$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder injury caused by a collision.
In today’s case (Gaudrealt v. Gobeil) the Plaintiff was involved in a ‘forceful‘ rear-end collision in 2009.  He suffered various injuries the most serious of which was a chronic shoulder pain.  In assessing non-pecuniary damages at $75,000 Mr. Justice Thompson provided the following reasons:

[15]        I find that most of the right shoulder abnormalities shown by the X-ray and MRI imaging pre-date the MVA. I conclude that the superficial tearing of the bursal surface of the supraspinatus tendon and the biceps tendinitis is a direct result of the MVA. The other right shoulder changes were pre-existing, albeit asymptomatic and rendered symptomatic by the MVA.

[16]        The medical evidence firmly supports the conclusion that the MVA has put the plaintiff in a position where he ought not to do physical construction work. However, I do find that if the MVA had not happened, there is a measurable risk that the asymptomatic pre-existing right shoulder abnormalities would have progressed and at some point interfered with the plaintiff’s ability to do this heavy type of work. Doing the best I can with the evidence available, I think this contingency to be on the order of a 50% risk within ten years.

[17]        There is a chance that Mr. Gaudreault will need rotator cuff surgery to repair MVA-related damage, but I think this is unlikely. He seems disinclined to that alternative. If he continues to stay away from heavy physical work, I think it is highly likely that he will avoid surgery…

[22]        The proper approach to the assessment of non-pecuniary damages is well-settled and is encapsulated in the often-cited passage at paras. 45-46 in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46. The plaintiff urges an award of $125,000, emphasizing the expected permanency of his partial disability, the chance that shoulder surgery will be necessary, the interruption of his ability to work without restriction, and the impact on his enjoyment of golf and tennis. The defendants submit that $40,000 would be proper compensation. They emphasize that shoulder problems may have emerged in any event of the MVA. They submit that the plaintiff has taken no therapy treatment in the past two years, he has taken no pain medications since the year following the MVA, and he no longer sees his family doctor for his MVA-related complaints — all of which indicate that the plaintiff is not in a great deal of pain. They contend that there has been little in the way of lifestyle interruption, pointing to the plaintiff’s ability to continue to referee soccer and the plaintiff’s admission that it is unlikely that he would have spent much time golfing or playing tennis in the busy years since the accident.

[23]        The plaintiff cites White v. Wiens, 2015 BCSC 188 ($100,000); Ostrikoff v. Oliveira, 2014 BCSC 531 ($105,000); Morlan v. Barrett, 2012 BCCA 66 ($125,000); Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455 ($125,000); and Power v. White, 2010 BCSC 1084 ($135,000). The defendants cite Jordan v. Lowe, 2012 BCSC 1482 ($35,000); McKenzie v. Mills, 2013 BCSC 1505 ($40,000); Bissonnette v. Horn, 2012 BCSC 518 ($50,000); Jorgensen v. Coonce, 2013 BCSC 158 ($60,000); and Bansi v. Pye, 2012 BCSC 556 ($75,000).

[24]        There is no question that Mr. Gaudreault has suffered a permanent partial disability that interferes with his work capacity, but he is not experiencing the degree of pain, emotional disturbance and interference with his lifestyle featured in the cases cited by his counsel. I fix the plaintiff’s non-pecuniary damages at $75,000.

bc injury law, Gaudrealt v. Gobeil, Mr. Justice Thompson

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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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