$80,000 Non-Pecuniary Assessment for Chronic Myogenic Thoracic Outlet Syndrome

Adding to this site’s database of caselaw addressing non-pecuniary damages for TOS, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In this week’s case (Small v. Upshaw) the Plaintiff  was involved in three collisions; the first in 2006, the second in 2008 and the last in 2010.  The Defendants admitted liability for these and it was agreed to have damages addressed globally.
The plaintiff suffered various soft tissue injuries and a left sided myogenic Thoracic Outlet Syndrome.
(Image by  Nicholas Zarosky via Wikimedia)
His limitations continued to the time of trial and were expected to be permanent.  The plaintiff worked as a journeyman auto mechanic and although he could continue to work with his injuries these limited his capacity.  In assessing non-pecuniary damages at $80,000 Mr. Justice Rogers provided the following comments:
[21] The three medical professionals who testified at the trial, Drs. Scheffler, Vallentyne and Coghlan, all opined that the plaintiff’s present symptoms arise from and were caused by the accidents. They all felt that the plaintiff’s symptoms are likely to be permanent….

23] I was impressed by the plaintiff. I found him to be a credible and reliable witness. The few discrepancies between his evidence at trial and in discovery were not, in my view, significant and did not impair his testimony. I accept that the plaintiff’s left arm was intermittently symptomatic shortly after the accident. I find that his main complaints then, though, had to do with his neck and back. Those pains were constant and debilitating. His arm symptoms appeared from time to time and were never genuinely disabling. For those reasons, the plaintiff’s left arm complaints merited and received less attention during the months following the second accident.

[24] It follows that I find that the second accident did cause the plaintiff to suffer left-sided myogenic thoracic outlet syndrome. This condition is self-limiting – if the plaintiff keeps the amount of reaching he does to a minimum, the less he will be bothered by its symptoms. He is bothered by the symptoms once or twice a week…

[34] As noted above, the plaintiff impressed me as a credible and reliable witness. I find that the plaintiff is plagued daily by pains in his neck, left shoulder, and upper and mid-back, and that from time to time his left arm develops a feeling of numbness and tingling. When those arm symptoms occur, they last until the following morning. All of these symptoms were caused by the motor vehicle accidents for which the defendants have admitted liability. Of the three accidents, the second caused the plaintiff the most harm.

[35] The plaintiff’s pain symptoms are not intermittent. He does not have “good days and bad days”. His symptoms are aggravated by activity, particularly by working with his hands and arms over his head, while stooping over an engine bay, or pretzeled beneath a dashboard. By the end of a typical workday, the plaintiff is stiff and sore. He has little or no energy for recreation or socializing. He takes pain relief and muscle relaxing medication daily. These facts distinguish the plaintiff’s case from the circumstances of the cases cited by the defendant and in which the court made general damage awards of less than $50,000.

[36] In my view, the plaintiff’s circumstances merit an award for non-pecuniary loss of $80,000.

bc injury law, Mr. Justice Rogers, Myogenic Thoracic Outlet Syndrome, Small v. Upshaw

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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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