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

Written by ERIK MAGRAKEN on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Whiplash Cases.

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 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

Written by ERIK MAGRAKEN on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases.

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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$85,000 Non-Pecuniary Assessment For Chronic Neck Pain and Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic neck pain and headaches following two vehicle collisions.
In the recent cast (McCully v. Moss) the Plaintiff was involved in two separate collisions with the Defendants accepting fault for both.  The collisions caused a neck injury with associated headaches which continued to the time of trial.  The symptoms were expected to continue and flare with heavier household and vocational duties.  In assessing non-pecuniary damages at $85,000 Madam Justice Devlin provided the following reasons:

[99]         Ms. McCully is 66 years-old and she suffers some limitation and restriction as a result of her persistent neck pain and headaches caused by the accidents. However, I do not agree that the injuries have a profound or life altering affect on Ms. McCully. I do find that she continues and will continue to experience some pain and discomfort and the medical experts confirm this. Although the medical evidence does not foreclose the possibility that she can increase her work hours or certain activity levels, I find that even where she does attempt these pre-accident activities, her injuries would increase her discomfort and pain.

[100]     While she is able to continue to work as an esthetician, she does experience discomfort if she exceeds working for a comfortable amount of time. Fortunately for her, her schedule is flexible and ultimately she is the one who will determine when she will work and for how long. While she may resort to the use of the TENS machine at the end of a long day to deal with the discomfort in her neck, she appears to be pleased to be able to continue to work for and service her clients.

[101]     I note that she has also returned to playing bridge a few times per week and has participated in a bridge tournament over the weekend albeit with the assistance of her pain medication. Participating in these bridge games is particularly important for Ms. McCully as it provides her an opportunity to engage socially. She continues to engage with her family and while she does not take her grandchildren to the pool she does babysit them at her residence. In a similar vein as Buckle, I note that Ms. McCully’s injuries restrict her from engaging in her domestic and work activities with the same energy and ability she had before the accidents. However, as I discussed earlier, despite having the chronic neck pain and headaches she continues to travel and has done so since shortly after the accidents.

[102]     In the following reasons, I will specifically address the parties’ arguments in relation to a segregated loss of housekeeping capacity damages. However, as I will re-state below, the impact of Ms. McCully’s injuries on her ability to perform household tasks informs my assessment of her non-pecuniary damages. I note also that she keeps a fairly large 2,900 sq. ft. house on a 12,000 sq. ft. lot. Overtime I find that Ms. McCully has been able to do some light housekeeping although she cannot do some of the more physically demanding tasks. Additionally, it is clear that she is more limited in performing yard maintenance.

[103]     There is no doubt that her neck pain and headaches have and will continue to have an impact on Ms. McCully in every aspect of her life to varying degrees. I am satisfied that Ms. McCully is entitled to compensation for the impact the injuries have had on her general well-being.

[104]     Having reviewed the cases provided by both parties, I assess Ms. McCully’s non-pecuniary damages at $85,000.

$95,000 Non-Pecuniary Assessment for Chronic, Partly Disabling Headaches

Written by admin on . Posted in ICBC Headache Cases.

Reasons for judgment were published today by the BC Supreme Court, Duncan Registry, assessing damages for chronic headaches following a collision.
In today’s case (Thomson v. Thiessen) the Plaintiff was injured in a 2012 collision.  The crash resulted in chronic neck pain and headaches which at time were severe enough to cause disability.  The prognosis for full recovery was poor.  In assessing non-pecuniary damages at $95,000 Madam Justice MacKenzie provided the following reasons:

[50]         While I am guided by these various authorities, every case is different and must be decided on its own particular circumstances. In the present case I accept that Mr. Thomson continues to suffer from mild to moderate, and on occasion, severe headaches as a result of the motor vehicle accident on November 3, 2012. I also accept that, depending on how much he exercises and how he conducts himself when working on his computer, his headaches will affect to a certain degree his enjoyment of life in the future, and according to the medical evidence, this could be long lasting. At the same time, as confirmed by Dr. Robinson, Mr. Thomson does not suffer from throbbing migraine headaches. In fact Mr. Thomson clearly stated that when he does have a headache or feels one is about to occur, he takes two Ibuprofen and sleeps for a couple of hours, feeling better in due course. While this is certainly a significant interruption to his enjoyment of life, relief is relatively straightforward, even though not long lasting, depending on his daily activities.

[51]         Considering the totality of the circumstances, all the factors outlined in Stapley, the positions advanced by both parties and the various authorities counsel have provided, I am satisfied that a reasonable and fair award for non-pecuniary damages is $95,000.

$85,000 Non-Pecuniary Assessment for Chronic PTSD and Post Concussive Issues

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic issues following a concussive injury.
In today’s case (Curtiss v. The Corporation of the District of West Vancouver) the Plaintiff fell into an open meter box on a sidewalk owned by the Defendant.  The Defendant denied liability but was found negligent at trial.  The fall resulted in a concussive injury with post concussive difficulties and PTSD.  The Plaintiff was expected to have lingering symptoms into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Marchand provided the following reasons:

[92]         As a result of her fall, Ms. Curtiss suffered cuts, scrapes and/or bruising to various parts of her body, including her forehead, nose, upper lip, hands, lower legs and left inner thigh. She also experienced balance issues, dizziness and headaches.   Ms. Curtiss’ cuts, scrapes and bruises all healed within the first one to three months.  Her throbbing headaches lasted the better part of a year, and she still gets headaches when she experiences high levels of stress. She still has occasional balance problems.

[93]         Ms. Curtiss has received psychological counselling and acupuncture treatments since her fall and her condition has improved over time. She has recently returned to daily walking and working in her garden. Nevertheless, her self-reports, and the reports of those who are close to her, clearly establish that Ms. Curtiss is not the same person she was prior to her fall. She has trouble sleeping. She has become anxious and forgetful. She is less confident and self-sufficient. She is no longer able to multi-task. She is less active, occasionally walks with a cane, looks down during walks and gardens far less.

[94]         Two family physicians were involved in Ms. Curtiss’ post-accident care, Drs. Dean Brown and Brian Brodie. Based on her loss of consciousness, memory loss, headaches, dizziness, imbalance, agitation and anxiety, both diagnosed Ms. Curtiss as having suffered a concussion as a result of her fall. In his April 7, 2017 report, Dr. Brown’s prognosis was that Ms. Curtiss’ symptoms would gradually improve with a full resolution within a year or so. In his September 8, 2017 report, Dr. Brodie’s prognosis was that Ms. Curtiss was highly likely to “go on to suffer some symptoms of post traumatic disorder”.

[95]         Ms. Curtiss also submitted a report dated August 25, 2017 prepared by Registered Psychologist, Dr. William Koch. As a result of Ms. Curtiss’ vigilance to danger when walking or driving, excessive startle response, avoidance of conversations about her fall, disturbed sleep, and anxiety-related concentration deficits, Dr. Koch has concluded it is probable that Ms. Curtiss suffers a “subsyndromal” Posttraumatic Stress Disorder (“PTSD”). Dr. Koch noted a number of positive and negative prognostic indicators in Ms. Curtiss’ case. He concluded that Ms. Curtiss’ prognosis for further improvement is “negative” unless she receives further psychological treatment. Dr. Koch recommended a further 20 hours of therapy, which Ms. Curtiss had started by the time of trial.

[96]         In cross-examination, Dr. Koch agreed with a list of further positive prognostic indicators put to him by counsel for the District. Specifically, Dr. Koch agreed that the following were positive prognostic indicators: Ms. Curtiss was open to treatment; Ms. Curtiss had returned to treatment; Ms. Curtiss reported benefitting from treatment; Ms. Curtiss had returned to daily walking; and Ms. Curtiss would soon no longer be involved in litigation. On the last point, Dr. Koch indicated that while litigation stress may soon stop, “other stressors may pop up.”

[97]         Based on all of the evidence, I accept that Ms. Curtiss’ life has been significantly adversely affected by her fall. Though her cuts, scrapes and bruises healed relatively quickly, her post-concussion symptoms and subsyndromal PTSD have persisted. While I have optimism for further improvement, given the length of time her symptoms have persisted, the efforts she has already put into her recovery and her age, I doubt that Ms. Curtiss will ever fully return to her pre-accident condition…

[109]     The cases cited by counsel support an award of non-pecuniary damages within the range suggested by Ms. Curtiss of $75,000 to $90,000. In my view, an award of $85,000 will adequately compensate Ms. Curtiss for the profound impact her fall has had on her physical and emotional wellbeing. Before her fall, Ms. Curtiss was an exceptionally happy, active and productive 74-year-old woman. The accident, however, caused a significant decline in her performance at work, her level of activity, her confidence in herself, and the joy in her life. As I have stated, in my view, though Ms. Curtiss will continue to make improvements, she will not fully return to her pre-accident condition.

Injury Claim Succeeds Despite 4 Year Gap in Treatment by "Germaphobe" Plaintiff

Written by admin on . Posted in ICBC Headache Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.
In the recent case (Moody v. Hejdanek) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash was significant resulting in the Plaintiff’s vehicle being written off and the Defendant’s vehicle sustained over $17,000 in damage.  THe Plaintiff sought medical attention shortly after the crash but by March of 2013 stopped treatment and did not see a doctor again until 2017 for medico-legal purposes.
Despite this gap the Court accepted the Plaintiff suffered a compensable level of lingering injury and assessed non-pecuniary damages at $55,000.  In reaching this quantum Mr. Justice Steeves provided the following reasons:
[51]         The plaintiff testified that immediately after the accident he felt pain in the middle of his back and in his shoulders. This continued into the evening and night. He did not return to work on the day of the accident and he told Dr. Robinson that he was off work for a “couple of days.” He attended at a walk-in clinic on January 15 and January 23, 2013. He was prescribed pain medication but he told Dr. Robinson that he doubted that he took it. He had four massage treatments in March 2013. Dr. Winston stated that there were no references to headaches in the record he saw from the walk-in clinic or massage therapist…

[54]         Nonetheless, the fact that there are no records of medical assessment or treatment of the plaintiff for his injuries from the March 2013 accident until he obtained expert evidence for his trial is significant. He saw Dr. Robinson, an expert in neurology and headaches, in May 2017 and Dr. Stewart, a specialist in physical medicine and rehabilitation medicine, in September 2017. He also saw Dr. Winston in October 2017. Typically, in this type of litigation, there is information, sometimes extensive information and chart entries, from a plaintiff’s family physician. In the subject case, this evidence is absent.

[55]         This situation creates a number of complications for the plaintiff. First, it requires the doctors that he saw in 2017 to make judgments about the medical consequences of the 2013 accident with limited medical information about his history. The primary, or only, source of information available to the doctors for the 2013 to 2017 period is the account of the plaintiff four years after the fact. For example, Dr. Robinson stated in his May 2017 report that “[e]ver since the accident [the plaintiff] has had headache, neck, shoulder and upper back pain.” The only way that this could be known is from what the plaintiff told Dr. Robinson. This is not so much a credibility issue as a problem establishing continuity of medical history.

[56]         I conclude that the absence of contemporaneous medical information about the plaintiff between 2013 and 2017 raises an issue of the weight that is to be given to the plaintiff’s expert evidence.

[57]         A further conclusion that can reasonably be drawn from the absence of medical information between 2013 and 2017 is that there were minimal injuries caused by that accident. Accepting that the plaintiff talked to his golf clients who had medical training, his own evidence is that none of them suggested making an appointment for an examination or treatment. It cannot be the case, as urged by the plaintiff, that conversations on the golf course with people with medical training is the same as seeing those people in their offices and undergoing an examination. Put another way, even on the evidence of the plaintiff, these medical professionals did not think it necessary for him to be examined in their office.

[58]         As partial explanation for this, the plaintiff says he has an aversion to doctors and he is a “germaphobe.” I accept the plaintiff’s evidence that he is uncomfortable seeing doctors but he has seen them for other reasons in the past (for example, an abscessed tooth). He also saw three specialists and underwent a functional evaluation for this litigation without any recorded problems. He apparently did not take pain medication prescribed when he attended at a walk-in clinic in January 2013 but he currently takes Advil for pain. I conclude that the plaintiff would have sought out further medical attention after March 2013 if the injuries he suffered from the 2013 accident had been serious enough, as any sensible person would do.

[59]         According to the defendant, the lack of medical attention at the time of the January 2013 accident means that the plaintiff did not take reasonable steps to mitigate his injuries. There is a logic to that submission but, as above, I conclude that the situation is one of weight to be given to the plaintiff’s expert evidence rather than of mitigation.

[60]         Turning more specifically to the expert evidence, Dr. Robinson has opined that the plaintiff’s history is “… consistent with a diagnosis of chronic posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the January 6, 2013 motor vehicle accident.” Similarly, Dr. Stewart reviewed the plaintiff’s history and stated in her report of September 6, 2017 that, “[b]ased on this history it is my opinion that he sustained soft tissue injury to his neck and back in the collision.”

[61]         For his part, Dr. Winston certainly disputes that the plaintiff has any ongoing impairment. However, he does not opine on the specific issue of causation. He notes the initial medical treatment at the walk-in clinic and he apparently had the chart from the physiotherapist available to him. The latter was two months after the accident, in March 2013, and there is no reference on the chart to headaches. He notes that the plaintiff “never sought medical attention again” after March 2013 and he does not believe there was impairment after that. Dr. Winston does not state it expressly, but I take his opinion to be that there was an accident and it did cause some mild soft-tissue injury. However, there was no impairment to speak off after March 2013.

[62]         From these opinions, I conclude that the plaintiff did suffer a soft-tissue injury to his neck from the January 2013 accident, as described by Dr. Robinson. I conclude that headaches are included in this assessment. As above, Dr. Winston’s opinion is broadly consistent with this at least on the initial causation issue (but he is very skeptical about any ongoing impairment). In her opinion, Dr. Stewart includes an injury to the back but in cross-examination, she agreed this was possible but not probable. It is also not the opinion of Dr. Robinson. I do accept the opinion of Dr. Robinson that “[c]hronic insomnia is probably a factor in the persistence and severity of his posttraumatic headaches”…

[73]         Overall, I conclude that non-pecuniary damages in the amount of $55,000 are appropriate in this case.

$90,000 Non-Pecuniary Assessment for Chronic Neck Injury With Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing non-pecuniary damages of $90,000 for a long standing neck injury with associated headaches.
In today’s case (Willett v. Rose) the Plaintiff was involved in a 2010 collision.  At trial, some 7 years later, the Plaintiff continued to suffer from neck pain with associated headaches.  In assessing non-pecuniary damages at $90,000 Mr. Justice Smith provided the following reasons:

[42]         In summary, the evidence is undisputed that the plaintiff’s headaches, including migraine headaches, are more frequent since the accident. The events with which those headaches were associated before the accident–monthly menstrual periods–no longer occur. I also accept the plaintiff’s evidence that her headaches are more severe and usually associated with neck pain. All of the medical evidence acknowledges the mechanism by which neck pain can evolve into headaches, including migraines and confirms the existence of objective signs of neck injury.

[43]         All of that evidence leads to the conclusion that, on the balance of probabilities, there is a causal link between the plaintiff’s neck pain and stiffness and her migraines. I find the neck pain and stiffness to have been solely caused by the accident.

[44]          As for the migraines, the governing principle is that stated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458: causation is established if an injury was caused or contributed to by the accident. Given the plaintiff’s long history of migraines, it may well be that some other factor is also playing a role in their onset, but I find that the injuries the plaintiff suffered in the accident are at least a major contributing cause of the migraines she now has. Or, to use the language of the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, “but for” accident, the plaintiff’s migraines would not be as frequent or severe as they now are.

[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future…

[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.

$65,000 Non-Pecuniary Assessment for Concussion with Lingering Headaches

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Headache Cases.

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion with lingering headaches.
In today’s case (Barr v. Accurate Transmission and Driveline) the Plaintiff was struck by a vehicle while in a cross walk.  She sustained a concussion with various lingering post concussive symptoms.
In assessing non-pecuniary damages at $65,000 Mr. Justice Williams provided the following reasons:

[15]         Ms. Barr’s principal injury was diagnosed as a closed head injury. In the report of Dr. Tessler, the neurologist, it is reported that she “likely sustained a Mild Concussive Injury or Mild Traumatic Brain Injury at the lower end of the spectrum of such injuries.”

[16]         Following her release from the hospital, Ms. Barr saw her family doctor, Dr. McCarthy. I note that Ms. Barr had also been under Dr. McCarthy’s care with respect to the problems she had been experiencing as a result of the workplace difficulties.

[17]         In her report and her trial testimony, Dr. McCarthy described the plaintiff’s symptoms following the accident as well as her observations and recommendations over the ensuing months. These included soft tissue injuries entailing extensive bruising and tenderness and also a series of symptoms that are collectively characterized as post-concussion syndrome: complaint of headache, dizziness, nausea, as well as a heightened sensitivity to light and activity. The bruising and associated discomfort resolved in a fairly short time; the post-concussion symptoms continued for a longer time, but Ms. Barr was able to increase her activities, with her dizziness and nausea ultimately resolving. The only noted residual symptom was occasional headache, dealt with by rest and over-the-counter medication.

[18]         The plaintiff described the aftereffects of the motor vehicle accident, beyond the physical bruising. She said she had episodes of headache, that her memory was less reliable, and that her concentration abilities were diminished. She said as well that her mood was affected, in that she was less cheerful and patient, particularly with her husband.

…

36]         In my view, the injuries sustained in the accident had a reasonably serious impact on Ms. Barr, both in terms of the accident’s immediate aftermath, and its longer term effects. These lingering effects have impacted her self-confidence and the range of leisure activities she can pursue. Moreover, they have adversely affected her mood and outlook.

[37]         That, in turn, has impaired her relationship with her husband. In this context, I note that he is somewhat compromised, in that he has a significant short-term memory deficit. Consequently, he relies on the plaintiff to be the strong one in the family. I am satisfied that her competence and confidence to fulfill this role have been diminished.

[38]         There is as well the matter of the plaintiff’s headaches. Those have not resolved; they still occur from time to time. I am satisfied that that condition is in part attributable to the accident.

[39]         Finally, I note that, prior to the accident, Ms. Barr was what I would describe as an otherwise healthy person just embarking upon what should be a special time of her life, her retirement. These injuries will, to some degree, negatively affect this period of her life.

…

[43]         In the result, having taken into account the authorities to which I have been referred, and the circumstances as I find them to be, it is my conclusion that an appropriate award of non-pecuniary damages is $65,000.

$85,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases.

Adding to this site’s soft tissue injury non-pecuniary damage database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries with associated headaches.
In this week’s case (Picton v. Fredericks) the Plaintiff was involved in a 2008 vehicle collision that the Defendant admitted responsibility for.  The Plaintiff suffered various injuries which were ongoing at the time of trial and expected to linger into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Williams made the following findings:

[37]         I conclude that Ms. Picton did sustain injuries in the course of the motor vehicle accident and that substantial discomfort has persisted for her. I am not minded to accept that all of the discomfort and all of the lost time is attributable to the accident. I also conclude that, while there was not insignificant discomfort, its effect upon her ability to do her usual activities and to engage in physical activities was significant but not to the extent she seemed to suggest. For example, I am inclined to accept that, from time to time, she engaged in activities such as golfing and snowboarding. I also believe that she continued to pursue her fitness regime, although in a somewhat diminished way.

[38]         I am satisfied that Ms. Picton sustained soft tissue injuries in the accident, resulting in neck, shoulder, and back pain and headaches. The neck, shoulder, and back pain have not resolved but continue, albeit less intensely. I am satisfied that she continues to deal with headaches; the frequency may not be as great as she contends, but I accept that she does occasionally experience very significant discomfort from those headaches. I also accept the evidence before me that the Botox treatments she receives are substantially effective in enabling her to deal with the discomfort of those headaches…

[51]         In summary, I conclude that Ms. Picton has suffered pain and discomfort from the accident, that it has impacted upon various aspects of her life, and that those effects continue. I am also satisfied that the ongoing Botox treatment is a meaningful contributor to mitigating the discomfort she experiences. I accept that the effects of the accident impacted upon her work and social life.

[52]         That said, I also recognize that there were other factors at play, including the psychological distress that she has experienced separate and apart from the accident. I find no basis to attribute that to the defendant’s conduct, and, accordingly, the effect of that cannot be included in the analysis of what award of damages will properly compensate the plaintiff for her pain, suffering, and loss of enjoyment of life as resulting from the defendant’s negligence…

[58]         As stated above, my conclusion is that the injuries resulting from the accident had a moderately serious impact upon Ms. Picton’s life. She has experienced pain and suffering, and her enjoyment of life has been compromised in a number of ways. I also conclude that the effects of the collision are not the sole cause for her difficulties; her pre-existing psychological problems have had a real role in causing those. Ms. Picton’s situation is in keeping with the “crumbling skull” rule as noted in Athey v. Leonati, [1996] 3 SCR 458, at paras. 34–35. The damages that this Court awards must reflect that distinction. The defendant should not be required to compensate Ms. Picton for effects she would have experienced anyway.

[59]         As well, my award is informed by my view that she has, fortunately, by availing herself of the Botox treatment program, been able to find a way to substantially overcome the discomfort of headache. I intend to provide an award of damages for her future care that will provide for that relief, going forward. Accordingly, I expect that her discomfort will be quite significantly relieved.

[60]         In the result, I find that a fit and appropriate award of damages under this head is $85,000.

$85,000 Non-Pecuniary Assessment for Chronic Persisting Headaches

Written by admin on . Posted in ICBC Headache Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for long standing headaches caused by a vehicle collision.
In today’s case (Woelders v. Gaudette) the Plaintiff was involved in a rear end collision that the Defendant admitted fault for.  The Plaintiff suffered a variety of injuries some of which recovered and some of which did not.  By the time of trial, some 8 years following the collision, the Plaintiff continued to suffer with ongoing headaches and associated symptoms which were expected to continue into the future.  In assessing non-pecuniary damages at $85,000 Madam Justice Ballance provided the following reasons:
[150]     Ms. Woelders was 31 years old when the Accident happened.  For more than six years, she has been plagued by headaches and pain in her neck/upper back/right shoulder region and in her face and jaw, together with a simmering muscle tension that can transform into pain.  The intensity and frequency of Ms. Woelders’ chronic symptoms have declined over the years and her overall condition has improved in large measure due to her sheer grit and determination (to her credit) coupled with her diligent rehabilitation efforts and implementation of pain management strategies.  Even so, and while there is a slim chance she may enjoy some marginal improvement going forward, her symptoms are enduring and continue to be problematic and remain susceptible to exacerbation by commonplace tasks and maneuvers at work, at home and recreationally.
[151]     The ill‑effects of the Accident have negatively impacted the quality and enjoyment of Ms. Woelders’ interactions with her children.  She experienced pain and difficulty nursing her youngest and lifting and carrying both her children.  She is reluctant to pick them up for fear she will trigger her symptoms.  She goes through much of her life on-guard, evaluating whether certain movements will activate her symptoms and trying to make the modifications that may be required.
[152]     Ms. Woelders is from a close‑knit family.  Since the Accident, she has curtailed her participation in family gatherings, has all but ceased organizing them, and feels the need to leave get‑togethers early when her symptoms flare.
[153]     I accept the evidence of Ms. Woelders’ twin sister, Ann Pimentel, to the effect that Ms. Woelders was in peak physical condition before the Accident.  Ms. Pimentel spoke with emotion about how her sister’s injuries have visibly aged her and that she had lost her “spark” after the Accident.  Ms. Woelders’ husband and mother gave similar testimony, which I also accept.
[154]     Ms. Woelders’ formerly high-energy and optimistic personality has been overshadowed by a less positive, more serious self with less energy and spark.  I accept her mother’s evidence that she has recently made a point of taking the children after school on Fridays primarily because her daughter is drained at the end of the work week and needs time to rest and rejuvenate.
[155]     The medical evidence indicates that Ms. Woelders will be prone to headaches and periods of aggravation of her unresolved symptoms for years to come, and likely indefinitely to one degree or another.  In prior cases, I have observed that enduring pain, even when it is intermittent, can compel unfavourable adjustments to one’s work life and lifestyle and cloud the pleasures of life, as it clearly has in Ms. Woelders’ case.  Taking care to not aggravate her residual symptoms and trying to manage her pain, even during the times that things seem to be under control, has become part of Ms. Woelders’ everyday life or, as she aptly put it, her “new normal”.  This is an unwelcome new reality for Ms. Woelders and her family.
[156]     Ms. Woelders finds certain kinds of housework difficult.  Although she continues to perform most of her pre‑Accident share of the housekeeping, it is not done to her pre‑Accident standards.  The evidence concerning her compromised housekeeping capacity was under‑developed at trial.  I accept that she has impairments in this regard but am not persuaded that they justify a stand-alone award of damages as Ms. Woelders has urged.  Instead, I have considered it as a factor in the assessment of her non-pecuniary damages.
[157]     I have reviewed the authorities placed before me by counsel.  The cases submitted by the defendant are, for the most part, factually distinguishable in material ways and are less instructive than those relied by Ms. Woelders.  In any event, the case law only provides rough guidelines for what is, at its core, a highly individualized assessment: Karim v. Li, 2015 BCSC 498 at para. 120.  Having regard to the Stapley factors and to the other case authorities in the context of the evidence in the case at hand, in my opinion, a fair and reasonable award for Ms. Woelders’ non-pecuniary damages is $85,000.