$40,000 Non-Pecuniary Assessment for "Mild, Intermittent, Indefinite" Soft Tissue Injury

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a long term soft tissue injury.
In the recent case (Sahota v. Ho) the Plaintiff was injured in a 2001 collision.  He was 9 years old at the time.  He suffered soft tissue injuries which continued to be symptomatic.  Although the Court rejected the Plaintiff’s characterization as to the severity of his symptoms the Court accepted they were on-going and would continue indefinitely   In assessing non-pecuniary damages at $40,000 Mr. Justice Cohen made the following findings:
[185]     Thus, I find as follows:
(1)      the plaintiff sustained injuries to his head, abdomen and neck as a result of the accident on September 29, 2001.  The plaintiff’s injury to his head and abdomen resolved shortly after the accident.  The plaintiff continued to experience occasional headaches, but this symptom has also since resolved.  The plaintiff’s neck pain is on-going and will likely continue indefinitely;
(2)      the plaintiff’s injury to his neck was a mild, soft tissue injury.  The evidence from the clinical records of Dr. Chua is that from both a subjective and objective point of view, he noted “mild” with respect to what the plaintiff reported to him and what he found upon examination.  He also conceded in cross-examination that he did not ever use the terms “moderate” or “severe” in his clinical records.  In my opinion, the plaintiff’s complaints regarding his neck pain were not as severe as described by the plaintiff and his father in their testimony.  I do not agree with the plaintiff’s position that the plaintiff’s neck is appropriately characterized as a “moderately severe cervical strain” as stated by Dr. Chua in his August 2007 report; and
(3)      the neck pain experienced by the plaintiff was intermittent, rather than every day or “constant” as the plaintiff and his father insisted.  If the plaintiff or his father had reported to Dr. Chua that the plaintiff experienced neck pain every day, or that the plaintiff’s neck pain was “constant”, then Dr. Chua would have written this description in his clinical records.  Instead, Dr. Chua recorded that the pain was “on and off” or “recurrent”, terms which are not synonymous with the word “constant”.   Furthermore, those terms were used elsewhere in Dr. Chua’s clinical records in reference to other symptoms that do not support such an interpretation.  I also prefer the testimony of Ms. Porter to that of the plaintiff’s father regarding whether the plaintiff experienced improvements in his condition over the period of time following the accident.  Her testimony is in keeping with the evidence of Dr. Chua who mentioned in his report of August 2002 that the plaintiff had improved from his injuries…
[202]     I am mindful that the plaintiff continues to be symptomatic and that his neck pain is likely to continue in the foreseeable future.  However, given my findings on the chronicity and severity of the plaintiff’s pain, in the context of the evidence regarding the extent of the suffering and inconvenience experienced by the plaintiff following the accident, I find that a fair award to him for general damages is $40,000.

bc injury law, Mr. Justice Cohen, Sahota v. Ho

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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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