Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing damages for chronic pain as a result of soft tissue injuries.
In this week’s case (Jackson v. Mongrain) the Plaintiff was involved in a 2006 collision. The vehicle he was occupying was rear-ended by the Defendant. Fault for the crash was admitted. The Plaintiff was injured in this crash and in support of his case called evidence as to his long-standing symptoms of chronic pain. The Defendant argued that the Plaintiff had no on-going injuries and in support of this argument pointed to the opinion of Dr. Reebye, a physiatrist hired by the Defence to conduct an ‘independent medical exam‘ who stated that the Plaintiff’s ongoing tenderness was of ‘no-clinical significance’.
Mr. Justice Stewart rejected the defence argument and went on to assess the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000. In doing so the Court made the following comments:
[24] Because the point seemed obvious to me, at the end of the case I asked counsel for the defendant whether he conceded that to this day the plaintiff suffers from chronic pain which would not be his lot but for the negligence of the defendant on April 8, 2006.
[25] The answer was no.
[26] Why not? As to that counsel for the defendant grounded his submission on the fact that Dr. Reebye, an expert in Physical Medicine and Rehabilitation, who examined the plaintiff on behalf of the defendant on June 22, 2010, told me that certain areas of tenderness in the plaintiff’s back were of “no clinical significance”.
[27] The doctor told me that “not of clinical significance” meant that in his opinion what the patient complained of was “not a severe pain or it is localized pain”. Nobody, including me, asked the doctor to tell us anything more about what he meant by “of no clinical significance”. The doctor did make it clear elsewhere in his evidence that he did not doubt that the plaintiff was making truthful statements to him as he, the doctor, went about his examination. I must say that absent testimony to the contrary I assumed then and assume now that all the doctor was saying in using the phrase of “no clinical significance” was that the fact the area in question was tender resulted in a finding of just that, tenderness, and no more.
[28] To say that that isolated statement by Dr. Reebye stands in the way of the conclusion noted above as to the overwhelming effect of the whole of the evidence makes no sense to me.
[29] In the result, having recognized the caution that must be taken before finding that a plaintiff is burdened with pain and suffering as the result of soft tissue damage long after the flesh must have healed, I find as a fact that the plaintiff is burdened with chronic pain in the neck and back that would not be his lot but for the negligence of the defendant on April 8, 2006. That finding is based on the cumulative effect of my finding the plaintiff to be a witness upon whom I am prepared to rely, the thrust of the evidence of Dr. Mamacos (Exhibit 2 Tab 7) and Dr. Hamm (Exhibit 2 Tab 2 Page 13) and the absence of a pointed, precise statement by Dr. Reebye to the effect that he is of the opinion that the plaintiff does not suffer from chronic pain and discomfort which chronic pain and discomfort has its head and source in the injuries suffered by the plaintiff in the motor vehicle accident of April 8, 2006…
[53] The plaintiff has endured pain and suffering thus far for call it 57 months. His pain is chronic and I find in all likelihood will be with him to the grave. Dr. Mamacos added that once an individual’s back is injured the chances of what he called “back issues” in the future increase. The plaintiff swims and walks regularly. He exercises. He has had physiotherapy, taken over-the-counter drugs and had massage treatments. Because of the nature of the work the plaintiff did before the motor vehicle accident the fact that the level of his pain and discomfort – looked at in isolation – is not great did not mean he did not suffer a loss or diminishment of the capacity to earn income (see supra). But the fact remains that I would describe his pain and suffering as not intense but more of the nagging variety, i.e., always with him but at a very reduced level and causing real and substantial discomfort only when at work or outside of work he does something which is actually too much for him or when at the end of a workday the cumulative effect of his day’s activities and the state of his neck and back sets in. I find that very bad “flare-ups” occur three or four times a year. He uses over-the-counter drugs (amongst other non-prescription drugs) to assist him, as necessary. I accept that his chronic pain and suffering interferes to an extent with his activities when he is not at work. He limits himself to walking and swimming whereas before the motor vehicle accident he played basketball, rode a mountain bike, played racquetball and went camping and hiking. The evidence of the plaintiff, his mother and of the plaintiff’s friend Gordon Papp satisfies me that because of his problems with his neck and back, the plaintiff does less around the house that he and Gordon Papp co-own than would otherwise be the case. (I note here that I have ignored the evidence of the plaintiff’s friend Chris Kokkonis. The plaintiff’s own evidence convinces me that Chris Kokkonis is a witness who thought exaggerating the nature and extent of the plaintiff’s pain and discomfort would assist the plaintiff. It did not.) I have considered the case law placed before me by counsel. Having considered the whole of it I award the plaintiff $75,000 by way of damages for non-pecuniary loss.
