$100,000 Non-Pecuniary Damage Assessment For Bilateral Thoracic Outlet Syndrome


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for bilateral thoracic outlet syndrome and other chronic soft tissue injuries.
In yesterday’s case (Olson v. Ironside) the Plaintiff was involved in a ‘signigicant collision’ in 2008.  ICBC admitted fault on behalf of the Defendant. The Court heard competing evidence with respect to the extent of the Plaintiff’s injuries and ultimately sided with the Plaintiff’s experts noting ICBC’s expert failed “to consider significant material facts“.
The 19 year old Plaintiff suffered multiple injuries, the most serious of which was bilateral thoracic outlet syndrome.  These were expected to cause a permanent partial disability limiting the Plaintiff for the balance of her working years.  In assessing non-pecuniary damages at $100,000 Mr. Justice Josephson provided the following reasons for judgement:

[60] The plaintiff has proved that, but for the accident, she would have continued her healthy, active and outgoing life style. I accept the plaintiff’s submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission; and

9.       permanent right temporomandibular joint dysfunction.

[61] The accident had a dramatic effect on all aspects of this young plaintiff’s life because of the symptoms listed in the previous paragraph. She has learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62] Of the several case authorities cited by the plaintiff to assist the Court in determining non-pecuniary damages in the case at bar, the most helpful are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010 BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335;Prince-Wright v. Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211.  The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63] After reviewing the authorities cited to me and considering the impact of the proven injuries on the plaintiff’s daily life, I award the plaintiff $100,000 for non-pecuniary damages, which I consider to be a mid-range award for the circumstances of this case.

Advocacy in the Guise of Opinion, bc injury law, benchslap, Mr. Justice Josephson, Olson v. Ironside, Thoracic Outlet Syndrome, TMJ

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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