$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.

$100,000 Non-Pecuniary Assessment For Chronic Low Back Injury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.
In today’s case (Truong v. Lu) the Plaintiff was involved in a 2011 collision the Defendant accepted fault for. The Court found the collision caused a chronic low back injury that was amplified by non-collision related depression.  In assessing non-pecuniary damages at $100,000 Mr. Justice Affleck provided the following reasons:

[78]         The termination of Mr. Truong’s employment, particularly at the age of 58 when other employment was difficult to find, was an emotionally catastrophic event for him. He believed erroneously but sincerely that the job loss must have been connected to his poor performance on the job, which had been caused by the accident injuries. He was naturally upset by the immediate effects of the accident and in that sense was depressed emotionally by those effects and by his fear that he might lose his job. After that loss occurred he descended into a major depression. I believe the precipitating event that caused the major depression was the loss of employment and thereby the loss of his self-respect. I accept Dr. Shaohua Lu’s evidence that the major depression would not have happened without the job loss.

[79]         Even without the depression I find Mr. Truong would have experienced physical pain and discomfort for some considerable time after the accident. I find the plaintiff’s low back pain, which travels into his left leg, as well as his neck pain, even in the absence of the major depression, would have continued but gradually diminished over the last five years. It will remain chronic indefinitely into the future, but with medication for pain relief will no longer limit his ability to function to any significant extent.

[80]         The defendant is critical of much of the plaintiff’s evidence as unreliable and accuses him of embellishment particularly for example when undergoing a functional capacity evaluation. I agree there was some embellishment but I believe it was not deliberate deceit. Mr. Truong genuinely believes he is severely disabled and adjusts his behaviour, without conscious thought, to fit the way he sees himself. He is also very reluctant to push his physical boundaries because of a fear of further injuries. In my view that fear is not justified and there is no risk of further injury if he becomes more active…

[86]         I have been referred by the parties to numerous cases in which non-pecuniary damages were awarded. I need not review those authorities in these reasons for judgment. I am persuaded a substantial award should be made under this head of damage largely because, apart from his work with C2 Imaging the plaintiff’s handyman role at home provided him with one of his main pleasures in life and in late middle age he has been deprived of that role for at least several years. I award $100,000 under this head of damages.

$70,000 Non-Pecuniary Assessment for Chronic Low Back Injury

Adding to this site’s archived posts of ICBC back injury claims reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry assessing damages for a chronic low back injury.
In today’s case (O’Brien v. Cernovec) the Plaintiff was involved in a 2011 T-bone intersection collision caused by the Defendant.  The Plaintiff sustained a variety of soft tissue injuries that resolved in short order however he was left with a chronic low back injury that continued to the time of trial and was expected to persistent indefinitely.  In assessing non-pecuniary damages t $70,000 Mr. Justice Pearlman provided the following reasons:

[93]         Here, the plaintiff has been consistent in reporting his symptoms and the progress of this recovery to each of the medical experts, and in his testimony at trial.  Mr. O’Brien readily acknowledged that he had recovered from the soft tissue injuries to his mid-back, shoulders, neck, legs, knees and wrists within two months of the accident.  I find that at trial the plaintiff did his best to provide an unembellished, matter-of- fact account of his injuries as he recalled them, and as they persist.  Drs. Adrian and Horlick both agreed that the plaintiff’s history, his description of the accident, their findings on physical examination and the results of the medical imaging are consistent with the plaintiff having sustained injuries, whether described as mechanical or myofascial, to the tissues of his lower back.  I am satisfied that Mr. O’Brien experiences the chronic low back pain he described in his testimony.

[94]         Since October 2012, Mr. O’Brien has completed all of his regular full-time shifts, occasionally with accommodations from his current employer or assistance from fellow employees.  However, as a result of his low back pain, he tires as the day progresses, experiences pain and discomfort, and sometimes struggles to complete his shifts. Mr. O’Brien no longer derives the same enjoyment from his work as he did before the accident.  He is a stoic who does his best to get on with and complete the work assigned to him.

[95]         I also take note of the fact that the plaintiff, while frequently turning down overtime, has worked 14 overtime shifts since August 1, 2015. The fact that the plaintiff has worked some overtime is consistent with the evidence that his symptoms fluctuate and that some work days are better than others.

[96]         I attach little weight to the fact that Mr. O’Brien has not used prescription painkillers, anti-inflammatories or muscle relaxants since a month or so after they were last prescribed in late July 2012.  Mr. O’Brien prefers to limit his use of prescription medications.  Since the summer of 2012, he has used over-the-counter Advil and Tylenol to assist in managing flares in his low back pain. He copes with considerable discomfort in the workplace and does his best to fulfil the requirements of a physically demanding job.

[97]         The plaintiff has experienced frustration with his failure to make a full recovery from his injuries. His frustration at times leads him to withdraw into himself, and to limit his social contacts.

[98]         The plaintiff, at age 23, will probably continue to experience his persistent low back ache, intermittent numbness in his left leg, and flares of low back pain of varying intensity indefinitely, and with no significant improvement.  Fortunately, he is unlikely to suffer any progressive deterioration of his low back injury.

[99]         Mr. O’Brien is able to perform all housekeeping tasks, when asked.  However, chores such as mowing the lawn or cleaning his bathroom cause some discomfort and take longer than before the accident.  When Mr. O’Brien and Ms. Allison have their own home, the plaintiff’s responsibilities for housekeeping and home maintenance will increase.  He will experience discomfort and occasional pain in performing tasks that require prolonged bending or stooping.

[100]     Mr. O’Brien continues to take part in a range of recreational activities but participates in some at a lower level of intensity, and with less frequency than before the accident.  The plaintiff and Ms. Allison walk their dogs together and attend yoga classes.  Mr. O’Brien goes on lighter hikes but is unable, as a result of his persistent back pain, to join his friends on overnight treks.  Since the accident, he had played baseball and football occasionally.  While he is able to throw a ball, batting aggravates his back pain.  The plaintiff performs home-based stretching exercises four times a week and attends a gym where he works on both cardio exercises and core strengthening to alleviate his back pain.  He has attempted horseback riding, a favourite activity of Ms. Allison, but finds it aggravates his back pain.  On a recent trip to Ireland, he was able to ride a horse, at a walk, for 90 minutes, with considerable discomfort.  He has modified or reduced some activities in order to minimize his lower back pain.  When he and Ms. Allison watch television or a movie together, he will shift his sitting positions, and after 30 minutes or so will stand up and stretch in order to relieve discomfort from prolonged sitting.

[101]       As a result of the defendant’s negligence, the plaintiff has suffered some diminution in his enjoyment of life.

[102]     The plaintiff’s mother corroborated his evidence that he is frustrated by his persistent symptoms of low back pain, and his lack of progress toward recovery.

[103]     While Mr. O’Brien’s still socializes with his friends, he does so less frequently than before the accident.  His mood declines when his pain flares.

[104]     Ms. Allison corroborated the plaintiff’s evidence that his symptoms vary, and that he has some bad days when he experiences significant pain.  On those occasions, the plaintiff becomes more reserved and withdrawn.  However, both the plaintiff and Ms. Allison confirmed that they have a committed relationship. 

[105]     The plaintiff continues to enjoy a close relationship with his family and with Ms. Allison. His injuries have not resulted in any significant impairment of his family and emotional relationships.

[106]     Taking into account the plaintiff’s particular circumstances, all of the Stapley factors, including the probability that Mr. O’Brien, at age 23, will continue to experience persistent low back discomfort and intermittent flares of pain indefinitely, and after considering all of the authorities cited by counsel, I assess damages for the plaintiff’s pain and suffering and loss of enjoyment of life in the amount of $70,000.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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