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$72,500 Non Pecuniary Damages for Longstanding Back Injury With Some Room For Improvement

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing soft tissue injury with some room for improvement.

In today’s case (Lluncor v. Anderson) the Plaintiff was involved in a 2014 rear-end collision that the Defendant accepted fault for.  The crash resulted in a soft tissue injury to the Plaintiff’s back which lingered to the time of trial.  Despite the longstanding nature of the injury the Court found there was prospect for further improvement.  In assessing non pecuniary damages at $72,500 Mr. Justice Armstrong provided the following reasons:

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$70,000 Non-Pecuniary Assessment For Low Back Injury With Nerve Root Irritation

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.

In today’s case (Suc v. Skelton) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash caused a bulged disc in the Plaintiff’s low spine which contacted his nerve root at L5-S1.  His prognosis for recovery was poor.  The injury caused significant limitations in the types of activities the Plaintiff could participate in.  In assessing non-pecuniary damages at $70,000 Madam Justice Baker provided the following reasons:

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$65,000 Non-Pecuniary Assessment for Chronic Intermittent Soft Tissue Injuries

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

In today’s case (Juelfs v. McCue) the Plaintiff was involved in a 2014 collision that the Defendants accepted fault for.   The crash resulted in a variety of injuries some of which continued to linger to the time of trial and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Riley made the below findings and provided the following reasons:

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$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck and Back Injury

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

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$140,000 Non-Pecuniary Assessment for Chronic Back and Ankle Injury

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back and ankle injury sustained in a vehicle collision.
In today’s case (Lensu v. Victorio) the Defendant was operating a vehicle and ran over the plaintiff’s foot as he was exiting a pakrade.  The Court found the Defendant 75% liable for the incident with the plaintiff shouldering 25% of the blame.
The incident led to chronic back and ankle difficulties with a poor prognosis.  In assessing non-pecuniary damages at $140,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[208]     Applying these factors, the plaintiff is 62 and was only in the second year of retirement when the accident occurred.  She led a physically active and independent life, including numerous outdoor and sports-related activities, as well as international travel.  These activities formed an integral part of her personal fitness regime, family life and social relationships.  She took pleasure in them.  She was an avid skier; could play ping-pong for long periods; she hiked challenging trails; rode horses; and could sit through the entirety of her granddaughter’s piano practice.  Others found it difficult to keep up with her.

[209]     The plaintiff looked forward to a retirement of high-energy output.  From her perspective, these years also presented an ideal opportunity to learn and try new things (such as sailing).  She was excited about the prospect.

[210]     There is no question that the injuries to her left ankle, foot and lower back have profoundly affected the plaintiff’s life.  She experiences daily pain; is unable to do many of the things she previously did; her mobility and endurance have been reduced; and she has decided she must sell her condominium, a place she has lived in for ten years and enjoys.  Overall, the situation has led to feelings of dependency, helplessness and decreased enjoyment in life.  There are still things she can do, including travel.  She does them and tries to persevere.  However, it is not the same.  The plaintiff’s frustration with her current situation was obvious from her testimony.  She presents as proud and stoic.  However, her physical discomfort was readily apparent from the way in which she held and moved her body while testifying.  Moreover, it was obvious to me that she genuinely misses, and longs for, her prior independence and strength.

[211]     No medical intervention is likely to alleviate the plaintiff’s condition.  The prognosis for improvement is poor.  The lifestyle the plaintiff planned for herself post-retirement is forever diminished…

[216]     Having regard to these decisions, as well as the cases referenced in Rizzolo at paras. 32–37, I consider a non-pecuniary award of $140,000 to be appropriate in the circumstances of this case.

$75,000 Non-Pecuniary Assessment for Chronic Back and Hip Soft Tissue Injuries

Reasons for judgement were published this week by the BC Supreme Court, Chilliwack Registry, assessing damages for chronic soft tissue injuries caused by a collision.
In this recent case (De Groot v. Heller) the Plaintiff was involved in a 2012 collision that the Defendant accepted fault for. The crash caused soft tissue injuries to her hip and low back along with an aggravation of a pre-existing arthritic condition.  The symptoms lingered to the time of trial and were expected to negatively impact her moving forward.  In assessing non-pecuniary damages at $75,000 Mr. Justice Greyell provided the following reasons:
[125]     In my view, the evidence establishes that it is likely that the Accident aggravated Ms. De Groot’s underlying arthritic condition in her left hip. There is no evidence connecting her prior back complaints with back complaints brought on by the Accident. The lay witnesses called to testify on her behalf each confirmed that she was active in regularly walking her dogs and that she engaged in such activities as hiking, canoeing and horseback riding on the trips she made to the interior. It is also clear on the evidence that, post-Accident, her ability to engage in those activities is limited…

[130]     At the time of the trial, almost five years had passed since the Accident. Ms. De Groot continues to suffer from pain in her lower back and hip, which prevents her from enjoying the activities she enjoyed prior to the Accident, and while she has not missed time from work, she has difficulty sitting for long periods. She has difficulty lifting and carrying her child, and performing heavier household tasks. She and her husband have experienced difficulty with intimacy due to her injuries from the Accident. Ms. De Groot’s prognosis for improvement is uncertain.

[131]     After considering the principles set out in Stapley and the cases referred to by counsel, I award Ms. De Groot $75,000 in non-pecuniary damages.

$110,000 Non-Pecuniary Assessment For Chronic Low Back Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic back pain caused by a collision.
In today’s case (Teunissen v. Hulstra) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The crash caused a soft tissue injury which was chronic and partly disabling in nature.  In assessing non-pecuniary damages at $110,000 Madam Justice Burke provided the following reasons:
[67]         I conclude the medical evidence clearly establishes Mr. Teunissen suffered a soft tissue injury in the accident and continues to suffer from chronic back pain. It also establishes the accident is a material contributing cause to Mr. Teunissen’s back injury, pain and resulting disability…

[92]         Mr. Teunissen is a determined and stoic individual who has persisted in trying to work and support his family, despite the chronic pain. He has demonstrated this more than once, attempting work opportunities that he previously would have had no difficulties with and which he unfortunately cannot continue.

[93]         The assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Teunissen’s age, the nature of the injuries, the severity of his symptoms and the fact they have been ongoing for five years, the poor prognosis for recovery, and the authorities, I am of the view the appropriate award for non-pecuniary damages is $110,000.

$115,000 Non-Pecuniary Assessment for Chronic Disabling Mechanical Back Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling injury following a vehicle collision.
In the recent case (Carver v. Or) the Plaintiff was involved in a 2011 collision which the Defendants were found liable for.  The crash resulted in chronic and disabling mechanical back pain.  In assessing non-pecuniary damages at $115,000 Madam Justice Gray provided the following reasons:

[191]     I would summarize the significant factors regarding Mr. Carver as follows:

a)         Mr. Carver was 56 years old at the time of the Accident, and 62 years old at the time of the trial;

b)         The Accident caused Mr. Carver to suffer injury to the tissues of his spinal column which has resulted in chronic disabling mechanical lower back pain;

c)          Mr. Carver’s pain has disabled him from working in any capacity, has reduced his ability to care for himself, and has significantly reduced the quality of his life;

d)         Mr. Carver is completely disabled from working and his walking is impaired;

e)         Mr. Carver has suffered emotionally from the loss of his ability to work and care for himself and from chronic pain;

f)           Mr. Carver’s life has been impaired by his loss of function and the presence of pain;

g)         Mr. Carver’s injuries have impaired his ability to spend time with his daughters in activities like camping and fishing and watching them play sports, and diminished his pleasure in life because of the loss of such activities and other activities like gardening;

h)         Mr. Carver’s ability to walk, sit, stand, and twist have been reduced by the injuries he suffered in the Accident;

i)            Mr. Carver’s factors relating to loss of lifestyle are described above, but fortunately have not made it impossible for him to continue to live by himself; and

j)           Mr. Carver has been stoic. He tried for over a year to return to full-time work, and engaged extensively in physiotherapy, exercise therapy, and pool therapy.

[192]     If the Accident had not occurred, it is most likely that Mr. Carver would have simply suffered periodic waxing and waning of his lower back pain and radiation into his legs, without progression and without loss of the ability to walk, sit, and stand comfortably or the loss of the ability to work. There was a small risk that his pre-Accident condition might have worsened, but it would not likely have affected his function or resulted in significant pain until he was over 70 years old.

[193]     I have taken into account the fact that Mr. Carver suffered pneumonia, with a two month hospitalization in February through April 2015, which was not a result of the Accident.

[194]     If Mr. Carver had not suffered back pain prior to the Accident, an appropriate award would have been in the range of $130,000. Considering that there was a risk his pre-Accident condition might have worsened, a reduction of about 10% is appropriate. Mr. Carver is entitled to an award of $115,000 for his non-pecuniary damages resulting from the Accident.

 

$50,000 Assessment for 6 Years of Back Pain

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries arising from a vehicle collision.
In today’s case (Harder v. Poettcker) the Plaintiff was involved in a 2009 collision.  The matter proceeded to jury trial where a jury found the Plaintiff 85% at fault for the crash with the Defendant shouldering the rest of the blame.
The Plaintiff suffered a back injury.  He suffered from pre-existing back problems and fibromyalgia.  The court found that while the Plaintiff’s symptoms lingered at the time of trial after the 6 year mark these symptoms were due to the pre-existing issues.  In assessing non-pecuniary damages at $50,000 Mr. Justice Sigurdson provided the following reasons:

[77]         The plaintiff suffered a moderate soft tissue injury to his lower back and neck in the motor vehicle accident. Those soft tissue injuries were more painful and discomforting to the plaintiff than they otherwise would have been because he has a troublesome back that had in the past required surgery on two occasions.

[78]         However, the evidence does not disclose that the accident caused the need for the plaintiff’s back surgery. In that respect I prefer the evidence of the surgeon Dr. Splawinski to the evidence of the rheumatologist.

[79]         I expect that Mr. Harder became more uncomfortable as a result of the accident and decided to have the surgery privately. I think that he had the surgery more quickly than he otherwise would have had it because of the soft tissue injuries he suffered. That finding is relevant to whether the cost of the private surgery with a shorter waiting list is recoverable.

[80]         I have also concluded that on the evidence the plaintiff has not demonstrated that his fibromyalgia was brought on by the trauma in the motor vehicle accident. However, like his pre-existing back condition, it was an aspect of his pre-existing condition that on the evidence waxed and waned in any event and I think was an aspect of his condition that probably made his injuries from the accident more uncomfortable and debilitating when he had fibromyalgia.

[81]         How long did the injuries from the accident to his lower back and his neck persist?

[82]         Dr. Shuckett thought (as she described in 2015) that they probably continued as he had probably achieved maximum medical improvement. Dr. Splawinski thought that he suffered a soft tissue injury to his neck and lower back and that the symptoms of neck and lower back pain settled down relatively quickly. Dr. Wade described his injury as a mild to moderate soft tissue injury.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.

[90]         Considering all of the evidence, I assess the plaintiff’s non-pecuniary damages at $50,000.

$75,000 Non-Pecuniary Assessment for Persistent Neck and Back Injuries

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for persistent back and neck injuries.
In the recent case (Lally v. He) the Plaintiff was involved in a 2011 intersection collision that the Defendant accepted fault for.  The collision resulted in soft tissue injuries and symptoms persisted to the time of trial.  The Court assessed non-pecuniary damages at $75,000 but reduced these by 10% for the Plaintiff’s failure to follow through with an active rehab program that could have helped improve the symptoms.  In reaching this assessment Madam Justice Warren provided the following reasons:
[93]         I have concluded that as a result of the accident, Ms. Lally has suffered pain and a loss of enjoyment of life, and that will continue to some extent, into the foreseeable future.
[94]         As a result of the injuries she sustained in the accident, Ms. Lally suffered from severe pain in her neck, back and shoulder for several months.  The neck pain triggered headaches that, at times, were severe.  Although the pain gradually improved, she has been left with less severe but persistent neck and shoulder pain as well as occasional low back pain.  While she is likely to experience improvement in her symptoms with active rehabilitation, particularly with respect to the low back and shoulder, even with sustained, active rehabilitation, she will likely continue to suffer from occasional pain in her neck and, to a lesser extent, her low back and shoulder.
[95]         Ms. Lally’s pain is exacerbated by repetitive activities, heavy lifting or working at a level higher than her shoulders.  She cannot sit still for long.  When driving she has difficulty moving her head from side to side.  When she watches television, reads or uses a computer she has to move her neck or it becomes stiff.  Household chores and physical duties at work exacerbate the pain and when the neck pain is particularly bad it develops into a headache.  This happens between two and five times a week and the headache lasts up to eight or nine hours.  The neck pain disturbs her sleep.
[96]         The pain has affected Ms. Lally’s mood.  Before the accident, her mood was good and she enjoyed spending time with her family.  For the first few months after the accident she was quiet and spent most of her time resting because of the pain.  She continues to spend much of her non-working time resting at home using a massager and heat pad.
[97]         Ms. Lally used to do the majority of the housework before the accident.  Since the accident she has been limited to light housework such as cooking and doing dishes.  She did not testify about any other impacts on her lifestyle…

[100]     Having considered all the authorities and the factors discussed in Stapley, I assess Ms. Lally’s non-pecuniary damages at $75,000, prior to any adjustment for her failure to mitigate.  For the reasons already expressed, I reduce that amount by 10% to reflect her failure to have participated in a regular, sustained program of active rehabilitation.