$90,000 Non Pecuniary Assessment for Chronic and Partly Disabling Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries with a poor prognosis for recovery.

In today’s case (Sen-Laurenz v. Napoli) the Plaintiff was involved in a 2014 collision which the Defendant accepted fault for.  The Plaintiff was described as a “highly motivated and at that time physically fit 20-year-old plaintiff was attending Capilano University in North Vancouver and was in the early stages of pursuing her career goal to become a medical doctor. “.  The crash resulted in chronic soft tissue injuries which did not fully recover.  The residual symptoms were expected to be present indefinitely.  The injuries impeded her education and delayed her entry into medical school.  In assessing non pecuniary damages at $90,000 Mr. Justice Walker provided the following reasons:

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$150,000 Non-Pecuniary Assessment for Permanent Partly Disabling Neck and Shoulder Injuries

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

In today’s case (Mattson v. Spady) the Plaintiff was involved in a 2014 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff sustained a variety of injuries including chronic headaches, neck and shoulder injuries.  These had a poor prognosis and were expected to be permanently partly disabling in her occupation as a kinesiologist.  In assessing non-pecuniary damages at $150,000 Madam Justice Winteringham provided the following reasons:

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$140,000 Non-Pecuniary Assessment for Chronic SUNCT Headaches

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a rare headache disorder following two vehicle collisions.

In today’s case (Erickson v. Saifi) the Plaintiff was injured in two collisions and sued for damages.  Liability was established.  The crashes resulted in chronic SUNCT headaches along with soft tissue injuries.  The prognosis for meaningful recovery was poor.  In assessing non-pecuniary damages at $140,000 Madam Justice Baker provided the following reasons:

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$100,000 Non-Pecuniary Assessment for Central Neuropathic Pain With Poor Prognosis

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for central neuropathic pain caused by a vehicle collision.

In today’s case (Laliberte v. Jarma) the Plaintiff was involved in a 2015 vehicle collision.  She was a passenger in a vehicle driven by the Defendant that lost control “went through a fence and over a bump and landed in a field”.  Liability was admitted.

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$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision.

In today’s case (Rabiei v. Oster) the Plaintiff was involved in a 2016 collision.  The Defendants accepted fault.  The crash resulted in various soft tissue injuries resulting in chronic pain in the plaintiff’s neck, back and shoulder.  These injuries resulted in some impairment in the Plaintiff’s ability to work and also impacted activities outside work.  Full recovery was not expected.  In assessing non-pecuniary damages at $70, 000 Madam Justice Adair provided the following reasons:

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$170,000 Non-Pecuniary Assessment for Hip Injury, PTSD, TOS and Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a plaintiff who suffered a host of injuries in a vehicle collision.
In today’s case (Firman v. Asadi) the Plaintiff was involved in a 2013 collision.  The Defendant denied fault but was found liable at trial.  The collision resulted in multiple injuries including a torn labrum, thoracic outlet syndrome, PTSD and chronic pain.  Prognosis for full recovery was poor.  In assessing non-pecuniary damages at $170,000 Mr. Justice Verhoeven provided the following reasons:

[145]     Based upon the abundant medical evidence as well as the evidence of the plaintiff and other evidence of the lay witnesses, I find that the plaintiff’s injuries that she attributes to the MVA and as reported to the treatment providers and medical experts were caused by the MVA.

[146]     As noted, there is much overlap in the specific diagnoses found in the medical evidence.  In more general terms, the plaintiff’s injuries sustained in the MVA are: (1) left hip injury, including torn labrum, requiring surgery;  (2) TOS or thoracic outlet syndrome, requiring surgery, and with further surgery recommended; (3) whiplash injuries (myofascial pain syndrome, mechanical spine pain) and resultant chronic pain, particularly in her upper back, left shoulder, and arm; (4) left shoulder tendinopathy; (5) chronic headaches; (6) mood or psychological/psychiatric disorders, including depression, somatic symptom disorder, and anxiety.

[147]     The defendants dispute the diagnosis of PTSD, made by Dr. Schweighofer. Dr. Iso noted PTSD “symptoms”.  In the circumstances of this case, the question of whether the plaintiff fully meets the criteria for this diagnosis is of little practical consequence. Dr. Waraich noted that her symptoms meet the DSM-5 criteria for PTSD, with one exception. He states that, while a diagnosis of delayed onset PTSD could be made, in his view her PTSD symptoms are “better accounted for” by the diagnoses that he makes: depressive disorder, and somatic symptom disorder. However, he added:

…in my opinion, her future course and potential treatment of PTSD symptoms are relevant despite her not meeting full criteria for PTSD in my assessment.

[148]     The prognosis for substantial improvement is poor…

[218]     The evidence discloses that the plaintiff has suffered a very substantial non-pecuniary loss.  She is now only marginally able to continue with her former occupations, and passions in life, fitness training and barbering. Her physical and psychological injuries as outlined previously are substantial, and likely permanent to a large extent at least.  She has endured a great deal of pain and suffering, which will continue indefinitely. She has undergone two surgeries and a third surgery is likely, since it is recommended and the plaintiff says she plans to undergo it.

[219]     Her injuries and their consequences have quite dramatically affected her former lifestyle and her personality. She was previously very physically active. She participated in marathon runs and triathlons, operated a fitness business, and engaged in a number of sporting activities. She was independent and took pride in being able to support herself and her younger daughter, who continues to be a dependant. I referred earlier to the change in her personality noted by the witnesses. She is no longer outgoing, social, energetic and happy, as she was before.

[220]     Her homemaking capacity has been impacted. She testified that pre-accident she kept a tidy household. This is corroborated by Mr. MacDonald and her daughter. She no longer has the ability to maintain a tidy household. Now her house is messy.

[221]     On the other hand, she is far from completely debilitated, and there is a chance her condition will improve, with appropriate treatment.  Her pre-accident condition was not perfect, (in particular, she had symptomatic spinal degeneration, and headaches) and there was some risk that her conditions could have affected her detrimentally in future, as they had pre-accident.  They might have worsened.  …

[231]     Having regard to the case authorities I have referred to, I assess the plaintiff’s non-pecuniary damages in the amount of $170,000.

$160,000 Non-Pecuniary Assessment for Brain Injury and Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain sustained in a BC vehicle collision.
In today’s case (Ranahan v. Oceguera) the Plaintiff was involved in a 2013 rear end collision.  Although faut was not formally admitted the Court found the Defendant fully liable for the crash.  The Plaintiff suffered chronic injuries from the collision and in assessing non-pecuniary damages at $160,000 Mr. Justice Mayer provided the following reasons:

[144]     I find that as a result of the accident, Ms. Ranahan has sustained mild traumatic brain injury and soft tissue injuries to her spine, which has developed into chronic neck pain, upper back pain, post-concussion syndrome, cognitive problems with memory and focus, imbalance, tiredness, fatigue, tinnitus, eye strain, sleep disturbance and chronic headaches. I also accept that the imbalance caused by her accident resulted in a further injury, the left ankle dislocation with a chip fracture, while coaching a soccer game.

[145]      I also find that Ms. Ranahan suffers from ongoing mood symptoms including irritability, moodiness a reduction in patience and positivity. She is experiencing on-going difficulties dealing with stress. Although Ms. Ranahan admits that prior to the accident she was under significant stress as a result of her husband’s health issues, family and work responsibilities she was managing these stresses and was fully functioning at work and at home and was able to participate in a number of sports and social activities.  

[146]      I find, based on the totality of the lay and expert evidence, that there are no genuine issues of causation in this case. I find that but for the accident Ms. Ranahan would not be suffering from her current physical and psychological/cognitive symptoms…

[157]     I find that, as a result of the accident, Ms. Ranahan experienced and continues to experience physical and emotional pain, suffering and limitation. Relevant facts have been set out earlier in my reasons and there is no need to repeat them.   

[158]     The impacts have interfered with her family and business life but as a result of her stoicism these impacts have been managed to a certain extent. In addition, her injuries have significantly impacted her recreational and social pursuits but she has not been completely unable to participate in some of these activities.  

[159]     I find that there has been some improvement in some of Ms. Ranahan’s symptoms. What is not clear is whether there will be any further improvement. There appears to be a belief amongst some of the medical experts, including Drs. Chow, Johnston and Boyle, that further assessment and treatment may result in improvement. The prognosis of Dr. Chow and Dr. Johnston is guarded.

[160]     Many of the cases relied upon by Ms. Ranahan occupy the higher end of the spectrum for non-pecuniary damages for similar injuries. The cases relied upon by ICBC are in my view at the lower range and the damages awarded in those cases are not sufficient to address the pain, suffering, loss of enjoyment of life and loss of amenities suffered by Ms. Ranahan. 

[161]     Having reviewed the cases provided by the parties I assess Ms. Ranahan’s non-pecuniary damages at $160,000.  

$125,000 Non-Pecuniary Assessment for "Complex" Psychological Injuries With Pain

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for the victim of a hit and run collision.
In today’s case (Crozier v. ICBC) the Plaintiff was injured in a 2013 collision caused by an unidentified motorist.  ICBC admitted statutory liability for the crash.  The Plaintiff suffered both physical and psychiatric injuries which were partially disabling and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $125,000 Mr. Justice Saunders provided the following reasons:

[99]         The physical and psychological injuries Ms. Eros suffered include pain in the neck, back, shoulders, rib and chest; headache; dizziness and nausea; post-traumatic stress disorder, together with symptoms of depression and anxiety; fatigue, and problems with concentration and memory, either as a result of a mild traumatic brain injury (not confirmed through neuropsychological testing), or a combination of the physical and psychological/psychiatric injuries. Ms. Eros suffers from some residual headache and rib and chest pain. Fatigue remains a concern. She has significant chronic pain in the thoracic spine, and her psychological injuries continue. She is significantly disabled from working fully in her chosen field of massage therapy, and from engaging in physical labour of the type she did with SCRD. Her physical activity is limited. She can only do light housework.

[100]     I also consider the following factors as particularly influential in the damages award. Ms. Eros avoids driving where possible. She is not the joyful, outgoing person she used to be. Her self-identity as a strong and fearless person is gone. She lost the chance of pursuing her relationship with Mr. Johnson. Her relationship with her mother deteriorated after the accident. She is more socially isolated.

[101]     The defendant’s suggested range of $60,000 to $80,000 for Ms. Eros’ non-pecuniary damages, and the case law submitted in support of an assessment in that range, are premised on the substantial improvement of Ms. Eros’ physical injuries within 12 months of the accident, and of the psychological injuries within 18 months. The defendant’s submissions do not come close to acknowledging the devastating psychological effects of the accident, the continuing functional limitations imposed by the plaintiff’s pain, and the complex interrelationship of the pain condition and the post-traumatic stress disorder…

[104]     I find an appropriate award of non-pecuniary damages is $125,000.

$110,000 Non-Pecuniary Assessment For Chronic Pain Coupled With Psychological Injury

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries following a vehicle collision.
In today’s case (Evans v. Keill) the Plaintiff was involved in a 2013 rear end collision that the Defendants admitted fault for.  The crash caused a variety of soft tissue injuries which developed into chronic pain coupled with psychological injury.  The consequences impacted her vocationally with a poor prognosis for recovery.  In assessing non-pecuniary damages at $110,000 Madam Justice Matthews provided the following reasons:

[166]     I have concluded that as a result of the accident, Ms. Evans has suffered pain and a loss of enjoyment of life, which will continue into the foreseeable future and from which she is unlikely to ever fully recover.

[167]     As a result of the injuries she sustained in the accident, Ms. Evans suffered from soft tissue injuries to her mid-back, upper back, neck and shoulder. She now has chronic pain in her neck and upper back. The pain is exacerbated by lifting and many different postures, including sitting, standing, certain neck angles and some yoga postures. It is exacerbated by physical activities where her neck or back bears weight, or involves lifting or working with her arms above a certain height. She experiences headaches and migraines. Over the course of two years after the accident the pain has gradually improved by about 60% but has plateaued at its present level. It is permanent and not likely to improve. She has been prescribed analgesics and has taken over-the-counter medications to cope with her pain.

[168]     Before the accident, Ms. Evans’ mood was good and she enjoyed being physically active and social. She hiked several times a week, sometimes with friends, and regularly did yoga. She had a career that she enjoyed and was justifiably proud of given her eligibility for further promotion and that she achieved it without graduating high school. Her injuries rendered her unable to do her job.

[169]     Due to the accident injuries, Ms. Evans suffered two major depressive episodes and somatic symptom disorder. She withdrew socially from her friends. She attempted suicide twice. She drank excessively.

[170]     Overall, Ms. Evans’ life is very different from what she enjoyed prior to the accident. However, after a significant and challenging struggle, she has reworked her life into a place where she is happy.

[171]     The most significant of the Stapley factors in this case are Ms. Evans’ age; the severity and duration of the pain; the impairment of her physical abilities; her associated loss of lifestyle; and the impairment of her relationships. Ms. Evans is relatively young. She was 34 years old at the time of the accident and she was 39 years old at trial. She faces the prospect of a lifetime of chronic pain and associated functional limitations. One of the most significant impacts of her injuries has been the impact on her ability to do her job as a produce manager, which she enjoyed and which was a source of pride…

[181]     In summary, some of the cases cited by Ms. Evans involve other injuries, such as thoracic outlet syndrome, disc herniation or facet joint arthroplasty, on top of chronic myofascial pain and psychological injuries. Most of the defendants’ cases do not include cases where a psychological condition has been diagnosed and/or the chronic pain is not as functionally disabling as that experienced by Ms. Evans. The cases which are most similar are Stapley and Montgomery.

[182]     Having considered the Stapley factors and all the above authorities, I assess non-pecuniary damages at $110,000.

$140,000 Non-Pecuniary Damage Assessment for Collision Related Chronic Pain

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $140,000 for injuries leading to chronic pain following a vehicle collision.
In today’s case (Ferguson v. Watt) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The Plaintiff suffered “injuries to her jaw, chest, thumbs and left knee, as well as soft tissue injuries“.  While many of the injuries recovered the Plaintiff continued “to suffer from chronic pain in her neck, upper back, right shoulder and left knee, and fluctuating levels of sleeplessness, depressed mood and frustration.“.
The Defendant unsuccessfully challenged the Plaintiff’s credibility at trial.  In assessing non-pecuniary damages at $140,000 Madam Justice Marzari provided the following reasons:

[196]     I find on all the evidence that Ms. Ferguson’s injuries have resulted in chronic, persistent, disabling pain which continues to impact her. The life she has ahead of her is not likely to be as enjoyable as a result of the accident and the injuries that continue to affect her – causing pain, discomfort, sleep disruption, loss of self esteem, limiting her recreational activities, causing her to take medication that may compromise her long term health, diverting time and energy to attend therapy, causing her to have less energy to engage in activities outside of work, and causing her stress and anxiety about her future. Most significantly, the accident has forced her to abandon the operating room. This has affected her identity as a capable and significant contributor to the direct care of patients, and has led her to question her own worth. While she still identifies as a nurse, and continues to wear her scrubs years after the accident even in her management roles, her sense of loss in this regard is acute and ongoing.

[197]     I would note in this case in particular that Ms. Ferguson’s stoicism and perseverance in working through her pain has undoubtedly reduced her financial losses. I do not find, however, that it suggests that she is any less in pain, or less emotionally affected by the loss. To the contrary, I find that she has worked harder to make up for any lag in her physical or mental abilities caused by the accident and her ongoing symptoms and medications.

[198]     In these circumstances, I find that her non-pecuniary losses are particularly significant and require compensation. I award $140,000 in non-pecuniary damages.

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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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