$55,000 Non-Pecuniary Assessment for Chronic Neck and Back Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Espinoza v. Espinoza) the Plaintiff was injured in a 2011 single vehicle collision.  He was a passenger in a vehicle that lost control and struck a lamp post.  The driver admitted fault.  The Plaintiff alleged the collision caused a traumatic thoracic outlet syndrome.  The Court did not accept this claim and found that the Plaintiff had “at times exaggerated his injury“.  Despite this the Court accepted the collision caused chronic soft tissue injuries and in assessing non-pecuniary damages at $55,000 Mr. Justice Grauer provided the following reasons:

[106]     Nevertheless, I am satisfied that Mr. Espinoza was indeed injured in the motor vehicle accident, and the defendant does not contest this.  I find that he sustained soft tissue injuries to the neck and back, and that these indeed have become chronic, though not as disabling as he would suggest.  In this regard, I rely most upon the evidence of Dr. Vinnitsky, whose examinations disclosed at least some objective symptoms and who had the opportunity to assess Mr. Espinoza over a period of time both before and after the accident.  I found the evidence of Dr. le Nobel and Dr. Salvian less helpful on this issue given their total reliance on Mr. Espinoza’s reports, and my concerns with the reliability of Mr. Espinoza as a historian.  As indicated, the evidence as a whole leads me to conclude that Mr. Espinoza has at times exaggerated his injury, attributing more to the motor vehicle accident than the evidence other than his own can support.  I do accept, however, the reality of the problem of chronic pain as a syndrome, a reality rejected by Dr. McPherson. 

[107]     I do not accept that Mr. Espinoza has suffered traumatic thoracic outlet syndrome as a result of the accident, as opined by Dr. Salvian.  The best evidence of his course after the accident, being the reports of Dr. Vinnitsky, is inconsistent with what Mr. Espinoza reported to Dr. Salvian, and does not support such a diagnosis.  Mr. Espinoza submits that Dr. Vinnitsky’s finding on March 8, 2012, of pain in the left wrist and “volar aspect of the left forearm” could properly be interpreted as due to numbness and tingling consistent with a developing post-traumatic thoracic outlet syndrome.  Dr. Salvian suggested as much.  I disagree.  It is clear that Dr. Vinnitsky related this to a sprained wrist.  I find that Mr. Espinoza has failed to demonstrate, on a balance of probabilities, that he suffered a thoracic outlet injury at all, or that, if he did, it relates to the accident…

[115]     I consider the Rutledge case to be much closer to this one, as it involved a chronic pain situation where a diagnosis of thoracic outlet syndrome was rejected.  Considering all of the necessary factors, and taking into account the evidentiary difficulties, I assess the plaintiff’s non-pecuniary damages at $55,000.

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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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