Pain and Suffering Damages Discussed for Severe Post Traumatic Migraine Headaches

Reasons for judgement were released today awarding a Plaintiff damages for post accident migraine headaches.
In today’s case (Ward v. Klaus) the Plaintiff was involved in a rear-end collision in Chilliwack, BC.  Fault was admitted by the rear-motorist focusing the trial on the value of the claim.
The Plaintiff suffered various injuries the most serious of which were post-traumatic migraine headaches.  These were so invasive that they required surgical intervention with the installation of a “neurostimulator” in the back of her head.  The Court provide the following summary of the Plaintiff’s surgeries:

[16]         In May 2008, the plaintiff consulted Dr. Kumar, a neurosurgeon in Regina, for an assessment on the suitability for neurostimulator implants.  She qualified and in September, at Regina Saskatchewan, a neurotransmitter was implanted in the back of her neck.  It had two leads and an external remote that connected the wires under her skin.  From September to mid-October 2008, she had two more operations in Regina and two more temporary implants were imbedded.  In December 2008, two permanent implants were installed in the back of her head in the same area as before.  To deal with the pain of the operation, she took more medication.

[17]         In January 2009, the plaintiff had permanent leads installed at the front of her head.

[18]         The implant battery has to be recharged, usually once a week.  She keeps it on at all times other than when she is driving.  She has a device that plugs into an electrical outlet.  It tells her if the battery needs to be recharged.  Sometimes it has to charge for up to four hours, but usually it takes an hour or an hour and a half.  When pain flares, she can increase the strength of the current from the stimulator.  Again, she does not see it as the answer.  It simply “takes the edge off”.

Mr. Justice Rice assessed the Plaintiff’s non-pecuniary damages at $150,000.  In arriving at this figure the Court provided the following reasons:

[52]         In this case, counsel on both sides agree that this was a soft-tissue injury to the neck resulting in continuing neck pain, and continuing generalized moderate headaches with severe migraine headaches, occurring two or three times per week.  The pain during such migraine headaches is excruciating, and her pain and suffering as a whole have affected very negatively almost every aspect of her life.  According to doctors’ recommendations, she has taken medications that only partially help, and at one point led her to addiction to narcotics.  She has undergone surgeries to implant a neurostimulator which has only been moderately successful at best as a means of alleviating the pain.  The consensus of the medical experts has been that the plaintiff has reached the point of maximum medical improvement, and that the headaches and pain will continue indefinitely.

[53]         At the same time, observing her demeanour as she gave evidence, as well as seeing the videotape evidence shown in court, and considering her inability to answer many questions on the basis that she could not remember, I am afraid there is room for mild caution in accepting her testimony unreservedly.  Her frequent inability to recall answers to questions leads me to doubt the reliability of her memory when giving testimony.  By this, I do not mean to resile from the impression that she was generally honest and truthful in explaining the excruciating pain she had suffered.  It is only in respect of a few details, particularly her work capacity and motivation, that her evidence was not completely satisfactory…

[56]         The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis v. Tin, 2008 BCSC 862 at para. 136.

[57]         Taking all of the foregoing into account, my view is that the appropriate award for non-pecuniary loss is $150,000.  In this amount I take account of all aspects of general pain and suffering, including a reasonable portion attributable to the effect of diminished capacity in her homemaking role.