$45,000 Non-Pecuniary Damages for Soft Tissue Injuries to Back, Neck and Shoulders

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff just over $88,000 in total damages as a result of a 2006 BC car crash.
In today’s case (Dutchak v. Fowler) the Plaintiff was involved in a rear-end collision.  Fault was admitted by the Defence lawyer leaving the Court to deal with the sole issue of quantum of damages (value of the injury claim).  The Plaintiff suffered various soft tissue injuries which continue to bother her by the time of trial and these had a likelihood of continuing indefinitely into the future.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Sewell made the following observations about the severity of the accident related injuries:

22] While I accept that Ms. Dutchak has genuine symptoms, I do have some concerns that she has unrealistic expectations about the consequences of the physical activities in which she engages.  Ms. Dutchak runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays squash three times a week and cycles for long distances on a regular basis.  These activities undoubtedly cause physiological stresses on her anatomy.

[23] It is apparent that engaging in these physical activities is an important part of Ms. Dutchak’s relationship with her husband.  Both Ms. Dutchak and her husband continue to place a high level of importance on physical activity and a good deal of their personal interactions with one another revolves around physical fitness and exercise activities.  In addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24] I have concluded that Ms. Dutchak is now able to engage in almost all of the activities she did before the accident, but at a price.  That price is a much higher level of pain and discomfort than before the accident.

[25] The preponderance of evidence before me satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely disappear.  However, I am also of the view that there is a reasonable possibility that she will experience some continued improvement as she adjusts to her altered circumstances…

[28] In the result, I conclude that Ms. Dutchak has suffered soft-tissue injuries to her upper back, shoulders and neck which have resulted in stiffness, pain and headaches, all of which are significantly aggravated by strenuous physical activity.  She continues to experience those symptoms.  My conclusion is that there is some prospect of continued improvement but that in assessing damages in this case, I should proceed on the basis that Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other hand, I also conclude that Ms. Dutchak is now able to perform virtually all of the tasks and activities that she did prior to the accident and, in particular, is able to engage in vigorous physical activity.  In carrying out these activities she has no mechanical limitations.  The only restriction on these activities is the pain which they cause.

[29] I have also concluded that Ms. Dutchak is highly motivated to continue with these activities and, in fact, is continuing to perform and engage in them notwithstanding the level of pain and the headaches that she experiences as a result…

In my view, this case is one in which an award of non-pecuniary damages should be at the lower end of the range for cases involving chronic pain.  I say this because Ms. Dutchak is able to engage in all of the activities she formerly did with the assistance of analgesic medicines and in the full knowledge that engaging in activities will often trigger pain for her.  In all the circumstances I award Ms. Dutchak $45,000 for non-pecuniary damages.