$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck and Back Injury

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

Mr. Justice Baird provided the following reasons:

11]        The plaintiff was assessed by Dr. Jonathan Hawkeswood, physiatrist, on August 13, 2018. He submitted a report that documented the plaintiff’s history of difficulties, his diagnosis, and recommendations for her future heath care. According to him the claimant continues to suffer from post-traumatic myofascial neck pain with large trigger points at the medial trapezial fibres, upper intrascapular pain, likely predominately soft tissue in nature, and headaches related thereto. He noted no pre-accident injuries or illness and concluded that the plaintiff’s current upper body pain and headaches are attributable to the accident. His overall prognosis and expectations were reported as follows:

Based on the duration of symptoms and today’s clinical presentation, a complete resolution of all accident related injuries has a probability of less than 50%. In other words, I expect Ms. Poulin will continue to have neck pain indefinitely. This can be reasonably described as a chronic neck pain issue. Furthermore, it is probable she will experience headaches in association with neck pain on a long term basis.

[12]        Dr. Hawkeswood said that the plaintiff is not disabled from light or moderate duty work because of her injuries. In particular, he did not consider her to be disabled from a career as a physiotherapist but concluded that her work tolerance and productivity will likely be compromised by her injuries. “In the future”, wrote Dr. Hawkeswood, “she may well require consistent sick time or perhaps vacation time dedicated to physical recovery due to her injuries.” He also recommended, if the plaintiff ends up pursuing another career, that she should choose a field that does not require heavy lifting, allows for frequent positional changes, and minimises overhead work.

[13]        The plaintiff was also examined by Brent Armstrong, a functional capacity evaluator. He spent the better part of a day with the plaintiff putting her through various physical tests. He concluded that the plaintiff is competitively employable as both a physiotherapist and a kinesiologist, but he predicted that she will experience exacerbations of neck and upper back pain in the course of her work in either occupation. He predicted that she would need to moderate her pace, take regular breaks, and ask for assistance or accommodations in order to succeed in her daily tasks…

[18]        Here, the plaintiff was injured at a very young age. According to the uncontested medical evidence she will likely continue to suffer indefinitely from pain in her upper back and neck with associated headaches. She has been deprived of the full enjoyment of her physical person in the prime of her life and will suffer from these deficits for many years. This is a significant setback, especially for someone as active as the plaintiff.

[20]        I have concluded that a fair award under this heading is $65,000.

bc injury law, Mr. Justice Baird, Poulin v. Armstrong

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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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