$90,000 Non-Pecuniary Damages For Visual Vestibular Mismatch

Visual Vestibular Mismatch is a medical condition which can result in dizziness, imbalance and nausea.  The consequences of these symptoms can be severe and disabling.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing a claim for damages arising from VVM resulting from a motor vehicle collision.
In last week’s case (Moukhine v. Collins) the Plaintiff was injured in a 2007 rear-end collision in Vancouver, BC.  Fault was admitted by the rear motorist.   The Court heard competing medical evidence as the consequences of the collision and ultimately accepted that the Plaintiff suffered from a visual vestibular mismatch as a result of the crash.
The prognosis was poor with the symptoms expected to plague the Plaintiff indefinitely.  The Plaintiff worked as a senior application developer and following the collision was never able to resume full time hours.  In assessing non-pecuniary damages at $90,000 Mr. Justice Watchuk provided the following reasons:
[195] I find Mr. Moukhine to be a credible witness. I accept that his descriptions of heaviness or fog or, sometimes, mist in the head describe what is to the doctors a form of dizziness. I accept that this feeling and the inability to concentrate or “think through” prevents him from working at his job as a computer programmer for more time than he describes that he is now able to work…

[225] I conclude on the evidence as a whole that the Mr. Moukhine has proven that as a result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which has not resolved.

[226] I accept Dr. Longridge’s opinion that it is unlikely that there will be further significant improvements to Mr. Moukhine’s condition or symptoms.

[227] As has been described above, this injury has had a significant effect on Mr. Moukhine.  It has resulted in continuing dizziness, primarily when he works on the computer.  He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.

[228] Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.

[229] The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.

[230] I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.

[231] At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating…

[233] Each case is to be assessed on its particular facts. Considering all of the circumstances in this case including Mr. Moukhine’s age, the effects of the injuries sustained in the accident and Dr. Longridge’s opinion that the vestibular injury is likely permanent, I assess non-pecuniary damages at $90,000.