Skip to main content

Non-Pecuniary Assessments for Athletically Active Individuals Discussed

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


A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision.   Fault was admitted by the Defendant focussing the case on an assessment of damages.   The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“.  Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events.  The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“.  In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:
[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…
[54]         Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.

$4,000 Non-Pecuniary Assessment for 4 month long soft tissue injuries

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries caused by a Low Velocity Impact.
In last week’s case (Naidu v. Gill) the Plaintiff was involved in a 2008 rear-end collision.  The crash resulted in little vehicle damage.  The Plaintiff alleged he had injuries caused by the crash which were on-going at the time of trial.  The court found that the plaintiff was an “unreliable historian” and did not accept that the Plaintiff’s ongoing complaints were related to the crash.  The Court did, however, accept that the crash caused a modest soft tissue injury which resolved 4 months following the collision.  In doing so Mr. Justice Kelleher provided the following reasons:
[36]         Mr. Naidu suffered soft tissue injuries in the 2008 motor vehicle accident.  The injuries were not severe.  It is significant that no prescription medication was suggested or prescribed; Mr. Naidu has been able to work throughout the period since then.  No report of an injury was made to ICBC for over a year.  Mr. Naidu was able to travel to Asia on three occasions in 2010.  Mr. Naidu made three visits to a physician in early 2009 and made no mention of pain symptoms from the accident.  Finally, while the extent of the damage to the vehicle is not determinative for the reasons I just explained, it is not irrelevant that the damage to the vehicle was minor.  
[37]         The evidence does not establish causation for the symptoms persisting past approximately January 2009.  It is at least equally likely that the symptoms which resulted in his complaints in April 2009 and September 2009 were caused by physically demanding work as a security guard…
[39]         I conclude that the symptoms from the September 2008 accident persisted into early 2009.  The plaintiff has not discharged the onus of proving that his symptoms since that time were caused by the accident.  I have reviewed a number of authorities including Bagasbas v. Atwal, 2009 BCSC 512; Gradek v. Daimler Chrysler Financial Services Canada Inc., 2009 BCSC 1572; Ostovic v. Foggin, 2009 BCSC 58; and Ceraldi v. Duthie, 2008 BCSC 1812.
[40]         An award of $4,000 is appropriate.

$42,000 non-pecuniary assessment for "somewhat exaggerated" soft tissue injuries

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

Reasons for judgment released last week by the BC Supreme Court, New Westminster Registry, assessing damages for lingering soft tissue injuries caused by a motor vehicle collision
In last week’s case (Fifi v. Robinson) the plaintiff was injured in a 2008 crash.   Fault for the collision was admitted focusing the trial on an assessment of the plaintiff’s damages.
The plaintiff alleged that she suffered from significant soft tissue injuries.   She sought global damages between $271,000 and $396,000.  The court found aspects of the plaintiffs case problematic and further found that she ‘somewhat exaggerated’ her complaints.  Despite this Mr. Justice Verhoeven found that the plaintiff did suffer some injuries which were lingering to the time of trial.  In assessing non-pecuniary damages  $42,000 the court provided the following reasons for judgment:
[116]     I accept that at the time of her testimony at trial, in January 2012, in excess of three years post accident, she was still suffering from soft tissue injuries to her neck, back, shoulders, arms and hands resulting from the accident.  She has headaches but these are infrequent and of relatively short duration.  Her major ongoing complaint is of pain.  She is not at risk of developing degenerative arthritis or disc disease in future arising from the accident injuries. There is no evidence that the accident injuries will result in any long-term consequences to her health.
[117]     In view of my conclusion that her complaints are somewhat exaggerated, it is difficult to assess the true extent and degree of the plaintiff’s ongoing pain and disability resulting from the accident injuries.  What is clear to me is that they are not as significant as the plaintiff has stated.  It is also clear that other than for the first two to three weeks post-accident, her injuries have never been seriously disabling.  I note her testimony that her injuries had improved by the time she returned to work at Levan in January 2009 and had improved further when she worked at 5ive West in the fall of 2010.  I find that her injuries have gradually been improving with time…
[125]     I find that the residual effects of the plaintiff’s injuries will likely continue for one or two years from the time of trial, but will continue to diminish further with the passage of time, and with appropriate treatment such as active rehabilitation and exercise.  Following this period, any residual complaints will not be significant…
131]     Upon consideration of the whole of the evidence, in my view the sum of $42,000 represents a fit and proper amount of compensation for the plaintiff’s non pecuniary loss…

$20,000 Non-Pecuniary Assessment For 3 Year Soft Tissue Injuries With Good Prognosis

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

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for fairly modest injuries caused by a motor vehicle incident.
In the recent case (Ward v. Zhu) the Plaintiff was a passenger on a bus that stopped suddenly throwing her to the ground.  This occurred as the driver was avoiding a collision with another motorist.  Fault was admitted by the other motorist.  The Plaintiff suffered soft tissue injuries and although these remained symptomatic at the time of trial (over three years following the incident) they did not significantly impair the Plaintiff.  In assessing non-pecuniary damages at $20,000 Mr. Justice Goepel provided the following reasons:

[30] In this case, there is limited evidence that supports Ms. Ward’s claim for loss of enjoyment of life and loss of amenities. Ms. Ward missed no time from work as a result of her injuries. Within two months of her injuries, she was trying out for a soccer team. The only amenities referenced in her evidence concerned reductions in running and walking and difficulty in 2011 sitting through a concert. On the evidence that has been led at this trial, I cannot find that Ms. Ward’s enjoyment of life has been significantly compromised by this accident.

[31] There is also limited evidence in relation to pain and suffering. Ms. Ward abandoned physical therapy and chiropractic treatments shortly after the accident. She went long periods of time without seeking any medical advice concerning her injuries. She did not say anything to her family doctor concerning these injuries until January 2011. The defendant submits that the lack of complaints to medical practitioners supports his submission that Ms. Ward substantially recovered within weeks of the accident.

[32] I do not accept that conclusion. In 2009, Ms. Ward had other difficulties in her life which explain why she did not actively seek treatment for these injuries. I accept her evidence that she did not aggressively seek medical treatment because she mistakenly believed the injuries would resolve without medical assistance.

[33] I find that Ms. Ward did suffer an injury in the fall on the bus. I accept that those injuries have impacted her for more than three years. Her decision not to actively treat her injuries immediately following the accident has undoubtedly prolonged her recovery. When Ms. Ward finally started an active regime of chiropractic and massage treatments her condition improved. Dr. Dyment testified that Ms. Ward’s injuries are now slowly resolving. The evidence does not allow me to conclude that her injuries are permanent.

[34] While Ms. Ward’s recovery has been prolonged, the impact on her life is considerably less than the plaintiffs in Deiter and Parker, although somewhat greater than the plaintiffs in the cases cited on behalf of the defendant. While the cases provide a general range of appropriate damages, all cases ultimately must be decided on their own facts.

[35] I award $20,000 in non-pecuniary damages. This award includes an allowance for the difficulty that Ms. Ward has had or will continue to have in performing her usual household tasks with less efficiency and comfort than she did before the accident: Helgason v. Bosa, 2010 BCSC 1756 at para. 160.

$60,000 Non-Pecuniary Assessment for Chronic Back Soft Tissue Injury

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

Reasons for judgement were released last month by the BC Supreme Court, Kamloops Registry, assessing damages for a chronic soft tissue injury following a collision.
In the recent case (Cartwright v. Cartwright) the 15 year old plaintiff was injured as a passenger in a single vehicle collision.  The driver admitted liability.  The Plaintiff suffered a soft tissue injury to her back which resulted in chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Fisher provided the following reasons:
[20] There is no question that Ms. Cartwright suffered soft tissue injuries to her neck and back in the motor vehicle accident on June 17, 2007, which resulted in ongoing pain symptoms. She had pain immediately following the accident and has continued to have pain throughout her back since that time. The issue is the extent to which this ongoing pain has affected and will continue to affect her life…

[22] I found Ms. Cartwright to be a credible witness but a poor historian about the nature and intensity of her pain symptoms and how they affected her life and her work. I agree with the defendant that she provided little detail about her symptoms. At the time of the accident, she said that her neck and shoulders were “sore” and her back was “just stiff”. She said it was painful working in that she had to rely on others to do things like move tables and chairs and carry pallets of cutlery. Other than that, she described things as being “difficult” or “painful”, and said that she was not able to work because of “back pain.”  Surprisingly, she said nothing about the effect of her pregnancy on her back pain. She said that she can get headaches two to three times a week and migraines “at least a couple a month”, but said nothing about how intense they are or how they affect her. She said that she went to a counsellor “a few times for anxiety about the accident” and she still has anxiety “towards vehicles” without describing in any way the anxiety and how it affects her.

[23] This lack of any detail makes it difficult to assess the nature and severity of Ms. Cartwright’s ongoing pain. However, I am satisfied that her evidence, along with the medical evidence, establishes that she suffered strain to the muscles and ligaments of the thoracic and lumbar regions and strain to the muscles of the cervical region as a result of the accident. I accept Dr. Farren’s description of Ms. Cartwright’s back pain as “moderate in severity and chronic in nature”. There is no evidence about the severity and nature of her headaches or the nature and extent of the anxiety she experienced as a result of the accident.

[24] These injuries have caused her ongoing and chronic symptoms of myofascial back pain, some tension headaches and a modest exacerbation of a pre-existing tendency towards migraines. The chronic back pain will likely continue but there is a substantial possibility that it will diminish with proper rehabilitation that includes a regular exercise program…

[48] Ms. Cartwright has been moderately affected by her chronic back pain and will continue to be affected by it in the future, but there is a substantial possibility that the pain will diminish and be quite manageable with proper rehabilitation and regular exercise. Given the evidence and relevant factors in this case, it is my view that a fair award of non-pecuniary damages is $60,000.

Non-Pecuniary Assessments With Pre-Existing "Chronic" Conditions

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault focusing the trial on an assessment of damages.  The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back.  He was also on a disability pension as a result of a chronic lung condition.
The collision caused soft tissue injuries which aggravated his pre-existing pain making his symptoms more “enduring in nature and markedly more severe“.    Mr. Justice Voith noted that this was a marked change in the Plaintiff’s pre-accident condition and assessed non-pecuniary damages at $100,000.  In doing so the Court provided the following reasons:

[35] The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.

[36] I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.

[37] There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.

[38] Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true…

[48] Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.

Courts Do Not Share ICBC's Views About Low Velocity Impact Injuries

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

As discussed many times, the ‘low velocity impact‘ defence is not particularly compelling and is often judicially frowned upon.  Certainly there is no legal principle which states that minimal impact forces result in no compensable injuries.  This was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Sourisseau v. Peters) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant.  The Defendant advanced the LVI Defence highlighting that the impact caused under $1,000 in repair costs to both vehicles and further that the impact was likely at speeds below 8 kmph.  With this evidence in hand the Defendant argued that the plaintiff “sustained no compensable injury“.
Mr. Justice Greyell rejected this line of reasoning and found the Plaintiff was indeed injured in the low velocity impact and awarded $22,5000 for her non-pecuniary damages.  In doing so the Court provided the following reasons:

[54] While the significance of the damage sustained in a collision may be a factor with which the Insurance Corporation is concerned it is not a matter which necessarily has a direct relationship to the plaintiff’s injuries. The issue for determination is whether the plaintiff’s injuries were caused or contributed to by the accident, Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (BCSC); Boag v. Berna, 2003 BCSC 779.

[55] In this latter connection, the defendant called Mr. Goudie an engineer who testified the change of velocity at the time of the collision was probably less than 8 km/h.

[56] In my opinion, in the circumstances of this case, the change of velocity alone is of little significance. At the time of impact Ms. Sourisseau had her head turned sideways. The evidence clearly establishes she had had pre-existing difficulties with neck and back pain. It likely took very little by way of an impact to trigger a recurrence of that pain. The defendant called no medical evidence to suggest otherwise…

60] Accordingly, I find the plaintiff suffered pain and suffering from soft tissue injuries for approximately 14 months with the odd flare-up continuing thereafter until early 2010 when she testified she felt she had returned to her pre-accident status.

[61] After reviewing the authorities submitted by counsel I award the plaintiff $22,500 for non-pecuniary damages.

Defence Expert Criticized; $60,000 Non-Pecuniary Assessment for Lingering STI's and PTSD

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, independent medical exams. 59 Comments on Defence Expert Criticized; $60,000 Non-Pecuniary Assessment for Lingering STI's and PTSD

Unreported reasons for judgement were recently released by the BC Supreme Court, Nanaimo Registry, addressing damages for “chronic, but not disabling” soft tissue injuries and post-traumatic stress arising from a motor vehicle collision.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  The extent of the Plaintiff’s damages were at issue.  As is common in personal injury litigation, the Defendant produced an expert witness who provided evidence disagreeing with the Plaintiff’s physician as to the extent of the ongoing injuries and their connection to the collision.  Mr. Justice Dley was not receptive to this evidence preferring the Plaintiff’s treating physicians.  In rejecting the Defendant’s expert Mr. Justice Dley provided the following criticism:
[31]  Dr. Dommisse provided an opinion that confirms the soft tissue injury.  However, he opines that stress aggravates the physical injuries and that with proper counselling the stress would ease off; that would improve the physical injuries.  Dr. Dommisse agreed that the stress affectibng Ms. Pitts resulted from the collision.
[32]  His opinion ignores the fact that Ms. Pitts has had counselling and that she has been provided with coping techniques.  Dr. Dommisse was not critical of the counselling that had been provided and deferred that aspect of the injuries to the counsellors who had previously treated Ms. Pitts.
[33]   His opinion failed to consider that Ms. Pitts required some assistance at work.  He conceded that to be a significant factor.
[34]  Dr. Dommisse noted muscle spasm in the trapezius muscle.  However, in his opinion as to whether the collision caused Ms. Pitts’ disabilities, he did not include any reference to the spasms.  Instead, he referred to Ms. Pitts’ complaints as being subjective.  He did not provide a satisfactory answer as to why such an objective symptom would have been left out of his analysis.
[35]  Dr. Dommisse failed to consider the fact that Ms. Pitts suffers pain and discomfort from some of her work-related activities, particularly heavy lifting.  Those symptoms are brought on without any stress.  That significant omission from his report destroys any reliability that might be attached to his opinion that “it is unlikely that Ms. Pitts’ current disabilities were caused by the accident”.
[36]  Dr. Dommise commented that counselling from Ms. Pitts’ stress and anxiety will likely improve her symptoms.  His evidence did not provide any basis for that opinion to be reliable.  It ignores the reality that counselling has already been provided and there is no suggestion that the treatment was in any way lacking.  I am not satisfied that any further counselling is likely to resolve or further improve Ms. Pitts’ present condition.
In assessing non-pecuniary damages at $60,000 Mr. Justice Dley provided the following reasons:
[47]  It is now four years post-accident.  Ms. Pitts has been diligent in pursuing rehabilitation measures.  Ms. Pitts still has some lingering injuries – they are chronic, but not disabling.  Ms. Pitts can carry on with her everyday life and work, but she has limitations because she must be careful so as not to aggravate her injuries.  She continues to suffer from the post-traumatic stress of the collision.  She has learned coping techniques, but that has not eliminated the disorder.
[48]  Taking into account the injuries sustained and the impact they have had and will continue to have, I assess general damages at $60,000.
As noted this judgement is not reported therefore not publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests one.

$20,000 Non-Pecuniary Assessment for "Mild" Soft Tissue Injury

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

Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injury.
In the recent case (Densem v. Sidal) the Plaintiff was involved in two consecutive rear-end impacts with the Defendant.  The defendant was wholly responsible for the first impact although this caused no injury.  There was competing evidence about the particular facts which led to the subsequent collision and the Court ultimately found both parties were equally to blame for this impact.
The Plaintiff suffered from soft tissue injuries to his neck and shoulders as a result of the collision.  He also advanced a claim for a low back injury although the Court found that this was unrelated.  In assessing non-pecuniary damages for the soft tissue injuries at $20,000 Mr. Justice Betton raised some credibility concerns with respect to the Plaintiff and provided the following analysis:

[99] I conclude that the plaintiff suffered soft-tissue injuries to his neck and shoulders in the motor vehicle collision. I do not accept that there has been any low back injury from the motor vehicle collision. Indeed low back injury is not among the list of injuries set out by counsel in his argument.

[100] I conclude that the best evidence of the severity of the soft-tissue injuries that the plaintiff did receive is the plaintiff’s activity level. The plaintiff had returned to a high level of function, including competitive cycling and a rigorous training schedule which included high demand weight training. He had also returned to work, and the evidence suggests that he did so successfully. He was able to perform his employment, which involved long periods of sitting mixed with periodic demanding physical work. This was despite his ongoing back problems which are not a result of the accident.

[101] The credibility issues referenced prompt me to view the plaintiff’s evidence with some caution. It is my conclusion that the plaintiff is not a heroically stoic individual who fought through pain and physical limitations to be able to engage in the activities that he did. Rather, he was able to do so because he had in fact limited or minimal ongoing symptoms…

[109] In summary, the plaintiff did receive soft-tissue injuries to his neck and shoulder areas. He has had ongoing lower back pain that pre-dated the motor vehicle collision, and was not affected in any material way by the motor vehicle collision. He has had a number of subsequent events and injuries that required medical intervention and affected him for various periods of time. I accept the evidence and observations of Dr. Cameron in cross-exanimation that the effect of the motor vehicle collision injuries (that is the physical injuries) has been mild.

Soft Tissue Injury Damages Round Up – The Kelowna Road Edition

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


As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements.  Sometimes, however, the volume of decisions coupled with time constraints makes this difficult.  After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.
In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted.    He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back.  His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment.  In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:
[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

____________________________________________________________________

In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island.  Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

______________________________________________________________________

(UPDATE March 19, 2014 – the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle.  The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)      the plaintiff’s “original position” immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

______________________________________________________________________________________

In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained soft tissue injuries to his neck and back.   The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial.  In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.