Its Important to Know The Low End of the Range


When valuing a case for non-pecuniary damages its easy to cherry pick a few cases with similar facts and focus on the high end of potential damage awards.  While it is useful to be familiar with such authorities it is equally important to know the low end of potential damages as injuries are sometimes valued accordingly.  Knowing both ends of the risk spectrum helps make a more informed decision when valuing an injury claim.
With this in mind, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages on a very modest basis following a motor vehicle collision.
In last week’s case (Lee v. Dueck) the Plaintiff was involved in a 2009 so-called ‘low velocity impact’.  The Plaintiff was injured and some of her injuries lingered to the time of trial.  Madam Justice Gray found that the Plaintiff was “a straighforward witness who did not exaggerate“.  Despite this positive finding the Court concluded that the injuries were minor and that their consequences were not particularly significant.  In assessing non-pecuniary damages at $5,000 Madam Justice Gray provided the following reasons:

[35] In summary, Ms. Lee suffered minor soft tissue injuries in the accident. It was a relatively low velocity accident, but in Dr. Le Nobel’s opinion, Ms. Lee was at increased risk for more severe musculoskeletal consequences from physical trauma because she had increased ligamentous laxity in her joints. I accept that she suffered the injuries she has described. While she did not know whether her continuing problems were the result of the accident, I accept Dr. Le Nobel’s opinion that the injuries were likely caused by the accident.

[36] Ms. Lee suffered pain in her left ankle which resolved after about 10 days. She suffered pain in her right wrist which gradually improved and was gone by about seven months after the accident, except for flares of pain. The injuries caused her to substantially modify her cooking and housework for less than a month after the accident. She was a homemaker and her substantial modification to her work in the home was similar to a person who would take a couple of weeks entirely off work, and then gradually increase work.

[37] Since the accident, Ms. Lee has modified her activities to avoid heavy lifting and repeated twisting. Ms. Lee was essentially pain-free for about a year from the summer of 2010 to the summer of 2011, and after that she has suffered minor, brief flare?ups of pain with heavy lifting or frequent use of her wrist. She does not have pain or limitation of function on a daily basis. She is at risk for future flares of pain…

[51] In this case, Ms. Lee was 37 at the time of the injuries. The ankle resolved after about 10 days, and the wrist substantially resolved after about seven months. Ms. Lee has been left with chronic intermittent short?lived pain, which is triggered by heavy lifting and repeated twisting, but which she is able to avoid by modifying her activities to avoid those actions. This has not significantly affected her ability to work as a homemaker or in work or other activities that she is likely to pursue.

[52] In all the circumstances, a fair award for Ms. Lee’s non?pecuniary damages is $5,000.

bc injury law, Lee v. Dueck, Madam Justice Gray

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ERIK
MAGRAKEN

Personal Injury Lawyer

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

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