LVI Defence Rejected, $27,500 Non-Pecuniary Assessment for Soft Tissue Injuries

In my continued effort to highlight the judicial treatment of the Low Velocity Impact defence, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such a strategy.
In last week’s case (Guzman Gonzalez v. Dueck) the Plaintiff was involved in a 2009 rear-end collision.  The Defendant admitted fault for the crash but denied the Plaintiff suffered injury arguing the the crash occurred at “about one kilometre per hour” and that if felt like “a little love tap“.
Mr. Justice Burnyeat rejected this evidence finding as follows:
[6] The damage to the respective vehicles was $1,270.80 to the vehicle of Mr. Guzman Gonzalez and $1,001.52 to the vehicle of Mr. Dueck.  Mr. Dueck described the damage to his vehicle as being “a little damage to the front-end bumper”, “it got pushed down”.  I do not accept the evidence of Mr. Dueck that his vehicle was only going one kilometre per hour and that the collision only involved “a little love tap”.  Although the damage to the vehicles was not extensive and although I can conclude that this was a low impact collision, I cannot reach the conclusion that the respective damage to the vehicles could have been caused by the collision described by Mr. Dueck.
In assessing non-pecuniary damages at $27,500 the Court made the following findings:

[28] On the basis of the testimony of Mr. Guzman Gonzalez, the expert opinions of Drs. Tong and O’Connor, and the testimony and reports of Mr. Snip, I can conclude as follows regarding the extent and the duration of the pain and suffering of Mr. Guzman Gonzalez caused by the accident:

(a) Regarding the low back pain experienced by Mr. Guzman Gonzalez, I conclude that he had fairly constant pain for the first month or so, but that his complaints had resolved by the time Mr. Guzman Gonzalez saw Dr. Tong on October 21, 2009.

(b) Regarding the headaches suffered by Mr. Guzman Gonzalez, while Mr. Guzman Gonzalez testified at his Discovery that he had his last headache in December 2010, I am satisfied on the basis of the medical legal opinion of Dr. O’Connor that any headaches associated with the accident were common daily for the first three months, but had largely resolved within three to four months so that Mr. Guzman Gonzalez now only experiences headaches every so often.

(c) Regarding the pain experienced in his shoulder, Mr. Guzman Gonzalez confirmed that there is only pain when he lifts his arm above his head or when he sleeps on that particular shoulder.  I take into account the following evidence to come to the conclusion that the neck and shoulder pain caused by the accident lasted in the neighbourhood of six to eight months, although it was particularly acute during the first two months after the accident:  (i) by December 5, 2009, Mr. Guzman Gonzalez was reporting to Dr. Tong that there was only “occasional flareup” associated with the “tightening up of the muscles”; (ii) the clinical notes of Dr. Tong did not record any complaint by Mr. Guzman Gonzalez about neck and shoulder pain for the December 5, 2009 through February 20, 2012 visits; (iii) in his February 20, 2012 medical legal opinion, Dr. Tong noted that there was neither “residual neck musculo-ligament tenderness” on palpation, that the left shoulder exhibited “slight decreased external rotation and abduction”, and that there was “no tenderness on the anterior aspect of the left shoulder”; (iv) neck pain and left shoulder pain was described by Dr. O’Connor in his December 16, 2011 legal opinion as being “about 50% better”; and (v) in his December 16, 2011 opinion, Dr. O’Connor states that the neck pain was “initially triggered by musculoligamentous strain to the neck, and likely aggravation of the cervical facet joints at the mid-cervical spine”.

[29] The x-ray arranged by Dr. Tong in late 2009 indicated “moderate osteoarthritis of the  acromio-clavicular joint” and that this “may cause impingement”.  There is no medical evidence which would allow me to conclude that the accident caused an acceleration of the osteoarthritis or that this would not have developed but for the accident.  In the circumstances, I find that the condition described by Dr. O’Connor was the result of a degenerative condition in the AC joint which had previously not caused pain to Mr. Guzman Gonzalez but is presently causing pain during or after what Dr. O’Connor described as “overhead reaching”.  The prognosis of Dr. O’Connor is that there is an increased risk of injury or aggravation of the left shoulder with any heavy lifting or overhead reaching or carrying required in the occupation of Mr. Guzman Gonzalez.  I find that this ongoing problem is attributable to the osteoarthritis and not to injuries caused by the negligence of Mr. Dueck.

[30] As a result of the injuries caused by the negligence of Mr. Dueck, I find that Mr. Guzman Gonzalez was not able to play tennis for about six months, that he had limited ability to play soccer, that he was less active on the dance floor for six to eight months, but that, after about eight months, he was fully able to carry on with all of his previous recreational activities.  I find that any further limitations regarding his recreational activities can be attributed to a problem that Mr. Guzman Gonzalez has with his knee which is in no way associated with the results of the injuries he suffered as a result of the accident.

[31] Taking into account the injuries suffered by Mr. Guzman Gonzalez as a result of the accident and the duration of the pain and suffering of Mr. Guzman Gonzalez, I assess the non-pecuniary damages of Mr. Guzman Gonzalez at $27,500.

bc injury law, Guzman Gonzalez v. Dueck, Mr. Justice Burnyeat

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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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