$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

Adding to this site’s archived ICBC case summaries involving shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, assessing damages for a rotator cuff tear requiring surgical intervention.
In today’s case (Mitchell v. Martin) the Plaintiff was involved in a 2009 motorcycle collision caused by the Defendant where “the plaintiff was thrown from his motorcycle and injured his right shoulder, neck and back and suffered from bruising and road rash“.
The Plaintiff’s most serious injury was a rotator cuff tear which required surgical intervention and the Plaintiff was left with chronic pain in the shoulder.  In assessing non-pecuniary damages at $85,000 Madam Justice Young provided the following reasons:
[41]         I am satisfied on a balance of probabilities that the labral tear and the rotator cuff tear were caused by the Accident and that the majority of the plaintiff’s right shoulder injuries were caused by the Accident. I prefer the evidence of the surgeon, who not only reviewed the MRI and treated the plaintiff, but actually visualized the shoulder joint during surgery…

[61]         The plaintiff suffered considerable pain and instability of his shoulder while waiting for surgery. This was a time period during which he saw no improvement. After 12 months, he then had to undergo the pain of surgery and a six-month recovery period. The surgery distinguishes this case from many of the defendant’s cases that fall in the lower range.

[62]         The plaintiff is a stoic, motivated individual who enjoyed an excellent recovery because of his rehabilitation efforts so that he has a stable, fully mobile shoulder but he is not without chronic pain. There is no indication that this level three out of 10 pain is going to improve and I expect, given that it has not improved in six years, he will continue to experience it.

[63]         His shoulder pain will affect his productivity at work and in his recreational activities, which impact his enjoyment of life. He does not suffer the level of pain that Ms. Cimino does, however, I take into consideration that award is seven years old and may have been higher in 2016.

[64]         I award $85,000 for non-pecuniary damages.

bc injury law, Madam Justice Young, Mitchell v. Martin, rotator cuff tear

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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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