$150,000 Non-Pecuniary Assessment for Permanent Partly Disabling Neck and Shoulder Injuries

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for permanent partly disabling injuries sustained in a vehicle collision.

In today’s case (Mattson v. Spady) the Plaintiff was involved in a 2014 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff sustained a variety of injuries including chronic headaches, neck and shoulder injuries.  These had a poor prognosis and were expected to be permanently partly disabling in her occupation as a kinesiologist.  In assessing non-pecuniary damages at $150,000 Madam Justice Winteringham provided the following reasons:

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$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck and Back Injury

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

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$85,000 Non-Pecuniary Assessment For Chronic Neck Pain and Headaches

Reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic neck pain and headaches following two vehicle collisions.
In the recent cast (McCully v. Moss) the Plaintiff was involved in two separate collisions with the Defendants accepting fault for both.  The collisions caused a neck injury with associated headaches which continued to the time of trial.  The symptoms were expected to continue and flare with heavier household and vocational duties.  In assessing non-pecuniary damages at $85,000 Madam Justice Devlin provided the following reasons:

[99]         Ms. McCully is 66 years-old and she suffers some limitation and restriction as a result of her persistent neck pain and headaches caused by the accidents. However, I do not agree that the injuries have a profound or life altering affect on Ms. McCully. I do find that she continues and will continue to experience some pain and discomfort and the medical experts confirm this. Although the medical evidence does not foreclose the possibility that she can increase her work hours or certain activity levels, I find that even where she does attempt these pre-accident activities, her injuries would increase her discomfort and pain.

[100]     While she is able to continue to work as an esthetician, she does experience discomfort if she exceeds working for a comfortable amount of time. Fortunately for her, her schedule is flexible and ultimately she is the one who will determine when she will work and for how long. While she may resort to the use of the TENS machine at the end of a long day to deal with the discomfort in her neck, she appears to be pleased to be able to continue to work for and service her clients.

[101]     I note that she has also returned to playing bridge a few times per week and has participated in a bridge tournament over the weekend albeit with the assistance of her pain medication. Participating in these bridge games is particularly important for Ms. McCully as it provides her an opportunity to engage socially. She continues to engage with her family and while she does not take her grandchildren to the pool she does babysit them at her residence. In a similar vein as Buckle, I note that Ms. McCully’s injuries restrict her from engaging in her domestic and work activities with the same energy and ability she had before the accidents. However, as I discussed earlier, despite having the chronic neck pain and headaches she continues to travel and has done so since shortly after the accidents.

[102]     In the following reasons, I will specifically address the parties’ arguments in relation to a segregated loss of housekeeping capacity damages. However, as I will re-state below, the impact of Ms. McCully’s injuries on her ability to perform household tasks informs my assessment of her non-pecuniary damages. I note also that she keeps a fairly large 2,900 sq. ft. house on a 12,000 sq. ft. lot. Overtime I find that Ms. McCully has been able to do some light housekeeping although she cannot do some of the more physically demanding tasks. Additionally, it is clear that she is more limited in performing yard maintenance.

[103]     There is no doubt that her neck pain and headaches have and will continue to have an impact on Ms. McCully in every aspect of her life to varying degrees. I am satisfied that Ms. McCully is entitled to compensation for the impact the injuries have had on her general well-being.

[104]     Having reviewed the cases provided by both parties, I assess Ms. McCully’s non-pecuniary damages at $85,000.

$100,000 Non-Pecuniary Assessment for Breast Pain and Chronic Neck Pain

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a collision.
In today’s case (Kingston v. Warden) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The crash resulted in chronic neck pain along with a breast injury that did not subside until surgical intervention.  The Plaintiff chose to have breast augmentation during the surgery and the Court found that only a percentage of the cost of the procedure was compensable.
In assessing non-pecuniary damages at $100,000 for these injuries Madam Justice Duncan provided the following reasons:

[126]     I find on a balance of probabilities that the accident caused an injury to the plaintiff’s neck which has not fully subsided. With a focussed exercise program and possibly some injection treatments, the plaintiff may improve but there was no evidence the neck pain would ever go away. The complaint of neck pain is subjective, but the medical experts for both parties largely agreed that the plaintiff presented with soft tissue injury to her neck.  

[127]     I find on a balance of probabilities that the accident caused the plaintiff to feel pain in her left breast which was not alleviated until after the revision surgery. I acknowledge Dr. Malpass’s expert report was not as detailed as it should have been, in that he did not include with it the depiction of asymmetry he described in his evidence. I also acknowledge that the plaintiff appears to have taken advantage of surgical intervention to increase the size of the implants and re-position her nipples, rather than simply seek to be restored to her pre-accident appearance. Nonetheless, I do not accept the plaintiff was making up the pain or concerns about asymmetry to take advantage of surgery that might be eventually covered by a damage award stemming from the accident.

[128]     I find on a balance of probabilities that the accident intensified the plaintiff’s headaches and caused them to be more frequent, but that in the time since the accident they have essentially returned to the pre-accident level, based on her report to Dr. Sovio…

[136]     Before the accident the plaintiff was an active, fit person. While the defendant, Mr. Warden, characterized the accident as fairly minor, I accept the plaintiff’s perception of the accident as frightening to her. The plaintiff suffered soft tissue injuries in addition to a worsening of headaches. Her neck pain continues to limit her activities, although the experts have said she can return to her usual activity level, bearing in mind she may not be able to snowboard or do other activities for as long or as vigorously as before the accident. 34

[137]     The plaintiff underwent surgery to address pain and the appearance of her left breast, which conditions resulted from the accident. The plaintiff suffered a loss of self-esteem and increased her consumption of alcohol to cope with her pain, although I cannot find she has proven an addiction to alcohol stemming from the accident. I accept that the plaintiff has isolated herself from her formerly active social life and her relationship with her husband is not as close as it was before the accident.

[138]     In all the circumstances I am satisfied an award of $100,000 for non-pecuniary damages is fit in the plaintiff’s case.

$90,000 Non-Pecuniary Assessment for Chronic Neck Injury With Headaches

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing non-pecuniary damages of $90,000 for a long standing neck injury with associated headaches.
In today’s case (Willett v. Rose) the Plaintiff was involved in a 2010 collision.  At trial, some 7 years later, the Plaintiff continued to suffer from neck pain with associated headaches.  In assessing non-pecuniary damages at $90,000 Mr. Justice Smith provided the following reasons:

[42]         In summary, the evidence is undisputed that the plaintiff’s headaches, including migraine headaches, are more frequent since the accident. The events with which those headaches were associated before the accident–monthly menstrual periods–no longer occur. I also accept the plaintiff’s evidence that her headaches are more severe and usually associated with neck pain. All of the medical evidence acknowledges the mechanism by which neck pain can evolve into headaches, including migraines and confirms the existence of objective signs of neck injury.

[43]         All of that evidence leads to the conclusion that, on the balance of probabilities, there is a causal link between the plaintiff’s neck pain and stiffness and her migraines. I find the neck pain and stiffness to have been solely caused by the accident.

[44]          As for the migraines, the governing principle is that stated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458: causation is established if an injury was caused or contributed to by the accident. Given the plaintiff’s long history of migraines, it may well be that some other factor is also playing a role in their onset, but I find that the injuries the plaintiff suffered in the accident are at least a major contributing cause of the migraines she now has. Or, to use the language of the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, “but for” accident, the plaintiff’s migraines would not be as frequent or severe as they now are.

[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future…

[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.

$75,000 Non-Pecuniary Assessment for Persistent Neck and Back Injuries

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for persistent back and neck injuries.
In the recent case (Lally v. He) the Plaintiff was involved in a 2011 intersection collision that the Defendant accepted fault for.  The collision resulted in soft tissue injuries and symptoms persisted to the time of trial.  The Court assessed non-pecuniary damages at $75,000 but reduced these by 10% for the Plaintiff’s failure to follow through with an active rehab program that could have helped improve the symptoms.  In reaching this assessment Madam Justice Warren provided the following reasons:
[93]         I have concluded that as a result of the accident, Ms. Lally has suffered pain and a loss of enjoyment of life, and that will continue to some extent, into the foreseeable future.
[94]         As a result of the injuries she sustained in the accident, Ms. Lally suffered from severe pain in her neck, back and shoulder for several months.  The neck pain triggered headaches that, at times, were severe.  Although the pain gradually improved, she has been left with less severe but persistent neck and shoulder pain as well as occasional low back pain.  While she is likely to experience improvement in her symptoms with active rehabilitation, particularly with respect to the low back and shoulder, even with sustained, active rehabilitation, she will likely continue to suffer from occasional pain in her neck and, to a lesser extent, her low back and shoulder.
[95]         Ms. Lally’s pain is exacerbated by repetitive activities, heavy lifting or working at a level higher than her shoulders.  She cannot sit still for long.  When driving she has difficulty moving her head from side to side.  When she watches television, reads or uses a computer she has to move her neck or it becomes stiff.  Household chores and physical duties at work exacerbate the pain and when the neck pain is particularly bad it develops into a headache.  This happens between two and five times a week and the headache lasts up to eight or nine hours.  The neck pain disturbs her sleep.
[96]         The pain has affected Ms. Lally’s mood.  Before the accident, her mood was good and she enjoyed spending time with her family.  For the first few months after the accident she was quiet and spent most of her time resting because of the pain.  She continues to spend much of her non-working time resting at home using a massager and heat pad.
[97]         Ms. Lally used to do the majority of the housework before the accident.  Since the accident she has been limited to light housework such as cooking and doing dishes.  She did not testify about any other impacts on her lifestyle…

[100]     Having considered all the authorities and the factors discussed in Stapley, I assess Ms. Lally’s non-pecuniary damages at $75,000, prior to any adjustment for her failure to mitigate.  For the reasons already expressed, I reduce that amount by 10% to reflect her failure to have participated in a regular, sustained program of active rehabilitation.

$65,000 Non-Pecuniary Assessment for Lingering but Non Disabling Soft Tissue Injury

In the latest addition to this site’s soft tissue injury assessment database, reasons for judgement were released today by the BC Supreme Court, assessing damages for a lingering but not disabling neck and upper back soft tissue injury.
In today’s case (Dhaliwal v. Randhawa) the Plaintiff was involved in a 2011 collision that the Defendant was found wholly responsible for.  The Plaintiff suffered an upper back and neck soft tissue injury that, while somewhat improved, continued to cause persistent symptoms to the time of trial.  Despite the long lasting lingering symptoms the injuries were not expected to be disabling.  In assessing non-pecuniary damages at $65,000 Mr. Justice Butler provided the following reasons:
[48]         When I examine all of the evidence, I reach the following conclusions about the nature and extent of Mr. Dhaliwal’s injuries and symptoms. He suffered a soft tissue injury to his upper back and the base of his neck. He may have suffered a minor soft tissue injury to his lower back but this was resolved within six weeks of the accident. The upper back, shoulder and neck symptoms persisted for more than two years. However, by September 2013, the symptoms were significantly less serious. While the symptoms have persisted up to the present time, they do not inhibit his ability to work or carry on with activities of daily life…
[58]         When I apply the considerations to the facts I have found, I conclude that a fair award in all of the circumstances of this case is $65,000. In arriving at that assessment, it is particularly significant that Mr. Dhaliwal is young and will suffer continuing, but manageable and non-disabling discomfort in his neck, shoulders and upper back. In other words, his discomfort may continue for a long time. At the same time, the more severe neck, shoulder and upper back pain was of limited duration. Further, any lower back pain after 2011 was not related to the accident. In addition, outside the 6 to 12 months following the accident, he has not experienced a significant impairment in his lifestyle and daily activities…

[61]         Of the cases the parties cite, Jiwani is the most similar to Mr. Dhaliwal’s circumstances. There the court found that the plaintiff suffered from back pain which had persisted for four-and-a-half years and was likely to continue. At para. 46, Sigurdson J. set out his conclusions which are similar in important respects to those which I have arrived at here:

… While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[62]         In a similar vein, I have concluded that Mr. Dhaliwal still suffers upper back pain but I have not accepted that the pain is as serious as he contends or that the low back pain was caused by the accident. As in Jiwani, Mr. Dhaliwal continues to suffer pain which is of “a type that causes modest discomfort”. He will continue to be able to take part in all of his recreational, home and work activities. He will need to have occasional manipulations or massages to assist with management of his symptoms.

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

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.

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

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

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. 

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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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