$85,000 Non-Pecuniary Assessment for Long Term Soft Tissue Injuries with Guarded Prognosis

An appeal of the below decision was dismissed by the BC Court of Appeal in February 2014
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Adding to this sites database of ICBC soft tissue injury judgements, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries with a guarded prognosis.
In the recent case (Clark v. Kouba) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted focussing the trial on assessing damages.  The Plaintiff brought a claim “well in excess of one million dollars” while the Defendant argued the losses were minimal and that the Plaintiff was “feigning her injuries for financial gain“.
Madam Justice Power disagreed with the Defendant’s credibility attack but did award “a much more modest sum” than the plaintiff ultimately sought.  The Court found that the crash caused soft tissue injuries that impacted “all aspects of the plaintiff’s life” and that the prognosis was guarded.  In assessing non-pecuniary damages at $85,000 the Court provided the following reasons:
[72]         In this case, it is clear that the soft tissue injuries the plaintiff suffered have impacted all aspects of the plaintiff’s life.  In addition to the physical symptoms I have detailed above, her injuries have impacted her personal relationships including her relationship with her husband and children.  She has difficulty in performing some household chores, including making the beds and laundry and she has to call upon her husband and children to perform those tasks.
[73]         The plaintiff has been dedicated to her own rehabilitation and such efforts in my view cannot be used to diminish the extent of her injury.  In that sense she can be considered a stoic individual.  Formerly she engaged in her recreational pursuits such as long distance running and yoga, for her own physical enjoyment.  Now when she engages in them it is for an additional purpose, in order to assist in managing her chronic pain.
[74]         I conclude that, as a result of the accident, Ms. Clark has suffered pain and loss of enjoyment of life, and her prognosis for the future is guarded.  All of the authorities cited by both plaintiff’s counsel and the defence make it clear that each case is unique and must be determined on its own facts.  This case is unusual, because the plaintiff is still able to participate in her recreational pursuits, including marathon running, and has completed a marathon in a second personal best time since the accident.
[75]         Having considered the authorities cited and all of the circumstances in this case, it is my view that $85,000.00 is a fair and reasonable award for non-pecuniary damages.