic outlet syndrome, disc herniation or facet joint arthroplasty, on top of chronic myofascial pain and psychological injuries. Most of the defendants’ cases do not include cases where a psychological condition has been diagnosed and/or the chronic pain is not as functionally disabling as that experienced by Ms. Evans. The cases which are most similar are Stapley and Montgomery.

[182]     Having considered the Stapley factors and all the above authorities, I assess non-pecuniary damages at $110,000.


$130,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

August 1st, 2018

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for chronic injuries.

In today’s case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision.  The Defendant admitted fault.  The Plaintiff suffered from chronic pain with a poor prognosis.  In assessing non-pecuniary damages for her injuries at $130,000 Mr. Justice Betton provided the following reasons:

[86]         The medical evidence based on multiple assessments and records reviews from both plaintiff and defence experts collectively paints a compelling picture of a plaintiff who has and continues to deal with the adverse effects of her pain. There is no doubt expressed in any of the assessments regarding the sincerity or accuracy of the plaintiff’s experience or the impact that the MVC has had on her. The unchallenged and uncontradicted evidence of her father is also corroborative of her complaints.

[87]         This is a plaintiff who has achieved great success in her career as a result of her own hard work and initiative and who stands to advance even further in that career. I am unable to conclude that she would be inclined to jeopardize that in the hope of reward in this claim.

[88]         On the whole of the evidence I find the plaintiff to be credible…

[93]         The plaintiff’s family and social relationships have suffered as a result of the MVC. She suffers a larger burden in caring for her home now that her marriage has ended. Prior to the MVC, the plaintiff had no physical limitations and had an optimistic outlook on life. The MVC diminished these aspects of herself, and she no longer benefits from the therapeutic aspects of recreational activities and social interactions…

96]         Reviewing authorities is a necessary and useful process but has its limitations. However, considering the evidence here and those cases, I conclude that an award of $130,000 is an appropriate award under this category.


$125,000 Non-Pecuniary Assessment for Neck and Back Fractures

March 22nd, 2018

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a neck and back fracture caused by a vehicle collision.

In today’s case (Sommerville v. Munro) the Plaintiff was involved in a near head-on collision in 2015.  The Defendant admitted fault.  The crash caused a fracture to the Plaintiff’s neck at the C2 level and in his low back at the L4 vertebrae.  The Plaintiff was left with chronic and limiting back pain following the crash.

ICBC argued he would have been saddled with similar problems even if the crash never happened.  The Court found this position unpersuasive.  In assessing non-pecuniary damages at $125,000 Mr. Justice Smith provided the following reasons:

[17]        There is no question that the plaintiff suffered major trauma in the accident. The defendants do not dispute his evidence of symptoms and limitations, but say that he is overweight, in his sixties, and was previously engaged in back-breaking labour despite pre-existing back problems. They say there is at least a measurable risk that he would have suffered similar back pain even if the accident had never happened.

[18]        The defendants rely on the opinion of Dr. Julio Padilla, a neurosurgeon, whose report says the accident disabled the plaintiff for at least six months, but the spinal fractures are stable and the ongoing pain is the result of the progressing, pre-existing degenerative condition.

[19]        On cross-examination, Dr. Padilla agreed that, as a matter of logic, the accident likely contributed to the plaintiff’s current pain, but the degree of that contribution is impossible to quantify. He also agreed that it is impossible to predict when degenerative changes shown on an x-ray or CT scan will become symptomatic and it is reasonable to assume trauma will cause symptoms to appear sooner than they otherwise would.

[20]        In closing argument, counsel for the defendants conceded that the accident “triggered” the onset of pain.

[21]        Dr. Helper agrees there are multiple causes for the plaintiff’s current pain, but injuries caused by the accident are “a significant contributing factor” to the plaintiff’s back and leg pain. Although there was a previous history of some low back pain, he says the plaintiff would be unlikely to have his current symptoms but for the accident.

[22]        Dr. Helper relies in part on the fact that the facet block injections provided some relief. That shows the lumbar facet joints are a significant source of the plaintiff’s pain, which is consistent with the spinal fracture he sustained in the accident. He said the degenerative or arthritic changes in the low back would not necessarily have caused pain to the facet joints in the absence of the accident.

[23]        While Dr. Helper said that a degenerative spine can become painful with trauma, he agreed on cross-examination that such trauma could also come from activities like lifting or twisting.

[24]        Based on the medical evidence, it is likely that the plaintiff’s current pain comes partly from areas of the spine injured in the accident and partly from areas that were already compromised. However, I also accept the plaintiff’s evidence that, in the years between his retirement and the accident, any back pain he had was not significant. It clearly did not limit his activities.

[25]        The fact that severe back pain began so soon after the accident supports the inference, which the defendants concede, that the accident caused the pre-existing condition to become symptomatic. While the plaintiff was clearly at risk for increased back pain, there is no evidence that it was likely to develop either as quickly or to the same degree…

[34]        I have considered the cases put forward by both parties and the general considerations referred to in Stapley and find an appropriate award of non-pecuniary damages in this case to be $150,000, less a 10% reduction for the pre-existing condition. The net award for non-pecuniary loss is therefore $135,000.


Chronic Pain and Depression With Guarded Prognosis Leads to $180,000 Non-Pecuniary Assessment

October 18th, 2017

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

In the recent case (Ali v. Padam) the Plaintiff was a passenger in a vehicle struck by a commercial van.  Fault was admitted by the offending motorist.  The crash resulted in chronic physical and psychological injuries with a poor prognosis for substantial recovery.  In assessing non-pecuniary damages at $180,000 Mr. Justice Blok provided the following reasons:

[230]     From the evidence at trial I conclude that in the immediate aftermath of the accident Ms. Ali had pain in her right chest, right wrist, right shoulder and her back.  The other areas resolved reasonably soon but the back pain gradually increased to the point, three months post-accident, of periods of very severe pain.  This pain worsened and she began to have symptoms in her left leg.  She could not walk or stand for any extended length of time.  She soldiered on at work but avoided lifting or bending, and by the end of the work day she was exhausted.

[231]     Ms. Ali’s left leg symptoms became worse.  She was now dragging her leg as she walked.  Her back pain became worse as well.  She had disc decompression surgery, focused on her leg symptoms, in June 2014.  Her left leg symptoms improved although her back pain remained.

[232]     Ms. Ali fell into depression, and was ultimately diagnosed with major depressive disorder.  She has anxiety and nightmares and in that respect has been diagnosed with PTSD.  Her chronic pain and depression combine and aggravate one another.  She does little in the way of activities with her son aside from walking him to and from school.  She is at least somewhat dependent on others for such things as bathing, dressing and going to the toilet.

[233]     As noted earlier, Ms. Ali’s reports of her physical difficulties are, to some extent, at odds with her actual level of functioning, particularly as shown in surveillance video.  I do not suspect she is being untruthful, but instead I conclude that she sees herself as more disabled than she actually is.

[234]     Formerly a cheerful and active person, Ms. Ali has isolated herself from her loved ones.  She is irritable and ill-tempered.  Her relationship with her husband is poor.  She feels a sense of worthlessness and has had thoughts of suicide.  She does, however, have some good days when she is happy.

[235]     In brief, as a result of the accident Ms. Ali has chronic pain, PTSD and major depressive disorder that combine in a debilitating fashion and have severely affected all aspects of her life.  Although there is a consensus amongst the medical professionals that Ms. Ali should have and participate in a comprehensive, multidisciplinary rehabilitation program, those professionals essentially agree that her prognosis for recovery is “guarded” and her prognosis for a substantial recovery is poor.

[237]     I conclude that the plaintiff’s cases, in particular Sebaa and Pololos, were broadly similar to the present.  In both cases non-pecuniary damages of $180,000 were awarded.  Accordingly, I conclude that $180,000 is a proper assessment of non-pecuniary damages in this case.


More On Video Surveillance and Chronic Pain

August 31st, 2011

A regular reader of this blog shared some views with me recently and I thought these were worth repeating.  These relate to chronic pain complaints and the value, if any, of video surveillance.   Specifically the reader shared the following thoughtful observation:

This Fall we will again be watching hockey on tv [ video evidence ] Can you tell me which player[s] are playing hurt ? And trust me …. they are …. some very much. We often know this at the end of the year …. as teams ” hide ” or deny that certain players are hurt … in that the opposing players do not focus on and target their injuries. Video tapes ? I don’t trust them

What do you say?  Is there value to video surveillance?   Does it effectively weed out fraudulent claims or is it an unnecessary invasion of privacy?

As always I welcome others views, feel free to leave a comment.  You can click here to read a 2008 article sharing some of my views of video surveillance.


Credibility, Chronic Pain and the "Inherent Frailty" of Subjective Injury Claims

July 7th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing credibility and chronic pain claims based on subjective symptoms.

In this week’s claim (Sevinksi v. Vance) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the offending motorist focusing the claim on quantum.  The Plaintiff sought fairly significant damages for disability due to a diagnosed chronic pain syndrome.  Her injuries were largely subjective putting her credibility squarely at issue.

The Court expressed several concerns about the Plaintiff’s credibility noting that “the Plaintiff was not forthright in her evidence….There also appear to have been instances where the plaintiff was not forthright with the independent doctors she attended before”  and lastly that “Aspects of (the plaintiff’s evidence) go well beyond a frailty of memory or a natural and excusable tendency to exaggerate or place given evidence in a positive light.  Here the Plaintiff sought to mislead and crate a history that is not forthright“.

Despite all this Mr. Justice Voith did accept that the Plaintiff was injured in the collision and that she had ongoing limitations due to these injuries.  Non-Pecuniary damages of $60,000 were assessed but this award was then reduced to $45,000 to take into account the plaintiff’s failure to mitigate.  In assessing the Plaintiff’s credibility and damages the Court cited the well known passage from Mr. Justice McEachern in Butler v. Blaylok.  (making this an opportune place to repeat my views that the assertion that a higher burden of proof exists in subjective injury claims is questionable.)

Mr. Justice Voith provided the following reasons:

[43] The difficulties with the plaintiff’s evidence are magnified because of the lack of objective evidence to support her injuries. McEachern, C.J.S.C., as he then was, identified the difficulties associated with assessing the extent of an injury without the benefit of objective evidence in each of Butler v. Blaylok Estate [1981] B.C.J. No. 31 (S.C.) at paras. 18-19 and Price v. Kostryba(1982), 70 B.C.L.R. 397 (S.C.) at para. 1-4.

[44] In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A., at para. 15.1, said:

…there must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the normal recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.

[45] More recently, in Eccleston v. Dresen, 2009 BCSC 332, at para. 66, Barrow J. accepted that claims supported by only subjective evidence should be viewed with a “skeptical eye”. He further confirmed, however, that such claims can be supported by the “convincing force of collateral evidence”.

[46] Two propositions emerge from these cases. First, there is an inherent level of frailty in the case of a plaintiff whose assertions of injury are not supported by any objective evidence or symptoms. Accordingly, it is appropriate, in such cases, to treat the evidence adduced by or on behalf of the plaintiff with caution. Second, either the evidence of the plaintiff or collateral corroborative evidence may be sufficient to persuade the Court of the plaintiff’s position.

[47] In this case the usual difficulties associated with the wholly subjective complaints of a plaintiff are compounded by the reliability problems which are associated with the evidence of Ms. Sevinski.

[48] Notwithstanding some misgivings, however, I have accepted aspects of Ms. Sevinski’s evidence and am satisfied that these portions of her evidence are supported by additional collateral evidence before me…

[86] Having said this, the medical evidence establishes, and I have accepted, that the plaintiff does struggle with chronic pain syndrome. Her ability to function normally and to engage in the breadth of activities which she would like to, as well as to interact with her children and Mr. Rambold in a pain-free way, is diminished….

[89] Based on these considerations I assess Ms. Sevinski’s non-pecuniary damages at $60,000. This is without taking the question of mitigation into account.


Medical Marijuana Costs Deemed Recoverable in BC Personal Injury Claim

June 21st, 2011

In what I believe is the first award of its kind, damages of $30,000 were recently allowed in a BC personal injury claim for the purchase medical marijuana to help manage the consequences of chronic pain.

In reasons for judgement released earlier this month (Joinson v. Heran) the Plaintiff sued the Defendant surgeon for medical malpractice.  The Plaintiff’s claim was in part successful and damages of just over $310,000 were awarded including a $30,000 cost of future care assessment for medical marijuana.  Mr. Justice Brown provided the following reasons setting out his legal analysis in allowing this claimed damage:

[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary:Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.

[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.

[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.

[423] Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications….

[431] Therefore, I award $30,000 for costs of medical marihuana.


$60,000 Non-Pecuniary Damage Assessment for STI's Imposed on Pre-Existing Injuries

May 20th, 2011

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.

In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.


Over Two Million Dollars Awarded in Chronic Pain Claim

February 19th, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for loss related to chronic pain.

In last week’s case (Zen v. Readhead) the 45 year old plaintiff was injured in a 2005 motor vehicle collision.  Fault for the crash was admitted by the Defendant.    The Defendant’s lawyer argued that the plaintiff sustained only minor injuries submitting that the plaintiff “is an opportunist who has intentionally exaggerated his pain behavior and reporting in the hope of being rewarded significant compensation.”

The Court did not take kindly to this attack and rejected the Defendant’s submission with the following criticism “There are times when a trial judge listening to submissions about the credibility of a party is left to wonder if judge and counsel have heard the same evidence. This is such a case.”

The Court went on to award the Plaintiff damages of just over 2 Million Dollars for his accident related injuries and losses.  The majority of this was related to past and future income loss.  The Plaintiff was a high functioning Vancouver businessman and his losses were assessed reflecting his pre-accident income earning capacity.

Madam Justice Fenlon assessed the Plaintiff’s non-pecuniary damages at $110,000.  His injuries included low back and pelvic pain, headaches, a mood disorder, impaired sleep, dizziness, cognitive dysfunction, elbow pain and plantar fascitits.   In arriving at this figure the Court provided the following reasons:

[54]         Awards of damages in other cases provide a guideline only. I must apply the factors listed in Stapley to Mr. Zen’s particular case. Mr. Zen is now 45-years-old. He used to be an outgoing, charismatic athlete who weekly ran 40 kms, did the Grouse Grind, and took an active role in the lives of his daughters, all while working long days in the family business including most Saturdays. Today he is a different man. He is sleep-deprived and in chronic pain, which makes him irritable and prone to frustration and anger. He can no longer push himself athletically, which was a central part of his life and the way he managed stress. He has a diminished role in the lives of his daughters, and in particular his youngest daughter, Olivia. Mr. Zen’s relationship with his wife has been significantly affected and he has, in his words, “missed out on the best years of [his] life”.

[55]         Taking all of this into account and excluding from this analysis the pain and inconvenience caused by his left knee before the March 2010 surgery, I find that Mr. Zen is entitled to non-pecuniary damages of $110,000.


$100,000 Non-Pecuniary Damages Awarded for Chronic Pain From Soft Tissue Injury

January 21st, 2011

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry addressing damages as a result of chronic soft tissue injury.

In today’s case (MacKenzie v. Rogalasky) the Plaintiff was involved in a 2003 motor vehicle collision.  The Defendant turned into the path of the Plaintiff’s vehicle resulting in a t-bone type collision.  Fault for the crash was admitted by the Defendant with the trial focusing on the value of the Plaintiff’s claim.

The Plaintiff sustained various injuries in the crash.  These included “moderate” soft tissue injuries to his neck, shoulders and back.  The Plaintiff, unfortunately, went on to suffer from long term chronic pain as a result of these injuries.  He had to leave his employment as the Head Chef at a popular Lower Mainland restaurant and eventually opt for less physically demanding employment.

The limitations from his chronic soft tissue injuries were expected to be permanent.  The Plaintiff’s total damages were assessed at just under $400,000 including an award of non-pecuniary damages of $100,000.  In arriving at this figure Madam Justice Ker made the following findings:

[255]     I accept the evidence adduced by the plaintiff that Mr. MacKenzie sustained soft tissue injuries to his neck, shoulder and back as a result of the accident.  The symptoms of chronic pain have continued to bother Mr. MacKenzie, and nearly seven years post-accident, he still experiences pain in his neck, shoulder and back, although primarily in the lower back area.  While the injuries can be described as moderate soft tissue injuries, I accept the diagnosis and opinion of Dr. Hunt that Mr. MacKenzie has developed chronic myofascial pain syndrome and experiences chronic pain to this day.  Thus, the injuries and pain symptoms continue to affect most every facet of Mr. MacKenzie’s work and non-work life.  The pain is most significant when Mr. MacKenzie works and overloads his physical tolerance capacity.  He has had to leave his chosen profession as a chef due to the increasing pain and difficulty he was experiencing and the failure to see any significant improvement in his condition.

[256]     I have concluded that as a result of the accident, Mr. MacKenzie has suffered pain and loss of enjoyment of life, and he will continue to do so for an indefinite period of time.

[257]     Mr. MacKenzie struck me as a very stoic and determined individual.  Despite the ongoing pain he tried to continue to work as a chef, a position he was passionate about and aspired to continue in for as long as possible, perhaps even establishing his own restaurant.  He also tried to remain physically active but found it difficult to do so given the attendant pain associated with the activities he previously enjoyed, including motorcycling, snowboarding and, until recently, golfing.  His return to playing golf is a recent development, but due to the nature of his injuries and ongoing chronic pain symptoms Mr. MacKenzie has had to alter his style of play and is still not able to play to the same intensity and level he did prior to the accident.  He has suffered, and will continue to suffer, some diminishment in his lifestyle.

[258]     The evidence from the plaintiff’s friends and family, coupled with his own evidence, establishes Mr. MacKenzie enjoyed excellent health and was involved in the physically active and demanding position of Head Chef working in a busy restaurant for up to 16 hour shifts prior to the accident.  Mr. MacKenzie also engaged in demanding outdoor sports activities such as snowboarding, mountain biking and rollerblading and engaged in extended periods of riding his motorcycle.

[259]     Taking into account all of these circumstances, the referenced authorities and the nature of Mr. MacKenzie’s injuries, the relatively enduring nature of the injuries as manifested through ongoing symptoms of chronic pain that has developed into chronic myofascial pain syndrome which prohibits him from returning to the profession he has been passionate about since he was a young boy, the pain he has suffered and may continue to experience in the future, as well as the fact he suffered a diminishment in his lifestyle, I conclude a fair and reasonable award for non-pecuniary damages is $100,000.