Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

When assessing damages for injuries the BC Supreme Court will not address the injuries as ‘items on a grocery list’.   The exact label attached to an injury is far less important than the ways in which an injury compromises a Plaintiff’s life.  This was highlighted in a recent judgement from the BC Supreme Court, Kamloops Registry.
In the recent decision (McKay v. Powell) the Plaintiff was involved in three rear-end collisions.  As a result she suffered from a chronic pain disorder.  As is often the case, in the course of her lawsuit the Plaintiff was assessed by a variety of physicians who had competing diagnoses for the Plaintiff’s symptoms, namely fibromyalgia vs thoracic outlet syndrome.  Demonstrating that whatever the correct diagnosis, the symptoms were caused by the collision and the plaintiff was entitled to appropriate compensation, Mr. Justice Meiklem provided the following reasons:
[44]         Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel’s diagnosis of fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there will be no full recovery…
[50]         Considering the cited cases, the individual circumstances in the present case, and the factors relevant to assessing this head of damages as set out in Stapley v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of $65,000.

$80,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Thoracic Outlet Syndrome


Adding this this site’s archived cases addressing non-pecuniary damages for thoracic outlet syndrome, reasons for judgement were released last month addressing such an injury.
In last month’s case (Rollheiser v. Rollheiser) the Plaintiff was injured in a 2008 collision.  She suffered from long-standing Thoracic Outlet Syndrome.  The crash caused an aggravation of this condition with the Court accepting the following medical evidence:
[24]         Dr. Flaschner, a specialist in physical medicine and rehabilitation, also provided a report, dated February 2, 2012. Dr. Flaschner initially saw Ms. Rollheiser on December 2, 2009. His diagnosis included exacerbation of pre-existing TOS and musculoligamentous injuries to the cervical and thoracic spine. He states:
Ms. Rollheiser has subsequently been seen on numerous occasions for symptomatic management. She has undergone various trials of medications, local anesthetic trigger point injections botulinum toxin injections and has also been receiving regular IMS therapy from her physical therapist. Her pain has evolved as well and the current diagnoses secondary to the motor vehicle collision would include:
1.   Thoracic outlet syndrome, exacerbation of pre-existing injury.
2.   Cervical WAD II injury with chronic regional myofascial pain syndrome.
3.   Thoracic musculoligamentous injury with chronic regional myofascial pain syndrome.
[25]         Dr. Flaschner considers that Ms. Rollheiser’s symptoms will continue indefinitely.
[26]         Dr. Flaschner’s report continues:
Further symptomatic management options for the chronic regional myofascial pain syndrome would include regular physical activity from a cardiovascular perspective as well as stretching and strengthening of the painful musculature, ensuring adequate restorative sleep, various manual therapies, medications as well as needle based therapies including acupuncture, IMS, local anesthetic  trigger point injections, botulinum toxin injections or potentially fluoroscopically guided facet based procedures. It should be noted that the treatments will be expected to provide some temporary relief and would not be expected to be curative.
In assessing non-pecuniary damages at $80,000 Madam Justice Gropper provided the following reasons:
[35]         In sum, Ms. Rollheiser’s injuries have reduced her enjoyment of life. There has been impairment of family, marital and social relationships as well as physical abilities.
[36]         As noted, the case authorities provide guidance only; no two cases are exactly alike.
[37]         I agree with the defendant that not all of Ms. Rollheiser’s symptoms are attributable to the accident. It appears that some of the plaintiff’s limitations are due to the rotator cuff as opposed to injuries from the accident.
[38]         Of the authorities provided, I find Kaleta v. MacDougall, 2011 BCSC 1259 (Kaleta) to be most instructive. Justice Truscott awarded a 28 year-old male plaintiff non-pecuniary damages of $80,000 for soft tissue injuries to the knee, back, arm, shoulder and neck. Like Ms. Rollheiser, Mr. Kaleta only missed a brief period from work, although he found it to be more difficult to resume work upon his return. Again, like Ms. Rollheiser, his moderate ongoing pain was probably chronic.
[39]         Accordingly, I assess Ms. Rollheiser’s non-pecuniary damages at $80,000.

$80,000 Non-Pecuniary Assessment for Chronic Myogenic Thoracic Outlet Syndrome

Adding to this site’s database of caselaw addressing non-pecuniary damages for TOS, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In this week’s case (Small v. Upshaw) the Plaintiff  was involved in three collisions; the first in 2006, the second in 2008 and the last in 2010.  The Defendants admitted liability for these and it was agreed to have damages addressed globally.
The plaintiff suffered various soft tissue injuries and a left sided myogenic Thoracic Outlet Syndrome.
(Image by  Nicholas Zarosky via Wikimedia)
His limitations continued to the time of trial and were expected to be permanent.  The plaintiff worked as a journeyman auto mechanic and although he could continue to work with his injuries these limited his capacity.  In assessing non-pecuniary damages at $80,000 Mr. Justice Rogers provided the following comments:
[21] The three medical professionals who testified at the trial, Drs. Scheffler, Vallentyne and Coghlan, all opined that the plaintiff’s present symptoms arise from and were caused by the accidents. They all felt that the plaintiff’s symptoms are likely to be permanent….

23] I was impressed by the plaintiff. I found him to be a credible and reliable witness. The few discrepancies between his evidence at trial and in discovery were not, in my view, significant and did not impair his testimony. I accept that the plaintiff’s left arm was intermittently symptomatic shortly after the accident. I find that his main complaints then, though, had to do with his neck and back. Those pains were constant and debilitating. His arm symptoms appeared from time to time and were never genuinely disabling. For those reasons, the plaintiff’s left arm complaints merited and received less attention during the months following the second accident.

[24] It follows that I find that the second accident did cause the plaintiff to suffer left-sided myogenic thoracic outlet syndrome. This condition is self-limiting – if the plaintiff keeps the amount of reaching he does to a minimum, the less he will be bothered by its symptoms. He is bothered by the symptoms once or twice a week…

[34] As noted above, the plaintiff impressed me as a credible and reliable witness. I find that the plaintiff is plagued daily by pains in his neck, left shoulder, and upper and mid-back, and that from time to time his left arm develops a feeling of numbness and tingling. When those arm symptoms occur, they last until the following morning. All of these symptoms were caused by the motor vehicle accidents for which the defendants have admitted liability. Of the three accidents, the second caused the plaintiff the most harm.

[35] The plaintiff’s pain symptoms are not intermittent. He does not have “good days and bad days”. His symptoms are aggravated by activity, particularly by working with his hands and arms over his head, while stooping over an engine bay, or pretzeled beneath a dashboard. By the end of a typical workday, the plaintiff is stiff and sore. He has little or no energy for recreation or socializing. He takes pain relief and muscle relaxing medication daily. These facts distinguish the plaintiff’s case from the circumstances of the cases cited by the defendant and in which the court made general damage awards of less than $50,000.

[36] In my view, the plaintiff’s circumstances merit an award for non-pecuniary loss of $80,000.

$75,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision.  Fault for the incident was admitted by the Defendant.  The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial.  While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:

[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.

[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.

[492] The question that remains is, what is the cause?..

[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.

[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.

[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…

12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.

[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.

[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.

$100,000 Non-Pecuniary Damage Assessment For Bilateral Thoracic Outlet Syndrome


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for bilateral thoracic outlet syndrome and other chronic soft tissue injuries.
In yesterday’s case (Olson v. Ironside) the Plaintiff was involved in a ‘signigicant collision’ in 2008.  ICBC admitted fault on behalf of the Defendant. The Court heard competing evidence with respect to the extent of the Plaintiff’s injuries and ultimately sided with the Plaintiff’s experts noting ICBC’s expert failed “to consider significant material facts“.
The 19 year old Plaintiff suffered multiple injuries, the most serious of which was bilateral thoracic outlet syndrome.  These were expected to cause a permanent partial disability limiting the Plaintiff for the balance of her working years.  In assessing non-pecuniary damages at $100,000 Mr. Justice Josephson provided the following reasons for judgement:

[60] The plaintiff has proved that, but for the accident, she would have continued her healthy, active and outgoing life style. I accept the plaintiff’s submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission; and

9.       permanent right temporomandibular joint dysfunction.

[61] The accident had a dramatic effect on all aspects of this young plaintiff’s life because of the symptoms listed in the previous paragraph. She has learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62] Of the several case authorities cited by the plaintiff to assist the Court in determining non-pecuniary damages in the case at bar, the most helpful are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010 BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335;Prince-Wright v. Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211.  The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63] After reviewing the authorities cited to me and considering the impact of the proven injuries on the plaintiff’s daily life, I award the plaintiff $100,000 for non-pecuniary damages, which I consider to be a mid-range award for the circumstances of this case.

$65,000 Non-Pecuniary Damages For Thoracic Outlet Syndrome With "Mixed" Prognosis


Adding to this site’s public database of BC Thoracic Outlet Syndrome cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TOS Injury with a “mixed” prognosis.
In this week’s case (Singh v. Clay) the Plaintiff was involved in a total of 5 collisions.  He alleged 4 of these caused or aggravated a Thoracic Outlet Injury and sued for damages.  Fault was admitted in all actions.
Mr. Justice Greyell concluded that the Plaintiff did in fact suffer from Thoracic Outlet Syndrome and that the injury was caused, on an indivisible basis, from the collisions.  Damages were assessed on a global basis.  In awarding $65,000 for the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court made the following findings:


[81] Based on the medical reports and testimony of Drs. Keyes and Travlos, I am satisfied the plaintiff suffers from thoracic outlet syndrome which causes him difficulty holding his hands above his head, causes his left arm and shoulder to go numb such that he must lower his arm and “shake” the tingling and numbness out, and that this injury affects him both at work and in his home life as described earlier in this decision.

[82] He is also affected because his injury wakes him several times each night, causing him to be tired the following day.

[83] The plaintiff also suffered low back pain and persistent headaches which lasted for several years after the second accident but which have now cleared up…

[88] I find the prognosis for Mr. Singh is a mixed one.  Dr. Keyes’ diagnosis is a difficult one to understand.  On the one hand he has opined that there is likely some permanent injury to the plaintiff’s neurovascular bundle in the left thoracic outlet space.  On the other hand, he has opined there is no permanent injury or damage of the neurovascular bundle in the left thoracic anatomic space.  Dr. Keyes was clear however Mr. Singh would “almost certainly respond” without surgical intervention and expected that his symptoms would improve “and probably resolve over time”.  Dr. Keyes’ prognosis for the plaintiff’s injuries is “very good to excellent” and he says that his recreational and employment activities would “not be significantly affected over the long term”.  The caveat Dr. Keyes offered to this opinion in the penultimate paragraph was that “repeated injuries to the same areas… would be expected to result in similar symptoms and a more prolonged recovery…”  Mr. Singh was involved in motor vehicle accidents on September 18, 2007 (which he did not tell Dr. Keyes about) and November 1, 2008, and the at-fault accident on March 19, 2007.

[89] At the time of trial Dr. Keyes had not seen the plaintiff for some four years.

[90] Dr. Travlos’s prognosis, based on an assessment made in April 2009 was much more guarded.  As noted above he was of the opinion “there is no real expectation that further treatment is going to magically cure his symptoms.”  Dr. Travlos recommended Mr. Singh commence a structured conditioning program outside the home.  There was no evidence to suggest Mr. Singh has followed Dr. Travlos’s recommendation to engage in a conditioning program outside his home or that he take medication to help relieve his sleeping problems.  Had he done so it is possible these problems would have resolved more quickly than they have.

[91] In my view the injuries suffered by Mr. Singh are more significant than those suffered by the plaintiff in Langley but less serious than those suffered by the plaintiffs in Cimino and Durand.  I assess the plaintiff’s non-pecuniary damages at $65,000.


Gross Past Tort Payments Deductible in ICBC UMP Claims


This is the second in my series of UMP Case Summaries.  In today’s case (LD v. ICBC) the arbitrator had to address whether legal fees can be taken into account when considering the deductibility of past tort payments.
In LD the Claimant was involved in as 2003 collision in California.  The Claimant was insured with ICBC and had UMP coverage.  The at fault motorist only had $25,000 in Third Party Liability coverage and ICBC agreed that the Claimant’s claim exceeded this amount.
The parties agreed to have the value of the claim determined via UMP Arbitration.  Total damages of $86,608.31 were assessed.  Prior to this the Claimant already settled with the Defendant’s insurer for the policy limits of $25,000.  She had to hire counsel to achieve this result and after legal fees she received $16,054.
The Claimant argued that only the $16,054 should be deducted from the UMP damage assessment.   The arbitrator (Donald Yule) disagreed and deducted the full $25,000.  In doing so he provided the following reasons:
ICBC, however, submits that the correct deductible amount is what the M’s liability insurer was obliged to pay, namely $25,000.   (This position) is supported by the decision of Arbitrator Paul Fraser, Q.C. in Cederberg v. ICBC (May 18, 1995)….As Mr. Fraser concluded, the obligation to pay attorney’s fees arose out of a separate and independent contract with the attorney which, in no way, reduce the amount paid by the tortfeasor or payable by the tortfeasor’s insurer.  I agree with his analysis.  The full amount of the settlemetn of the M’s liability insurer is therefore a deductible amount.
This decision is also worth reviewing for the non-pecuniary damage assessment.  The Plaintiff suffered various soft tissue injuries.  Non-pecuniary damages were assessed at $55,000.  In doing so Arbitrator Yule made the following findings:
I find that in the accident Mrs. D suffered a Grade III whiplash associated disorder injury, bilateral thoracic outlet syndrome and right ulnar neuropathy, a Grade II lumbosacral spinal strain injury and myofascial pain in her shoulder ridge areas, and bruising to the knee.  These injuries caused headaches, interference with sleep, fatigue, irritability and anxiety.  The bruising resolved in short order.  The low back symptoms resolved within 2 years.  Headaches, and neck pain extending into the shoulders, while significantly inmproved by September, 2005, have nevertheless persisted to the date of hearing…
…I assess Mrs. D’s non-pecuniary damages at $55,000.
I should note that, adjusting for inflation, this assessment is closer to $58,000 in today’s dollars.

$55,000 Non-Pecuniary Damages for Thoracic Outlet Syndrome


Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing quantum and liability following a motorcycle accident.
In this week’s case (Langley v. Heppner) the Plaintiff was injured in a 2003 BC collision.  The Plaintiff was operating a motorcycle and was following a vehicle operated by the Defendant.  Both vehicles were behind a slow moving van.  As the motorists approached a straight stretch of road both the Plaintiff and Defendant attempted to pass the van in the on-coming traffic lane.  They did so at almost the same time resulting in a violent crash catapulting the Plaintiff about 60 feet.
Mr. Justice Barrow held that both motorists were at fault with the Defendant bearing 80% of the blame.   Paragraphs 11-37 of the reasons for judgement are worth reviewing for the Courts discussion of liability.
The Plaintiff suffered various injuries.  Most of these went on to heal however he was left with persistent neck and shoulder pain.  Ultimately he was diagnosed with Thoracic Outlet Syndrome.  The limitations related to this were expected to continue to improve however there was a likelihood of long standing symptoms.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In doing so the Court provided the following reasons:
[43] Turning to Mr. Langley’s injuries more generally, he suffered a number of bruises and abrasions which resolved unremarkably. His low back was sore, and although it remained sore and painful for a considerable time following the accident, it was asymptomatic by the time of the trial (six years post-accident). His most significant and persistent injury is to his right shoulder and the right side of his neck…
[51] I am satisfied on a balance of probabilities that the plaintiff has thoracic outlet syndrome and that it is a result of the motor vehicle accident…
[58] Mr. Langley’s right shoulder and right neck pain are the most significant consequence of the accident. I accept that he is always in some degree of discomfort in these areas. His level of discomfort increases when he becomes fatigued, but it is most seriously aggravated when he does any activity that involves lifting his right arm to or above shoulder level…
I am satisfied that Mr. Langley’s functional abilities will improve in some respects, although not to a significant degree…
[81] In view of all of the foregoing, an appropriate award for non?pecuniary damages is $55,000.

Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce


Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.
When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.
The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.
The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.
Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.

BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

Reasons for Judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair award for pain and suffering for accident related Thoracic Outlet Syndrome.
In today’s case (Bransford v. Yilmazcan) the Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection crash involving a taxi and the issue of fault was admitted.  The matter went to trial before a Jury and they were asked to decide the value of her claim.
The evidence showed that the Plaintiff suffered from post traumatic Thoracic Outlet Syndrome.   The Plaintiff had various therapies including surgical intervention but nothing provided long term relief.  By the time of trial her symptoms kept her from competitive employment.  The Jury ultimately awarded over $1million in total compensation for her injuries and losses.  This award included $385,000 for her non-pecuniary damages.
The non-pecuniary damages award was then reduced to $327,350 to bring it in line with the general Canadian cap on non-pecuniary damages in negligence cases.  The Defendant then appealed seeking a new trial.  The BC High Court largely dismissed the appeal but did reduce the non-pecuniary damages to $225,000 which is one of the highest valuations for pain and suffering in BC for Thoracic Outlet Syndrome that I’m aware of.  In doing so the Court provided the following reasons:
[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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