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Credibility, Chronic Pain and the "Inherent Frailty" of Subjective Injury Claims

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 54 Comments on Credibility, Chronic Pain and the "Inherent Frailty" of Subjective Injury Claims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing credibility and chronic pain claims based on subjective symptoms.
In this week’s claim (Sevinksi v. Vance) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the offending motorist focusing the claim on quantum.  The Plaintiff sought fairly significant damages for disability due to a diagnosed chronic pain syndrome.  Her injuries were largely subjective putting her credibility squarely at issue.
The Court expressed several concerns about the Plaintiff’s credibility noting that “the Plaintiff was not forthright in her evidence….There also appear to have been instances where the plaintiff was not forthright with the independent doctors she attended before”  and lastly that “Aspects of (the plaintiff’s evidence) go well beyond a frailty of memory or a natural and excusable tendency to exaggerate or place given evidence in a positive light.  Here the Plaintiff sought to mislead and crate a history that is not forthright“.
Despite all this Mr. Justice Voith did accept that the Plaintiff was injured in the collision and that she had ongoing limitations due to these injuries.  Non-Pecuniary damages of $60,000 were assessed but this award was then reduced to $45,000 to take into account the plaintiff’s failure to mitigate.  In assessing the Plaintiff’s credibility and damages the Court cited the well known passage from Mr. Justice McEachern in Butler v. Blaylok.  (making this an opportune place to repeat my views that the assertion that a higher burden of proof exists in subjective injury claims is questionable.)
Mr. Justice Voith provided the following reasons:

[43] The difficulties with the plaintiff’s evidence are magnified because of the lack of objective evidence to support her injuries. McEachern, C.J.S.C., as he then was, identified the difficulties associated with assessing the extent of an injury without the benefit of objective evidence in each of Butler v. Blaylok Estate [1981] B.C.J. No. 31 (S.C.) at paras. 18-19 and Price v. Kostryba(1982), 70 B.C.L.R. 397 (S.C.) at para. 1-4.

[44] In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A., at para. 15.1, said:

…there must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the normal recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.

[45] More recently, in Eccleston v. Dresen, 2009 BCSC 332, at para. 66, Barrow J. accepted that claims supported by only subjective evidence should be viewed with a “skeptical eye”. He further confirmed, however, that such claims can be supported by the “convincing force of collateral evidence”.

[46] Two propositions emerge from these cases. First, there is an inherent level of frailty in the case of a plaintiff whose assertions of injury are not supported by any objective evidence or symptoms. Accordingly, it is appropriate, in such cases, to treat the evidence adduced by or on behalf of the plaintiff with caution. Second, either the evidence of the plaintiff or collateral corroborative evidence may be sufficient to persuade the Court of the plaintiff’s position.

[47] In this case the usual difficulties associated with the wholly subjective complaints of a plaintiff are compounded by the reliability problems which are associated with the evidence of Ms. Sevinski.

[48] Notwithstanding some misgivings, however, I have accepted aspects of Ms. Sevinski’s evidence and am satisfied that these portions of her evidence are supported by additional collateral evidence before me…

[86] Having said this, the medical evidence establishes, and I have accepted, that the plaintiff does struggle with chronic pain syndrome. Her ability to function normally and to engage in the breadth of activities which she would like to, as well as to interact with her children and Mr. Rambold in a pain-free way, is diminished….

[89] Based on these considerations I assess Ms. Sevinski’s non-pecuniary damages at $60,000. This is without taking the question of mitigation into account.

LVI Collision "Like Bumping a Shopping Cart" Results in Damage Award

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


As I’ve discussed on many occasions, there is little credible medical evidence to suggest that a low impact collision cannot result in injury.  The LVI defense fails at trial far more than it succeeds.  That said, there is no denying that a claim for damages can be met with more skepticism if the triggering event is a low impact collision as opposed to a severe crash.  For this reason ICBC and other insurers like to highlight the minimal forces involved when Low Velocity Impact claims proceed to trial.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s claim (Ryan v. Klakowich) the Plaintiff was involved in a 2008 collision.  Fault for the crash was admitted.  The collision involved minimal forces with the defendant testifying that the impact was “like bumping a shopping cart against a counter“.  Despite this, and despite some reliability concerns the trial judge raised with the Plaintiff’s evidence, the Court accepted the Plaintiff sustained real injury.  In assessing non-pecuniary damages at $25,000 Madam Justice Ross provided the following reasons:



[73] Ms. Ryan’s complaints arise from a collision of very low impact, producing minimal damage to her vehicle and none to the defendant’s. Her injuries are said to be soft tissue injuries for which there are no objective indicators. In such circumstances Ms. Ryan’s credibility is of particular importance since the physicians are to large extent dependent upon her subjective reports in reaching their opinions.

[74] I find Ms. Ryan to be a poor historian. It is my impression that she minimized the extent and duration of the injuries she suffered in previous accidents, both in her testimony and in her reports to physicians in preparation for this litigation. She also minimized the significance of the other medical conditions with which she was dealing. It is her testimony that the burden of taking care of her mother did not interfere with her work or with her social life because her other siblings would fill in. However, this was inconsistent with what she told Dr. Anderson. He reported that she was in considerable distress concerning the care of her mother on several occasions, reporting that the disproportionate burden fell upon her and that her siblings were not providing sufficient assistance…

[78] The medical evidence is of limited assistance since the opinions are to a great extent dependent upon Ms. Ryan’s subjective reports. In addition, Dr. Anderson had not treated Ms. Ryan before the 2008 Accident and so had no personal knowledge of Ms. Ryan’s condition prior to the 2008 Accident. Ms. Ryan did not provide Dr. Jung with a full history. Finally, the additional investigations that Dr. Jung and Dr. Bishop recommended have not been undertaken. In the result, there is no medical opinion that bears on the causation of the neurological symptoms Ms. Ryan now complains of in her right arm.

[79] I accept that Ms. Ryan suffered mild to moderate soft tissue injuries to her neck and shoulder girdle in the 2008 Accident. As a consequence, she experienced pain and stiffness in her neck, upper back and shoulder and headaches. I accept that these symptoms have lingered. While it is the case that many, perhaps most people, would not have suffered such injuries in such an accident, I accept that the combination of her previous injuries, scoliosis and osteoporosis would render her more fragile and susceptible of injury…

[83] I award $25,000 in non-pecuniary damages.

BC Supreme Court Criticizes ICBC LVI Defence as having "no scientific justification"

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


As frequently discussed, the Low Velocity Impact (LVI) defence has been criticized many times by the BC Supreme Court.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating yet again that the LVI defence is not a recognized legal principle.
In today’s case (Dolha v. Heft) the Plaintiff was involved 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered a “mild to moderate” whiplash injury which resolved in several months.  The Court awarded the Plaintiff $7,000 for non-pecuniary damages.  Prior to doing so the Court criticized the LVI Defence as having “no scientific justification“.  In assessing damages Madam Justice Bruce provided the following reasons:

[16] Based on the evidence led in this summary trial application, I find there is no reason to doubt the veracity of the plaintiff’s claims that she suffered pain in her neck and upper back, as well as headaches and dizziness, immediately following the accident and for a period of six to nine months thereafter. Moreover, there is no evidence to contradict Dr. Samaroo’s opinion that these symptoms arise from soft tissues injuries caused by the accident. There is no scientific justification for concluding that a low velocity collision is incapable of causing injuries. The minor nature of the collision is only one factor to consider when assessing the severity of the injuries suffered by the plaintiff. While the medical evidence before the court is primarily based on the subjective complaints of the plaintiff, there is no evidence that the plaintiff’s symptoms continued beyond what would normally be expected for these types of soft tissue injuries. Thus the caution expressed in Butler and Price is not relevant on the facts of this case….

[19] Turning to the factors relevant to the assessment of non-pecuniary loss, it is apparent that the injuries suffered by the plaintiff were of a minor nature. While she experienced pain and required medication to alleviate this symptom, the plaintiff had full range of motion in her back and her neck throughout her convalescence. In addition, the symptoms experienced by the plaintiff were not sufficiently severe that she required passive modalities such as physiotherapy, massage therapy or chiropractic manipulation. The plaintiff last saw her doctor for pain due to accident-related injuries in late November 2008, some five months after the collision. The plaintiff’s injuries resolved entirely after a relatively short period of six to nine months. The headaches persisted for about a year; however, they decreased in intensity and severity over time. The plaintiff has no residual effects from the injuries. Lastly, the plaintiff’s lifestyle was only moderately impacted by the injuries. She was unable to run for a couple of months.

[20] The plaintiff suffered some emotional anxiety as a result of the accident and had sleep difficulties. The sleep problem resolved quickly and the increased anxiety was modest in severity and did not persist over a lengthy period of time.

[21] Lastly, the plaintiff is a relatively young woman who does not suffer from any particular emotional or physical condition that rendered or could have rendered the injuries she suffered more disabling.

[22] Having regard to the range of non-pecuniary damages awarded in the cases cited by the parties, and the particular circumstances of the plaintiff, I find an award of $7,000 is appropriate.

$60,000 Non-Pecuniary Damage Assessment for STI's Imposed on Pre-Existing Injuries

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

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.
In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.

$50,000 Non-Pecuniary Damages Assessment for Chronic Myofascial Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases. 50 Comments on $50,000 Non-Pecuniary Damages Assessment for Chronic Myofascial Pain

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, dealing with non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic soft tissue injuries.
In today’s case (Thauli v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision.  It was a ‘t-bone’ crash.  The Plaintiff was a passenger at the time and the issue of fault was admitted by ICBC on behalf of the offending motorist.  The Plaintiff suffered a variety of soft tissue injuries which resulted in a chronic myofascial pain syndrome.  In assessing non-pecuniary damages at $50,000 Mr. Justice Crawford provided the following reasons:

[35] Pain is doubtless one of the discussion footballs in medical science.  It is subjective.  Many of us have seen people receive devastating injuries, bear with them stoically and sometimes recover in very short time.  We see the professional footballer or hockey player do that on a regular basis, but many cannot.  Many are built differently and respond differently to different injuries.  Dr. Sidhu said that he expected Ms. Kalsi, given her lifestyle, to have largely recovered in six or eight weeks from the car accident.  And as I noted, Dr. Chu said in his evidence perhaps the neural pathways are somehow compromised in some people and continue to send messages of pain to the head, and in fact the soft tissues are already recovered.

[36] In any event, I found Ms. Kalsi an honest and straightforward young lady.  The evidence of the witnesses recorded in consistent fashion how busy, vivacious and outgoing she was prior to the accident, how there had been a continuing complaint of pain to her upper left back area, as vague as that might be, and that had continued to be of a consistent concern to her and to her doctors…

[38] I am satisfied the plaintiff was injured in the car accident in May of 2005.  The injuries to her knee, neck and left upper back are consistent with being thrown over the restraining seat belt and extending the soft tissues in her upper back and neck on the left side.  It is likely those injured areas of her body have recovered.  It is also likely her ongoing complaints of pain in turn caused the depression, but that was well treated in 2007.

[39] Medically the pain is chronic and the symptoms have been collated under the heading myofascial pain.  That is real to Ms. Kalsi.  It is, on her own word to her doctors, largely moderated in 2007 and in my view there is a fair chance it will continue to improve, if not wholly, at least be well within her control.

[40] In sum, then, I award general damages at $50,000.

BC Court of Appeal Awards $200,000 for Chronic Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Court of Appeal addressing damages for chronic soft tissue injuries.
In today’s case (Taraviras v. Lovig) the Plaintiff was injured in a 2002 rear-end collision.  The Plaintiff suffered “primarily neck and back injuries with referred pain down his left leg“.  After a 10 day trial a Jury awarded the Plaintiff $691,000 in damages including $300,000 for non-pecuniary damages (pain and suffering and loss of enjoyment of life).
The Defendants appealed arguing this award was “wholly out of proportion to the loss (the Plaintiff) actually suffered”.  The BC Court of Appeal agreed and reduced the jury verdict by $100,000.   However, even after this reduction, this stands as one of the higher BC Injury damage assessments for chronic soft tissue injuries which are not totally disabling.  In concluding that this is a fair assessment the BC Court of Appeal provided the following useful reasons:

[34] This case is not one in which the victim has suffered catastrophic injury.  Mr. Taraviras’ permanent disability is, by all accounts, a moderate one, thus it is irrelevant how Mr. Taraviras’ injuries compare to those of the plaintiffs in the Supreme Court Trilogy (Moskaleva at para. 132). …

[36] In my review of the non-pecuniary jury verdict in this case, I must accept that the jury resolved all evidentiary conflicts in favour of Mr. Taraviras.  I have described some of his evidence and I proceed on the assumption that the jury did accept this evidence.  In other words, the question to be resolved is – taking Mr. Taraviras’ case at its most favourable, is the award nevertheless so exorbitant that it would shock this Court’s conscience and sense of justice? (Moskaleva at para. 116; Whiten v. Pilot Insurance Co., 2002 SCC 18)….

[55] Here, Mr. Taraviras testified that his life had, in almost all respects, been affected by this accident.  He could no longer work in the same robust way he had worked previously.  His renovation and property acquisition business was limited by his inability to do the heavy maintenance and renovation work.  He could no longer participate in his previous active sporting life.  His personal relationships were affected by his short temper and more sedentary lifestyle.  He complained of constant pain in his leg and back.  He could no longer enjoy his employment.  Taking the plaintiff’s case at its most favourable, I would conclude that Mr. Taraviras’ injuries in this accident had a devastating effect on his previously active and energetic life.  I must assume that the jury did not accept the proposition advanced by the defendants that his pre and post-accident injuries were causative.

[56] Even accepting Mr. Taraviras’ case as I have, I am of the view the award for non-pecuniary damages does require appellate intervention.  This is one of those awards that is so out of all proportion to the circumstances of the case that it would shock the conscience of the court to leave it undisturbed.  It is wholly out of proportion to the injuries suffered by Mr. Taraviras and must be set aside.  In granting considerable deference to the jury and using the judge alone and appellate cases as some guidance, I would reduce the award from $300,000 to $200,000.

$25,000 For "Mild to Moderate" Lingering Soft Tissue Injuries

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

Adding to this ever-growing British Columbia non-pecuniary damages (pain and suffering) caselaw database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a claim involving lingering soft tissue injuries.
In today’s case (Manson v. Kalar) the Plaintiff was involved in a rear-end collision in 2008.  The crash was fairly significant resulting in over $5,000 in damage to the Plaintiff’s vehicle.  Fault for the collision was admitted focusing the trial on the value of the claim.
Madam Justice Boyd ultimately found that the Plaintiff suffered mild-moderate soft tissue injuries and that while these were on-going some three years after the fact there was still room for improvement.  In assessing non-pecuniary damages at $25,000 the Court provided the following reasons:
[38] …The plaintiff here has suffered injuries which are limited to his lower back and neck.  He has pursued very little treatment for his injuries and, despite his doctor’s recommendations, he has not attended few physiotherapy treatments or undertaken any core muscle conditioning programs.  Nevertheless it is expected that he will recover in the foreseeable future.  As I have already noted, while I satisfied that his ongoing pain and discomfort has limited his participation in his former sporting activities, some of his social withdrawal appears to be the result of other factors. ..
[46] …In the case at bar, the plaintiff has suffered a mild to moderate soft tissue injuries, where the symptoms have persisted for almost three years since the accident and are still not resolved.  In these circumstances, I find that a fair and reasonable award of damages is $25,000.
For more on this topic you can click here to access my archived posts of other recent BC court cases dealing with damages for soft tissue injuries.

Fibromyalgia Claim Fails, $6,000 Awarded for 3 Month Soft Tissue Injury

Written by admin on . Posted in ICBC Fibromyalgia Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 61 Comments on Fibromyalgia Claim Fails, $6,000 Awarded for 3 Month Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with the connection between Fibromyalgia and a motor-vehicle collision.
In today’s case (Anderson v. Minhas) the Plaintiff was involved in a 2007 rear-end collision in Surrey, BC.  The Plaintiff was injured in this crash and she ultimately was diagnosed with Fibromyalgia.  She claimed this troubling condition was caused by the collision and sued for damages.  Mr. Justice Bernard ruled that the Plaintiff failed to prove that the accident was a cause of her Fibromyalgia and dismissed most of her claimed damages.
The Court found that the crash caused a whiplash injury of 3 months duration and assessed non-pecuniary damages at $6,000.  In dismissing the fibromyalgia claim and valuing non-pecuniary damages Mr. Justice Bernard provided the following reasons:

[74]         Applying, then, the “but for” test, I conclude that the evidence falls far short of proving, on a balance of probabilities, that but for the negligence of the defendant, Ms Anderson would not have developed fibromyalgia. In reaching this conclusion I take into account, inter alia, the absence of convincing medical opinion in this regard, the minor nature of the collision, the absence of credible evidence of a temporal nexus between the collision and the onset of symptoms, the reliable evidence of the plaintiff’s return to her pre-collision state within two months of the collision, the chronic and acute pre-collision health complaints of the plaintiff, and the significant hiatus in doctor visits in a critical post-collision period.

[75]         The plaintiff suffered a whiplash injury in the collision. The evidence suggests that it was most likely an exacerbation of an existing complaint. Shortly after the injury she began a course of physiotherapy. Reliable evidence in this regard shows that she responded well to treatment and was substantially recovered within six weeks. The defendant submits that the injuries, or any exacerbation of a pre-existing injury, attributable to the defendant were fully resolved within three months, at most. I agree. A generous view of the evidence establishes, at most, a three-month period to full recovery to Ms Anderson’s pre-collision state. The plaintiff’s losses must be assessed accordingly….

[78]         In assessing the non-pecuniary damages for Ms Anderson, I am unable to distinguish her losses from the ordinary sort of losses most suffer from a minor whiplash injury. I am, however, satisfied that the plaintiff was more fragile than many others would have been at the time of the collision and that, therefore, her post-collision aches and pains may well have been greater than those experienced by an otherwise strong and healthy person. I am satisfied that Ms Anderson’s life was negatively affected by the injury, or re-injury, and that during the three-month recovery period her relationships suffered to some degree, she endured some pain and discomfort, she lost some sleep, she opted out of some leisure and sport activities, and she was put to various inconveniences. For this three-month period of pain and suffering, with due regard to the cases cited, I assess her damages at $6,000. Any lost homemaking capacity in this period is subsumed into this award.

$100,000 Non-Pecuniary Damages Awarded for Chronic Pain From Soft Tissue Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 59 Comments on $100,000 Non-Pecuniary Damages Awarded for Chronic Pain From Soft Tissue Injury


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry addressing damages as a result of chronic soft tissue injury.
In today’s case (MacKenzie v. Rogalasky) the Plaintiff was involved in a 2003 motor vehicle collision.  The Defendant turned into the path of the Plaintiff’s vehicle resulting in a t-bone type collision.  Fault for the crash was admitted by the Defendant with the trial focusing on the value of the Plaintiff’s claim.
The Plaintiff sustained various injuries in the crash.  These included “moderate” soft tissue injuries to his neck, shoulders and back.  The Plaintiff, unfortunately, went on to suffer from long term chronic pain as a result of these injuries.  He had to leave his employment as the Head Chef at a popular Lower Mainland restaurant and eventually opt for less physically demanding employment.
The limitations from his chronic soft tissue injuries were expected to be permanent.  The Plaintiff’s total damages were assessed at just under $400,000 including an award of non-pecuniary damages of $100,000.  In arriving at this figure Madam Justice Ker made the following findings:

[255]     I accept the evidence adduced by the plaintiff that Mr. MacKenzie sustained soft tissue injuries to his neck, shoulder and back as a result of the accident.  The symptoms of chronic pain have continued to bother Mr. MacKenzie, and nearly seven years post-accident, he still experiences pain in his neck, shoulder and back, although primarily in the lower back area.  While the injuries can be described as moderate soft tissue injuries, I accept the diagnosis and opinion of Dr. Hunt that Mr. MacKenzie has developed chronic myofascial pain syndrome and experiences chronic pain to this day.  Thus, the injuries and pain symptoms continue to affect most every facet of Mr. MacKenzie’s work and non-work life.  The pain is most significant when Mr. MacKenzie works and overloads his physical tolerance capacity.  He has had to leave his chosen profession as a chef due to the increasing pain and difficulty he was experiencing and the failure to see any significant improvement in his condition.

[256]     I have concluded that as a result of the accident, Mr. MacKenzie has suffered pain and loss of enjoyment of life, and he will continue to do so for an indefinite period of time.

[257]     Mr. MacKenzie struck me as a very stoic and determined individual.  Despite the ongoing pain he tried to continue to work as a chef, a position he was passionate about and aspired to continue in for as long as possible, perhaps even establishing his own restaurant.  He also tried to remain physically active but found it difficult to do so given the attendant pain associated with the activities he previously enjoyed, including motorcycling, snowboarding and, until recently, golfing.  His return to playing golf is a recent development, but due to the nature of his injuries and ongoing chronic pain symptoms Mr. MacKenzie has had to alter his style of play and is still not able to play to the same intensity and level he did prior to the accident.  He has suffered, and will continue to suffer, some diminishment in his lifestyle.

[258]     The evidence from the plaintiff’s friends and family, coupled with his own evidence, establishes Mr. MacKenzie enjoyed excellent health and was involved in the physically active and demanding position of Head Chef working in a busy restaurant for up to 16 hour shifts prior to the accident.  Mr. MacKenzie also engaged in demanding outdoor sports activities such as snowboarding, mountain biking and rollerblading and engaged in extended periods of riding his motorcycle.

[259]     Taking into account all of these circumstances, the referenced authorities and the nature of Mr. MacKenzie’s injuries, the relatively enduring nature of the injuries as manifested through ongoing symptoms of chronic pain that has developed into chronic myofascial pain syndrome which prohibits him from returning to the profession he has been passionate about since he was a young boy, the pain he has suffered and may continue to experience in the future, as well as the fact he suffered a diminishment in his lifestyle, I conclude a fair and reasonable award for non-pecuniary damages is $100,000.

Damages for Chronic Soft Tissue Injuries "Of No Clinical Significance" Assessed at $75,000

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing damages for chronic pain as a result of soft tissue injuries.
In this week’s case (Jackson v. Mongrain) the Plaintiff was involved in a 2006 collision.  The vehicle he was occupying was rear-ended by the Defendant.  Fault for the crash was admitted.  The Plaintiff was injured in this crash and in support of his case called evidence as to his long-standing symptoms of chronic pain.  The Defendant argued that the Plaintiff had no on-going injuries and in support of this argument pointed to the opinion of Dr. Reebye, a physiatrist hired by the Defence to conduct an ‘independent medical exam‘ who stated that the Plaintiff’s ongoing tenderness was of ‘no-clinical significance’.
Mr. Justice Stewart rejected the defence argument and went on to assess the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In doing so the Court made the following comments:

[24]        Because the point seemed obvious to me, at the end of the case I asked counsel for the defendant whether he conceded that to this day the plaintiff suffers from chronic pain which would not be his lot but for the negligence of the defendant on April 8, 2006.

[25]        The answer was no.

[26]        Why not?  As to that counsel for the defendant grounded his submission on the fact that Dr. Reebye, an expert in Physical Medicine and Rehabilitation, who examined the plaintiff on behalf of the defendant on June 22, 2010, told me that certain areas of tenderness in the plaintiff’s back were of “no clinical significance”.

[27]        The doctor told me that “not of clinical significance” meant that in his opinion what the patient complained of was “not a severe pain or it is localized pain”. Nobody, including me, asked the doctor to tell us anything more about what he meant by “of no clinical significance”. The doctor did make it clear elsewhere in his evidence that he did not doubt that the plaintiff was making truthful statements to him as he, the doctor, went about his examination. I must say that absent testimony to the contrary I assumed then and assume now that all the doctor was saying in using the phrase of “no clinical significance” was that the fact the area in question was tender resulted in a finding of just that, tenderness, and no more.

[28]        To say that that isolated statement by Dr. Reebye stands in the way of the conclusion noted above as to the overwhelming effect of the whole of the evidence makes no sense to me.

[29]        In the result, having recognized the caution that must be taken before finding that a plaintiff is burdened with pain and suffering as the result of soft tissue damage long after the flesh must have healed, I find as a fact that the plaintiff is burdened with chronic pain in the neck and back that would not be his lot but for the negligence of the defendant on April 8, 2006. That finding is based on the cumulative effect of my finding the plaintiff to be a witness upon whom I am prepared to rely, the thrust of the evidence of Dr. Mamacos (Exhibit 2 Tab 7) and Dr. Hamm (Exhibit 2 Tab 2 Page 13) and the absence of a pointed, precise statement by Dr. Reebye to the effect that he is of the opinion that the plaintiff does not suffer from chronic pain and discomfort which chronic pain and discomfort has its head and source in the injuries suffered by the plaintiff in the motor vehicle accident of April 8, 2006…

[53] The plaintiff has endured pain and suffering thus far for call it 57 months. His pain is chronic and I find in all likelihood will be with him to the grave. Dr. Mamacos added that once an individual’s back is injured the chances of what he called “back issues” in the future increase. The plaintiff swims and walks regularly. He exercises. He has had physiotherapy, taken over-the-counter drugs and had massage treatments. Because of the nature of the work the plaintiff did before the motor vehicle accident the fact that the level of his pain and discomfort – looked at in isolation – is not great did not mean he did not suffer a loss or diminishment of the capacity to earn income (see supra). But the fact remains that I would describe his pain and suffering as not intense but more of the nagging variety, i.e., always with him but at a very reduced level and causing real and substantial discomfort only when at work or outside of work he does something which is actually too much for him or when at the end of a workday the cumulative effect of his day’s activities and the state of his neck and back sets in. I find that very bad “flare-ups” occur three or four times a year. He uses over-the-counter drugs (amongst other non-prescription drugs) to assist him, as necessary. I accept that his chronic pain and suffering interferes to an extent with his activities when he is not at work. He limits himself to walking and swimming whereas before the motor vehicle accident he played basketball, rode a mountain bike, played racquetball and went camping and hiking. The evidence of the plaintiff, his mother and of the plaintiff’s friend Gordon Papp satisfies me that because of his problems with his neck and back, the plaintiff does less around the house that he and Gordon Papp co-own than would otherwise be the case. (I note here that I have ignored the evidence of the plaintiff’s friend Chris Kokkonis. The plaintiff’s own evidence convinces me that Chris Kokkonis is a witness who thought exaggerating the nature and extent of the plaintiff’s pain and discomfort would assist the plaintiff. It did not.)  I have considered the case law placed before me by counsel. Having considered the whole of it I award the plaintiff $75,000 by way of damages for non-pecuniary loss.