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Diminished Homemaking Capacity Award Made Despite "No Evidence By Which Services Can Be Valued"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking a practical approach to damages for diminished homemaking capacity.
In this week’s case (Savoie v. Williams) the Plaintiff was injured when the Defendant ran a stop sign causing a collision.   The crash caused soft tissue injuries and further caused pre-existing degenerative changes in the Plaintiff’s neck and upper back to be symptomatic. Although the Plaintiff missed little time from work she struggled in her daily household activities and modified/limited how these were conducted.  ICBC argued that no award should be made because there was no evidence that she was completely disabled from household tasks.  In dismissing ICBC;s argument and assessing the loss at $20,000 Mr. Justice Johnston provided the following practical reasons:
[51]         It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).
[52]         I agree with the Third Party that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…
[55]         The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach. I note that the court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.
[56]         I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.
[57]         I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.
[58]         I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.
[59]         I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.
[60]         Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.

Video Surveillance Influences Chronic Soft Tissue Injury Trial

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009.  The Defendant admitted fault.  The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain.  The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived.  In reaching this decision the Court was influenced by video surveillance evidence.  In commenting on this Mr. Justice McEwan provided the following reasons:
[24]         The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
[25]         Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
[26]         Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
[27]         The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
[28]         The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
[35]         As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

Previous Admissions of Potential Violence Ordered Disclosed in Personal Injury Claim Against Security Guard

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the scope of document production in a case alleging injury caused by a security guard.
In today’s case (Ash v. Zellars Inc.) the defendant security guard “arrested the plaintiff for theft“.  In the course of restraining the 16 year old girl the Defendant “used his legs as a lever to get the plaintiff to the ground”.  The plaintiff’s head struck the floor.  She lost consciousness and allegedly suffered a fractured skull.
In the course of the lawsuit the Plaintiff learned that the Defendant unsuccessfully applied to become a police officer with the RCMP, the Vancouver PD, and the Transit Police.  The Plaintiff sought the applications to be disclosed but the Defendant refused.  The Court held that while the full applications were not relevant, portions were, and ordered that the portions questioning about past violent altercations to be disclosed.  In ordering partial production Master Taylor provided the following reasons:
[14]         Plaintiff’s counsel maintains that the application forms are important due to questions asked about the applicant’s propensity for violence, propensity for inappropriate sexual behaviours and propensity for dishonesty. These questions are located at page 16 of the application form under the heading, Personal Relationships. There are thirteen questions under this heading and I set them out below with the question number from the application form:
58.       Provide details on all physical altercations you have had with a spouse or partner, or anyone associated to you in a domestic or family relationship.
59.       What is the worst emotional experience you have ever had?
60.       provide details on when you have used, or threatened to use, physical violence toward any adult person. (Sports or otherwise) (their emphasis)
61.       Provide details where you have used physical force toward a child.
62.       Provide details of the time/s where you may have paid, or been paid, for sexual activities.
63.       Have you ever sexually forced yourself on another?  Have you ever been accused of forcing yourself on another?
64.       Have you ever been involved in the sex trade industry in any capacity (i.e.) driver, receptionist, answering phones, street worker, etc)?
65.       Tell us about any time you may have retained, or been involved with the service of an escort agency, massage parlour, prostitutes (i.e. cruising for prostitutes, buying for friends, etc.)
66.       Have you ever had any sexual involvement with anyone without his or her consent?
67.       Has anyone had any sexual involvement with you without your consent?  If yes, provide details.
68.       Have you ever been involved in a sexual manner with a child (under the age of 16) regardless of your age?  If yes, provide details of all incidents. (Include ages of participants)
69.       Give the circumstances of your involvement in a sexual act that if you were caught, you may have been prosecuted. Provide details of all incidents. (i.e. sexual contact with an animal, exposing yourself in public, incest (sexual relations with a family member), sexually explicit anonymous phone calls, or peeked into someone’s window for sexual purposes etc.
70.       Provide details of your use of pornography.
[15]         The defendants submit that the information sought about an applicant for employment by the Transit Police force deals with a wide range of sensitive and intensely personal topics. As well, the application form also seeks to elicit identifying information about the applicant’s entire family members, including in-laws, former spouses, deceased parents, as well as character references. One can only imagine that the other two police forces likely seek answers to similar questions…
[17]         The defendants maintain that in order to succeed in her application, the plaintiff must first satisfy the court that the documents sought contain information which may relate to a matter in issue, and that the application is not in the nature of a fishing expedition, citing Gorse v. Straker, 2010 BCSC 119 at paragraph 16. As Macaulay J. said in Gorse, the formulation of this test stems from the well-known decision ofPeruvian Guano (1882), 11 Q.B.D. 55 at pp. 62-63 (C.A.) and permits access to documents that relate to a matter in issue indirectly as well as directly…
[20]         Taking into account that I have determined the documents sought relate only to a matter indirectly in issue, I have to now decide whether any of the information from the application forms is to be provided to the plaintiff.
[21]         In my view, questions 58 and 60 from the employment application form for the Metro Vancouver Transit Police, as set out above, and their answers are such as was discussed in Przybysz v. Crowe, 2011 BCSC 731 at paragraphs 27 -28, as those documents which assist in a train of enquiry as contemplated in Peruvian Guano. The others, in my view, are merely in the nature of a fishing expedition.
[22]         Accordingly, I order that the defendants provide to the plaintiff copies of the personal defendant’s applications to the three stated police forces with all answers completely redacted but for questions 58 and 60 and the answers thereto as provided by Magdaluyo, or similar equivalents in the application forms for employment by the Vancouver Police Department and the RCMP.

Court Criticizes ICBC's "Disappointing" Take On Diminished Earning Capacity Claim

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

The factors to be considered when assessing damages for ‘diminished earning capacity’ are well established in law.  Reasons for judgement were released today  by the BC Supreme Court, Kelowna Registry, addressing this and criticizing ICBC’s approach when valuing this loss.
In this week’s case (Tarasevich v.Samsam) the “plaintiff’s hips and sacrum were seriously injured in a motor vehicle accident“.  The injury was expected to pose long term problems requiring serial surgeries to address these issues in the future.   The injury caused chronic pain and impacted the Plaintiff’s working tolerance.   Despite this, ICBC argued that the long term injury will only have  a modest impact on the Plaintiff’s earning capacity because “the plaintiff was bound to become a sedentary office worker in any event and that because her physiatrist has said that despite her injuries she can engage in a full-time sedentary occupation, she will therefore not suffer a significant loss of future income“.
Mr. Justice Rogers rejected ICBC’s position and provided the following criticism:
[52]         To repeat: the defence’s approach to this head of damages is to assert that the plaintiff was going to be a sedentary office worker in any event and that because the evidence shows that she is likely to now follow that career path, she cannot be said to have suffered a loss. The defence asserts this proposition notwithstanding the uncontroverted evidence that the plaintiff’s hip and lower back injuries markedly limit her ability to do the kind of work that she actually did, and did well, before her injury.
[53]         It is disappointing that in this day and age, nearly 30 years after Brown v. Golaiy, a defendant would cleave to such a wrong-headed approach to a claim for reduction of earning capacity…
[56]         The plaintiff was a young person when she was injured. It is possible that she would have enjoyed sufficient success in retail sales and management that she would not have gone on to work in an office environment. It is equally possible that she would have taken office administration courses while still working full or part‑time and would have gone on to find employment in an office. The plaintiff’s history in the labour force was too brief to support a confident prediction of the direction her future would take. One cannot, therefore, say that the plaintiff’s loss may be calculated by measuring the delta between pre- and post-injury income streams. For that reason, I find that assessment is the appropriate methodology for this case.
[57]         The plaintiff has made a genuine effort to engage in work. She has tried and failed to work as housecleaner. She has tried and failed to work full-time in the same type of sales job she did before the accident. If the plaintiff does not pursue sedentary work but continues to work in sales or some other occupation that requires her to be on her feet for the majority of the day, I find that her stated preference for part-time work is reasonable given her symptoms and limitations. If she works part-time in a sales position, she will likely have more energy to look after her household and to participate in social activities and such recreational pursuits as she can still do. Working part-time will allow her to achieve some reasonable degree of balance between earning a living and having a life to live.
[58]         On the other hand, I find that as a result of her injuries the plaintiff’s best course of action will be to earn a Grade 12 diploma or its equivalent and then to enroll in a course of post-secondary that will qualify her for employment in an office environment. Even in an office environment, the plaintiff will be a generally less desirable employee than her able-bodied colleagues. In order to work full-time, the plaintiff will need a sympathetic employer who is willing to accommodate her limitations.
[59]         In either case, the plaintiff’s participation in the labour force will be interrupted by serial hip replacement surgeries.
[60]         For these reasons, I have concluded that the proper award for reduction of the plaintiff’s earning capacity is $250,000.

A Draw is a Loss in the World of Tort Litigation

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 58 Comments on A Draw is a Loss in the World of Tort Litigation

When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place.  In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.
In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant.  The Defendant denied the allegations in their entirety.  Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed.  In dismissing the claim Mr. Justice Melnick provided the following reasons:
[50]         In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.

Private "Non Urgent" MRI Cost Denied as Disbursement

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Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency.   Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.
In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”..  The Plaintiff arranged the MRI through a private facility.  In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system.  In rejecting the disbursement the Court provided the following reasons:
[4]             In evidence was a note from Dr. Harji dated July 16, 2011 that read:
For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.
[5]             On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine.  His note read:
Persistent neck and back pain with minor right sided hand and leg symptoms.  Difficulty functioning and remains unable to resume working.  X-ray report, CT report pending from Mount St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.
[6]             Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…
[10]         …In this case, there was no trial date pending when the MRI examination was requested by the two physicians.  Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013.  As matters transpired, this case settled in February of 2013.
[11]         I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system.  It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.
[12]         I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.
[13]         Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.

Privileged and Undisclosed Report Recoverable As Disbursement

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Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making it clear that the costs of a privileged and undisclosed expert report can indeed be a recoverable disbursement.
In the recent case (Sidhu v. McNair) the Plaintiff was injured in a 2009 collision.  In advancing the case the Plaintiff obtained a report form the Plaintiff’s GP and neurologist.  The GP report was privileged in not disclosed.  ICBC argued that “this disbursement…was not necessary or proper (due to the fact) that Plaintiff”s counsel chose to maintain privilege over its contents”
District Registrar Cameron disagreed and allowed the disbursement. In doing so the Court provided the following reasons:
[8]  I was also referred to a recent decision of Master Bouck in Cooknell v. Cooknell, 2013 BCSC 1653.  Her Honour very cogently set out the principles that ought to be applied in determining whether or not a disbursement should be recovered and says:
A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessary but is reasonably incurred for the purpose of the proceeding:MacKenzie v. Darke, 2003 BCSC 138 at para. 18..
Her Honour goes on to say:
 When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing a competent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the job ought to be done
[9]  I respectfully agree with these statements and having been advised of the rationale for obtaining the report and the matters addressed by Dr. Sekhon I am satisfied that the decision that was made to obtain the report was proper ad the cost is reasonable.  The disbursement is allowed as presented.
To my knowledge this decision is not publicly reported but as always I am happy to provide a copy to anyone who contacts me and requests one.

Private MRI Disbursement Disallowed Due To Lack of Evidence of Urgency

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Adding to this site’s arcived decisions addressing the recovery of private MRI costs as a disbursement, reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, disallowing such a claim.
In the recent case (Cooknell v. Quinn) the parties could not agree on the reasonableness of a variety of disbursement items including a privately funded MRI.  In rejecting this item Master Bouck held that the claim must fail as there was no evidence supporting the need for a privately funded MRI.  Master Bouck provided the following reasons:
[38]         Dealing firstly with the MRI disbursement, the facts of this case are somewhat analogous to those described by then Registrar Blok in Phelan v. Newcombe.
[39]         Although Dr. Smith did recommend an MRI in this case (it is not clear exactly when), there is no explanation offered for proceeding to a private clinic when a publicly funded scan was available — or at least no evidence to suggest that such a process was unavailable. As the MRI charge is disallowed on this basis, I do not need to consider whether such an investigation was necessary or proper.

"Cumulative Effect of Misstatements and Transgressions" Results in Jury Discharge

Written by admin on . Posted in Jury Trials, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, discharging a jury prior to the conclusion of a personal injury trial.
In this week’s case (Vander Maeden v. Condon) the Defendant objected to a series of “misstatements and transgressions” following the Plaintiff’s final submissions to the Jury.  The Plaintiff argued that there was no need to discharge the jury and proper instructions “could cure any defects in the trial“.  Mr. Justice Gaul held that while some of the misstatements could have been dealt with by proper instructions, their “cumulative effect” was beyond remedy.  In discharging the jury the Court provided the following reasons:
[13]         In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct…
[35]         Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.
[36]         With great respect for each member of the jury, in my opinion their ability to fairly and impartially perform their role as the triers of fact was irreparably compromised by Mr. Vander Maeden’s counsel’s final submissions.
[37]         In my view counsel for the defendants is correct when he submits the only means of salvaging the trial is to discharge the jury and have the proceeding continue as a judge alone trial. In my view a just, effective and efficient resolution to the situation is for the jury to be discharged, for Mr. Vander Maeden’s counsel to make additional submissions on the issues at trial if he believes they are necessary and then for counsel for the defendants to make his final submissions.

"A Relatively Small Change May Have Significant Practical Consquences"

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registy, addressing non-pecuniary damages for injuries imposed on a plaintiff with significant pre-existing difficulties.
In last week’s case (Campbell v. Van Den Broek) the Plaintiff was injured in a 2010 collision.  The Defendant admitted fault.  The court was presented with competing and “not reconcilable” medical opinions about the extent of the collision related injuries.  Ultimately the Court accepted the collision caused some new injuries and exacerbated long standing pre-existing problems.  In assessing non-pecuniary damages at$90,000 Mr. Justice McEwan recognized that “for a person with serious limitations a relatively small change may have significant practical consequences.“.  The Court provided the following reasons:
[106]     The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell’s departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff’s situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.
[107]     The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences…
[111]     I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff’s unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff’s complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff’s damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.