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


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.

bc injury law, chronic pain, MacKenzie v. Rogalasky, Madam Justice Ker, moderate soft tissue injuries

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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