$70,000 Non-Pecuniary Assessment for "Permanent Worsening" of a Chronic Pain Condition

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for the worsening of a pre-existing chronic pain condition.
In the recent case (Deol v. Sheikh) the Plaintiff was involved in a 2012 rear-end collision that the Defendant was found responsible for.  Prior to this the Plaintiff was involved in a 2006 collision which left her with chronic pain symptoms.  The Court found the latter collision permanently worsened these symptoms and assessed non-pecuniary damages at $70,000.  In reaching this assessment Madam Justice Griffin provided the following reasons:

[154]     Here, the Plaintiff suffered from soft tissue injuries and chronic pain as a result of the 2006 Accident; she also suffered from soft tissue injuries and an exacerbation of chronic pain symptoms after the 2012 Accident.

[155]     I find that the analysis in Schnurr is most applicable to Ms. Deol’s position. There is an abundance of evidence establishing that the Plaintiff had developed a chronic pain condition as a result of the 2006 Accident and that six years later it was continuing but relatively stable with the possibility of flare-ups just before the 2012 Accident. We therefore know the original position she would have been in, had the 2012 Accident not occurred.

[156]     It is important to note that the 2012 Accident did not tip the scales from one condition to another. It was not the cumulative effect of the 2012 Accident and the 2006 Accident that caused Ms. Deol to develop a chronic pain condition. Rather, she had this serious condition before the 2012 Accident.

[157]     The language in Ashcroft refers to the negligence of both the settling defendant and the respondent tortfeasor as being “necessary causes” of the injury. Again, the 2012 Accident did not cause the chronic pain condition. That condition pre-existed and was going to continue regardless of the 2012 Accident.

[158]     The evidence in this case makes it possible to consider the position that Ms. Deol was in before the 2012 Accident, and to compare her post-2012 Accident to that position, and to assess damages based on a change in her position.

[159]     I find that Ms. Deol’s injuries sustained in the 2012 Accident are divisible from the injuries sustained in the 2006 Accident.

[160]     I have found that the 2012 Accident caused a permanent worsening of Ms. Deol’s chronic pain condition, increasing her sensitivity to pain. Initially this increased pain was more significant in the approximately two years following the 2012 Accident before she was able to return to work in March 2014. It has since become more manageable but I find she has a greater propensity to suffer symptoms of her chronic pain condition in the future, as compared to the position she would have been in absent the 2012 Accident.

[161]     The Plaintiff is entitled to damages to compensate her for the injuries sustained in the 2012 Accident, to try to put her in the place she would have been in but for the 2012 Accident, but not to put her in a better place than she would have been had the 2012 Accident not occurred…

[211]     I found none of the authorities particularly helpful on the facts, where here, the Plaintiff is young, she suffered a serious loss of enjoyment of life for two years, and will likely suffer some loss of enjoyment of life in the future, incremental to the loss of enjoyment that would otherwise be caused by her chronic pain condition. I find an appropriate award of non-pecuniary damages to be $70,000.