$65,000 Non-Pecuniary Damage Assessment For Chronic Pain; Adverse Inference Discussed

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for chronic pain following a motor vehicle collision.
In this week’s case (Azuma-Dao v. MKA Leasing Ltd.) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  Following the crash the Plaintiff suffered from chronic pain from soft tissue injuries possibly with “spinal facet joint or disk pathology”.  Her injuries compromised her ability to work in her chosen profession and, despite room for improvement, were expected to continue to cause problems for the foreseeable future.  In assessing non-pecuniary damages at $65,000 Madam Justice Humphries provided the following reasons:

[80] The plaintiff’s life has changed substantially as a result of the accident, and she suffers chronic pain.  From a fit, very active person, she has become withdrawn, moody, and deconditioned.  Her friends and her husband find her to be a different person, no longer active and happy go lucky.  She endures pain every day, but she works very hard at her exercises.  Her work with disabled adults was very important to her and required a fit strong body, which she no longer has.  Despite her withdrawal, she maintains a social life, but the activities she and her friends do are now more sedentary.

[81] I set her non-pecuniary damages at $65,000

Another point of interest was the Court’s discussion of the Adverse Inference principle.  In the course of the lawsuit the Plaintiff obtained and produced clinical records from her GP.  She did not call the doctor in support of her case.  The Defendant argued that an adverse inference should be drawn but the Court refused to do so finding that it was open to the Defendant to call this physician if they wished.  Madam Justice Humphries provided the following reasons:

[45] I will mention the issue of adverse inference at this point.  Since all of Dr. Frank’s clinical notes were provided to the defence and Ms. Azuma-Dao admitted the relevant portions on cross-examination, I am not prepared to draw an adverse inference against the plaintiff for failing to call Dr. Frank, who was of course available to either side and was in fact on the defendants’ witness list.  However, since the defence gained what they required on cross-examination of the plaintiff, they cannot be faulted either for not calling Dr. Frank.