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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 ‘Wilson v. Manzano’

$55,000 Non-Pecuniary Damages for Chronic and Pervasive Back Pain

October 19th, 2009

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry (Wilson v. Manzano), awarding a Plaintiff over $350,000 in total damages as a result of chronic soft tissue injuries sustained in a 2004 BC Car Crash.

The collision occurred at a relatively low speed with the Defendant accelerating from a stop on the mistaken belief that his light turned green.  He rear-ended the Plaintiff’s vehicle which was stopped in front of him.  The crash caused about $5,000 in damages to the Plaintiff’s vehicle.

The Plaintiff was injured despite the relatively low speed of the crash as she was in a vulnerable position at the moment of impact with her “head and upper body turned toward (a rear seat passenger).”

The Plaintiff’s GP gave evidence that she suffered from a ‘chronic myofacial pain in the upper lumbar area‘ as a result of this crash and that she went on to develop a ‘chronic pain syndrome in the back‘.  The medical evidence established that this injury was permanent and would likely continue to adversely effect the Plaintiff in the future including limiting the types of jobs she could take advantage of.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Bernard summarized the effect of these injuries on the Plaintiff’s life as follows:

[37] The collision in question was one of moderate impact. The significance of it in relation to injury is not the force of the impact, per se, but rather that the impact came without warning while Ms Wilson’s body was in a particularly vulnerable position in relation to the effect of the force upon her. Ms Wilson was seated in the driver’s seat, but not facing forward. Her head and body were twisted to the right so that she could converse face-to-face with her nephew who was seated in a rear passenger seat. Given these circumstances, it is not surprising that she might have sustained an injury qualitatively different than the usual “whiplash” and that her prognosis for recovery might also be quite different.

[38] I am satisfied that Ms Wilson is neither an idle complainer nor a hypochondriac. At the time of the collision she was a strong, healthy, active and vibrant woman who was happily employed in a relatively physically demanding job. Within hours after the collision, she was in tears and paralyzing pain from a spasm in her lower back. At 4:30 a.m. she took a hot shower to help alleviate the spasm. She attended her job site the next morning and was in so much pain by the end of the day that she stopped at a medical clinic en route to her home and received pain medication. Thereafter she saw her family physician and went through a physiotherapy program. She wants to recover from her injury and get on with her life as she knew it, but she has been able to make very little progress in that regard.

[39] Ms Wilson’s back pain, caused by the collision, has not abated. I am satisfied that there is no prevarication or exaggeration in relation to her symptoms. I also find that there were no intervening events which might reasonably account for the pain she now suffers. There were some medical issues subsequent to the collision; however, I am satisfied that none of these were related to the chronic back pain from which Ms Wilson suffers. There has been continuity of symptoms since the collision. There is no evidence of events inconsistent with Ms Wilson’s claims; to the contrary, her family, friends, and co-workers corroborate her continuous suffering and the significantly negative impact the injury from the collision has had upon her life. Ms Wilson’s frustration with the pain and the manifold ways it has affected her life is palpable. The evidence establishes that her chronic back pain has forced her to give up most, if not all, of her activities and pursuits, both in leisure and work, which she found enjoyable, fulfilling, and rewarding. The pain she suffers has made her very unhappy. It has robbed her of a rewarding career and fulfilling pastimes. It has jeopardized valued personal relationships.

[40] I am similarly satisfied that her pain symptoms are now chronic, with no reasonable prospect of amelioration except over the course of many years, if not decades. In this regard, I accept the diagnosis and prognosis of Dr. Mason. He presented as a very knowledgeable physician and a reasonable man who knows Ms Wilson, as his patient, well. His opinion is corroborated, in critical aspects, by Dr. Gouws…

[48] I accept that each of the cases cited bear some similarities to the case at bar and establish a range of damages from $40,000 to $100,000. These cases offer some guidance; however, each set of circumstances is unique, as is each plaintiff. I consider two compelling aspects of the case at bar to be: (a) the pervasiveness of the injury upon the plaintiff’s life, and (b) the reasonable prospect of some amelioration of her symptoms over time. In all the circumstances, and having regard to the cases cited, I set the award for non-pecuniary losses at $55,000.