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$50,000 Non-Pecuniary Assessment for "Lingering" Soft Tissue Injury

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

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court,  Vancouver Registry, valuing a claim dealing with a ‘lingering‘ neck and shoulder soft tissue injury.
In today’s case (Lal v. Le) the Plaintiff was involved in a 2011 rear-end collision that the Defendant accepted blame for.  The Plaintiff suffered various soft tissue injuries the most serious of which involved his neck and shoulder and symptoms lingered to the time of trial.  Some long term symptoms were anticipated.  In assessing non-pecuniary damages at $50,000 Madam Justice Adair provided the following reasons:

[102]     Accordingly, I find that, as a result of the accident, Mr. Lal sustained soft tissue injuries to his neck, back, chest, elbow, leg and shin areas.  He also sustained ulnar nerve irritation symptoms, and experienced headaches as a result of his injuries.  Most of these injuries resolved over a few months.  However, the most serious injuries, a moderate soft tissue injury to his neck, and a moderate muscular strain in his right middle and lower back, did not.  As of April 2014, there continued to be objective signs of injury.  I find that, by April 2014, Mr. Lal had improved to the point that he was pain-free at times, although, with heavier and awkward work, he experienced symptoms in his neck and back, and also occasional headaches.  I find that these symptoms resulted from the injuries he suffered in the accident.  By October 2015, Mr. Lal’s mid-back injury had resolved.  However, I find that, as of trial, Mr. Lal continued to experience symptoms as a result of the injuries suffered in the accident, particularly symptoms in his neck.  He is likely to have some lingering neck and shoulder pain long-term, although the prognosis is more favourable that his back pain will fully resolve over the next year.

[103]     I find further that, as a result of the injuries Mr. Lal suffered in the accident, there is a risk that he will be unable long-term to work as a boilermaker, although he should be able to work full-time as an armored car driver.  In addition, I find that, as a result of the injuries suffered in the accident, Mr. Lal will be at increased risk of a work-related neck or back injury.  Given the physical nature of his employment, this is a real risk…

[110]     Considering Mr. Lal’s age and the other factors described above, and the cases cited to me, I conclude that an appropriate award for non-pecuniary damages is $50,000.

$50,000 Non-Pecuniary Assessment for "Persistent" Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for ‘persistent’ soft tissue injuries.
In today’s case (Smith v. Evashkevich) the Plaintiff was involved in a 2010 rear end collision that the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries to his neck and shoulder which persisted at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $50,000 Mr. Justice Steeves provide the following reasons:

[74]         Considering the expert evidence summarized above with the evidence at trial, I conclude that the plaintiff continues to have complaints of pain and stiffness in his neck, shoulders and back as a result of the June 2010 accident. This is supported by medical findings of tenderness on palpation. The plaintiff, his family and close friends also describe the plaintiff’s discomfort with his neck and shoulders.

[75]         These have always been soft-tissue symptoms, albeit persistent ones. The plaintiff was prescribed with a muscle relaxant on July 5, 2010 for the accident injuries. After that he has used over the counter medication.

…

[84]         In summary the plaintiff continues to suffer from soft tissue injuries in the neck, shoulder and back that can be causally related to the 2010 accident. While there are flare-ups he manages the symptoms well and he does not miss work as a result of them. He does not golf or snowboard like he did before the accident and he is more withdrawn in his relationships. There is some general anxiety as a result of the chronic nature of the plaintiff’s symptoms but anything more is related to his feeling of being overwhelmed at work.

[85]         In these circumstances I conclude an award of $50,000 for non-pecuniary damages is appropriate.

$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

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

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.
In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.
In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.

Plaintiff Facebook Photos Help Undermine Personal Injury Claim

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, largely rejecting claimed damages in a personal injury lawsuit due in part to concerns with the Plaintiff’s credibility and further due to Facebook photos entered as evidence at trial.
In the recent case (Brennan v. Colinders) the Plaintiff was involved in a 2012 collision.  The Defendants admitted fault.  The Plaintiff alleged the collision caused chronic problems which continued up to the time of trial.  The Court rejected this finding the collision related consequences had resolved.  In awarding $20,000 in non-pecuniary damages Madam Justice Baker provided the following critical comments regarding the Plaintiff’s credibility along with noting the impact of Facebook photos:
[11]        I found, in general, that Mr. Brennan is not a credible witness.  He proved to be a very poor historian.  While some of the problems with his testimony could perhaps be considered the result of poor memory or carelessness, there were also instances of what I consider to be a failure to respond honestly and truthfully to questions asked; and a tendency, often demonstrated, to shade or colour his testimony in a way he perceived to be helpful to his case.  Some of his testimony was contradicted not only by the testimony of defence witnesses, but also by other witnesses called on behalf of the plaintiff.  While testifying, Mr. Brennan frequently contradicted himself.  He gave different versions of the same events at different times….

[103]     Since March 2012, Mr. Brennan has acquired a new hobby, which, judging by the numerous photographs he has posted on his Facebook page, provides him with considerable satisfaction.  Mr. Brennan testified that he obtained a firearms permit and a friend purchased a handgun for him.  He has posted numerous photographs of himself in various poses with this weapon.

[104]     Mr. Brennan testified he had attempted camping on one occasion but after one night found sleeping on the ground too uncomfortable.  Again, the timing of this attempt was unclear.

[105]     I am prepared to accept that for a short time after the March 2012 accident, Mr. Brennan would have found his usual recreational and social activities less enjoyable than before the accident injuries exacerbated his chronic condition, but that within six months post-accident he was not prevented from participating in the activities to the same extent he had prior to the accident.

[106]     Counsel provided the Court with various authorities:  George v. Doe, 2015 BCSC 442; Dhaliwal v. Pillay, 2015 BCSC 509; Graydon v. Harris, 2013 BCSC 182; Kahle v. Ritter, 2002 BCSC 199; Lamong v. Stead, 2010 BCSC 432; Zvatora v. Liberman, 2000 BCSC 306, Friesen v. Fiddler, 2003 BCSC 1955; Dymond v. Wilson, 2001 BCSC 244;Boyd v. Shortreed, 2009 BCSC 1468; and Ryan v. Kakowich, 2011 BCSC 835.  None of these authorities deals precisely with the situation of a plaintiff who was already largely incapacitated prior to an accident involving a minor exacerbation of pre-existing debilitating symptoms.  I find the range of awards in the cases cited by defendants’ counsel to more closely reflect the facts in this case.

[107]     I award the sum of $20,000 for non-pecuniary damages.

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

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

Adding to this site’s soft tissue injury case archives, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic low back and neck soft tissue injuries.
In today’s case (Lampkin v. Walls) the Plaintiff was involved in a 2009 rear-end collision caused by the Defendant.  The Defendant admitted fault.  The Plaintiff suffered injuries to his neck and back which remained symptomatic at trial, were expected to carry on to the future and resulted in a permanent partial disability.  I assessing non-pecuniary damages at $75,000 Madam Justice Watchuk provided the following reasons:

[129]     I substantially agree with the application by Mr. Lampkin of the factors as set out in Stapley v. Hejslet. I accept the following facts with respect to these factors:

(a)  Age of the Plaintiff:  Mr. Lampkin is currently 46 years old. Both he and his wife are involved in raising their two children, Lexxus and Nathaniel. Prior to the accident, Mr. Lampkin enjoyed taking Lexxus to the park and playing soccer with him. As a family, they enjoyed going to the beach for barbeques and attending festivals. A great deal of this enjoyment has not been possible since the accident. Given his age, Mr. Lampkin has less opportunity to heal or find alternative ways to enjoy recreational activities.

(b)  Nature of the Injury:  Mr. Lampkin has been experiencing pain primarily in his neck and back for over 6 years. He reported those and other injuries immediately following the accident, and he continues to experience them although in lesser degrees. The pain affects his work and his day-to-day activities including driving, playing sports and playing with his children. At the end of a work day, Mr. Lampkin’s injuries are aggravated leaving him with little energy or patience to pursue his usual after work activities.

(c)  Severity and duration of the pain:  Mr. Lampkin’s injuries tend to vary depending on his activities. When he has had time to rest, the severity of his pain is manageable. However, after a work day, Mr. Lampkin requires pain medication to manage the pain. His symptoms are focused in his neck and back. The medical evidence supports that, in particular, Mr. Lampkin’s low-back symptoms are unlikely to resolve.

(d)  Disability:  Mr. Lampkin is partially restricted in many of his activities and has not been able to return to cricket. He is careful not to aggravate his neck or back. He now takes much longer to do things than he used to and is frustrated by his lack of energy.

(e)  Emotional suffering:  There is no doubt that Mr. Lampkin is clearly frustrated by his injuries. Ms. Rouse explained that Mr. Lampkin is much more irritable than he used to be.

(f)    Impairment of life:  Mr. Lampkin no longer plays cricket and is less interested in hobbies such as attending festivals, going to the beach or playing soccer. Doing too much tends to aggravate his symptoms.

(g)  Impairment of family, marital and social relationships:  Although Mr. Lampkin and Ms. Rouse have reconciled since the accident, Mr. Rouse has noted a significant change in Mr. Lampkin. He often does not have energy or is in too much pain to play with Lexxus. He is also much more irritable than he used to be.

(h)  Impairment of physical and mental abilities:  The injuries to his neck and back have directly impacted his ability to play soccer, basketball and cricket. Mr. Lampkin used to enjoy staying active but is now concerned that these activities will aggravate his symptoms.

(i)    Loss of lifestyle:  Mr. Lampkin and Ms. Rouse were carefree people. They now have to deal with their continued loss of income, particularly with raising a young family. Mr. Lampkin is also worried about his ability to partake in his sons’ lives and wants to be able to play sports with them.

(j)    The plaintiff’s stoicism:  Mr. Lampkin is resilient and hardworking. He takes pride in his ability to provide for his family and his skills. Despite the continued pain, Mr. Lampkin has continued to work in physical jobs, working as many as seven days per week. He was fortunate to have two employers in landscaping who made accommodations to assist him.

…

[140]     It is necessary to consider each case individually and I find that all of the cases relied on by the plaintiff have important differences with the plaintiff’s circumstances here. However, I find that those cases are informative for circumstances where the plaintiff has somewhat similar injuries and is limited to varying degrees in both their jobs and recreational pursuits. Mr. Lampkin is no longer able to perform the heavy tasks that he has relied upon to learn a living. In addition, he had excelled in cricket for his entire life and is no longer able to play this sport that was central to his identity both in St. Vincent and Canada. Considering all of the factors, I find that an appropriate award for non-pecuniary damages is $75,000.

$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

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

Update June 8, 2017 – Today the BC Court of Appeal ordered a new trial in this case finding the trial judge made several errors. 
_________________________________
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.
In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:
63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…
[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.

$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011.  Fault was admitted on behalf of the rear driver.  The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police.  The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.
In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:
 

[119]     The plaintiff is 39 years old. 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.  This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

[132]     After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.

$45,000 Non-Pecuniary Assessment for Persistent but Not Disabling Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for persistent moderate soft tissue injuries.
In today’s case (Matharu v. Gill) the Plaintiff was involved in a collision which the Defendant was found liable for.  She suffered moderate soft tissue injuries to her neck and shoulder which persisted to the time of trial and were expected to linger for sometime after although the ultimate prognosis was generally favorable.  In assessing non-pecuniary damages at $45,000 Mr. Justice Butler provided the following reasons:

[30]         When I consider the medical opinions and the evidence regarding the nature and duration of Ms. Matharu’s symptoms, I arrive at the following conclusions:

a)       Ms. Matharu suffered a moderate soft tissue strain to her neck and shoulders. She also suffered a mild low back strain.

b)       Ms. Matharu’s pre-existing conditions have affected the length of time it has taken and will take for her to recover from the injuries. In particular, the inflammatory polyarthropathy made her more susceptible to persistent soft tissue pain. Her mild anxiety condition has also had some impact on the persistence of her symptoms.

c)       In spite of persistent pain for three years, Ms. Matharu has continued with most activities at home and at work. She has managed to do this with the assistance of family, friends and work colleagues. She can fairly be described as somewhat stoic.

d)       Ms. Matharu did not follow Dr. Sanghera’s recommendations to continue with physiotherapy and active rehabilitation for about 12 months. Similarly, prior to the accident, she did not take part in recommended regular exercise. Her failure to do so for a period of time after the accident has likely resulted in some prolongation of symptoms. However, it is unlikely her symptoms would have resolved by trial, even if she had continued with the recommended therapy.

f)        Ms. Matharu continues to experience symptoms related to the injuries suffered in the accident. The symptoms will continue to resolve and there is a good chance they will fully resolve within the next one to two years.

…

[37]         When I examine the circumstances in this case and the factors highlighted in Stapley, the important factors here are the length of time Ms. Matharu has suffered ongoing soft tissue pain, the extent of that pain, and the impact it has had on her ongoing activities. In that regard, I accept that she is stoic and has continued to do most things. However, I also find that she was frail and somewhat limited in what she could do before the accident. Accordingly, the injuries have imposed a limitation on her activities and lifestyle which has impacted her more than such injuries would have done to someone who was more vigorous and did not suffer from inflammatory polyarthropathy.

[38]         In all of the circumstances, I conclude that a fair award for non-pecuniary damages is $45,000. However, that does not end the matter. Ms. Matharu did not follow Dr. Sanghera’s recommendations and I have accepted his evidence that had she done so she would likely have had some improvement in her symptoms. Accordingly, I find the defendant has satisfied the onus to prove that Ms. Matharu failed to mitigate her loss. I would accordingly reduce the non-pecuniary damage award by 10%.

$90,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.
In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012.  The Defendants admitted fault for both.  As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future.  The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice.  In reaching this assessment Madam Justice Baker provided the following reasons:

[147]     I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident.  The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident.  She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain.  These complaints resolved within a short time.  Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.

[148]     I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident.   She did not miss work as a security guard after the first accident.  She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months.  She was sufficiently recovered to travel to India three months after the accident and remained there for about two months.  On her return from India she resumed working as a security guard and doing janitorial work.  She attempted to return to the Sears job but was not re-hired.

[149]     Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial.  Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.

[150]     The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.

[151]     I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial.  Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time.  I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength.  I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…

[194]     Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted.  I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500. 

$90,000 Non-Pecuniary Assessment for Partially Disabling Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain following a motor vehicle collision.
In today’s case (Swieczko v. Nehme) the Plaintiff was involved in an intersection collision in 2011.  The Plaintiff committed to the intersection on a green light but could not turn due to oncoming traffic.  The Plaintiff waited until the light turned a stale yellow and began the turn.  The Defendant, who was in the oncoming curb lane, came through on what was likely a red light and the vehicles collided.  The Court found the Defendant fully liable for the collision.
The Plaintiff sustained  soft tissue injuries which resulted in chronic symptoms.  In assessing non-pecuniary damages at $90,000 Madam Justice Koenigsberg provided the following reasons:

[40]         Mr. Swieczko suffered significant soft tissue injuries as a result of the accident.  The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities.  His prognosis is poor.  Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.

[41]         Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline.  She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.

[42]         Mr. Swieczko was 27 years old at the time of the Accident.  He is now 31.  He has been engaged in the video game industry for close to nine years.  He began as a “quality assurance” tester.  This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public.  It requires concentration and repetitive tasks.  It was described as being a form of detective work.  The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days.  This career is generally somewhat insecure, as most of the employment is on contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]         Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job.  Mr. Swieczko is obviously a talented, hard-working, ambitious young man.  He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted.  However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days.  Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.

[44]         Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now.  While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident.  The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter.  However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child.  Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain.  This in turn has required more pain medication and led to frustration.

[45]         It must be recognized that this state of affairs is costing Mr. Swieczko psychologically.  He is far less able to socialize and enjoy family get-togethers – or physical activity that he enjoyed before the Accident.  Thus, Mr. Swieczko is struggling with frustration and emotional despondency from time to time as he contemplates the immediate future, wherein he may not be able to be an active participant in his daughter’s physical recreational life.  It was clear from Mr. Swieczko’s evidence that he was taken aback by receiving his poor prognosis in relation to living relatively pain-free and being able to do what he did before.  In particular, he had ambitions of participating in such physical activities as karate with his daughter as she matures.  He is now very unlikely to be able to do this…

The most significant factor in this case making the assessment of general damages suggested by the plaintiff more appropriate than that suggested by the defendant is the severity and chronicity of pain, which combines with Mr. Swieczko’s increasing emotional struggle over the impairments to his family, marital and social relationships.  Adding to this is Mr. Swieczko’s stoicism, which, in this case, has meant he has and continues to work longer and harder to achieve his career goals, but at a significant cost in pain and resort to strong medications.

[52]         I assess his non-pecuniary damages at $90,000.