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Low Velocity Impact Defence – Not Based on Science, Not Even "Common Sense"

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived posts addressing Low Velocity Impacts, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, rejecting this defence.
In last week’s case (Christoffersen v. Howarth) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a soft tissue injury which was still symptomatic at the time of trial but there was an “excellent prognosis” for full recovery.  The Court assessed non-pecuniary damages at $35,000 but prior to doing so Mr. Justice Weatherill provided the following comments criticizing the LVI Defence:
[54]         The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision.  Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury…
[58]         In order to accept the defendant’s argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision.  I am not prepared to do so.  I found each to be credible, honest and forthright.  Their evidence was uncontroverted by the defendant.  At most, the plaintiff’s evidence was shown on cross examination to have been exaggerated in a few minor respects.
[59]         The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan.  No evidence was led by the defendant regarding the amount of force that the plaintiff’s body was subjected to during the collision or how the shock absorbers built into the vehicles’ bumpers affected the damage that otherwise would have been sustained.  In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.
[60]         I accept that the collision was relatively minor.  However, even a low impact collision can cause injury: Lubick v. Mei, 2008 BCSC 555 at paras. 5-6.  Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff’s vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal. 
[61]         Causation has been established by the plaintiff.

Fibromyalgia and PTSD Claims Rejected, $40,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

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

Adding to this site’s BC soft tissue injury caselaw database, reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, assessing damages for a lingering Grade II soft tissue injury.
In the recent case (Nokleby v. Fiddick) the Plaintiff was involved in a 2007 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered from soft tissue injuries to his neck and shoulder and these continued to be symptomatic at the time of trial and were expected to linger into the future.  The Plaintiff also advanced allegations that the collision caused fibromyalgia and PTSD although this evidence was not accepted.  In assessing non-pecuniary damages for the lingering soft tissue injuries at $40,000 Madam Justice Hyslop provided the following reasons:
[83]        I find that the plaintiff, as a result of the accident, injured his neck which caused headaches and injured his left shoulder. I find that as a result of the shoulder injury the plaintiff can continue with his employment activities and all his activities and responsibilities both at home and on the farm. I find that in performing some of his farm activities he may experience some discomfort…
[85]        I find also the plaintiff’s shoulder injury interferes with him being able to split wood to heat his house. The plaintiff claims that as a result of his injuries, in particular his shoulder causes him to fall more. However, Dr. Laidlow found no medical explanation for this…
[90]        I award the plaintiff $40,000.00 in non-pecuniary damages. In doing so, I take into consideration the difficulties the plaintiff suffered in pursuing his farming activities.
 

Lack of Financial Means Defeats "Failure to Mitigate" Allegations

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 53 Comments on Lack of Financial Means Defeats "Failure to Mitigate" Allegations

As discussed on numerous occasions, a Plaintiff who fails to take reasonable steps to aid in their own recovery can have their damages reduced for a ‘failure to mitigate’.  In considering weather a Plaintiff’s failure to seek treatment is reasonable their personal circumstances are taken into account.  It is well established that lack of funding can reasonably excuse a course of otherwise helpful therapy.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further demonstrating this principle.
In this week’s case (Rozendaal v. Landingin) the Plaintiff was injured in two collisions.  She was faultless for both.  She suffered soft tissue injuries to her neck, shoulders and upper back which continued to the time of trial and were expected to carry on in the future.  Non-Pecuniary damages of $40,000 were awarded.
The Defendant argued that the Plaintiff’s damages should be reduced due to her failure to carry on with physiotherapy.  Madam Justice Holmes found that greater therapy indeed would have made a difference but given the Plaintiff’s circumstances her failure to attend was not unreasonable.   In dismissing the defendant’s arguments the Court provided the following reasons:
[66]         On the medical evidence, I find that Ms. Rozendaal likely could have improved to a greater extent and more quickly had she undertaken a focussed course of strengthening and conditioning therapy or training designed for her particular injuries, such as Dr. O’Connor outlined in his second report.  The various forms of massage Ms. Rozendaal undertook gave her relief from her pain, but, as Dr. O’Connor explained, passive therapies did not help rehabilitate the muscles which, ultimately, were causing that pain.
[67]         The question is whether Ms. Rozendaal acted unreasonably by failing to undertake the recommended therapies or programs.  I find that in her particular personal circumstances, she did not.  ..
[70]         As I find, Ms. Rozendaal’s life circumstances left her unable to fund any form of ongoing treatment or therapy.   From their early days together, she and Mr. Landingin have worked extremely hard to educate themselves for careers and to provide financial support and loving care for their young family.  It is clear from the evidence that life was not easy for them.  I have no difficulty accepting that other financial priorities displaced ongoing physiotherapy or active rehabilitation for Ms. Rozendaal, particularly since it seemed to her that massages from Mr. Landingin and exercises she did at home were just as helpful. 
[71]         As I find, Ms. Rozendaal was mistaken in this assessment.  However, it was only when Dr. O’Connor saw Ms. Rozendaal before preparing his second report (of January 18, 2012), and asked her to demonstrate the exercises she had been doing since he had seen her six months earlier, that he realized that he had not given his instructions specifically enough:  Ms. Rozendaal was doing light aerobic work and some gentle neck exercises, but no real strengthening.  Dr. O’Connor testified that because Ms. Rozendaal had evidently misunderstood his recommendation in the previous report, he described the recommended conditioning more explicitly in the second report.
[72]         The law does not require perfection in the pursuit of rehabilitation.  It requires instead that a plaintiff make efforts which are reasonable and sincere in the plaintiff’s own personal circumstances:  Gilbert at para. 203.
[73]         On this basis, in Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 227-30, varied on other grounds 2012 BCCA 239, the Court found no failure to mitigate where the plaintiff was unable to pursue the recommended treatments because of life circumstances that included a pregnancy, the care of small children at home, and her inability to perform the recommended exercises properly without the help of a personal trainer.
[74]         I find similarly that Ms. Rozendaal’s efforts at rehabilitation were reasonable and sincere in her own personal circumstances.

$25,000 Non-Pecuniary Assessment for STI's With Full Recovery Within Two Years

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
In last week’s case (Nemoto v. Phagura) the Plaintiff, who recently moved to Canada from Japan, was injured in a 2008 collision.   She was 13 at the time.  Fault was admitted by the offending motorist.  She suffered soft tissue injuries to her neck and lower back.   She also experienced anxiety while riding in a vehicle subsequent to the collision.  In assessing non-pecuniary damages at $25,000 Mr. Justice Smith provided the following reasons:
[16]         On the evidence before me, I find that the plaintiff suffered significant pain and limitations from the date of the accident until approximately the end of 2008, with intermittent, lingering difficulties for at least another year, but had achieved full physical recovery no later than two years after the accident. The physical difficulties in the immediate post-accident period were likely more difficult for the plaintiff to deal with than might otherwise have been the case because she was, at the same time, adjusting to a new school and life in a new country.
[17]         I also find that the plaintiff experienced severe anxiety while riding in cars for approximately two years and that anxiety still affects her efforts to learn to drive. For purposes of assessing damages, it does not matter that this anxiety may, to some extent, be influenced by the fact that her mother has similar fears and anxiety flowing from the same accident. In any event, there is no reason to believe this will be a long-term problem.
[18]         The plaintiff is in Canada on a student visa, which does not permit her to work, so there is no claim for income loss. I find there is no need for any future care arising from the accident…
[22]         In all the circumstances, I assess the infant plaintiff Rui Nemoto’s non-pecuniary damages at $25,000…

$90,000 Non-Pecuniary Assessment for Onset of Pain in Pre-Existing Spinal Degeneration

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a common injury sustained in a motor vehicle collision; the onset of symptoms in pre-existing but otherwise asymptomatic spinal degeneration.
In this week’s case (Johnson v. Kitchener) the Plaintiff was involved in two collisions, the first in 2007 where he was rear-ended by a tractor trailer, the second in 2008 which aggravated in the injuries from the first crash.  Prior to the first collision the Plaintiff had “significant degeneration” in his neck and less severe degeneration in the rest of his spine.  Despite this condition the Plaintiff was asymptomatic.  The collisions caused this condition to become painful.  The court found that while the neck symptoms likely would have developed at some point in time absent the collision, the back would have remained asymptomatic absent trauma.  In assessing non-pecuniary damages at $90,000 (prior to making a modest deduction for the likelihood of neck symptoms in any event) Madam Justice Gerow provided the following reasons:
[58] In my view, the evidence establishes the probable cause of Mr. Johnson’s ongoing neck, upper back and lower back pain is that the injuries he sustained in the 2007 accident, and the 2008 accident to a lesser extent, exacerbated his pre-existing asymptomatic degenerative disc disease. While there was risk to the degenerative disc disease in his neck becoming symptomatic, the medical evidence was that the lower back would likely not have become symptomatic absent some trauma.
[59] Dr. Travlos’ evidence was that he did not know exactly when the neck would become symptomatic and could not give an opinion regarding the severity of any symptoms. It is clear from the expert evidence that the 2007 accident caused a serious injury to the neck which has caused pain and suffering sooner, more frequently and to a notably greater degree.
[60] It is apparent from the evidence that Mr. Johnson has returned to his sporting activities and he has a strong work ethic. He is not a man to sit around and he continues to be active despite the pain it causes him. Mr. Johnson’s evidence is that he will continue to work at Ocean Concrete until he finds something more suitable despite the increase in symptoms he has from the physical aspects of the job. As well, he will continue to engage in whatever sports he can, knowing he will pay for it.
[61] Mr. Johnson’s evidence is consistent with the medical opinions. For example, Dr. Froh’s opinion is that Mr. Johnson will not harm himself with high demand activities; however, it will likely result in increased pain and symptoms.
[62] In my opinion, Mr. Johnson’s neck symptoms fall within the crumbling skull rule enunciated in Athey, and any award must reflect that. However, I am of the view, the defendants are liable for his lower back symptoms even though they may be more than severe than expected due to his pre-existing condition. The evidence of the experts is that many individuals have degeneration in their spines without any symptoms and that the degeneration in Mr. Johnson’s lower back was similar to other individuals of his age. There is no evidence that his lower back would have become symptomatic absent the 2007 accident. Accordingly I have concluded that his lower back symptoms fall within the thin skull rule enunciated in Athey. ..
[68] Having considered the extent of the injuries, the fact that the symptoms are ongoing five years after the accident with little improvement, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $90,000 if the accidents were the only cause of Mr. Johnson’s ongoing symptoms. However, given the evidence that Mr. Johnson was likely to have suffered some neck symptoms from his degenerative condition within 3 to 10 years, that award should be reduced by 10% to $81,000.

$16,000 Non-Pecuniary Assessment for Year Long Soft Tissue Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which occurred as a result of a so-called ‘low velocity‘ impact.
In this week’s case (Ram v. Rai) the Plaintiff was involved in a 2008 rear-end collision.  The crash resulted in little vehicle damage.  The Defendant testified that the impact involved  ‘very little force‘ although the Court rejected this finding that the Defendant’s version of events was “ internally inconsistent and generally unconvincing.“.  The court went on to find that the Plaintiff suffered a year long soft tissue injury.  In assessing non-pecuniary damages at $16,000 Mr. Justice Holmes provided the following reasons:
[47]         As I find, at the time of the accident Ms. Ram was an active and healthy young woman of 21 years of age, who was busily engaged not only in full-time post-secondary studies but also in two part-time jobs.  She had an active social life with friends that involved playing several different sports as opportunities presented.  She enjoyed gym workouts and doing workout exercise tapes at home.
[48]         As I find, the accident left Ms. Ram with throbbing pain in her back, neck, and head that became intermittent over time, with occasional numbness in her legs.  The pain in the various areas gradually resolved within a year, the back pain last of all.
[49]         The effects of the injuries caused Ms. Ram to miss work and some school during the few days or a week after the accident.  They made her withdraw from social activities over a longer term, so that she seemed to her family to be withdrawn and reclusive, no longer her bubbly self.  These effects resolved as her injuries resolved, within about a year…
[55]         On all the evidence, I conclude that the appropriate award for non-pecuniary damages in this case is $16,000. 

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

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

Adding to this site’s archived posts documenting BC soft tissue injury non-pecuniary assessments, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic Grade II Whiplash Injury.
In this week’s case (Strazza v. Ryder) the Plaintiff was injured in a 2009 rear-end collision.  He suffered soft tissue damage to his neck and mid back.  His symptoms of pain, while “not debilitating” continued to the time of trial and caused him to reduce or modify his daily activities   His symptoms were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Adair provided the following reasons:
[67]         Mr. Strazza himself reports that he continues to experience pain.  It is not debilitating, and Mr. Strazza has not claimed that it is.  It has not prevented him from working or doing household chores or working on his car.  As Mr. Strazza describes it, he can basically do everything he did before the accident, but with pain.  Mr. Strazza describes his situation as one where he works and carries on despite his pain symptoms, which he does his best to alleviate by taking over-the-counter medications or by calling on someone to help.  As a result of his pain symptoms, Mr. Strazza has modified some of his activities, both leisure and work-related, since the accident.  Friends – Ms. Miller and Ms. Goalder – gave evidence of their observations in this respect, and their evidence supported Mr. Strazza’s.  The changes in Mr. Strazza are not drastic, but they are changes nevertheless…
[72]         More generally, I found Mr. Strazza to be forthright and a credible witness.  He spoke plainly and did not exaggerate.  He had no difficulty and no hesitation conceding points that were not necessarily in his favour, for example, that working for Madill was just not for him.  On cross-examination, Mr. Strazza was the opposite of defensive or argumentative, which allowed the cross-examination (by very experienced counsel) to proceed smoothly and efficiently.
[73]         I therefore find that, as a result of the accident, Mr. Strazza sustained soft tissue injuries to his cervical spine and his thoracic spine.  Specifically, and as set out in Dr. MacKean’s February 8, 2012 report, I find that Mr. Strazza sustained a grade II whiplash associated disorder in the cervical spine, which (as of trial) was resolving and a grade II whiplash associated disorder in his thoracic spine with residual pain and muscle spasm involving the left mid to lower thoracic region.  Based on Mr. Strazza’s evidence (supported by the evidence from Ms. Miller and Ms. Goalder), he continues to experience some pain as a result of his injuries.  I therefore find, based on this evidence and the opinion evidence from Dr. MacKean, that Mr. Strazza’s pain symptoms will probably not resolve completely, although they can be improved with a regular exercise program and pain relief can be obtained through occasional use of over-the-counter medication…
[81]         Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.

$20,000 Non-Pecuniary Assessment for "Relatively Mild But Likely Permanent" Soft Tissue Injuries

Written by admin on . Posted in BCSC Civil Rule 15, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases. 1 Comment on $20,000 Non-Pecuniary Assessment for "Relatively Mild But Likely Permanent" Soft Tissue Injuries

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with damages for minor soft tissue injuries following a so-called ‘low velocity impact‘ collision.
In the recent case (Wallner v. Uppal) the Plaintiff was involved in a 2008 rear-end collision. Fault was admitted.  The collision was relatively minor causing just under $450 worth of vehicle damage.  Despite this the Plaintiff suffered a soft tissue injury to her neck and shoulder.  Her symptoms were “mild” but were expected to linger into the future.  In assessing non-pecuniary damages at $20,000 Madam Justice Stromberg-Stein provided the following reasons:
[14]         The plaintiff’s claim is for damages for a permanent partial disability relating to her intermittent ongoing neck, upper back and shoulder pain and left arm pain, and numbness and tingling she says is caused by the accident.  The plaintiff acknowledges her condition is relatively mild but maintains it is persistent and likely permanent.  She claims she experiences pain and discomfort while commuting to work, at work, doing household work, and during recreational activity.  She complains of intermittent weakness and lack of sensitivity in her left hand.  She claims she is unable to predict when she will be symptomatic.
[15]         In this case, in addition to minimal cosmetic damage to the vehicles, the plaintiff’s subjective complaints were not objectively verifiable, and in any event her injuries were minor and of minimal impact on her life.  The plaintiff has not missed any work and has no claim for past wage loss or for loss of future earning capacity despite maintaining a permanent partial disability.  The evidence establishes the plaintiff suffered soft tissue injuries of a minor nature, with continued minor, intermittent numbness and tingling in her left arm and fingers, which injuries have had and will have minimal impact on her life.
[16]         In the result, based on an assessment of the evidence and considering the authorities relied on by counsel, the plaintiff is awarded general damages in the amount of $20,000.  In addition, she is awarded special damages in the amount of $283, with court order interest.  With the agreement of counsel, costs are set pursuant to Supreme Court Civil Rules, R.15-1(15)(c) at $11,000 and disbursements.

$85,000 Non-Pecuniary Assessment for Long Term Soft Tissue Injuries with Guarded Prognosis

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

An appeal of the below decision was dismissed by the BC Court of Appeal in February 2014
______________________________________________
Adding to this sites database of ICBC soft tissue injury judgements, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries with a guarded prognosis.
In the recent case (Clark v. Kouba) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted focussing the trial on assessing damages.  The Plaintiff brought a claim “well in excess of one million dollars” while the Defendant argued the losses were minimal and that the Plaintiff was “feigning her injuries for financial gain“.
Madam Justice Power disagreed with the Defendant’s credibility attack but did award “a much more modest sum” than the plaintiff ultimately sought.  The Court found that the crash caused soft tissue injuries that impacted “all aspects of the plaintiff’s life” and that the prognosis was guarded.  In assessing non-pecuniary damages at $85,000 the Court provided the following reasons:
[72]         In this case, it is clear that the soft tissue injuries the plaintiff suffered have impacted all aspects of the plaintiff’s life.  In addition to the physical symptoms I have detailed above, her injuries have impacted her personal relationships including her relationship with her husband and children.  She has difficulty in performing some household chores, including making the beds and laundry and she has to call upon her husband and children to perform those tasks.
[73]         The plaintiff has been dedicated to her own rehabilitation and such efforts in my view cannot be used to diminish the extent of her injury.  In that sense she can be considered a stoic individual.  Formerly she engaged in her recreational pursuits such as long distance running and yoga, for her own physical enjoyment.  Now when she engages in them it is for an additional purpose, in order to assist in managing her chronic pain.
[74]         I conclude that, as a result of the accident, Ms. Clark has suffered pain and loss of enjoyment of life, and her prognosis for the future is guarded.  All of the authorities cited by both plaintiff’s counsel and the defence make it clear that each case is unique and must be determined on its own facts.  This case is unusual, because the plaintiff is still able to participate in her recreational pursuits, including marathon running, and has completed a marathon in a second personal best time since the accident.
[75]         Having considered the authorities cited and all of the circumstances in this case, it is my view that $85,000.00 is a fair and reasonable award for non-pecuniary damages.

$85,000 Non-Pecuniary Assessment for Bilateral Carpal Tunnel Syndrome and Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Wrist Injury Cases.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing non-pecuniary damages for a host of injuries including a broken nose, bilateral carpal tunnel syndrome requiring surgery and chronic soft tissue injuries.
In this week’s case (Mayervich v. Sadeghipour) the 72 year old Plaintiff was injured in a 2007 crash.  Liability was admitted by the Defendant.   The Plaintiff suffered chronic injuries in the crash with symptoms persisting to trial.  While there was some room for further improvement some symptoms were expected to last indefinitely   In assessing non-pecuniary damages at $85,000 Mr. Justice Grauer provided the following reasons:
[57]         In my mind, the significant features of this case are these: 
·                 As a result of the accident, Mrs. Mayervich suffered a constellation of injuries, the most significant of which has been myofascial injury in the neck and back resulting in a chronic pain condition accompanied by a major depressive order and cognitive difficulties. 
·                 Included the constellation were a deviated septum (broken nose), and injuries to the arms and hands that culminated in bilateral carpal tunnel syndrome.  Both of these conditions required surgical intervention and both have resolved.  There was additional discomfort from injuries to the abdomen and chest. 
·                 These injuries have had a significant impact on Mrs. Mayervich’s quality of life.  The myofascial injuries in particular continue to interfere with her activities of daily living and recreation and have impaired her ability to interact with her husband, her daughters, and her grandchildren. 
·                 Mrs. Mayervich has already experienced nearly 5½ years of physical pain, depression, emotional upheaval and cognitive difficulty as a result of the accident. 
·                 It is likely Mrs. Mayervich will experience real improvement if she undertakes a program such as that recommended by Dr. Posthuma; full recovery however is unlikely, and a real possibility remains that she will experience no significant recovery. 
[58]         In my view, these features bring Mrs. Mayervich’s situation closer to the cases cited by counsel by the plaintiff than those cited by counsel for the defendants.  The award of $125,000 approved by the Court of Appeal in the Rizzolo case was to a considerably younger man who had suffered debilitating chronic pain affecting all aspects of his life but who had been able to return to his pre-accident employment.  In Hsu, on the other hand, the most recent of the three cases relied on by the defence where the award was $30,000, the plaintiff suffered from chronic neck and back myofascial disorder but this was an aggravation of pre-existing soft tissue conditions from a previous accident that had already given rise to chronic pain. 
[59]         Each case must of course be decided upon its own facts.  Considering all of the facts discussed above, I assess Mrs. Mayervich’s non-pecuniary damages at $85,000.