$45,000 Non-Pecuniary Assessment for Persistent but Not Disabling Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for persistent moderate soft tissue injuries.
In today’s case (Matharu v. Gill) the Plaintiff was involved in a collision which the Defendant was found liable for.  She suffered moderate soft tissue injuries to her neck and shoulder which persisted to the time of trial and were expected to linger for sometime after although the ultimate prognosis was generally favorable.  In assessing non-pecuniary damages at $45,000 Mr. Justice Butler provided the following reasons:

[30]         When I consider the medical opinions and the evidence regarding the nature and duration of Ms. Matharu’s symptoms, I arrive at the following conclusions:

a)       Ms. Matharu suffered a moderate soft tissue strain to her neck and shoulders. She also suffered a mild low back strain.

b)       Ms. Matharu’s pre-existing conditions have affected the length of time it has taken and will take for her to recover from the injuries. In particular, the inflammatory polyarthropathy made her more susceptible to persistent soft tissue pain. Her mild anxiety condition has also had some impact on the persistence of her symptoms.

c)       In spite of persistent pain for three years, Ms. Matharu has continued with most activities at home and at work. She has managed to do this with the assistance of family, friends and work colleagues. She can fairly be described as somewhat stoic.

d)       Ms. Matharu did not follow Dr. Sanghera’s recommendations to continue with physiotherapy and active rehabilitation for about 12 months. Similarly, prior to the accident, she did not take part in recommended regular exercise. Her failure to do so for a period of time after the accident has likely resulted in some prolongation of symptoms. However, it is unlikely her symptoms would have resolved by trial, even if she had continued with the recommended therapy.

f)        Ms. Matharu continues to experience symptoms related to the injuries suffered in the accident. The symptoms will continue to resolve and there is a good chance they will fully resolve within the next one to two years.

[37]         When I examine the circumstances in this case and the factors highlighted in Stapley, the important factors here are the length of time Ms. Matharu has suffered ongoing soft tissue pain, the extent of that pain, and the impact it has had on her ongoing activities. In that regard, I accept that she is stoic and has continued to do most things. However, I also find that she was frail and somewhat limited in what she could do before the accident. Accordingly, the injuries have imposed a limitation on her activities and lifestyle which has impacted her more than such injuries would have done to someone who was more vigorous and did not suffer from inflammatory polyarthropathy.

[38]         In all of the circumstances, I conclude that a fair award for non-pecuniary damages is $45,000. However, that does not end the matter. Ms. Matharu did not follow Dr. Sanghera’s recommendations and I have accepted his evidence that had she done so she would likely have had some improvement in her symptoms. Accordingly, I find the defendant has satisfied the onus to prove that Ms. Matharu failed to mitigate her loss. I would accordingly reduce the non-pecuniary damage award by 10%.

bc injury law, Matharu v. Gill, Mr. Justice Butler

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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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