$75,000 Non-Pecuniary Assessment for Chronic but Not Disabling Thoracic Outlet Syndrome

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for Thoracic Outlet Syndrome caused and aggravated by a series of collisions.
In today’s case (Griffith v. Larsen) the Plaintiff was involved in three rear end collisions.  The Court found the first collision caused TOS or at least TOS like symptoms and this condition was aggravated by the subsequent collision.  The Court had some concerns about the plaintiff’s credibility noting “there was an element of embellishment” with some of the Plaintiff’s evidence.  The Court accepted the Defendants were responsible for the plaintiff’s injuries but found the condition was not particularly disabling.  In assessing non-pecuniary damages at $75,000 Mr. Justice Affleck provided the following reasons:

[41]         Dr. Salvian has formed his opinions relying heavily on the plaintiff’s self-report of symptoms. This is not a criticism. Nevertheless, my conclusion is that it is appropriate to be cautious when relying on these reports. It is also my conclusion that the plaintiff, whether or not she has TOS, is gradually improving. I do not accept her symptoms are sufficiently severe or her disabilities so pronounced that she is likely to agree to surgery. Her evidence is that she would seek a second opinion from that of Dr. Salvian and in my view she will approach the question of surgery with considerable reluctance. In my view it is more likely that there will be no surgery of the type Dr. Salvian frequently undertakes with his patients.

[42]         As I have mentioned, Dr. McDonald, who knows the plaintiff’s condition, both from before and after the accidents, better than any of the other physicians who have testified, would not restrict the plaintiff’s activities in any way. I accept that evidence and it leads me to conclude the plaintiff has no present significant disabilities. Nevertheless, I find the plaintiff continues to experience symptoms, particularly from the first accident. In my view the second and third accidents were trivial but have had an exacerbating effect on the injuries from the first accident.

[43]         The “common sense” approach recommended by the defendants is that trivial collisions cause trivial injuries. That approach has superficial plausibility but no more. As Mr. Justice Thackray observed in Gordon v. Palmer, [1993] B.C.J. NO. 474 at para. 3:

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court.

[44]         I find the plaintiff will have had about four years of painful but gradually diminishing symptoms since the first accident until she recovers. I do not find that she is feigning her symptoms but that she has overstated them. It is likely that these symptoms will subside over the coming months, particularly if the plaintiff becomes more physically active as Dr. McDonald recommends.

[45]         I also believe the plaintiff has become overly absorbed by the effects of the accidents on her life and has erroneously come to believe she is disabled from pursuing many of her former physical recreational pursuits. This belief is not shared by Dr. McDonald, nor is it my assessment of the plaintiff’s condition on all of the evidence…

[50]         I assess the plaintiff’s non-pecuniary general damages at the sum of $75,000.