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$110,000 Non-Pecuniary Assessment For Thoracic Outlet Syndrome and Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in multiple vehicle collisions.

In today’s case (Winick v. Goddard) the Plaintiff was involved in 3 collisions.  The Defendants admitted fault for all. The collisions resulted in chronic soft tissue injuries and thoracic outlet syndrome.  Her symptoms were found to be likely permanent, partly disabling and not to improve significantly in the future.  In assessing non-pecuniary damages at $110,000 Mr. Justice Branch provided the following reasons:

[79]         I find the following factors particularly germane to the determination of a proper non-pecuniary award in this case:

1.     The plaintiff sustained soft tissue injuries to her neck and back in the First Accident that were aggravated by the Second and Third Accidents. She also suffered from increased headaches that followed a similar course. Her back pain sometimes radiates into her hip and legs. She continues to suffer from these difficulties six years after the First Accident.

2.     The plaintiff sustained wrist problems as a result of the Second Accident, but these problems have largely resolved.

3.     The plaintiff suffers from thoracic outlet syndrome in one arm, which is likely to continue to cause symptoms into the future.

4.     The plaintiff’s mood has been adversely affected by the Accidents. She is tense when driving. Her irritability has caused increased tension in her marriage and with her friends and family. However, she has not been formally diagnosed with a psychiatric or psychological condition, nor has she been prescribed medication for same.

5.     The plaintiff was able to continue her studies along with employment as a receptionist and swim coach. She has not been able to return to lifeguarding given the more intense demands of that position. She is confident enough in her ongoing condition to seek work at a 75% level (which issue is discussed further in the subsequent income loss sections).

6.     The plaintiff was very physically active before the Accidents, and these recreational activities have fallen away since the Accidents. This has had a material impact on the plaintiff’s psyche. The plaintiff has stopped pushing herself to get back into these activities. It is unlikely that she will be able to lifeguard or do long distance swim lap work again. However, I find that it is reasonable to assume that she will be able to return to hiking, and to skiing more intermediate runs. That said, I accept that she obtained a great deal of her identity from her high level sporting capacity, so there will be a continued impact from these limitations.

7.     The plaintiff’s household work has largely dropped off since the Accidents. However, I find that she is no longer pushing herself back into these tasks to the extent she should be able to once she has managed the psychological and emotional factors. I find that there is a reasonable prospect that she will be able to return to most household work in the future, with appropriate breaks and accommodations, save for heavier, overhead tasks. However, given that the plaintiff has made a separate request for a housekeeping award, the Court must be cautious not to duplicate this element in her non-pecuniary award: Kim v. Lin, 2018 BCCA 77, at paras. 30-31, 33.

8.     The plaintiff’s condition has largely plateaued, but at a level that I find should allow her to continue to work with some accommodations, keep a home with some help, and engage in recreational activities with certain restrictions. There are certain investigations and treatments, like Botox, that have some prospect for improving her symptoms. She has also stopped exercising regularly, but I find that more frequent activity also has a reasonable prospect of providing her with some level of increased functioning. There is also some potential for surgical improvement, although it is not expected to provide full relief.

[80]         In sum, her chronic pain condition is now likely to be permanent, but there is a reasonable prospect for some increased functioning and scope for a return to a more moderate level of activity…

[85]         Applying all the individual factors above, and with guidance from the case law, I find that the appropriate amount for non-pecuniary damages is $110,000. Although Tench is the most factually similar case, there are material differences that justify a lower award here. In Tench:

a)    The plaintiff’s TOS was in both arms.

b)    The interference with her abilities were more severe than I have found to be the case here. For example, Ms. Tench was less able to tolerate even her occupational therapy evaluation. The court noted as follows at para. 143:

When giving evidence, however, Ms. Black commented that during testing, Ms. Tench needed breaks to manage her symptoms and she could not complete certain tasks, some of which were required in her current work.

c)     The plaintiff’s psychological and emotional problems appear to have been more severe and required treatment through prescription medication.

[86]         These distinctions move the present case closer to the fact pattern in Sharma. However, the plaintiff has not seen the pre-trial improvement in mood found in that case.

[87]         Hence, looking to the particular facts in this case, I find that a non-pecuniary award set between the amounts awarded in Sharma and Tench is reasonable.

Mr. Justice Branch, Thoracic Outlet Syndrome, TOS, Winick v. Goddard