$90,000 Non Pecuniary Assessment for Chronic, Partly Limiting Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a vehicle collision.

In today’s case (Lewis v. Wang) the Plaintiff was involved in an intersection collision in 2014.  The Defendant denied fault until shortly before trial .

The Court accepted the collision caused chronic soft tissue injuries which were expected to continue into the future and were partly limiting.  The Defendant called medical evidence minimizing the collison’s connections to the injuries but this was rejected.  In assessing non-pecuniary damages at $90,000 Mr. Justice Macintosh provided the following reasons:

[28]         Ms. Lewis, from the accident, sustained a neck injury which has become chronic. The accident also aggravated pre-existing problems in her right shoulder and her back. Lesser complaints stemming from the accident are headaches, some anxiety and sleep disruption.

[29]         Dr. Aaron McInnes was qualified before me as a specialist in pain management. He diagnosed in Ms. Lewis chronic whiplash-associated disorder, chronic mechanical spine pain, chronic myofascial pain syndrome, depression and anxiety symptoms, and sleep disruption. He opined that the accident is the most likely cause of the Plaintiff’s symptoms. In his prognosis, he said that Ms. Lewis, “will most likely continue to suffer from daily ongoing chronic pain in some form from this point forward.”

[30]         Dr. Gash testified as a family physician and specialist in the assessment and treatment of chronic musculoskeletal pain. Before the accident, Dr. Gash had treated the Plaintiff for injury primarily to her ribs. When he saw the Plaintiff after the accident, her main symptoms were right-sided neck pain, headaches, a burning sensation along the right side of her upper thoracic spine, and sleep disruption. He opined that she has chronic pain disorder as a result of the accident.

[31]         Andrew Hosking conducted a functional capacity evaluation of Ms. Lewis. He opined that as a retail store manager or sales associate, Ms. Lewis, “is more likely than not approaching the limits of her durable physical capacity in participating in her current work.”

[32]         Dr. Todd Bentley testified for the defence as a specialist in physical medicine and rehabilitation. He diagnosed whiplash disorder, thoracic spine sprain/strain, lumbar spine strain/sprain, hyperalgesia in the right C5 and hypoanaesthesia in the right T1 dermatome. Although I found Dr. Bentley to be a reasonable witness, I do not accept his concluding opinion, that the accident was less then 50% likely to have caused a material worsening of the Plaintiff’s condition. I find that the evidence on balance, including the testimony of the expert witnesses for the Plaintiff, referred to above, leads to the conclusion that the accident probably did lead to a material worsening of the Plaintiff’s pre-existing conditions, in addition to causing new injury to her neck.

[33]         I am awarding Ms. Lewis $90,000 in total as her non-pecuniary damages. Ms. Lewis endures ongoing pain from the accident. The evidence of the two Michael Hill witnesses, summarized above, demonstrated that she continues to suffer pain with some frequency, and it is a credit to her that she overcomes it, or rather endures it, so as to not let it detract from her work performance.

bc injury law, Lewis v. Wang, Mr. Justice Macintosh

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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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