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$175,000 Non-Pecuniary Assessment for Mild Traumatic Brain Injury and Chronic Pain

Written by admin on . Posted in ICBC Brain Injury Cases.

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain.
In today’s case (Mayer v. Umabao) the Plaintiff was involved in a 2012 collision.  Liability was disputed but the Court found the Defendant fully at fault for the collision.
The Plaintiff sustained a mild traumatic brain injury and suffered from cognitive dysfunction.  The court found some of this dysfunction was due to the head injury and the rest due to chronic pain and other factors also linked to the crash.  In assessing non-pecuniary damages at $175,000 Madam Justice Young provided the following reasons:

[246]     I am satisfied on the basis of Dr. Chahal’s evidence and Dr. Krywaniuk’s evidence that Mr. Mayer did suffer some trauma to the left side of his head resulting in vestibular difficulties and symptoms of a mTBI. The trauma may have been caused by an acceleration/ deceleration trauma or it may have been caused by a blow to the left side of his head. I find most convincing Dr. Krywaniuk’s evidence. If there was damage to the left vestibular apparatus at the accident then it is likely that the adjacent area of the brain also suffered some trauma. The adjacent area of the brain is the area of the brain that moderates receptive language input where Mr. Mayer reports he has difficulty.

[247]     Having said that, however, I find that the brain injury was quite mild and only affected higher level speech and executive functioning or the ability to multitask. I come to this conclusion because I believe that if the mTBI symptoms were more than very mild, they would have been picked up by Dr. Koss who I find to be a very thorough and careful practitioner who has special training in the area of concussions. The symptoms of brain injury became apparent at work and when judging wine. The irritability, personality changes and memory loss are more likely caused by the long term effects of pain, sleeplessness, anxiety and Mr. Mayer’s somatoform disorder…

[253]     On balance of all of the evidence, I find that the vestibular injury, mTBI and somatoform disorder were caused by the accident and all of them are compensable…

[270]     There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.

Reasonable Disbursements – What's Good for the Goose is Good for the Gander

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Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, ordering a Defendant to disclose the cost of their medico-legal reports where they were contesting the reasonableness of the Plaintiff’s disbursements.
In the recent case (Sturdy v. Dhadda) the Plaintiff was injured in a collision and sued for damages.  The claim was eventually settled for $300,000 plus costs and disbursements.  The Defendant disputed the reasonableness of the costs of some the plaintiff’s expert reports.  The Plaintiff applied for and was granted an order for the Defendant to disclose the cost of their expert reports.  In finding this was fair District Registrar Nielsen provided the following reasons:
[18]         What these cases demonstrate is that a comparison of the same or like expert within the same litigation is relevant. By allowing the party who challenges the reasonableness of the assessments charged by the assessing party’s experts to cherry pick what accounts they will or will not disclose leads to selective and inconsistent disclosure. If disclosure suggests the other party’s accounts are too high, they are readily disclosed for that purpose. On the other hand, if they do not, those records, for strategic reasons, are simply not produced. In my view, this leads to an imbalance which requires the levelling of the playing field…

[29]         The onus of proving the reasonableness of the plaintiff’s expert’s charges clearly rests upon the shoulders of the plaintiff who is the assessing party. The accounts of the plaintiff’s experts have been disclosed and scrutinized by the defendants, following which the defendants have alleged those charges are unreasonable within the context of Supreme Court Civil Rule 14-1(5).

[30]         In these circumstances, where the defendants have served their expert reports upon the plaintiff, the amounts paid by the defendants to their experts in the same specialities, involving the same patient, with the same clinical history, will be relevant. While a comparison of fees and charges would not be determinative and is only a single factor in the analysis, it is a matter properly considered in the context of this case, where the defendants are directly challenging the reasonableness of the plaintiff’s experts’ accounts.

[31]         The plaintiff’s application is allowed with respect to Dr. Pullmer and Dr. Dost. The plaintiff’s application with respect to Dr. Grypma is dismissed. I am not satisfied that the evidence before me provides a sufficient basis to establish the relevance of the invoices of Dr. Grypma, orthopedic surgeon, to those of Dr. Adrian, physiatrist.

[32]         Since the plaintiff has been substantially successful, they are entitled to the costs of their application.

$90,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.
In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012.  The Defendants admitted fault for both.  As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future.  The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice.  In reaching this assessment Madam Justice Baker provided the following reasons:

[147]     I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident.  The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident.  She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain.  These complaints resolved within a short time.  Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.

[148]     I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident.   She did not miss work as a security guard after the first accident.  She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months.  She was sufficiently recovered to travel to India three months after the accident and remained there for about two months.  On her return from India she resumed working as a security guard and doing janitorial work.  She attempted to return to the Sears job but was not re-hired.

[149]     Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial.  Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.

[150]     The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.

[151]     I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial.  Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time.  I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength.  I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…

[194]     Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted.  I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500. 

$25,000 Non-Pecuniary Assessment for 18 Month Aggravation of Pre-Existing Injuries

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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages of $25,000 for the aggravation of chronic pre-existing injuries.
In this week’s case (Dorsey v. Bhindi) the Plaintiff was involved in a 2013 rear end collision.  Liability was not at issue.  The court voiced some credibility concerns regarding the plaintiff and did not accept her claim in its entirety.  The Court did accept, however, that the collision caused an 18 month aggravation of pre-existing symptoms.  In assessing non-pecuniary damages at $25,000 for these injuries Madam Justice Warren provided the following reasons:
[108]     In summary, I make the following findings on causation:

  • Ms. Dorsey injured her shoulders in the slip at work, but did not exacerbate that injury in the accident.  She currently suffers from frozen shoulder on the left side, but I am not persuaded that the accident caused or materially contributed to that condition.
  • The accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months, and by late September 2014 Ms. Dorsey’s condition had returned to its pre-accident state.
  • Ms. Dorsey has suffered from some anxiety and depressive symptoms but I am not persuaded that the accident caused or materially contributed to those conditions.

[117]     Of the authorities cited by the defendants, Kearns v. Marples, 2009 BCSC 802, bears the most similarity to this case.  In that case damages were assessed on the basis that the 51-year-old plaintiff had suffered injuries to her shoulders, right elbow, and neck that largely resolved within about eight months, but for the right shoulder which remained injured and was predisposed to further injury which occurred in two subsequent motor vehicle accidents.  These injuries were superimposed on pre-existing conditions.  Non-pecuniary damages of $25,000 were awarded. In that case, Justice Verhoeven referred to Job v. Van Blankers, 2009 BCSC 230, where Justice Ker awarded non-pecuniary damages of $25,000 to a plaintiff who had suffered a mild to moderate soft tissue injury that resulted in sustained disability, pain and suffering, and interfered with the plaintiff’s life for about 14 months: Kearns at para. 134.

[118]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  I have found that the accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months.  The exacerbation was not so significant as to materially interfere with her ability to work.  There is very little evidence of any material impairment of her physical abilities or significant loss of lifestyle.  Considering the principles discussed in the cases referred to me and the criteria considered in the assessment of damages in Stapley, I assess Ms. Dorsey’s non-pecuniary damages at $25,000.

Arbitration Clause Derails CFL Concussion Lawsuit

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a CFL concussion lawsuit on the basis of wording in the league and player’s collective bargaining agreement.
In today’s case (Bruce v. Cohon) the Plaintiff, who played professional football with the CFL from 2001 – 2014, sued the league and its individual teams alleging that his career led to multiple concussions and sub-concussive injuries and he was negligently allowed to continue playing while displaying these symptoms.
The Defendants argued the Court had no jurisdiction to resolve the dispute as the league’s collective bargaining agreement required the complained to be dealt with via private arbitration.  In siding with the CFL and dismissing the lawsuit Mr. Justice Hinkson provided the following reasons:

[86]        Ultimately, the 2014 Collective Agreement allows for effective redress for any workplace injuries that Mr. Bruce may have sustained and thus is consistent with the policies of the Workers Compensation Board.

[87]        It is clear that at the time that he filed his notice of civil claim in these proceedings, Mr. Bruce, as a former player, could have filed a grievance under the 2014 Collective Agreement for compensation arising from the injuries for which he seeks compensation and based upon the duties he asserts in these proceedings.

[88]        He is still arguably eligible to file a grievance, although he would apparently require a ruling from an arbitrator to do so, as grievances under the 2014 Collective Agreement must be initiated within one year from the latter of the date of occurrence or non-occurrence upon which the grievance is based, or within one year from the date upon which the facts of the matter became known or reasonably should have been known to him.

[89]        There are no monetary limits to the compensation that a player can seek pursuant to the 2014 Collective Agreement.

[90]        Even if Mr. Bruce is not now permitted an extension of time to file a grievance, I accept the view of Mr. Justice Oland in Gillian at para. 46 that:

[46]      As stated in St. Anne Nackawic at p. 729 and in Weber at para. 54 and para. 57, the courts possess limited residual jurisdiction in certain situations involving labour relations. In this situation, where the appellant could have sought effective remedies under the Collective Agreement, there is no need for the exercise of that residual jurisdiction.

[Emphasis added.]

[91]        As Mr. Justice Joyce stated in Moznik v. Richmond (City), 2006 BCSC 1848 at para. 81:

The question is not whether the plaintiff can obtain the precise remedy she seeks through the court; it is whether she can obtain effective redress of the alleged harm through the mandatory arbitration provisions of the collective agreement and the Code.

[92]        I therefore find that Mr. Bruce was entitled to seek compensation by way of grievance and arbitration under the 2014 Collective Agreement for the matters raised in his notice of civil claim in these proceedings and had he done so, could have obtained a meaningful remedy for those complaints.

[93]        I find that the disputes raised by Mr. Bruce arise from the 2014 Collective Agreement and can only be resolved through the grievance and arbitration process.

[94]        In the result, I find that this Court lacks the jurisdiction to entertain Mr. Bruce’s claim and order that his notice of civil claim be struck in its entirety.

Unclear Prognosis Leads to Injury Trial Adjournment

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, granting an adjournment application in the face of uncertain medical evidence addressing prognosis.
In today’s case (Gee v. Basra) the Plaintiff was injured in a 2011 collision for whcih the Defendant accepted liability.  The Plaintiff had chronic headaches and the Plaintiff’s physicain was uncertain as to her prognosis noting that a course of Botox injections may prove helpful with the following evidence –

Jodene [the plaintiff] is now four years post injury and has fully participated in the range of therapy offered to her. She continues to experience significant headache, which interferes with her ability to perform at work, at home with household duties, and fully participate in social activities. Headache which is resistant to therapy after such a prolonged period of time has a low probability of recovery, but I feel I could not fully comment on prognosis until she has had a trial of Botox injections. I would recommend Botox, 200 units, every three months for a minimum of three cycles following the pre-empt Chase The Pain [sic] protocol.

The Plaintiff sought an adjournment on the basis of this evidence with the Defendant opposing noting the trial was set to commence in one week.  Master McDiarmid granted the adjournment noting that while the application was brought very late in the process an uncertain prognosis could lead to an unfair trial.  In granting the application the Court provided the following reasons:

[20]         I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.

[21]         That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.

[22]         Accordingly, I grant the adjournment with the following terms:

1)     The defendant is entitled to costs thrown away, which I am going to assess summarily at $1,000. That is for trial preparation. They are also entitled to full reimbursement for the cost for arranging videoconferencing testimony of Dr. Richards. Those costs are to be set off from any amount recovered by the plaintiff; in other words, they are not payable forthwith;

2)     The defendant is entitled to a further independent medical examination of the plaintiff by a specialist of its choosing; and

3)     The defendant is entitled to a further half day discovery.

$90,000 Non-Pecuniary Assessment for Partially Disabling Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain following a motor vehicle collision.
In today’s case (Swieczko v. Nehme) the Plaintiff was involved in an intersection collision in 2011.  The Plaintiff committed to the intersection on a green light but could not turn due to oncoming traffic.  The Plaintiff waited until the light turned a stale yellow and began the turn.  The Defendant, who was in the oncoming curb lane, came through on what was likely a red light and the vehicles collided.  The Court found the Defendant fully liable for the collision.
The Plaintiff sustained  soft tissue injuries which resulted in chronic symptoms.  In assessing non-pecuniary damages at $90,000 Madam Justice Koenigsberg provided the following reasons:

[40]         Mr. Swieczko suffered significant soft tissue injuries as a result of the accident.  The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities.  His prognosis is poor.  Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.

[41]         Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline.  She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.

[42]         Mr. Swieczko was 27 years old at the time of the Accident.  He is now 31.  He has been engaged in the video game industry for close to nine years.  He began as a “quality assurance” tester.  This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public.  It requires concentration and repetitive tasks.  It was described as being a form of detective work.  The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days.  This career is generally somewhat insecure, as most of the employment is on contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]         Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job.  Mr. Swieczko is obviously a talented, hard-working, ambitious young man.  He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted.  However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days.  Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.

[44]         Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now.  While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident.  The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter.  However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child.  Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain.  This in turn has required more pain medication and led to frustration.

[45]         It must be recognized that this state of affairs is costing Mr. Swieczko psychologically.  He is far less able to socialize and enjoy family get-togethers – or physical activity that he enjoyed before the Accident.  Thus, Mr. Swieczko is struggling with frustration and emotional despondency from time to time as he contemplates the immediate future, wherein he may not be able to be an active participant in his daughter’s physical recreational life.  It was clear from Mr. Swieczko’s evidence that he was taken aback by receiving his poor prognosis in relation to living relatively pain-free and being able to do what he did before.  In particular, he had ambitions of participating in such physical activities as karate with his daughter as she matures.  He is now very unlikely to be able to do this…

The most significant factor in this case making the assessment of general damages suggested by the plaintiff more appropriate than that suggested by the defendant is the severity and chronicity of pain, which combines with Mr. Swieczko’s increasing emotional struggle over the impairments to his family, marital and social relationships.  Adding to this is Mr. Swieczko’s stoicism, which, in this case, has meant he has and continues to work longer and harder to achieve his career goals, but at a significant cost in pain and resort to strong medications.

[52]         I assess his non-pecuniary damages at $90,000.

$30,000 Non-Pecuniary Assessment for Aggravation of Chronic Pain

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of a long standing chronic pain disorder.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.  In assessing non-pecuniary damages at $30,000 Mr. Justice Bowden provided the following reasons:

[52]        I am not prepared to attach much weight to the plaintiff’s description of the change in his condition following the 2011 accident without corroboration from someone other than Ms. Ben-Yosef and their son.

[53]        The evidence shows that the majority of the symptoms that the plaintiff attributes to injuries from the 2011 accident probably were present before that accident. The expert evidence is that the plaintiff was suffering from chronic pain syndrome before the 2011 accident. It appears that he was taking anti-inflammatory drugs before that accident as well as medication for hypertension and pain.

[54]        The 2011 accident was not significant. While the plaintiff was knocked down in a cross walk, he described the event to his family doctor as being “bumped”. He said that he got up, exchanged information with the defendant and then continued on his way to do some shopping before going home.

[55]        Nevertheless, I accept that the plaintiff suffered some soft tissue injuries to his lower back and left hip and that the 2011 accident caused some aggravation to his pre-existing chronic pain…

[60]        While I accept that the plaintiff’s pre-existing condition was somewhat aggravated by the 2011 accident, he had developed chronic pain syndrome before that accident presumably following his injuries in the 1998 accident. Some of his continuing symptoms also appear to be related to the degeneration which has occurred in his spine which is unrelated to the 2011 accident.

[61]        It is difficult to differentiate the impact of the 1998 accident and the 2011 accident on the plaintiff’s quality and enjoyment of life. It appears that the 1998 accident left him unable to work, caused him intermittent pain that ultimately became chronic and limited his activities. The 2011 accident aggravated his condition somewhat but the degree of aggravation cannot be determined with any certainty.

[62]        I have concluded that in the circumstances of this case and considering the factors in Athey, an award of $30,000 is appropriate.

ICBC Ordered to Pay $350,000 in Punitive Damages for False Fraud Allegation

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering ICBC to pay $350,000 in punitive damages for malicious prosecution following assertions that the Plaintiff acted fraudulently following a pedestrian collision.
In today’s case (Arsenovski v. Bodin) the Plaintiff was walking with her husband when he was struck by a vehicle.  The Plaintiff was not struck by the vehicle but did fall down and suffer some modest injuries during the incident and she reported this to ICBC.  Specifically she told ICBC that “the last thing I remember was stepping off the curb to cross the street.   I don’t know how far we had walked on the street.  The next thing I remember was being on the pavement“.
ICBC, through a Special Investigations Unit officer employed with them,  requested that Crown Counsel prosecute the Plaintiff for fraud as she was not struck by the vehicle.  Charges for making a false statement to ICBC were approved.
The problem is the statement was not false.  The charges were stayed on the day of the start of the criminal trial.
The Plaintiff sued ICBC for malicious prosecution and succeeded with Madam Justice Griffin finding that ICBC’s false fraud allegations and actions were “so high-handed,  reprehensible and malicious that it offends this Court’s sense of decency“.  In finding $350,000 in punitive damages were appropriate the Court provided the following reasons:
Screenshot decision

$40,000 Non-Pecuniary Assessment for Bicep Tendon and Soft Tissue Injuries

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a bicep tendon injury along with some soft tissue damage.
In today’s case (Pavan v. Guolo) the Plaintiff was involved in a 2010 T-bone collision caused by the Defendant.  The Plaintiff suffered a strain to the tendons in his right bicep along with soft tissue injuries to his shoulder and low back.  The Plaintiff missed little time from work but some of his symptoms persisted at the time of trial albeit not significantly.  In assessing non-pecuniary damages at $40,000 Mr. Justice Butler provided the following reasons:

[21]         Counsel for both parties provided detailed written argument to explain why I should accept their positions regarding the nature of the plaintiff’s injuries and the duration of the symptoms. I thank them for the thorough and detailed argument. I much prefer the defendants’ approach to the assessment of causation and analysis of the evidence. In other words, it is preferable to consider the three symptomatic areas separately and assess the development of symptoms in light of all of the evidence including the limited medical evidence. When I do that, I make the following findings of fact regarding injuries and the duration of symptoms:

1)       Right Arm:  The plaintiff suffered a strain to tendons in his right biceps. That injury has improved significantly over time, but has not resolved and will likely not do so. However, it is not disabling and does not significantly impact the plaintiff’s activities. It still causes the plaintiff momentary discomfort when he performs certain activities.

2)       Right Shoulder:  The plaintiff suffered a grade 2 strain to his neck, upper back and right shoulder. This was the most serious injury sustained in the accident. That injury substantially resolved within about 18 months of the accident. The accident left the shoulder susceptible to what the plaintiff calls flare-ups or aggravations. The plaintiff does not have ongoing persistent pain or discomfort. His occasional flare-ups do not last for long and are not disabling.

3)       Low Back:  The plaintiff suffered a very mild low back strain in the accident. That injury resolved in a few months. The incidents of low back pain suffered by the plaintiff since that time are unrelated to the injuries suffered in the accident.

…

[45]         Of course, the appropriate award for non-pecuniary loss must take into account, all of the particular circumstances of the plaintiff before the court. The cases cited by counsel were helpful as a guide. I do not propose to examine and compare those cases with the facts I have found here. I will note that the cases relied on by the defendants involved circumstances that are somewhat closer to the facts I have found with regard to the nature of the soft tissue injuries with an exception. I have concluded that the plaintiff has ongoing difficulties with his right arm, albeit relatively minor, and that his right shoulder can still have flare-ups, which are contributed to by the injuries suffered in the accident. Further, the cases cited by the defendants are somewhat dated.

[46]         When I consider all of the relevant factors in light of the facts I have found, I conclude that a fair award for non-pecuniary damages is $40,000.