$70,000 Non-Pecuniary Assessment for Chronic Headache Disorders

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a chronic headache disorder caused as a result of a motor vehicle collision.
In this week’s case (Fennell v. Herbert) the Plaintiff was involved in a ‘quite violent’ collision in 1998 when she was 8 years old.  Liability was admitted focussing the trial on an assessment of damages.  The trial proceeded summarily as there were no issues as to the legitimacy of the plaintiff’s symptoms nor to their connection to the collision.  In assessing non-pecuniary damages at $70,000 the court summarized the following medical evidence and provided the following reasons:

[4] As a result of the motor vehicle accident, the plaintiff suffered soft tissue injuries to her neck and lower back and headaches started within days of the collision. The headaches and neck pain have continued ever since and it is the headaches that are the most debilitating and are now considered chronic.

[5] Dr. Robinson, who is a neurologist that specializes in pain disorders stated in his report that:

In all likelihood she will continue to have chronic headache and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize…

[7] Dr. Laidlow, a physical medicine and rehabilitation specialist, in a report dated April 28, 2010, noted that the plaintiff had neck pain, back pain, and two types of headaches. His opinion was that her neck and lower back pain was myofascial pain caused by musculoligamentous strain at the neck and lower back at the time of the accident. Dr. Laidlow recommended that she see a neurologist. Dr. Robinson’s report was dated August 9, 2011. He noted that as a result of the accident she probably sustained soft tissue injury to her neck and shoulders and developed chronic headaches relating to the neck injury:

I believe that she probably did develop chronic headaches relating to neck injury as a result of the January 30, 1998 motor vehicle accident. As a result of that accident, she has ongoing neck and shoulder discomfort present constantly. The pain is aggravated by physical activity whereupon there is an increase in her head pain.

I believe that it is possible that she did develop an increased predisposition to headache reflecting migraine in her early teenage years. However, I doubt that she would have developed a constant headache or as frequent severe episodes had the lingering effects motor vehicle accident not been present.

In essence, I believe that her current headache difficulties are primarily related to chronic pain involving her neck secondary to the motor vehicle accident of January 30, 1998, superimposed upon which is a predisposition to headaches. Although it is impossible to be definitive I believe that she probably would not have developed any substantial problems with headaches if the accident had not occurred.

In all likelihood she will continue to have chronic headaches and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize. I doubt that her headache disorder will worsen or that it will have a negative impact upon her post-secondary education or for that matter her career potential.

[8] Dr. Laidlow also stated:

I do feel that she should be able to go to school and do any work activities. I think she will also be able to do any recreational activities that she chooses…

[15] I accept the evidence of the plaintiff. I find that under the heading of general damages for loss of enjoyment of life, given her young age and the severity of pain and discomfort she has suffered, she is entitled to general damages in the amount of $70,000. Also included is a component for loss of housekeeping capacity.

bc injury law, Fennell v. Herbert, Mr. Justice Cole

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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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