Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
In last week’s case (Nemoto v. Phagura) the Plaintiff, who recently moved to Canada from Japan, was injured in a 2008 collision. She was 13 at the time. Fault was admitted by the offending motorist. She suffered soft tissue injuries to her neck and lower back. She also experienced anxiety while riding in a vehicle subsequent to the collision. In assessing non-pecuniary damages at $25,000 Mr. Justice Smith provided the following reasons:
 On the evidence before me, I find that the plaintiff suffered significant pain and limitations from the date of the accident until approximately the end of 2008, with intermittent, lingering difficulties for at least another year, but had achieved full physical recovery no later than two years after the accident. The physical difficulties in the immediate post-accident period were likely more difficult for the plaintiff to deal with than might otherwise have been the case because she was, at the same time, adjusting to a new school and life in a new country.
 I also find that the plaintiff experienced severe anxiety while riding in cars for approximately two years and that anxiety still affects her efforts to learn to drive. For purposes of assessing damages, it does not matter that this anxiety may, to some extent, be influenced by the fact that her mother has similar fears and anxiety flowing from the same accident. In any event, there is no reason to believe this will be a long-term problem.
 The plaintiff is in Canada on a student visa, which does not permit her to work, so there is no claim for income loss. I find there is no need for any future care arising from the accident…
 In all the circumstances, I assess the infant plaintiff Rui Nemoto’s non-pecuniary damages at $25,000…
Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which occurred as a result of a so-called ‘low velocity‘ impact.
In this week’s case (Ram v. Rai) the Plaintiff was involved in a 2008 rear-end collision. The crash resulted in little vehicle damage. The Defendant testified that the impact involved ‘very little force‘ although the Court rejected this finding that the Defendant’s version of events was “ internally inconsistent and generally unconvincing.“. The court went on to find that the Plaintiff suffered a year long soft tissue injury. In assessing non-pecuniary damages at $16,000 Mr. Justice Holmes provided the following reasons:
 As I find, at the time of the accident Ms. Ram was an active and healthy young woman of 21 years of age, who was busily engaged not only in full-time post-secondary studies but also in two part-time jobs. She had an active social life with friends that involved playing several different sports as opportunities presented. She enjoyed gym workouts and doing workout exercise tapes at home.
 As I find, the accident left Ms. Ram with throbbing pain in her back, neck, and head that became intermittent over time, with occasional numbness in her legs. The pain in the various areas gradually resolved within a year, the back pain last of all.
 The effects of the injuries caused Ms. Ram to miss work and some school during the few days or a week after the accident. They made her withdraw from social activities over a longer term, so that she seemed to her family to be withdrawn and reclusive, no longer her bubbly self. These effects resolved as her injuries resolved, within about a year…
 On all the evidence, I conclude that the appropriate award for non-pecuniary damages in this case is $16,000.
Adding to this site’s archived posts documenting BC soft tissue injury non-pecuniary assessments, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic Grade II Whiplash Injury.
In this week’s case (Strazza v. Ryder) the Plaintiff was injured in a 2009 rear-end collision. He suffered soft tissue damage to his neck and mid back. His symptoms of pain, while “not debilitating” continued to the time of trial and caused him to reduce or modify his daily activities His symptoms were expected to linger into the future. In assessing non-pecuniary damages at $60,000 Madam Justice Adair provided the following reasons:
 Mr. Strazza himself reports that he continues to experience pain. It is not debilitating, and Mr. Strazza has not claimed that it is. It has not prevented him from working or doing household chores or working on his car. As Mr. Strazza describes it, he can basically do everything he did before the accident, but with pain. Mr. Strazza describes his situation as one where he works and carries on despite his pain symptoms, which he does his best to alleviate by taking over-the-counter medications or by calling on someone to help. As a result of his pain symptoms, Mr. Strazza has modified some of his activities, both leisure and work-related, since the accident. Friends – Ms. Miller and Ms. Goalder – gave evidence of their observations in this respect, and their evidence supported Mr. Strazza’s. The changes in Mr. Strazza are not drastic, but they are changes nevertheless…
 More generally, I found Mr. Strazza to be forthright and a credible witness. He spoke plainly and did not exaggerate. He had no difficulty and no hesitation conceding points that were not necessarily in his favour, for example, that working for Madill was just not for him. On cross-examination, Mr. Strazza was the opposite of defensive or argumentative, which allowed the cross-examination (by very experienced counsel) to proceed smoothly and efficiently.
 I therefore find that, as a result of the accident, Mr. Strazza sustained soft tissue injuries to his cervical spine and his thoracic spine. Specifically, and as set out in Dr. MacKean’s February 8, 2012 report, I find that Mr. Strazza sustained a grade II whiplash associated disorder in the cervical spine, which (as of trial) was resolving and a grade II whiplash associated disorder in his thoracic spine with residual pain and muscle spasm involving the left mid to lower thoracic region. Based on Mr. Strazza’s evidence (supported by the evidence from Ms. Miller and Ms. Goalder), he continues to experience some pain as a result of his injuries. I therefore find, based on this evidence and the opinion evidence from Dr. MacKean, that Mr. Strazza’s pain symptoms will probably not resolve completely, although they can be improved with a regular exercise program and pain relief can be obtained through occasional use of over-the-counter medication…
 Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.
A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision. Fault was admitted by the Defendant focussing the case on an assessment of damages. The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“. Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events. The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“. In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:
 From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
 Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…
 Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.
As previously discussed, a common pattern following a motor vehicle collision is the onset of pain in a pre-existing but otherwise asymptomatic degenerative condition. Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In the recent case (Culos v. Chretien) the Plaintiff was involved in a 2006 pedestrian collision. The Defendant motorist was found fully at fault. The collision caused an aggravation of pre-existing low back pain and further caused chronic neck pain problems. The latter problems were found to be due to pre-existing degeneration which became symptomatic as a result of the impact. In assessing non-pecuniary damages at $75,000 Mr. Justice Rogers provided the following reasons:
 I find that the plaintiff accurately described his injuries and the symptoms he experienced after the accident. The fact that his left hip was sore when he went to see his physician several days after the accident and that his left thigh just above the knee was not bruised tell me that the defendant’s car hit him on his left hip, not his left thigh. I find that the impact gave the plaintiff a severe body-wide jolt. The impact caused the pre-existing but asymptomatic degenerative disease in his neck to become symptomatic. Absent the accident, the plaintiff may have lived out his entire life without any neck symptoms. The accident caused his neck to be painful, and the pain has persisted to this day. I accept Dr. Vallentyne’s opinion that the plaintiff’s neck symptoms are permanent.
 I find that the plaintiff’s memory of his pre-accident back function is faulty. The symptoms of pain that he felt in his lower back in the approximately one year before the accident must have been significant. I find that is so because the plaintiff is clearly not one to go running for medical treatment for minor or transitory complaints – the fact that he held off for five days after the accident before seeking medical help supports that proposition. For that reason, I accept Dr. Vallentyne’s opinion that even if the accident had not happened the plaintiff’s periodically symptomatic low back pain and his pre-existing degenerative disease in that region would have, as Dr. Vallentyne said, required him to “minimize heavy lifting/carrying as well as repetitive bending/twisting”. That said, I find that the accident accelerated and worsened the plaintiff’s low back symptoms; “accelerated” in the sense of causing the pain to be constant rather than periodic, and “worsened” in the sense that the low back pain prevented the plaintiff from participating in his usual activities to a much greater degree than before.
 I cannot accept Dr. Grypma’s opinion that the plaintiff’s present symptoms are not related to or caused by the accident. I find that the flaw in Dr. Grypma’s opinion is his dismissal without discussion of the indisputable temporal connection between the onset of the plaintiff’s neck and back symptoms immediately after the accident and his continuing symptoms throughout of pain in exactly those same regions. The link is, of course, the fact that those symptoms have persisted from then until now. The physicians agree that the accident did not accelerate the degeneration of the plaintiff’s neck and back – it follows that the plaintiff’s pains are not a result of increased degeneration. If the symptoms occurred after the accident, it is reasonable to conclude that they were caused by the accident, and the doctors agree on that as well. What Dr. Grypma does not explain is how it is that the plaintiff’s symptoms transitioned from pains caused by the accident to pains caused by his degenerative disease, and how it is that even without the accident, the plaintiff would nevertheless now be suffering from those symptoms. I find that there is a causal link between the accident, the onset of the plaintiff’s neck pain and the worsening of his low back symptoms, and the persistence of those symptoms through to the present day.
 Currently the plaintiff’s neck and back symptoms are present on a daily basis. They flare up when the plaintiff does anything strenuous. The symptoms aggravate, frustrate and tire the plaintiff out. They have reduced his enjoyment of recreational activities. The symptoms are a permanent feature of the plaintiff’s life. After discounting the plaintiff’s claim to account for the fact that absent the accident his lower back would have troubled the plaintiff periodically, I find that the proper award for non-pecuniary damages in this case is $75,000.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision. The Defendant admitted fault focusing the trial on an assessment of damages. The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back. He was also on a disability pension as a result of a chronic lung condition.
The collision caused soft tissue injuries which aggravated his pre-existing pain making his symptoms more “enduring in nature and markedly more severe“. Mr. Justice Voith noted that this was a marked change in the Plaintiff’s pre-accident condition and assessed non-pecuniary damages at $100,000. In doing so the Court provided the following reasons:
 The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.
 I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.
 There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.
 Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true…
 Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.
As discussed many times, the ‘low velocity impact‘ defence is not particularly compelling and is often judicially frowned upon. Certainly there is no legal principle which states that minimal impact forces result in no compensable injuries. This was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Sourisseau v. Peters) the Plaintiff was involved in a 2007 collision. Fault was admitted by the Defendant. The Defendant advanced the LVI Defence highlighting that the impact caused under $1,000 in repair costs to both vehicles and further that the impact was likely at speeds below 8 kmph. With this evidence in hand the Defendant argued that the plaintiff “sustained no compensable injury“.
Mr. Justice Greyell rejected this line of reasoning and found the Plaintiff was indeed injured in the low velocity impact and awarded $22,5000 for her non-pecuniary damages. In doing so the Court provided the following reasons:
 While the significance of the damage sustained in a collision may be a factor with which the Insurance Corporation is concerned it is not a matter which necessarily has a direct relationship to the plaintiff’s injuries. The issue for determination is whether the plaintiff’s injuries were caused or contributed to by the accident, Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (BCSC); Boag v. Berna, 2003 BCSC 779.
 In this latter connection, the defendant called Mr. Goudie an engineer who testified the change of velocity at the time of the collision was probably less than 8 km/h.
 In my opinion, in the circumstances of this case, the change of velocity alone is of little significance. At the time of impact Ms. Sourisseau had her head turned sideways. The evidence clearly establishes she had had pre-existing difficulties with neck and back pain. It likely took very little by way of an impact to trigger a recurrence of that pain. The defendant called no medical evidence to suggest otherwise…
60] Accordingly, I find the plaintiff suffered pain and suffering from soft tissue injuries for approximately 14 months with the odd flare-up continuing thereafter until early 2010 when she testified she felt she had returned to her pre-accident status.
 After reviewing the authorities submitted by counsel I award the plaintiff $22,500 for non-pecuniary damages.
Unreported reasons for judgement were recently released by the BC Supreme Court, Nanaimo Registry, addressing damages for “chronic, but not disabling” soft tissue injuries and post-traumatic stress arising from a motor vehicle collision.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision. Fault was admitted by the Defendant. The extent of the Plaintiff’s damages were at issue. As is common in personal injury litigation, the Defendant produced an expert witness who provided evidence disagreeing with the Plaintiff’s physician as to the extent of the ongoing injuries and their connection to the collision. Mr. Justice Dley was not receptive to this evidence preferring the Plaintiff’s treating physicians. In rejecting the Defendant’s expert Mr. Justice Dley provided the following criticism:
 Dr. Dommisse provided an opinion that confirms the soft tissue injury. However, he opines that stress aggravates the physical injuries and that with proper counselling the stress would ease off; that would improve the physical injuries. Dr. Dommisse agreed that the stress affectibng Ms. Pitts resulted from the collision.
 His opinion ignores the fact that Ms. Pitts has had counselling and that she has been provided with coping techniques. Dr. Dommisse was not critical of the counselling that had been provided and deferred that aspect of the injuries to the counsellors who had previously treated Ms. Pitts.
 His opinion failed to consider that Ms. Pitts required some assistance at work. He conceded that to be a significant factor.
 Dr. Dommisse noted muscle spasm in the trapezius muscle. However, in his opinion as to whether the collision caused Ms. Pitts’ disabilities, he did not include any reference to the spasms. Instead, he referred to Ms. Pitts’ complaints as being subjective. He did not provide a satisfactory answer as to why such an objective symptom would have been left out of his analysis.
 Dr. Dommisse failed to consider the fact that Ms. Pitts suffers pain and discomfort from some of her work-related activities, particularly heavy lifting. Those symptoms are brought on without any stress. That significant omission from his report destroys any reliability that might be attached to his opinion that “it is unlikely that Ms. Pitts’ current disabilities were caused by the accident”.
 Dr. Dommise commented that counselling from Ms. Pitts’ stress and anxiety will likely improve her symptoms. His evidence did not provide any basis for that opinion to be reliable. It ignores the reality that counselling has already been provided and there is no suggestion that the treatment was in any way lacking. I am not satisfied that any further counselling is likely to resolve or further improve Ms. Pitts’ present condition.
In assessing non-pecuniary damages at $60,000 Mr. Justice Dley provided the following reasons:
 It is now four years post-accident. Ms. Pitts has been diligent in pursuing rehabilitation measures. Ms. Pitts still has some lingering injuries – they are chronic, but not disabling. Ms. Pitts can carry on with her everyday life and work, but she has limitations because she must be careful so as not to aggravate her injuries. She continues to suffer from the post-traumatic stress of the collision. She has learned coping techniques, but that has not eliminated the disorder.
 Taking into account the injuries sustained and the impact they have had and will continue to have, I assess general damages at $60,000.
As noted this judgement is not reported therefore not publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests one.
Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injury.
In the recent case (Densem v. Sidal) the Plaintiff was involved in two consecutive rear-end impacts with the Defendant. The defendant was wholly responsible for the first impact although this caused no injury. There was competing evidence about the particular facts which led to the subsequent collision and the Court ultimately found both parties were equally to blame for this impact.
The Plaintiff suffered from soft tissue injuries to his neck and shoulders as a result of the collision. He also advanced a claim for a low back injury although the Court found that this was unrelated. In assessing non-pecuniary damages for the soft tissue injuries at $20,000 Mr. Justice Betton raised some credibility concerns with respect to the Plaintiff and provided the following analysis:
 I conclude that the plaintiff suffered soft-tissue injuries to his neck and shoulders in the motor vehicle collision. I do not accept that there has been any low back injury from the motor vehicle collision. Indeed low back injury is not among the list of injuries set out by counsel in his argument.
 I conclude that the best evidence of the severity of the soft-tissue injuries that the plaintiff did receive is the plaintiff’s activity level. The plaintiff had returned to a high level of function, including competitive cycling and a rigorous training schedule which included high demand weight training. He had also returned to work, and the evidence suggests that he did so successfully. He was able to perform his employment, which involved long periods of sitting mixed with periodic demanding physical work. This was despite his ongoing back problems which are not a result of the accident.
 The credibility issues referenced prompt me to view the plaintiff’s evidence with some caution. It is my conclusion that the plaintiff is not a heroically stoic individual who fought through pain and physical limitations to be able to engage in the activities that he did. Rather, he was able to do so because he had in fact limited or minimal ongoing symptoms…
 In summary, the plaintiff did receive soft-tissue injuries to his neck and shoulder areas. He has had ongoing lower back pain that pre-dated the motor vehicle collision, and was not affected in any material way by the motor vehicle collision. He has had a number of subsequent events and injuries that required medical intervention and affected him for various periods of time. I accept the evidence and observations of Dr. Cameron in cross-exanimation that the effect of the motor vehicle collision injuries (that is the physical injuries) has been mild.
As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements. Sometimes, however, the volume of decisions coupled with time constraints makes this difficult. After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.
In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision. Fault was admitted. He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back. His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment. In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:
I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…
Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.
The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.
As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.
The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.
In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island. Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.
Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:
I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.
Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000. In doing so Mr. Justice Halfyard provided the following reasons:
The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…
I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…
The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.
(UPDATE March 19, 2014 – the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)
In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle. The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.
The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee. The latter injury merged with pre-existing difficulties to result in on-going symptoms. In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:
I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:
(a) the plaintiff’s “original position” immediately prior to the Accident included the following:
·being significantly overweight and deconditioned;
·having a hypertension condition which had existed for many years;
·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and
·symptomatic left foot and ankle difficulties.
(b) prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.
(c) the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.
(d) the plaintiff’s ongoing difficulties are multifactoral. They include:
·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;
·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;
·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;
·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,
From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.
In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision. Fault was admitted by the Defendant. The Plaintiff sustained soft tissue injuries to his neck and back. The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial. In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:
Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..
I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.
The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.
I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.