$75,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Guarded Prognosis

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a cyclist injured in a vehicle collision.

In today’s case (Wang v. Johal) the Plaintiff was injured in a 2014 vehicle collision.  The Defendant struck the left side of her body and knocking her from her bicycle onto the pavement.  Fault was admitted.  The crash resulted in chronic soft tissue injuries to her leg and low back.  There was some room for further improvement but the prognosis was generally guarded.

In assessing non-pecuniary damages at $75,000 Mr. Justice Mayer provided the following reasons:

Continue reading

$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck and Back Injury

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

Continue reading

$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:

Continue reading

$75,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing non-pecuniary damages at $75,000 for persistent soft tissue injuries.

In today’s case (Stapleton v. Andrew) the Plaintiff was involved in a 2015 intersection collision.  The Defendant accepted fault.  The crash caused soft tissue injuries which lingered to the time of trial and were not expected to experience significant improvement in the future.  In assessing non-pecuniary damages at $75,000 Mr. Justice Skolrood provided the following reasons:

Continue reading

$85,000 Non-Pecuniary Assessment For Soft Tissue Injuries with Persistent Flare Ups

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for persistent soft tissue injuries with frequent flare ups.
In today’s case (Palmer v. Ansari-Hamedani) the Plaintiff was involved in two collisions with the Defendants accepting fault.  The first crash was relatively minor with injuries well on their way to recovery by the time of the second crash.  The second collision caused persistent soft tissue injuries which continued to the time of trial and often flared up with various activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Morellato provided the following reasons:

[86]         In conclusion, I find that Ms. Palmer’s suffered from the following symptoms in the months following the Second Accident: mental “fogginess”; nausea, dizziness, balance issues; ringing in ears, a bump on back of the head, bruising in swelling in the forearm and overwhelming nerve tenderness in the forearm.  I find that these symptoms had substantially resolved by the time she returned to full-time work at Dr. McDougall’s office in February of 2013.  Other related symptoms, however, persisted as described below.

[87]         Ms. Palmer’s soft tissue injuries to her neck and back have persisted for some time; however, I find that by the time she saw Dr. Pascoe in May of 2017, Ms. Palmer had substantially recovered from these injuries.  However, I find that she continues to suffer “flare-ups” as recognized by Dr. Pascoe in her August 2017 reporting letter.  Further, as noted above, I also accept that the flare-ups in her neck and back cause occasional headaches, some of which are migraine headaches but these are less frequent.

[88]         The evidence before me has not established, on a balance of probabilities, that Ms. Palmer suffers cognitive deficits or permanent brain damage from her Second Accident.  Nor am I satisfied that her Second Accident affected or compromised her ability to retrain or attend to further educational pursuits.

[89]         I find that while the injury to Ms. Palmer’s right shoulder and arm is not symptomatic on a daily basis, the injury has not yet resolved and continues to cause her pain and discomfort.  She suffers pain and numbness in her arm when her arm is tired or she holds her forearm and hand in flexed or extended positions.  I am also satisfied on the evidence before me that Ms. Palmer suffers flare-ups of pain in her shoulder area.


[94]         I have also considered the cases counsel have drawn my attention to as well as the related case law: see e.g.  Cleeve v. Gregerson et al, 2007 BCSC 1112 [Cleeve]; Senger v. Graham, 2018 BCSC 257; Knight v. Belton, 2010 BCSC 1305.  In this light, and having regard to the specific circumstance before me, I am of the view that an award of $85,000 is fair and reasonable.

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

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.

$55,000 Non-Pecuniary Assessment for Chronic But Not Disabling Neck and Shoulder Injury

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Young v. Shao) the Plaintiff was involved in a 2013 rear-end collision.  The Defendant admitted fault.  The crash resulted in chronic but non-disabling soft tissue injuries with a poor prognosis for full recovery.  In assessing non-pecuniary damages at $55,000 Madam Justice Adair provided the following reasons:

[81]        Based on my findings above, Ms. Young will continue to have chronic pain symptoms, particularly in her neck and shoulder. As a result of the injuries she sustained, her ability to participate in her most favourite past-time – dancing – was curtailed altogether for several months. When Ms. Young’s injuries had sufficiently healed to allow her to resume dancing, she could not engage in the activity to the same extent as before the accident. Dancing has always been a very important part of Ms. Young’s lifestyle. The effects of her injuries have also made Ms. Young’s ability to work – something else that is important to her and gives meaning to her life – more difficult. Although she has never missed work, she has had to work with pain, and will have to do so indefinitely.

[82]        On the other hand, I had no evidence that, as a result of the injuries, there was any impairment in Ms. Young’s family or social relationships. Indeed, only Ms. Young testified about how her life was affected. I did not hear from any friends, family members or co-workers. This was a significant feature of at least two of the cases cited by Mr. Vondette, which is not present here.

[83]        In view of my findings above, and taking into account the factors mentioned in Stapley (including Ms. Young’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $55,000.

$75,000 Non-Pecuniary Assessment for Soft Tissue Injuries Resulting in Chronic Pain

Reasons for Judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries.
In the recent case (Kagrimanyan v. Weir) the Plaintiff was involved in a rear-end collision caused by the Defendants.  Liability was admitted.  The crash caused various soft tissue injuries which led to chronic pain.  Full resolution of the Plaintiff’s symptoms was not expected.  In assessing non-pecuniary damages at $75,000 Mr. Justice Riley provided the following reasons:

[54]         I must consider the nature of Ms. Kagrimanyan’s injuries, and the impact of those injuries on Ms. Kagrimanyan’s quality of life. In terms of the immediate or short term effects of the accident, Ms. Kagrimanyan suffered a neck sprain and soft tissue injuries causing intermittent headaches, neck and upper back pain, and lower back pain extending into her leg. The headaches, neck and upper back pain have largely resolved over time. However, Ms. Kagrimanyan continues to suffer from lower back pain which has become chronic. There is a consensus amongst the medical experts who testified at trial that Ms. Kagrimanyan has plateaued in her recovery, and that she is likely to have some degree of continuing pain, made worse by fatigue or prolonged physical effort, including standing or even sitting in one position for an extended period of time.

[55]         In assessing the extent of Ms. Kagrimanyan’s loss, I must take into account that at the time of the accident she was 35 years old, and she is now 40. According to the evidence, she will continue to suffer from some degree of pain, at least on an intermittent basis, for the balance of her life. Ms. Kagrimanyan may be able to better manage or cope with her limitations through improved physical conditioning, but I find based on all of the expert medical testimony that Ms. Kagrimanyan is not likely to achieve full recovery. This is a significant factor when determining a damage award that will fairly and reasonably compensate Ms. Kagrimanyan for the injuries she has suffered and the resulting impact on her life.

[56]         I also accept that Ms. Kagrimanyan has become deconditioned over time, and that with improved physical fitness she may be better able to manage her discomfort and limitations. On this point, I accept the testimony of Dr. Gray that while enhanced conditioning may improve Ms. Kagrimanyan’s ability to cope with pain, it is unlikely to eliminate the pain itself.

[57]         In terms of the overall effect of the accident on Ms. Kagrimanyan’s quality of life, I find that the injuries and resulting chronic pain have impacted and will continue to impact her recreational, social, and domestic activities. She is unable to engage in some of the recreational pursuits she used to enjoy. She is still able to socialize and do housework, but finds these things more difficult than they used to be. She has also experienced and will continue to experience pain and fatigue at work. As Dr. Gray put it, Ms. Kagrimanyan’s injuries have left her with a mild form of disability. While able to remain “durably employed”, Ms. Kagrimanyan experiences increasing discomfort over the course of the work day, and as the work week progresses.

[58]         I conclude that Ms. Kagrimanyan should be awarded non-pecuniary damages of $75,000. This quantum of damages takes into account all of the non-pecuniary impacts of the accident, including added difficulty in performing household tasks. Although Ms. Kagrimanyan has made a discrete claim for housekeeping as a cost of future care, the particular nature of Ms. Kagrimanyan’s injuries and their impact on her ability to do housework is, in my view, properly addressed under the rubric of non-pecuniary damages. The only exception is with respect to heavy duty or seasonal housework, a discrete category of housework that can be dealt with by way of a pecuniary damage award as explained below.

$185,000 Non-Pecuniary Assessment for Severe Soft Tissue Injury With Nerve Irritation

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury with nerve irritation and a poor prognosis.
In today’s case (Broad v. Clark) the Plaintiff was involved in a 2013 collision.  The defendant denied fault but was found fully liable at trial.  The crash caused a severe low back soft tissue injury which progressed into chronic pain with a poor prognosis.  In assessing non-pecuniary damages at $185,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[272]     I find that the soft tissue injury to the lower back was severe, leading to multiple and complex issues that have worsened in their cumulative impact since July 2014, including: mechanical low back pain; a painful lesion on her lower back that has grown; and, intermittent nerve irritation that causes pain to “shoot” down her legs, particularly the right leg.

[273]     I also find that the plaintiff is likely to be impacted by these conditions, in one form or another, for the entirety of her life.  The overall prognosis for improvement is poor.  The plaintiff presents as an unusual case, with multiple issues simultaneously affecting her lower back.  The lesion, in particular, appears to be a rarity.

[274]     The evidence establishes that the plaintiff’s life has been profoundly impacted by her lower back injury.  The video footage from May and June 2014, the Facebook photographs and Instagram postings do not persuade me to the contrary.  They represent moments in time.  The video footage predates the time at which the lower back injury took a turn for the worse.

[275]     The evidence, considered in its entirety, proves the existence of chronic pain and limitations to physical capacity that adversely impact the plaintiff’s emotional health; relationships with friends and family; her ability to physically engage with her children; intimacy with her partner; an incapacity to complete everyday tasks, including maintaining a household and meeting her children’s needs; and, the plaintiff’s physical struggles keep her out of the external work force and unable to achieve the independence and self-sufficiency goals that she set for herself.  She now spends a large portion of her life in pain and on the “sidelines”, unable to avail herself of opportunity for active engagement and advancement.  She is only 28.

[276]     In this sense, I agree with the plaintiff that her situation is analogous to (although not as severe as), Turner v. Dionne…

[284]     Recognizing that no two cases are ever exactly alike, after reviewing the authorities cited by the parties and applying the factors from Stapley v. Hejslet, it is my view that non-pecuniary damages within the context of the plaintiff’s individual circumstances are appropriately set at $185,000.

$65,000 Non-Pecuniary Assessment for Chronic "Low Level" Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which resulted in chronic, albeit ‘low level’ pain for a Plaintiff.
In the recent case (McGoningle v. Parada) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered various soft tissue injuries which largely improved however she was left with chronic low level pain.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bracken provided the following reasons:
[56]         I find that the plaintiff suffered a soft tissue injury to her neck, back and shoulders in the accident.  She experienced pain and restricted movement for a few months before things began to improve…
[59]         I find the plaintiff’s condition has clearly improved, but she still suffers a level of pain that impacts her ability to do any heavy lifting or carving of large pieces.  She is able to create small crafts and perform light duties at the soup kitchen…
[61]         I am satisfied on the evidence that the plaintiff still suffers from a low level of pain that interferes with her daily life and limits her ability to perform heavy work and causes some pain in her work creating small crafts.  It appears that a program of physiotherapy, massage therapy and acupuncture did result in improvement, but the plaintiff was either unable or unwilling to follow the recommended course of treatment…
[69]         I agree with the defendant to the extent that the plaintiff’s injuries have improved significantly since the date of the accident and, even though the plaintiff suffers from chronic pain, she has made significant progress to the point that she has almost full range of motion of her upper body, neck and shoulders with pain only at the extremes of rotation.  I find the appropriate amount for non-pecuniary damages is $65,000.

Contact

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.

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

Disclaimer