$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, Vancouver Registry, assessing damages for a chronic shoulder injury sustained in a vehicle collision.
In today’s case (Mir Tabatabaei v. Kular) the  Plaintiff was involved in a 2010 collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[66]         It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

[67]         Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one…

[71]         The plaintiff is 53 years of age. He experiences pain in his right shoulder when he exerts himself. He experiences pain in his neck at night which disrupts his sleep. There is no cure for either of these conditions. His shoulder may get worse and require him to undergo surgery which in turn carries risks. Notwithstanding the pain and discomfort, the plaintiff has continued to work to the extent that he is able and to participate in his previous leisure activities, such as biking and swimming, albeit it to a lesser extent than before the accident. I agree with counsel for the plaintiff that Wong is very similar in terms of the type of injury involved; however, the plaintiff in that case had an additional injury to her knee. Nonetheless, it is a helpful benchmark. In all the circumstances I find an award of $75,000 for non-pecuniary damages is appropriate.

bc injury law, Madam Justice Duncan, Mir Tabatabaei v. Kular

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ERIK
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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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