$75,000 Non-Pecuniary Assessment for Mild/Moderate Soft Tissue Injuries With Resulting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries as a result of a motor vehicle collision.

In today’s case (Dueck v. Lee) the Plaintiff was injured in a 2016 collision which the Defendant admitted fault for.  The crash resulted in mild/moderate soft tissue injuries some of which lingered and led to chronic pain.   The prognosis for full recovery was poor.  In assessing non-pecuniary damages at $75,000 Mr. Justice Giaschi made the following findings and provided the following reasons:

[49]         I am satisfied that the plaintiff has proven on a balance of probabilities that, as a consequence of the Accident, she suffered mild to moderate soft tissue injuries to her neck, lower back, left shoulder, left arm, left hand, and left knee. Further, as a consequence of these injuries she has suffered chronic pain, periodic debilitating headaches, and sleeplessness. Many of the plaintiff’s symptoms resolved prior to trial but she continues to suffer from daily chronic pain related to her lower back and neck injuries, periodic debilitating headaches, and sleeplessness. She also has tightness and less strength in her left shoulder and arm.

[50]         I reject the submissions of the defendants that the plaintiff’s headaches and injuries to her lower back pre-existed the Accident. I accept the evidence of the plaintiff and of her husband and daughters that the headaches the plaintiff has experienced since the Accident are not of the same severity or frequency as the headaches she had before the Accident. I also accept the evidence of Dr. Giantomaso that the headaches suffered by the plaintiff before the Accident were related to menopause and that the headaches suffered after the Accident are of a different nature and cause.

[51]         With respect to the plaintiff’s low back injury, there is some evidence that the plaintiff suffered a similar injury in a motor vehicle accident that occurred in 1984. However, the evidence of the plaintiff, her husband and her daughters is overwhelmingly to the effect that any symptoms from this prior accident had either completely resolved long before the Accident in issue or were of very minor significance. In any event, Dr. Giantomaso opined that the Accident significantly aggravated any pre-existing low back injury.

[52]         I further find that the plaintiff’s prognosis for recovery from the injuries is poor. At best, she may experience a decrease in pain and improvement in function, but she will never be cured. This was the evidence of Dr. Giantomaso, which I accept.

[53]         I further find that as a consequence of the injuries suffered in the Accident, the plaintiff is less social than she was before the Accident and is not able to enjoy the gardening that she did before the Accident. With respect to the plaintiff’s ability to do housework, I find that she is able to do all of the housework that she did before the Accident, however, the housework now causes her pain and she has had to seek the assistance of her husband and daughters. Additionally, her injuries have made it more difficult for her to teach piano and to carry on her small catering business.

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[58]         The plaintiff was 52 years old at the time of the Accident and was 55 years old at the time of the trial. As a consequence of the Accident, she suffered mild to moderate soft tissue injuries to her neck, lower back, left shoulder, left arm, left hand and left knee, headaches, and pain. At the time of the trial, she suffered from chronic pain, sleep problems, and frequent headaches, some of which were severe. She will continue to suffer some degree of chronic pain, headaches, and sleep disruption on a permanent basis. Her injuries have clearly had a negative effect on the plaintiff’s enjoyment of life. She has essentially had to give up much of her gardening, an activity she enjoyed. Her ability to do housework has been mildly compromised as has her ability to teach piano and to run her small catering business. Finally, her ability to attend and enjoy social gathering has been limited. Considering all of the circumstances and the authorities to which I have been referred, I am of the view that an award of general damages in the amount of $75,000 is fair and reasonable to all parties.

[59]         Before leaving the discussion of general damages, I wish to specifically add that I have exercised my discretion to include the plaintiff’s loss of housekeeping capacity in the assessment of non-pecuniary damages rather than as a segregated pecuniary head of damage. In my view, this is warranted in the circumstances of this case since the plaintiff is able to perform most housekeeping tasks, albeit with difficulty and some pain. Kim v. Lin, 2018 BCCA 77; and McTavish v. McGillivray, 2000 BCCA 164, confirm that I have such discretion.