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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

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Posts Tagged ‘Ponsart v. Kong’

$85,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries with Anxiety and Depression

July 5th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.

In today’s case (Ponsart v. Kong) the Plaintiff was involved in 2 collisions for which the Defendants were responsible.  These resulted in chronic soft tissue injuries to her neck and back with some psychological overlay.  In assessing non-pecuniary damages at $85,000 Mr. Justice Butler made the following findings and provided these reasons:

[76]         With these conclusions in mind, I make the following specific findings about the nature and extent of Ms. Ponsart’s injuries and symptoms:

·       She suffered a Grade II strain of her neck and low back in the First Accident. At the time of the First Accident, she had recovered from the injuries suffered in the May 2011 accident. The pain in her thoracic spine around that time was primarily caused by breast enlargement that was alleviated by the surgery in 2013.

·       The First Accident also caused the plaintiff to experience significant anxiety and depression, which affected her ability to take part in work and leisure activities. Nevertheless, as her physical condition improved, she was able to take part in many activities. By 2013, she was doing strenuous training. While she functioned marginally at times, that was primarily a result of her psychological condition.

·       Her anxious nature predisposed her to experiencing anxiety and depression. However, there is no evidence suggesting that she would have experienced the emotional problems she faced without the First Accident.

·       The plaintiff was functioning reasonably well before the Second Accident, although she was still experiencing some neck and low back pain. Her emotional condition had improved from the summer of 2014.

·       The Second Accident aggravated the plaintiff’s soft tissue strain to the cervical and lumbar spine. The injury was not as serious as what she experienced in the First Accident, although she was partially disabled for two to three months. The Second Accident had a significant impact on her emotional well-being. It caused additional anxiety and depression, although not to the extent of a major depressive disorder.

·       By the time of the Third Accident, the plaintiff’s physical condition was manageable, although she was still experiencing minor neck and low back pain, which by that time had become chronic.

·       The Third Accident caused a further aggravation of the injuries from the two prior accidents. It had a significant impact on her, both physically and emotionally because of her increased headaches. She now suffers from chronic headaches including severe migraines. The exacerbation of her neck and back symptoms lasted for approximately six months before returning to the pre-accident status.

·       As a result of the accidents, the plaintiff is left with a minor degree of chronic neck and low back pain. She is able to manage all tasks of daily living and most of her recreational pursuits most of the time. However, because of the accidents, she is more susceptible to anxiety and depression than she was before the First Accident.

·       As will be evident from these conclusions, much of the plaintiff’s suffering was emotional. As I have described, there is no doubt it was caused by the First and Second Accidents.

[84]         As I have described, a major component of the plaintiff’s injury is emotional or mental. As the Supreme Court of Canada recently affirmed in Saadati v. Moorhead, 2017 SCC 28, such losses are compensable where, quoting Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, they are “’serious and prolonged and rise above the ordinary annoyances, anxieties and fears’ that come with living in civil society”. The plaintiff has clearly met the burden of proving serious and prolonged disturbance to her emotional well-being arising from the injuries in the First and Second Accidents.

[85]         When I consider the facts I have found about the nature and extent of the plaintiff’s injuries, I conclude that a fair award for non-pecuniary loss is $85,000. This award does not include any amount for two discrete injuries or symptoms: the exacerbation of the plaintiff’s neck and shoulder pain that occurred in the six-month period after the Third Accident; and the headache symptoms that the plaintiff suffered after that accident.