ICBC Law

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.

In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.

Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft‑tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non‑pecuniary damages in this case is $45,000.