$50,000 Non-Pecuniary Assessment for Chronic AC Joint Injury

Adding to this site’s archived posts addressing BC non-pecuniary assessments for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic AC joint injury.
In last week’s case (Westfield v. Lindstrom) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from soft tissue injuries which largely recovered her AC joint injury remained problematic at the time of trial that were expected to continue indefinitely.   In assessing non-pecuniary damages at $50,000 Mr. Justice Abrioux provided the following reasons:
[58]         I make the following findings of fact based on my consideration of the evidence, both lay and expert, as a whole:
a.         prior to the Accident the plaintiff had occasional difficulties with her low back.  In addition, she had degeneration in her right shoulder area.
b.         the plaintiff also suffered from asthma and had respiratory problems, which affected her daily living activities to various degrees from time to time.  These difficulties made her more susceptible to developing a more serious condition in the future.  That in fact occurred after the Accident.  The development of the respiratory condition to its current stage which the plaintiff concedes is “serious and disabling,” plays an important role in her day-to-day functioning and ability to enjoy the amenities of life.
c.        the plaintiff sustained various soft tissue injuries in the Accident.  It is also likely she sustained an injury to the AC joint in the right shoulder.  Although the plaintiff has recovered from certain of these injuries she has ongoing pain and discomfort to her right shoulder, with associated discomfort in her neck, which is likely permanent.
d.         the Accident injuries affected the plaintiff’s “original position”, that is, the state of her health and its effects on her functioning prior to the Accident.  This original position included a right shoulder with degenerative changes.
e.         although the plaintiff has indicated she would be prepared to undergo an operation to her right shoulder if that were recommended to her, she has not established that recommendation is likely to occur.  There is evidence the operation could pose a significant risk to her life.  Quite understandably, the plaintiff testified she would not undergo the surgery if there were in fact such a risk to her.  There was no evidence from an anesthesiologist to the effect the plaintiff’s respiratory condition would not in fact result in a significant risk to her life were she to undergo an operation which involved a general anesthetic.  This is what would likely occur in this case.
f.          while the plaintiff does have some ongoing pain and restriction to her shoulder which is likely to be permanent, the effect of the ongoing Accident injuries plays a considerably less negative role in her day-to-day functioning than do the ongoing effects of her serious respiratory condition.
g.         the plaintiff has downplayed to some extent the respective contributions to her current state of health caused by the Accident injuries on the one hand and the respiratory condition on the other.
h.         notwithstanding this, the injuries sustained in the Accident do affect, to some extent, the plaintiff’s current ability to function and the quality of her life generally.  I accept the plaintiff’s evidence and that of her family members that she is no longer as happy and outgoing as she was prior to the Accident.  I do not, however, accept that this state of affairs is entirely due to the injuries sustained in the Accident.  The effect of the respiratory condition on the plaintiff’s life, which includes being the sole cause of her inability to work in a position which provided her with great personal satisfaction as a special needs educational assistant, also contributes to her current psychological state.
i.          the plaintiff has made significant recovery from the effects of the injuries sustained in the Accident.  This occurred within approximately 18 months to two years after the Accident.  She is left, however, with ongoing aches and pains to her upper back and right shoulder area.  These will continue indefinitely to some degree.  The ongoing effects of the injuries sustained in the Accident also affect to some degree her ability to perform certain household tasks…
[72]         I conclude the effect of the plaintiff’s injuries in this case, while generally comparable to those in Rozendaal and Bhadlawala, are somewhat more severe insofar as the day-to-day enjoyment of life and ability to function is concerned.  I award the plaintiff $50,000 under this head of damages, which includes $5,000 for loss of past and future loss of housekeeping capacity.

$60,000 Non-Pecuniary Assessment For Chronic Shoulder Soft Tissue Injury

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder soft tissue injury.
In this week’s case (Jorgensen v. Coonce) the Plaintiff was injured in 2009 when the vehicle in which he was a passenger left the roadway and collided with some trees.  The defendant admitted fault.
The Plaintiff suffered a soft tissue injury to his shoulder which remained symptomatic at the time of trial and was expected to pose continued difficulties in the future.  In assessing non-pecuniary damages at $60,000 Mr. Justice Baird provided the following reasons:
[90]         In short, I conclude that the plaintiff suffers from chronic pain from a soft tissue injury in the area of his right shoulder sustained in the May 2009 accident. This injury is not related to the physical or functional deficits that the plaintiff continued to experience as a result of the April 2006 accident for which, as I have noted, the present defendant is not liable.
[91]         The May 2009 injury has impacted the quality of the plaintiff’s life in material measure. He has been unable to pursue his sporting and recreational activities. Worse still, his relationship with his children has suffered because of his physical limitations. He has also been affected, not only in his enjoyment of work, but in his capacity to perform his work adequately, and on all of the evidence I consider it possible that this reduced capacity played a role in his dismissal from long-term, secure, well-paying employment in the paving business…
[106]     Having due regard to the often cited factors articulated in Stapley v. Hejslet, 2006 BCCA 34 at paragraph 46 and the observations of the Supreme Court of Canada in the Lindal v. Lindal, [1981] 2 SCR 629 at p. 637, and employing a discount in light of my findings respecting the plaintiffs pre-existing injury or condition for which the present defendant is not responsible, I have decided that an appropriate award for general damages in this case is $60,000

$50,000 Non-Pecuniary Assessment for Frozen Shoulder and Chronic Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained as a result of a motor vehicle collision.
In last week’s case (Wepryk v. Juraschka) the Plaintiff was involved in a 2008 collision.  She was a passenger and the driver of her vehicle lost control resulting in a roll over collision.  Liability was admitted.  The 43 year old Plaintiff suffered soft tissue injuries and while she was able to continue working as a hairdresser these injuries limited her abilities to do so.  In assessing non-pecuniary damages at $50,000 Mr. Justice Ehrcke provided the following reasons:

[9] All of the doctors are agreed that Ms. Wepryk suffered soft tissue injuries to her neck, left shoulder, and upper back as a result of the accident, and that she continues to experience pain, discomfort and occasional headaches from these injuries at the time of trial, three and one-half years after the accident.

[10] In addition, Dr. Chan was of the opinion that Ms. Wepryk suffered adhesive capsulitis or frozen shoulder as a result of the accident. Dr. Loomer did not agree with that conclusion. Dr. Chu had no opinion on the causation of the adhesive capsulitis. Dr. Smith agreed with the opinion of Dr. Chan. On a balance of probabilities, I accept the opinion of Dr. Chan, although not a great deal turns on this, since, as Dr. Chu expressed it, the left adhesive capsulitis is “the least of her problems”.

[11] There was also a disagreement between Dr. Smith and Dr. Tessler regarding the causation of left C-8 sensory neuropathy. Again, I find that nothing of significance turns on this, as these symptoms were minor and transient.

[12] The important fact is that the defendants accept that Ms. Wepryk suffered soft tissue injuries to her neck, her left shoulder, and between her shoulder blades, and that she continues to experience pain to this day. As Dr. Smith put it in his report dated February 26, 2012:

More than three years have passed since Ms. Wepryk’s motor vehicle accident of December 5, 2008. In terms of prognosis, Ms. Wepryk unfortunately has fallen into the 10% of patients still with symptoms more than two years after their motor vehicle accident. Therefore, Ms. Wepryk’s prognosis to return to pre motor vehicle accident levels of functioning is poor, and Ms. Wepryk must now learn to cope with what I believe is a permanent functional impairment.

[13] I accept that conclusion, notwithstanding that Dr. Loomer expressed a “hope” of improvement. In cross-examination, even he agreed that there is no definite evidence that she will get better.

[14] It is likely, therefore, that Ms. Wepryk will continue to suffer from the pain to her neck, left shoulder and upper back, along with occasional headaches. Her symptoms are aggravated when she has to perform activities that require her to raise her arms, or to use her left shoulder. This has an impact on her work as a hairdresser, which requires such activities. It also has an impact on her recreational activities and activities of daily life….

[35] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Here, the plaintiff, who was 43-years-old at the time of the accident and who enjoyed an active lifestyle, suffered soft-tissue injuries to her neck, left shoulder, and upper back. Now, more than three and one-half years after the accident, her pain and discomfort have not fully resolved, and she is likely to have some residual effects for the indefinite future. She continues to have headaches three or four times a month, and she cannot engage in vigorous physical activities, particularly those that require her to raise her left arm above her shoulder-level, without experiencing pain. She therefore finds it difficult to be as physically active as she was before the accident. She says that she has gained some weight as a result, although the medical evidence suggests that any weight gain has been modest.

[36] In the circumstances of this case, on the facts as I have found them, and considering the factors set out in Stapley v. Hejslet, I find the proper assessment of non-pecuniary damages to be $50,000.

$100,000 Non-Pecuniary Assessment for Shoulder and Knee Injury

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and shoulder injury sustained in two motor vehicle collisions.
In last week’s case (Wong v. Hemmings) the 36 year old Plaintiff was injured in two collisions, the first in 2006 and the second in 2008.  These caused a fairly serious shoulder injury which, despite extensive therapy, did not fully recover and was expected to pose ongoing problems in the Plaintiff’s vocation as a server into the future.  In addition to this, the Plaintiff suffered a knee injury which also lingered on.  In assessing non-pecuniary damages at $100,000 Mr. Justice Fitch provided the following reasons:

[111] In assessing non-pecuniary damages, I have had regard to the following considerations. The plaintiff is a young woman. She has endured 5 1/2 years of significant shoulder and, to a lesser extent, knee pain as a consequence of the two accidents.

[112] She has undergone two injections of anesthetic and corticosteroids into her shoulder and has tried a number of different types of therapeutic interventions to obtain pain relief. Her pain is undoubtedly exacerbated by the weight bearing demands of her position. Despite this, the plaintiff has continued to work as a server because that position affords her the best opportunity to provide for herself and for her daughter.

[113] In October, 2010 plaintiff underwent arthroscopic subacromial decompression surgery on her left shoulder in addition to an arthroscopic procedure designed to reduce pain associated with her biceps tendon. That procedure was conducted as a result of Dr. Regan’s fear that if no intervention was tried, the plaintiff was going to be left with a permanent partial disability that could limit her ability to continue in the workforce given the demands of her job. Dr. Regan was frank in his pre-surgical assessment that if she did not benefit from these procedures, she would likely suffer long-term consequences, including permanence of her pain pattern affecting her shoulder which would limit her from doing repetitive above shoulder height activities or repetitive lifting activities. While the subacromial bursal excision provided the plaintiff with some relief, she continues to experience pain over the biceps tendon which is likely aggravated by her work duties. Dr. Regan concluded that while her left shoulder was improved from its pre-operative status, it would not improve in the future. One further surgical procedure could be performed on the plaintiff’s shoulder but this would require her to be off work for between three and four months. Dr. Regan testified that he would only undertake this procedure if the plaintiff continued to suffer pain associated with the activities of daily living despite quitting her job. Although the arthroscopic surgery was a partial success, the fears expressed by Dr. Regan prior to the surgery have now largely come to pass.

[114] With respect to her left knee, Dr. Regan concluded that the plaintiff was continuing to suffer pain associated with an injury caused by the first accident to her peroneal nerve. He is of the opinion that a cortisone injection is unlikely to help the situation at this time. If the plaintiff’s symptoms worsen over time, a further surgical procedure with a six to eight week recovery period is the only treatment option available to her.

[115] With respect to the plaintiff’s myofascial pain, Dr. Regan expressed the view that while the condition will likely settle, the plaintiff’s recovery will be prolonged and she may be left with chronic pain in the left side of her neck and the trapezius, levitator scapula and paraspinal muscles in her neck and back.

[116] Dr. Anton similarly opines that while the plaintiff had a reasonably good outcome from her shoulder impingement surgery, she is not pain free and has essentially exhausted surgical and non-surgical options for her left shoulder. He concludes that the prognosis for further improvement of her left shoulder is poor as long as she continues in her current work. In fact, he concludes that so long as the plaintiff continues in her current position, she will experience shoulder pain. Even if the plaintiff finds suitable alternative employment, Dr. Anton is of the view that she will probably be at increased risk for episodes of pain in her left shoulder indefinitely. With respect to her left knee, Dr. Anton is of the view that the plaintiff continues to have irritation of the peroneal nerve and that the prognosis for improvement is uncertain.

[117] In short, the injuries suffered by the plaintiff in the two accidents are serious, have caused long-term and ongoing pain which may, insofar as the myofascial pain is concerned, be chronic in nature. Those injuries have not been resolved by various types of surgical and non-surgical treatment. The plaintiff will continue to suffer pain in the future which will be aggravated by the repetitive, weight bearing demands of her job as a server.

[118] Prior to the accidents, the plaintiff was a vigorous, energetic and physically active person who participated in a broad range of sporting activities. Constant pain and sleep deprivation have made her less energetic and much less inclined to participate in the kinds of sporting activities she enjoyed before the accidents. The plaintiff’s continuing symptoms have significantly affected her lifestyle. For an individual who uses physical activity to promote good mental health, the loss to the plaintiff in this regard has been significant.

[119] Perhaps even more significantly, the accidents and the symptoms that the plaintiff continues to experience have caused her to become more socially withdrawn. She is moodier and less patient with others, including with her daughter, Brooke. I find that the accidents have resulted in a significant loss of enjoyment of life and some impairment of the plaintiff’s social relationships.

[120] The plaintiff’s injuries have also taken an emotional toll. The plaintiff has carried the burden of supporting herself and her daughter as a single mother. She continues to work through pain because she feels she has no choice to do otherwise. She faces the stress of an uncertain medical and financial future with the possibility of additional surgical interventions in relation to her left shoulder and left knee.

[121] The accidents have significantly impacted the plaintiff in physical, emotional and social ways. They are likely to have that impact into the future and will certainly persist as long as the plaintiff continues to work as a server.

[122] In all the circumstances, I assess non-pecuniary damages at $100,000.00.

$60,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury

Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, assessing damages for a rotator cuff injury sustained in a motor vehicle collision.
In the recent decision (Antonishak v. Piebenga) the Plaintiff was injured in a 2008 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff sustained a right shoulder rotator cuff tendinopathy resulting in shoulder instability.

The Plaintiff symptoms lingered to the time of trial and had a “guarded prognosis” for further recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Wong provided the following reasons:
[3] As a result of the accident, Mr. Antonishak sustained the following injuries:  soft tissue strain to neck and arm, right shoulder rotator cuff tendinopathy, anterior and inferior instability of the right glenohumeral joint and right ulnar neuropathy. Mr. Antonishak was then 27 years of age. He is now 32 years. These injuries have affected his employment duties and also interfered with his active recreational pursuits and lifestyle. The plaintiff complains that since the accident he has continued to suffer from right shoulder and arm pain together with fatigue. At the time of the accident, the plaintiff was employed as a waiter at the Hotel Eldorado Restaurant in Kelowna. As a result of his injuries, he claimed he missed seven days from work and, on other occasions, ended his shifts early due to increased pain and fatigue from his injuries. He said there were also a number of employment tasks expected of him that he was unable to perform due to his injuries. The plaintiff also said his injuries continued to interfere with his employment and with his various extracurricular activities. These ongoing functional impairments and limitations cause him concern of what his future holds as it relates to his ability to pursue various careers and occupations…

[7] At trial, Mr. Antonishak projected as an energetic, ambitious, and engaging person. He is certainly not a malingerer nor a layabout. He has plans for a future in the restaurant/hospitality industry as an entrepreneurial owner. When not working, he also likes to engage in active recreational sport pursuits and extensive international travel. He has a natural curiosity about foreign cultures and environments. He enjoys his present occupation as a fine dining server, but encounters pain and fatigue if he overworks his right arm and shoulder. He has curtailed some, but not all of his active recreational activities for fear of aggravating his weakened right shoulder and arm.

[8] For the foreseeable future, Dr. Monteleone has suggested cautious monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening program. If his present condition eventually becomes intolerable relative to his future career and lifestyle, then stabilizing shoulder surgery may need to be done. This would involve major surgery with potential six-month recovery time thereafter. In the meantime, the plaintiff lives with a weakened right-hand grip and chronic troubling pain and fatigue if he overtaxes himself in above-shoulder or extensive reaching or pulling activities.

[9] After four years of chronic troubling pain and fatigue with guarded prognosis of future improvement together with curtailed recreational activities, I fix this item of damage at $60,000.

Facebook Photos Fail to Thwart ICBC Injury Claim

As previously discussed, Facebook photo production is becoming a common occurrence in personal injury litigation.   Despite the undesirable consequences on privacy expectations it is worth remembering that such photos, much like more conventional surveillance evidence, are not necessarily harmful in and of themselves.  Surveillance evidence is only damaging to a personal injury claim when it depicts activities inconsistent with the Plaintiff’s evidence.  Photographic evidence that does not reach this threshold is really of little value.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Guthrie v. Narayan) the Plaintiff was injured in a 2009 rear-end collision.  She suffered from chronic soft tissue injuries which were expected to cause on-going problems into the future.  At trial the Defence introduced Facebook photos depicting the Plaintiff on a trip to Las Vegas.  Mr. Justice Goepel found these to be of little value and assessed non-pecuniary damages at $65,000.  In doing so the Court provided the following reasons:

[27] I accept the testimony of Dr. Cordoni and Dr. Badii. I find that Ms. Guthrie sustained soft tissue injuries to the neck and back as a result of the motor vehicle accident. These soft tissue injuries have led to chronic neck and shoulder pain. I find that it is unlikely that there will be any significant change in her condition for the foreseeable future.

[28] I further find that Ms. Guthrie has aggressively attempted to deal with her injuries. She has followed the medical recommendations made to her. She has attended physiotherapy and message therapy. She took a series of painful IMS treatments. She works out regularly. She has done all she can to assist in her recovery.

[29] Unfortunately, however, Ms. Guthrie’s injuries have not resolved. They continue to seriously impact her daily life and will likely do so for the foreseeable future. The injuries have affected all facets of her life. She needs accommodation at work, cannot partake in some sports she formerly enjoyed, must avoid certain social events and even has difficulty when she attempts to cuddle with her boyfriend. She is no longer suited for many occupations and requires accommodation to carry out many of the occupations that are still available to her.

[30] In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident…

[35] While the subject cases are of general assistance and provide a guideline as to the range of damages awarded in cases with some similarities to the case at bar, each case must be decided on its own facts. Of primary importance in this case is the age of the plaintiff, the manner in which the injuries have impacted on her life, and the medical evidence which suggests that any future improvement is unlikely. I note in the cases cited by the defendant the prognosis for the plaintiffs was much more favourable than that concerning Ms. Guthrie. I award $65,000 in non-pecuniary damages.

$60,000 Non-Pecuniary Damage Assessment for Shoulder Impingement Syndrome

Adding to this site’s archived posts of BC non-pecuniary damage awards for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries and an impingement syndrome.
In last week’s case (Sandhar v. Rolston) the Plaintiff was injured in a 2004 rear-end collision.  Fault was admitted by the offending driver.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff suffered a soft tissue injury to her neck and an impingement syndrome to her right shoulder.  The symptoms largely recovered by 2007 following a cortisone injection although she had some lingering symptoms.
Complicating matters, the Plaintiff injured her right shoulder shovelling snow in 2008.   She injured her rotator cuff.  Mr. Justice Affleck found this was a ‘divisible injury‘ and assessed damages accordingly.  In awarding $60,000 for non-pecuniary damages the Court provided the following reasons:

[53] In Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, the court observed that decisions of the court on the question of an intervening cause, “say that if an injured party acts unreasonably and causes him or herself further injury, the tortfeasor is not responsible for any injuries suffered as a result of the second injury.” It was not reasonable for the plaintiff to have shovelled snow in the fashion that she did in 2008. Even if the injuries from that activity were indivisible, I would not award damages for them.

[54] That does not mean compensation for the injuries from the car accident is cut off from the date the plaintiff shovelled snow. If the car accident injuries continued to have their effects after December 2008, the defendant remains liable to compensate the plaintiff for those effects. See Dudek v. Li, 2000 BCCA 321.

[55] There has been no mechanical derangement of the plaintiff’s neck and shoulder caused by the car accident. I accept Dr. Leith’s view that the plaintiff’s injuries were soft tissue injuries of the “whiplash” variety. The evidence is that the whiplash was properly characterized as grade one. That is the least damaging form of a whiplash injury. That does not mean the injuries were insignificant. On the contrary, they caused pain and measure of disability from May 2004 until the cortisone injection in April 2007. I accept that slight pain returned later that year and through 2008. Despite the plaintiff’s ability to carry on with work, the plaintiff found it to be uncomfortable to do so. I accept that even if she had not suffered a new injury to her shoulder in December 2008, the pre-existing problems would have lingered even beyond 2008 for perhaps about two years.

[56] I have been provided by the parties with numerous authorities on the assessment of non-pecuniary damages in similar cases. As is usual, none of the plaintiffs in those cases had injuries the same as the plaintiff before me. I take into account the long course of difficulties experienced by the plaintiff which would not have been suffered but for the car accident and that the car accident injuries would have lingered for about six years while gradually diminishing. The three years before the plaintiff had the cortisone injection were difficult, but she did her best to carry on with her employment and with her housekeeping with considerable discomfort. She lost much of her enjoyment of life in those years. She returned to her pre-accident condition after April 2007 and had marked relief of pain for 18 months, but not complete resolution. The plaintiff’s high expectations of herself in her employment, housekeeping and recreational activities, increased the effect of the car accident injuries, but the defendant must accept the plaintiff as she is.

[57] I assess non-pecuniary damages at $60,000…

$55,000 Non-Pecuniary Damages for Rotator Cuff Impingement Syndrome

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a rotator cuff injury caused by a motor vehicle collision.
In yesterday’s case (Lim v. Anderson) the Plaintiff was injured in a 2008 collision when the Defendant ran a red light.  Fault was admitted by the Defendant.  The Plaintiff suffered an impingement syndrome in her shoulder due to a rotator cuff injury caused by the crash.  She had some ongoing symptoms of pain and limitation at the time of trial.  In assessing non-pecuniary damages at $55,000 Madam Justice Fenlon provided the following reasons:
[7] There was a difference of opinion between Dr. Christian and the plaintiff’s treating orthopaedic surgeon, Dr. Yu, as to the cause of the plaintiff’s ongoing shoulder pain. Dr. Yu attributes it to calcific tendonitis caused by the soft tissue injuries. In his view, with the injury there was bruising and swelling or hemorrhage into the rotator cuff giving rise to pain or an abduction and impingement syndrome. In this condition the tendon is pinched between the under surface of the acromion and the humeral head, resulting in pain on movement…
[9] While it is not really necessary to choose between the opinions on causation, given the agreement on ongoing residual pain in the shoulder, I prefer Dr. Yu’s diagnosis…
[10] I accept his finding that the plaintiff’s response to an injection into the subacromial space of her right shoulder, (temporary relief from pain), confirmed his diagnosis…

[38] The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.

[39] There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.

[40] Taking into account all of the Stapley factors, I find that an award of $55,000 for pain, suffering and loss of enjoyment of life is appropriate.

$50,000 Non-Pecuniary Damages For Chronic Shoulder Soft Tissue Injury

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry assessing damages for a chronic shoulder soft tissue injury.
In last week’s case (Araki v. Guitard) the Plaintiff was injured in a 2007 collision.  She was 17 at the time.  The vehicle in which she was riding as a passenger was T-Boned by the Defendant’s vehicle.  Fault was admitted.
The Plaintiff suffered various soft tissue injuries.  Many of these went on to recover, unfortunately her shoulder was injured and continued to pose problems at the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Williams made the following findings:

[7] Based on all of the evidence, I am satisfied that it has been proven that the plaintiff sustained physical injuries in the collision. Those included injuries to the right side of her neck, the right side of her upper and mid back, and to her right shoulder. As well, she experienced occasional headaches.

[8] The headache condition resolved within a short time, a matter of months at the most.

[9] The back and neck discomfort have substantially resolved although it is not exactly clear when. I am satisfied that state had been attained within three years of the accident. The discomfort from those particular areas was not especially significant; it would be fairly described as modest. If there are occasional discomforts in those areas now, I find they are associated to the shoulder pain.

[10] The plaintiff’s right shoulder has continued to be painful. The pain and discomfort has significantly lessened since the early stages following the accident, but remains an issue nevertheless. The pain is not constant but intermittent. It is affected by her activities; for example, when she is reaching overhead or when her shoulder is subject to load in a certain way, discomfort will result. Also, on occasion she experiences discomfort as a consequence of taking certain postures; that is, it is a matter of how she is sitting or lying.

[11] The matter of the shoulder injury has been extensively investigated. The conclusion which emerges is that there is no detectable damage to her shoulder structure. The pain is muscular or musculoligamentous in nature. There is no reason to believe that surgical intervention would be warranted. Given its persistence, it is unknown whether it can be expected to resolve. Certainly the prognosis for a complete recovery is guarded: the shoulder pain may not resolve…

[32] In all the circumstances, I am influenced by the fact that the effect of this injury does cause the plaintiff discomfort of a discernible sort and that occurs not infrequently, both at work and while doing other things.

[33] I am of the view that an appropriate award under this head is $50,000.

$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury.
In this week’s case (Milliken v. Rowe) the 37 year old plaintiff suffered a variety of injuries in a 2007 collision.  The Defendant motorist admitted fault.  The Plaintiff’s most serious injury resulted in chronic shoulder pain the cause of which was described as “one of two things or both in combination which include biceps tendonitis and AC joint antropathy“.
The Plaintiff endured a variety of medical interventions none of which meaningfully resolved her injury.  Surgery was expected to have no better than a 50/50 chance of improving her injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Davies made the following findings:
[65] I find that the totality of the evidence establishes that the neck and shoulder pain as well as the headaches, back pain and right leg pain which Ms. Milliken has suffered since August 2007 were caused by the defendant’s negligence…

[83] Ms. Milliken was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort (primarily at work). The effects of those injuries were largely resolved within about two years.

[84] Ms. Milliken also, however, suffered from right shoulder pain that did not resolve and has now been ongoing for four years. The only potential end in sight for the amelioration of the pain and suffering concerning her right shoulder is invasive surgery with about an even chance of success. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.

[85] I find that the pain Ms. Milliken has endured has been debilitating.

[86] While she has worked through much of it of necessity, the cost to her of doing so has been great.

[87] Her life has become a one-dimensional one in which activities unrelated to work have largely had to be put aside. She no longer has the stamina or physical ability to care for her home as she previously did and has become socially reclusive because of that and her constant tiredness.

[88] Ms. Milliken is no longer able to play with her grandchildren as she once did due to pain and discomfort in her shoulder. She no longer participates in making crafts or enjoying recreational pursuits with her family.

[89] Her injuries have also exacerbated the physical challenges which she now faces in caring for her husband and that prevented her from taking on some of the work around the home and yard for which he was previously responsible…

[91] Ms. Milliken’s suffering will also not end with this litigation.

[92] At minimum she must endure complex shoulder surgery and a lengthy period of rehabilitation in which she will continue to be unable to enjoy life as she once did. Her likely future enjoyment of life is also compromised by the prospect that the surgery may be wholly or partially unsuccessful.

[93] The totality of the evidence satisfies me that there is no question that Ms. Milliken will continue to suffer pain and suffering as well as loss of her enjoyment of life at least until after rehabilitation from surgery to her shoulder.

[94] There is also a substantial likelihood that she will suffer ongoing pain and suffering and loss of enjoyment into the future after the shoulder surgery…

[105] I award Ms. Milliken non-pecuniary damages of $85,000.


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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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy