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$40,000 Non-Pecuniary Damages for Chronic Whiplash and Possible Facet Joint Injury

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


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic whiplash injury.
In last week’s case (Fiorda v. Say) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2009.  The Plaintiff was not at fault for either crash.  Both collisions contributed to a chronic whiplash injury with possible facet joint involvement.  The symptoms of pain were still present by the time of trial and these were expected to carry into the future.  In assessing the Plaintiff’s non-pecuniary damages at $40,000 Madam Justice Holmes provided the following reasons:

[25] Dr. Gabriel Hirsch, specialist in physical medicine and rehabilitation, conducted an independent medical assessment on April 4, 2011.

[26] Dr. Hirsch concluded that in the first accident, Ms. Fiorda sustained relatively minor injuries to her neck, upper back, and shoulder girdle region, from which she had made a good recovery by the time of the second accident.  He concluded that absent the second accident, Ms. Fiorda probably would have made a full recovery from the first.

[27] Dr. Hirsch concluded that the second accident caused injuries to Ms. Fiorda’s neck, thoracic spine, and lumbar spine, which probably involved soft tissue structures, such as muscles, tendons, and ligaments.  Given the accident mechanism as Ms. Fiorda had described it, it was also possible that Ms. Fiorda sustained an injury to a cervical facet joint.

[28] Dr. Hirsch recommended that Ms. Fiorda carry out a regular exercise program, ideally in a well-equipped community centre or gymnasium.  Because Ms. Fiorda had recently completed a functional restoration program under the guidance of a physiotherapist and kinesiologist, he felt she should be able to continue with a maintenance program on her own.  He recommended particular components of a regular exercise program for Ms. Fiorda to follow.

[29] Dr. Hirsch also suggested that Ms. Fiorda consider trigger point injections into the neck and shoulder girdle region, her most symptomatic areas.  He noted that those injections are funded by the Medical Services Plan.

[30] Dr. Hirsch noted that “there is some uncertainty” about whether Ms. Fiorda can continue in her work as a costume designer on a sustainable basis because of the long hours and many consecutive days, which do not allow her the opportunity to recuperate from a flare-up. ..

[45] In my view, the particular circumstances of Ms. Fiorda’s case support an award of $40,000.

Defence Doctor Opinion Rejected for Not Physically Examining Plaintiff

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, independent medical exams. 49 Comments on Defence Doctor Opinion Rejected for Not Physically Examining Plaintiff


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, providing comments critical of the practice of obtaining medical opinion evidence without accompanying physical examination of a Plaintiff.
In this week’s case (Ruscheinski v. Biln) the Plaintiff was involved in three collisions.  She sustained soft tissue injuries to her her neck and shoulder in the initial crash.  The following crashes had a ‘cascading effect‘ on these injuries resulting in chronic pain with partial disability.  Non-Pecuniary Damages of $85,000 were assessed.
In the course of the trial the Court heard from competing expert witnesses.  The Defendant’s expert never examined the Plaintiff.  For this reason the Court preferred the evidence of the Plaintiff’s experts and provided the following critical comments:

[82] Dr. Turnbull, a neurosurgeon, provided expert evidence on behalf of the defendants. He was the only medical expert whose opinion was adduced as part of the defendants’ case. His assessment is set out in his report dated April 26, 2011.  In his report, Dr. Turnbull opined:

Ms. Ruscheinski evidently suffered soft tissue injuries in the MVA of February 24, 2006 which may have been aggravated by the MVAs of September 9 and September 17, 2006.

[83] In my opinion, Dr. Turnbull’s choice of the word “evidently” results from the fact that he did not conduct an examination of Ms. Ruscheinski. Dr. Turnbull has not met, nor has he ever examined Ms. Ruscheinski. His opinions are based solely on his review of medical records.

[84] Dr. Turnbull also expressed in an opinion, in his report, that although Ms. Ruscheinski’s “soft tissue injuries have had ample time to heal”, her “symptoms may persist for some time.” He does not recommend any further treatment because, he explained, “passive treatments conducted more than two years after soft tissue injury are recognized as having little value.”

[85] I prefer the evidence of Drs. Feldman and Wasti over the defence expert, Dr. Turnbull. I accept Dr. Feldman’s opinion (supported by Dr. Wasti) that meeting a patient, obtaining their history directly, and conducting a thorough examination are essential to provide an accurate diagnosis of a patient’s injuries and to determine an appropriate prognosis.

[86] In my opinion, when dealing with cases where chronic pain is suggested or suspected, an examination of a patient that is designed to look for objective evidence of injury, such as muscle spasm, as opposed to feigned pain behaviour, coupled with an appropriate and thoughtful approach to taking a patient’s history, will lead to a diagnosis and prognosis that is much more reliable than a records review. I accept Dr. Feldman’s evidence that without a physical examination of Ms. Ruscheinski, it would not have been possible to detect the winging of her scapula.

[87] Dr. Turnbull agreed in cross-examination that muscle spasm and tenderness provide an objective basis for a diagnosis and prognosis. Those objective findings were found by Drs. Feldman and Wasti. Dr. Turnbull is not in a position to contradict the findings of Drs. Wasti and Feldman because he did not examine Ms. Ruscheinski. Further, Dr. Turnbull did not address Dr. Feldman’s findings, the findings from the flexion/extension x-rays, nor the focused treatment recommended by Dr. Feldman that consists of active and passive treatments. Finally, I wish to note that Dr. Turnbull acknowledged that most of his patients with neck and back pain do not have a history of being involved in motor vehicle accidents.

[88] My view of the matter is also supported by the remarks of Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 549, 73 B.C.L.R. (4th) 177, where he wrote at paras. 2-3:

[2]        The role of an expert is to assist the Court. I am not assisted by receiving the “opinion” from a psychiatrist who has not seen a person and who bases his opinion only on documentation made available to him where much of that documentation will ultimately not be in evidence. Ordinarily, counsel will provide the factual assumptions to the expert that counsel will then proceed to prove in evidence. Those factual assumptions should be clearly stated in the statement of the expert. It is not for an expert to merely review a number of documents, many of which will not be in evidence and make certain findings of fact. …

[3]        As well, the Court has commented a number of times on it being inadvisable to rely on the opinion of a medical advisor who has not seen a plaintiff: see for instance Parish v. Scott, [1966] B.C.J. (Q.L.) No. 2839 (B.C.S.C.) at paras. 5 and 29. …

$30,000 Non-Pecuniary Damage Assessment for "Moderate" Soft Tissue Injuries

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

Adding to this site’s ICBC claims pain and suffering database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a moderate soft tissue injury.
In today’s case (Olianka v. Spagnol) the Plaintiff was injured in a 2008 collision.  Fault was admitted.   The evidence was not particularly contested and the trial proceeded summarily.  The Court found the Plaintiff suffered moderate soft tissue injuries that were temporarily disabling with symptoms that were expected to linger into the future.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 Mr. Justice Blair provided the following reasons:




[21] Mr. Olianka suffered what Dr. Neumann describes as a moderate soft tissue injury to the neck, a moderate soft tissue injury to the mid-back and a mild soft tissue injury to his lower back. I accept Mr. Olianka’s evidence with respect to his collision-related injuries and that these injuries precluded him from working for a four-month period. I also accept that Mr. Olianka continues to experience intermittent pain in his neck and upper back which is expected to last for some unknown period. Dr. Neumann opined that by January 14, 2011, Mr. Olianka had made a significant recovery from his injuries and concluded that his residual pain should gradually subside in intensity and frequency. He did not expect Mr. Olianka to suffer any permanent consequences from his collision-related injuries.

[22] Nevertheless, the optimism expressed by Dr. Neumann and reflected in Mr. Olianka’s increased activity level does not overshadow Mr. Olianka’s difficulties for the 27-month period between the collision and Dr. Neumann’s report dated January 14, 2011. In that period, Mr. Olianka, due to his injuries, was unable to work for four months and subsequently those injuries compromised his ability to fully perform his work as he had done prior to the collision. In addition, he was unable to enjoy the leisure activities in which he had participated prior to the collision. This 27-month recovery period must be considered when ascertaining the non-pecuniary damages award to which Mr. Olianka is entitled. I accept that he continues, to some lesser degree, to suffer intermittent pain from his collision-related injuries as described by both Mr. Olianka and Dr. Neumann…





[28] Based on the authorities and the unique evidence found in this case, I find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000, taking into account all contingencies, given the extent of the soft tissue injuries to his neck and back, the disability period of 27 months post-collision, as well as the lingering and ongoing aspect of his injuries, the limitations that the injuries imposed, not just on his ability to work, but also on his ability to partake in those physical activities which occupied his life prior to the collision and which he has only recently been able to resume albeit to a limited extent.

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

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


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



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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

[25]        The answer was no.

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

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

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

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

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

More on Valuing Damages for Modest Soft Tissue Injuries

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


As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges.  The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement.  The best way to do this is to review as many cases as possible dealing with similar injuries.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.
In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC.  Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash.  The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck.  These were acute for three months and disabled the plaintiff from work during this time.  From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash.   Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60]        Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61]        Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62]        I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63]        In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64]        I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present).  Another great resource is Canlii, a free Canadian legal case-law database.