$100,000 Non-Pecuniary Assessment for Chronic Back and Neck Pain

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic neck and back pain caused by a vehicle collision.
In today’s case (Tourand v. Charette) the Plaintiff was injured in a 2009 rear end collision that the Defendant accepted responsibility for.
The Plaintiff suffered chronic neck and back pain as a result with symptoms lingering at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $100,000 Mr. Justice Joyce provided the following reasons:

[119]     It is true that there were occasions in the past when the plaintiff experienced episodes of neck, shoulder and back pain, for which she received chiropractic treatments. Some of these episodes were associated with prior motor vehicle accidents and others appear to have been brought on by the physical activities in which she engaged, including her participation in karate. However, I am satisfied, on the whole of the evidence, that prior to the Accident the plaintiff was not experiencing the kind of chronic pain and symptomology in her neck and low back that she has experienced since the Accident in question. I am satisfied that the causal connection between her present symptomology neck and low back and the Accident has been established. In short, but for the Accident the plaintiff would not be in the physical condition that she now finds herself.

[120]     Ms. Tourand plaintiff had some pre-existing degenerative changes in her neck and low back, but I am satisfied that her current symptoms are not due simply to the progression of that degeneration. Rather they are due to either an aggravation of a pre-existing condition or to trauma that has made symptomatic that which was not previously symptomatic.

[121]     I accept that in the years before the Accident, the plaintiff was a physically active, social person, who enjoyed life and was enjoyable to live with and be around. I find on the basis of the evidence of her husband and friends that she is now a very different person. The Accident has negatively impacted her ability to enjoy physical activity and perform former household management tasks to the same extent as before. It has led to difficulty sleeping, depression and has affected her marital relationship.

[122]     On the other hand, I also find that the other life events that the plaintiff has endured since the Accident, in particular, the difficulties that her children experienced and with which she has been integrally involved, have probably contributed to the severity and prolongation of her symptoms.

[123]     Ms. Tourand is not, however, incapacitated. She can still manage most of her household chores, with moderation and careful sequencing of the tasks. There seems to be consensus among the experts that Ms. Tourand is capable of some employment, provided it does not involve heavy physical tasks and provided she is not required to either sit or stand in one position for a prolonged period of time.

[124]     I am also of the view that it is probable that the plaintiff’s physical capacity and general well-being will improve if she becomes more active, including: engaging in a program involving further physiotherapy under the direction of a kinesiologist or physiotherapist, swimming and psychotherapy to deal with the emotional affects of her symptoms. In my view, based upon a consideration of all of the evidence, it is still open to the plaintiff to accept that advice and follow that treatment path; and that, if she does so, she can expect to achieve some further reduction in her symptomology and improvement in her functioning and enjoyment of life…

[128]     Considering the nature of the chronic pain caused by the motor vehicle Accident; the poor prognosis for anything like a full recovery; the relatively young age of the plaintiff; and the effects that the symptoms have had and will likely continue to have on the quality of her life in the future, I assess non-pecuniary damages at $100,000.

$60,000 Non-Pecuniary Assessment For Chronic Back Injury

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering injuries caused by two vehicle collisions.
In the recent case (Ali v. Rai) the Plaintiff was involved in two collisions in 2011.  He was found faultless for both.  The collisions caused a lingering back injury which remained symptomatic at the tie of trial and the symptoms were expected.  The Court found both collisions caused the injury and it was indivisible.  In assessing non-pecuniary damages at $60,000 Madam Justice Duncan provided the following reasons:

[134]     On the whole of the evidence, I find the plaintiff suffered back and neck injuries as a result of the two accidents at issue before me along with headaches and sleep issues. I cannot find the injuries divisible as between the two accidents. The plaintiff was not fully recovered from his injuries after the First Accident when the Second Accident occurred. This is reflected in Dr. O’Connor’s opinion that the First Accident aggravated the plaintiff’s underlying condition, he was improving by the time of the Second Accident, and that accident did not cause additional injuries, simply a re-aggravation.

[135]     I find the plaintiff’s neck pain had substantially cleared up by the summer of 2011. The aggravation in 2012 which caused the pain to manifest in the right side instead of the left is unexplained and I cannot find it was as a result of the accidents. The plaintiff continues to suffer from back pain to this day. I find it limits his work and recreational activities. I will have more to say about it under the individual heads of damages…

[137]     The plaintiff is now 50 years of age. He has a chronic back injury and suffered from a neck injury for some months after the accidents in addition to headaches and disturbed sleep. The back injury continues to affects his social life. He does not do as much volunteer work as he once did. He has to sit in a chair to pray rather than join his contemporaries and use prayer mats. He cannot sit through a movie or drive long distances. He cannot referee soccer at the high level he once did and he no longer plays recreational soccer due to the impact of the accidents. His back injury has affected his mood and his wife feels it has affected their social and intimate life. The plaintiff does not contribute to work within the home as he once did, nor does he feel able to perform yard work or work that arises from the tenanted basement. Overall, the plaintiff’s back injury has permanently altered all aspects of his life…

[140]     As noted above, while I found the plaintiff’s neck condition had improved by the summer of 2011 and there was no evidence as to why it was aggravated in 2012 and transferred to the opposite side, his back injury continues to affect him. He was a formerly active, engaged and giving member of the community whose quality of life and self worth has been affected by his injury. Balancing all of the factors, I find a fair and reasonable award for non-pecuniary damages is $60,000.

$70,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by two collisions.
In today’s case (Larsen v. Moffett) the Plaintiff was injured in two collisions, the first in 2010, the second in 2012.  ICBC admitted fault on behalf of the defendants in both cases.  The crashes caused soft tissue injuries to the Plaintiff’s neck and back which continued to the time of trial and interfered with his ability to work as a painter and drywaller.  His symptoms were not expected to improve.   In assessing non-pecuniary damages at $70,000 Mr. Justice Steeves provided the following reasons:

[46]         In summary this 44 year old man has suffered two soft tissue injuries to his neck and back and he has developed related headaches. These injuries cause ongoing and severe pain and they limit his daily activities, including his social life and work. With respect to the former, the plaintiff’s pain contributed significantly to the breakup of a potentially long-term relationship he started with Ms. Briere. Prior to the 2010 and 2012 injuries the plaintiff took over his father’s contracting business and, despite some personal difficulties and problems with record keeping, he was able to feel confident that he had a business that would look after him, as it did his father. That is now in significant doubt.

[47]         All of this has had a negative effect on the plaintiff’s sense of self-worth and emotional well-being. The experts are unanimous that this situation will continue into the future. The defendants’ expert suggests that there may be future improvement but this is put in very guarded terms.

[48]         Taking this into account with the authorities cited to me I assess the non-pecuniary damages in this case to be $70,000.

$80,000 Non-Pecuniary Assessment Following Chronic Injuries from 7 Collisions

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff who had the misfortune of being involved in 7 collisions.
In today’s case (Sediqi v. Simpson) the Plaintiff was involved in seven collisions from 2010-2013.  He was not at fault for any of these.  He suffered a variety of injuries, some of which lingered to the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher made the following findings and provided the below reasons:

[78]         I find that the plaintiff suffered soft tissue injuries in his neck, right upper back and shoulder and lower back as a result of these accidents (with the exception of accident #4, which appears to have been limited to the neck and upper back or shoulder). He had a pre-existing rotator cuff tear in his right shoulder that was aggravated by each successive accident, as well as pre-existing carpal tunnel syndrome (aggravated by accidents #5 and 6) and a degenerative spine condition (aggravated by accidents #6 and 7). He also suffered from headaches from accidents #1, 4, 5 and 7, and the pain resulting from all of these injuries has affected his mood and contributed to his feelings of sadness. He was unable to work for a week after accident #4, for about four weeks after accident #5 as well as a month of reduced hours, for about three weeks after accident #6 as well as further weeks of reduced hours, and for three weeks after the last accident followed by several months of reduced hours.

[79]         The plaintiff is a 51 year old man who prides himself as a person who works hard for his family. He has been the unfortunate victim of seven accidents, which caused injuries that have affected him cumulatively. I consider the cumulative effect of these injuries to be an important factor.

[80]         The plaintiff continues to experience pain symptoms more a year following the last accident, particularly in his right shoulder and the right side of his back. He has problems sleeping and experiences low moods and feelings of sadness. He has changed from a good natured, positive individual to one who is less jovial, less patient of others, and at times argumentative. He has had some limitations in his physical activities at home and at work. Evidence from his wife and from Mr. Poirier and Mr. Murray confirms this. He does little at home and has difficulty carrying heavy objects at work.

[81]         The plaintiff has tried physiotherapy, exercise and various kinds of pain medication but he is not a physically active person. His prognosis is guarded. Considering how long he has been in pain, it is likely to continue. However, his symptoms should improve to some extent with proper management, which includes physical exercise…

[89]         In general, I found the cases cited by Mr. Wilson to involve injuries less severe than those in this case, either due to shorter periods of pain symptoms or reductions due to contingencies that do not apply here. Not surprisingly, none of the cases cited by either counsel involved plaintiffs suffering the cumulative effect of injuries from seven accidents. In my view, general damages appropriate in a case like this range from $50,000 to $90,000. Taking into account the plaintiff’s pre-existing conditions (which as I said before do not require a significant reduction), I would assess a fair award here to be $80,000.

$60,000 Non-Pecuniary Assessment for "Moderate To Severe" Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries from a motor vehicle collision.
In today’s case (Farbatuk v. Lagrimas) the Plaintiff was rear-ended in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained moderate to severe soft tissue injuries to his neck and back.  The Plaintiff’s physician gave evidence that the prognosis for recovery was extremely guarded although the Court rejected this finding that any lingering symptoms did not “debilitate or impair” the Plaintiff in any meaningful way.  In assessing non-pecuniary damages at $60,000 Madam Justice Kloegman provided the following reasons:

[22]         It appears from the medical evidence that all three expert witnesses agreed that the plaintiff suffered a moderate to severe whiplash to his neck and back in the accident. It also appears that the medical experts agree there is evidence of a pre-existing degenerative condition in the plaintiff’s back and neck, whether D.I.S.H. or something else.

[23]         Dr. Miki described the plaintiff’s prognosis as “extremely guarded”, particularly in relation to the work the plaintiff has done for the previous 25 years. Dr. Richardson’s prognosis for the plaintiff’s neck and back was moderate, with no increasing risk of developing osteoarthritis. Dr. Werry stated in his report that the plaintiff will probably continue indefinitely to experience variable neck and low back pain and stiffness, but that he probably has not reached maximum medical improvement.

[24]         As stated earlier, Dr. Miki’s evidence was given in an advocational manner and he relied heavily on the plaintiff’s self-reporting. His prognosis of “extremely guarded” was not consistent with some of his clinical notes that had been omitted from his report. These showed steady and continuous improvement in the plaintiff’s position. His prognosis was also not consistent with the evidence of Louise Craig, functional capacity evaluator, who opined that the plaintiff’s main limitation is in his range of motion in his neck. She reported that the plaintiff felt an increase in symptoms from sustained sitting and stooping, but that he showed a tolerance for exertion of low to upper range of heavy physical strength, very good core strength and aerobic fitness, no limitation in standing, walking, crawling, kneeling, crouching, managing stairs, balancing, reaching, gripping and most importantly; he was able to carry a medium load of 50 lbs on a frequent basis which placed his ability to work in the Heavy category of occupations.

[25]         In my view, the plaintiff’s prognosis is more optimistic than either Dr. Miki or he would admit. Although 2½ years have passed since the accident and the plaintiff still complains about neck pain, back pain and limited range of motion, I am not satisfied, on a balance of probabilities, that these subjective complaints are sufficiently supported by any objective evidence of continuing injury. Simply put, he has not established that his ongoing complaints are serious enough to debilitate or impair him in any way…’

[46]         I find that the plaintiff’s situation is closer to those of the plaintiffs in the above cases cited by defence. In my view, an award of $60,000 is fair compensation for the plaintiff’s non-pecuniary losses.

$65,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries Following Four Collisions

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries following multiple collisions.
In today’s case (Jiwani v. Borodi) the Plaintiff was involved in four collisions.  He was not at fault for any of these.  The initial collision caused soft tissue injuries to his neck and back.  The back injury was aggravated by some of the subsequent collisions and his symptoms lingered to the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Sigurdson provided the following reasons:
[45]         I conclude that the neck problems and the headaches resolved within about six months of the first accident, and that the back pain continues to some degree now five years after the first and most significant accident. 
[46]         I find that the back pain is soft-tissue related and has affected the plaintiff’s mood, his ability to sleep, and to some degree, his disposition and in turn his relationship with his family and friends, including his nephew.  I think that the accident has had an impact on the plaintiff’s family and social life and restricted the pleasure he had received from his friends and family in the past.  The burden is on the plaintiff to prove the extent of his injuries.  While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 
[47]         That said, I am not persuaded that the plaintiff is completely pain free.  I think that the plaintiff would benefit, as suggested by Dr. Grypma, from an active rehabilitation program. ..
52]         Given my findings and after considering the authorities relied upon by the parties and the factors mentioned in Stapley, the plaintiff is entitled to the sum of $65,000 for non- pecuniary damages.

$72,000 Non-Pecuniary Assessment for Chronic and Plateued Soft Tissue Injury

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury with a pre-existing complicating factor.
In the recent case (MacIntosh v. Davison) the Plaintiff was involved in a rear end collision in 2009.  He had injuries from previous collisions which were recovered.  He also underwent back surgery many years prior.  Although he had no symptoms related to this his back was at risk of suffering exacerbation of back injuries.  The Court assessed non-pecuniary damages at $90,000 but then reduced these by 20% to account for the plaintiff’s original position.  In reaching this conclusion Mr. Justice Davies provided the following reasons:
On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh’s “original” position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants’ negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his “original” and his “injured” condition…
1)    Mr. MacIntosh’s testimony and that of the medical and lay witnesses establishes that although injuries arising from the collision other than his low back injuries were largely resolved within one year, the low back injuries suffered in the collision have continued with only limited and sporadic abatement over time.
2)    I accept the opinions of Drs. Kates, Quirke and O’Connor that Mr. MacIntosh’s condition has now “plateaued” and will not likely deteriorate further, except for occasional flare-up of more intense and debilitating pain.
3)    However, the “plateau” which Mr. MacIntosh has reached renders him a far different person than the one he was prior to the collision.
4)    Mr. MacIntosh’s life in the four years since the collision has been dominated by the effects of the collision as he has followed all of the medical advice he has received to attempt to regain his health.
5)    While he has continued to golf regularly, his enjoyment of the game is much lessened. He also now golfs at significant rehabilitative cost and discomfort requiring much ongoing physical therapy.
6)    In that regard, while I note Dr. MacPherson’s opinion that the golfing exacerbates Mr. MacIntosh’s condition, I also note that his treating physicians have encouraged him to attempt to golf and undertake therapy as necessary to alleviate more acute symptomology related to it.
7)    I accept that to be a reasonable course of both advice and treatment because if Mr. MacIntosh had to restrict his golfing more than he has done, the result would be a larger award for non-pecuniary losses related to his ability to enjoy that which he previously enjoyed before the collision.
8)    The medical “plateau” at which Mr. MacIntosh now finds himself and which will likely endure for the balance of his active life also includes an inability to exercise as rigorously as he once did or hike with the enjoyment he once had. He is also far more irritable due to sleep deprivation caused by his injuries. That has an impact on his social life as he has become more reclusive than before.
9)    All of those aspects of his present life significantly negatively impact his overall enjoyment of life not only physically but also socially and emotionally. Coping with and trying to ameliorate the lasting effects of those injuries now are the focus of his daily life in place of the healthy and well-rounded physical, emotional and social life he previously enjoyed.
[91]         In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that arises from the defendants’ negligence, I award Mr. MacIntosh $72,000 to compensate him for his non-pecuniary losses.

$50,000 Non-Pecuniary Assessment For Chronic Low Back Soft Tissue Injury

Reasons for judgement were released earlier this month by the BC Supreme Court,  New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010.  She sustained soft tissue injuries to her low back and sacroiliac region.   These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons:
[20]         Ms. Hatch continues to have back pain.  She finds it particularly bothersome after physical exercise and towards the end of the work week.  She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy.  Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis. 
[21]         All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse.  The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve. 
[22]         It is now more than three years since the Accident.  Ms. Hatch has reached a plateau in her recovery.  Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012.  This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time.  The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time.  The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times.  As such, there is no mitigation issue. 
[23]         In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury.  The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores.  The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. ..
[41]          As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar.
[42]         Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages. 

$50,000 Non-Pecuniary Assessment for Chronic Intermittent Lower Back Pain

Short and to the point reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for a chronic low back injury.
In the recent case (Wong v. Robillo) the Plaintiff was involved in a 2010 collision which resulted in a “severe” impact.  Liability was admitted.  The Plaintiff suffered a neck injury which largely improved and a lower back soft tissue injury which became chronic and posed ongoing, intermittent difficulties by the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Wong provided the following reasons:
[15]         The plaintiff still has chronic intermittent lower back pain which affects his endurance and prolonged walking or sitting.  Although he is able to carry out most household chores, it is with discomfort.  He has dramatically improved, but he has had to live with chronic intermittent pain, anxiety, and uncertainty for almost three years.  I would assess his pain and loss of personal amenities past and future at $50,000.

$75,000 Non-Pecuniary Assessment for "Moderate, Substantially Resolved" Soft Tissue Injuries

Adding to this site’s case-law archives dealing with ICBC soft tissue injury cases, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a moderate soft tissue injury.
In this week’s case (Aubin v. Ball) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a moderate soft tissue injury that was “substantially recovered” by the time of trial.   She continue to have some symptoms, however, and these were expected to be “here to stay“.  Despite finding that the Plaintiff  “is likely exaggerating her present difficulties to some degree” the court concluded the Plaintiff had genuine ongoing symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Baird provided the following reasons:
[105]     I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.
[106]     There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.
[107]     In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle…
[117]     With some reluctance I find that Ms. Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.
[118]     However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms. Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr. Njalsson may be “here to stay”…
[129]     In recognition of the fact that Ms. Aubin was not as active in approaching recovery as she could have been, but without penalizing her for not being as robust as some plaintiffs, a just, fair and reasonable award in this case is $75,000. The defendant must take his victim as he finds her, and in this case, the accident caused a young woman who was on track in pursuing her ambitions and goals to go off course and lose some very good years of her life. This is no trivial matter.


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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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