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$90,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.
In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012.  The Defendants admitted fault for both.  As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future.  The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice.  In reaching this assessment Madam Justice Baker provided the following reasons:

[147]     I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident.  The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident.  She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain.  These complaints resolved within a short time.  Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.

[148]     I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident.   She did not miss work as a security guard after the first accident.  She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months.  She was sufficiently recovered to travel to India three months after the accident and remained there for about two months.  On her return from India she resumed working as a security guard and doing janitorial work.  She attempted to return to the Sears job but was not re-hired.

[149]     Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial.  Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.

[150]     The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.

[151]     I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial.  Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time.  I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength.  I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…

[194]     Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted.  I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500. 

$25,000 Non-Pecuniary Assessment for 18 Month Aggravation of Pre-Existing Injuries

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages of $25,000 for the aggravation of chronic pre-existing injuries.
In this week’s case (Dorsey v. Bhindi) the Plaintiff was involved in a 2013 rear end collision.  Liability was not at issue.  The court voiced some credibility concerns regarding the plaintiff and did not accept her claim in its entirety.  The Court did accept, however, that the collision caused an 18 month aggravation of pre-existing symptoms.  In assessing non-pecuniary damages at $25,000 for these injuries Madam Justice Warren provided the following reasons:
[108]     In summary, I make the following findings on causation:

  • Ms. Dorsey injured her shoulders in the slip at work, but did not exacerbate that injury in the accident.  She currently suffers from frozen shoulder on the left side, but I am not persuaded that the accident caused or materially contributed to that condition.
  • The accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months, and by late September 2014 Ms. Dorsey’s condition had returned to its pre-accident state.
  • Ms. Dorsey has suffered from some anxiety and depressive symptoms but I am not persuaded that the accident caused or materially contributed to those conditions.

[117]     Of the authorities cited by the defendants, Kearns v. Marples, 2009 BCSC 802, bears the most similarity to this case.  In that case damages were assessed on the basis that the 51-year-old plaintiff had suffered injuries to her shoulders, right elbow, and neck that largely resolved within about eight months, but for the right shoulder which remained injured and was predisposed to further injury which occurred in two subsequent motor vehicle accidents.  These injuries were superimposed on pre-existing conditions.  Non-pecuniary damages of $25,000 were awarded. In that case, Justice Verhoeven referred to Job v. Van Blankers, 2009 BCSC 230, where Justice Ker awarded non-pecuniary damages of $25,000 to a plaintiff who had suffered a mild to moderate soft tissue injury that resulted in sustained disability, pain and suffering, and interfered with the plaintiff’s life for about 14 months: Kearns at para. 134.

[118]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  I have found that the accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months.  The exacerbation was not so significant as to materially interfere with her ability to work.  There is very little evidence of any material impairment of her physical abilities or significant loss of lifestyle.  Considering the principles discussed in the cases referred to me and the criteria considered in the assessment of damages in Stapley, I assess Ms. Dorsey’s non-pecuniary damages at $25,000.

Unclear Prognosis Leads to Injury Trial Adjournment

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, granting an adjournment application in the face of uncertain medical evidence addressing prognosis.
In today’s case (Gee v. Basra) the Plaintiff was injured in a 2011 collision for whcih the Defendant accepted liability.  The Plaintiff had chronic headaches and the Plaintiff’s physicain was uncertain as to her prognosis noting that a course of Botox injections may prove helpful with the following evidence –

Jodene [the plaintiff] is now four years post injury and has fully participated in the range of therapy offered to her. She continues to experience significant headache, which interferes with her ability to perform at work, at home with household duties, and fully participate in social activities. Headache which is resistant to therapy after such a prolonged period of time has a low probability of recovery, but I feel I could not fully comment on prognosis until she has had a trial of Botox injections. I would recommend Botox, 200 units, every three months for a minimum of three cycles following the pre-empt Chase The Pain [sic] protocol.

The Plaintiff sought an adjournment on the basis of this evidence with the Defendant opposing noting the trial was set to commence in one week.  Master McDiarmid granted the adjournment noting that while the application was brought very late in the process an uncertain prognosis could lead to an unfair trial.  In granting the application the Court provided the following reasons:

[20]         I conclude that this is not a situation similar to Sidoroff. All questions affecting the justice of the case will not be before the trial judge. He will not know whether Botox is effective to ameliorate the headaches. The judge will not even be able to have estimates of the chance of the Botox working. No such evidence is in the materials, and in fact in the passage I previously cited from Dr. Spacey, she cannot fully comment on prognosis until the plaintiff has undergone a trial.

[21]         That prejudice caused to the plaintiff if she cannot undergo the treatment and assess its results significantly outweighs prejudice to the defendants, who, as noted, have admitted liability. The prejudice to the defendants can be ameliorated largely in costs.

[22]         Accordingly, I grant the adjournment with the following terms:

1)     The defendant is entitled to costs thrown away, which I am going to assess summarily at $1,000. That is for trial preparation. They are also entitled to full reimbursement for the cost for arranging videoconferencing testimony of Dr. Richards. Those costs are to be set off from any amount recovered by the plaintiff; in other words, they are not payable forthwith;

2)     The defendant is entitled to a further independent medical examination of the plaintiff by a specialist of its choosing; and

3)     The defendant is entitled to a further half day discovery.

$90,000 Non-Pecuniary Assessment for Partially Disabling Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain following a motor vehicle collision.
In today’s case (Swieczko v. Nehme) the Plaintiff was involved in an intersection collision in 2011.  The Plaintiff committed to the intersection on a green light but could not turn due to oncoming traffic.  The Plaintiff waited until the light turned a stale yellow and began the turn.  The Defendant, who was in the oncoming curb lane, came through on what was likely a red light and the vehicles collided.  The Court found the Defendant fully liable for the collision.
The Plaintiff sustained  soft tissue injuries which resulted in chronic symptoms.  In assessing non-pecuniary damages at $90,000 Madam Justice Koenigsberg provided the following reasons:

[40]         Mr. Swieczko suffered significant soft tissue injuries as a result of the accident.  The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities.  His prognosis is poor.  Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.

[41]         Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline.  She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.

[42]         Mr. Swieczko was 27 years old at the time of the Accident.  He is now 31.  He has been engaged in the video game industry for close to nine years.  He began as a “quality assurance” tester.  This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public.  It requires concentration and repetitive tasks.  It was described as being a form of detective work.  The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days.  This career is generally somewhat insecure, as most of the employment is on contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]         Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job.  Mr. Swieczko is obviously a talented, hard-working, ambitious young man.  He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted.  However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days.  Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.

[44]         Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now.  While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident.  The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter.  However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child.  Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain.  This in turn has required more pain medication and led to frustration.

[45]         It must be recognized that this state of affairs is costing Mr. Swieczko psychologically.  He is far less able to socialize and enjoy family get-togethers – or physical activity that he enjoyed before the Accident.  Thus, Mr. Swieczko is struggling with frustration and emotional despondency from time to time as he contemplates the immediate future, wherein he may not be able to be an active participant in his daughter’s physical recreational life.  It was clear from Mr. Swieczko’s evidence that he was taken aback by receiving his poor prognosis in relation to living relatively pain-free and being able to do what he did before.  In particular, he had ambitions of participating in such physical activities as karate with his daughter as she matures.  He is now very unlikely to be able to do this…

The most significant factor in this case making the assessment of general damages suggested by the plaintiff more appropriate than that suggested by the defendant is the severity and chronicity of pain, which combines with Mr. Swieczko’s increasing emotional struggle over the impairments to his family, marital and social relationships.  Adding to this is Mr. Swieczko’s stoicism, which, in this case, has meant he has and continues to work longer and harder to achieve his career goals, but at a significant cost in pain and resort to strong medications.

[52]         I assess his non-pecuniary damages at $90,000.

$30,000 Non-Pecuniary Assessment for Aggravation of Chronic Pain

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of a long standing chronic pain disorder.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.  In assessing non-pecuniary damages at $30,000 Mr. Justice Bowden provided the following reasons:

[52]        I am not prepared to attach much weight to the plaintiff’s description of the change in his condition following the 2011 accident without corroboration from someone other than Ms. Ben-Yosef and their son.

[53]        The evidence shows that the majority of the symptoms that the plaintiff attributes to injuries from the 2011 accident probably were present before that accident. The expert evidence is that the plaintiff was suffering from chronic pain syndrome before the 2011 accident. It appears that he was taking anti-inflammatory drugs before that accident as well as medication for hypertension and pain.

[54]        The 2011 accident was not significant. While the plaintiff was knocked down in a cross walk, he described the event to his family doctor as being “bumped”. He said that he got up, exchanged information with the defendant and then continued on his way to do some shopping before going home.

[55]        Nevertheless, I accept that the plaintiff suffered some soft tissue injuries to his lower back and left hip and that the 2011 accident caused some aggravation to his pre-existing chronic pain…

[60]        While I accept that the plaintiff’s pre-existing condition was somewhat aggravated by the 2011 accident, he had developed chronic pain syndrome before that accident presumably following his injuries in the 1998 accident. Some of his continuing symptoms also appear to be related to the degeneration which has occurred in his spine which is unrelated to the 2011 accident.

[61]        It is difficult to differentiate the impact of the 1998 accident and the 2011 accident on the plaintiff’s quality and enjoyment of life. It appears that the 1998 accident left him unable to work, caused him intermittent pain that ultimately became chronic and limited his activities. The 2011 accident aggravated his condition somewhat but the degree of aggravation cannot be determined with any certainty.

[62]        I have concluded that in the circumstances of this case and considering the factors in Athey, an award of $30,000 is appropriate.

$40,000 Non-Pecuniary Assessment for Bicep Tendon and Soft Tissue Injuries

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a bicep tendon injury along with some soft tissue damage.
In today’s case (Pavan v. Guolo) the Plaintiff was involved in a 2010 T-bone collision caused by the Defendant.  The Plaintiff suffered a strain to the tendons in his right bicep along with soft tissue injuries to his shoulder and low back.  The Plaintiff missed little time from work but some of his symptoms persisted at the time of trial albeit not significantly.  In assessing non-pecuniary damages at $40,000 Mr. Justice Butler provided the following reasons:

[21]         Counsel for both parties provided detailed written argument to explain why I should accept their positions regarding the nature of the plaintiff’s injuries and the duration of the symptoms. I thank them for the thorough and detailed argument. I much prefer the defendants’ approach to the assessment of causation and analysis of the evidence. In other words, it is preferable to consider the three symptomatic areas separately and assess the development of symptoms in light of all of the evidence including the limited medical evidence. When I do that, I make the following findings of fact regarding injuries and the duration of symptoms:

1)       Right Arm:  The plaintiff suffered a strain to tendons in his right biceps. That injury has improved significantly over time, but has not resolved and will likely not do so. However, it is not disabling and does not significantly impact the plaintiff’s activities. It still causes the plaintiff momentary discomfort when he performs certain activities.

2)       Right Shoulder:  The plaintiff suffered a grade 2 strain to his neck, upper back and right shoulder. This was the most serious injury sustained in the accident. That injury substantially resolved within about 18 months of the accident. The accident left the shoulder susceptible to what the plaintiff calls flare-ups or aggravations. The plaintiff does not have ongoing persistent pain or discomfort. His occasional flare-ups do not last for long and are not disabling.

3)       Low Back:  The plaintiff suffered a very mild low back strain in the accident. That injury resolved in a few months. The incidents of low back pain suffered by the plaintiff since that time are unrelated to the injuries suffered in the accident.

…

[45]         Of course, the appropriate award for non-pecuniary loss must take into account, all of the particular circumstances of the plaintiff before the court. The cases cited by counsel were helpful as a guide. I do not propose to examine and compare those cases with the facts I have found here. I will note that the cases relied on by the defendants involved circumstances that are somewhat closer to the facts I have found with regard to the nature of the soft tissue injuries with an exception. I have concluded that the plaintiff has ongoing difficulties with his right arm, albeit relatively minor, and that his right shoulder can still have flare-ups, which are contributed to by the injuries suffered in the accident. Further, the cases cited by the defendants are somewhat dated.

[46]         When I consider all of the relevant factors in light of the facts I have found, I conclude that a fair award for non-pecuniary damages is $40,000.

$31,000 Non-Pecuniary Assessment for Orbital Floor Fracture

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Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for an orbital floor fracture at $31,000.
In today’s case (Bunna (Guardian ad litem of) v. Bunah) the Plaintiff, who was 5 at the time of the collision, was involved in a 2012 crash.  He suffered a fracture to his orbital floor along with some lingering anxiety following the crash.  In assessing non-pecuniary damages at $31,000 Madam Justice Watchuk provided the following reasons:

[13]         The most serious injury sustained in the accident was a displaced fracture of the orbital floor on the right side of his face.  It also healed.  The orbital floor is adjacent to the maxillary sinus and it is not known if there was also a fracture of the maxillary sinus.  As surgery was not required, there was no further investigation of the fracture and possible fracture which would be adjacent to each other in this young boy’s facial area. 

[14]         The extensive swelling was described by a doctor on February 20, 2012 to be “severe swelling in the right facial region with severe bruising, almost unable to open his right eye”.  The bruising lasted a maximum of six months.  There has been no scarring.

[15]         In summary, during the night in the hospital in Mackenzie, Julien had pain and cried quite a bit as he did on the way home to Quesnel.  He had some pain for a few weeks, and for few months he had occasional pain if his face was touched.  He had some anxiety for about six months following the accident.  The long-term effect has been upset and stress and crying from the worry when his mother is late.  He worries that she has been in a car accident if she is late.  This has occurred ongoingly, and a couple of times in 2015, most recently in November 2015…

[18]         With regard to the nature of the injury, the most serious is the fracture of the orbital floor on the right side of the face.  It was accompanied by extensive bruising and swelling.  It resolved without surgery within six months.

[19]         With regard to loss or impairment of life, emotional suffering and severity of duration of pain, due to Julien’s young age at the time, just turned five years old, the evidence is obtained primarily from his aunt’s observations in her frequent visits with him.  From the descriptions, Julien is a stoic and resilient child and recovered quickly, also within six months.  The only lingering effect is that he becomes fearful and upset when his mother is late in arriving to pick him up because he is worried that there has been another accident.  This fear has occurred repeatedly.  In 2015 it happened twice when his mother was late, most recently in November 2015…

[23]         In this case particular weight is given to the plaintiff’s age, his stoicism in the circumstances of the accident, and the emotional suffering of such a young plaintiff.  Non-pecuniary damages are assessed at $31,000.

$60,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

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

Adding to this site’s archived soft tissue injury database, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, assessing non-pecuniary damages of $60,000 for lingering upper body soft tissue injuries.
In this week’s case (Olson v. Yelland) the plaintiff was involved in a 2012 rear end collision.  The Defendant admitted fault.  The Plaintiff sustained soft tissue injuries to her neck, mid back and shoulders which continued to pose problems at the time of trial.  In assessing non-pecuniary damages at $60,000 Mr. Justice Weatherill provided the following reasons:

[117]     On the whole of the evidence, I accept that the plaintiff received soft tissue injuries to her neck, trapezius muscles and mid-back and headaches that continue to negatively affect her function to some degree.

[118]     I find that her pre-Accident lower back and left knee conditions would have significantly affected her ability to function at home and at work in any event of the Accident.

[119]     I find that prior to the Accident and in any event of the Accident, her competitive employability and ability to perform homemaking tasks had already been significantly compromised. The soft tissue injuries she received from the Accident were superimposed on her Original Position and made it more difficult for her to manage her day-to-day activities.

[120]     I find that the plaintiff has made significant recovery from the effects of the Accident within the past three years, but has been left with ongoing neck, mid-back, trapezius pain and related headaches.

[121]     The injuries the plaintiff is left with, and that I accept, are soft tissue injuries to her neck, mid-back and trapezius muscles. They have caused increased frequency and intensity of headaches.

[122]     I accept that these issues continue to affect her, and likely will continue for two to three more years. However, I find that the Accident related injuries pale in comparison to the unrelated issues she has with her low back and left knee…

[132]     In the circumstances, and following the principles set out in Stapley, I find that a reasonable award for general damages is $60,000. As will be seen below, within this sum I have included the plaintiff’s claim for reduced homemaking abilities.

"Reasonable Efforts" Identifying At Fault Motorist Cannot Be Determined by way of Summary Trial

Written by admin on . Posted in BCSC Civil Rule 9, Civil Procedure.

Adding to this site’s database of ICBC Unidentified Motorist prosecutions, reasons for judgement were published today by the BC Supreme Court, Kamloops Registry, finding that the Summary Judgement rule cannot be used to determine if a plaintiff made all reasonable efforts to identify the at fault driver which is a prerequisite to a successful unidentified motorist prosecution.
In today’s case (Lapointe v. ICBC) the Plaintiff used the summary judgement rule to strip ICBC’s defence alleging the Plaintiff failed to make all reasonable efforts to identify the at fault motorist.  ICBC appealed and Mr. Justice Myers overturned the earlier ruling noting the Court can only address this issue when determining liability and cannot address this defense in a piecemeal fashion.  In reaching this decision the Court provided the following reasons:

[8]      The issue in this appeal is purely a legal one. The standard of review is therefore correctness: Ralph’s Auto Supply (B.C.) Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, at para. 7.

[9]      I do not agree with the plaintiff’s argument which artificially separates the cause of action against the unknown driver or owner from the claim against ICBC. Although it is common practice to name John Does as substitutes for the driver and owner, the section does not require that; an action may be brought against ICBC only. It is obvious that there is no John Doe to serve and no default judgment can be taken against the unknown driver or owner. ICBC is fully in control of the defence until the time of judgment or the driver or owner is found. I do not think there is a separate claim against under ICBC under s. 24 as the plaintiff maintains.

[10]    Therefore, a decision on s. 24(5) alone is not determinative of a claim and cannot result in a judgment; it is only a decision on an issue. On the basis of Century Services, it is therefore not amenable to a Rule 9-6 application.

 [11]   That is sufficient to allow the appeal but there is a further related point (not argued by ICBC) which reinforces this conclusion. The obligation to attempt to locate the driver or owner is a continuing one in this sense: if facts come to light that make the identity ascertainable, the plaintiff is no doubt obligated to follow up on that information. And, if the identities become known, section 24(6) provides that the driver or owner must to be substituted for ICBC in spite of any limitation period.  The wording of section 24(5) is that “a judgment against the corporation must not be given unless the court is satisfied that…”. This contemplates a single judgment.

[12]    I therefore do not think that a separate decision on section 24(5) can be made in advance of a decision on liability as a whole. Put another way, the time at which the court must be satisfied as to the factors in s. 24(5) is the time of the determination of liability for the accident. The opposite interpretation would allow for a scenario where s. 24(5) is determined in favour of a plaintiff, and the driver becomes known before the trial on liability. It would then make the substitution for ICBC impossible as the matter would be res judicata.

 [13]   I therefore allow the appeal.

$70,000 Non-Pecuniary Assessment for Chronic Neck and Back Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $70,000 for chronic soft tissue injuries.
In today’s case (Suthakar v. Humble) the Plaintiff was involved in a rear end collision in 2011.  She sustained soft tissue injuries to neck, low back and shoulder.  The court accepted that the low back injury likely involved her sacroiliac complex.  The Plaintiff remained symptomatic at the time of trial  and her symptoms were expected to persist causing some interference in her daily functioning.
In assessing non-pecuniary damages at $70,000 Madam Justice Ballance provided the following reasons:

[118]     For several years now Ms. Suthakar has struggled with residual symptoms in her neck, left shoulder and low back.  Although her symptoms have improved over time and she may enjoy some modest additional improvement in the next while, they have nonetheless persisted and are susceptible to being exacerbated as a result of her work activities and daily domestic duties.  Her nagging pain leaves her exhausted at the end of her work shift.  When she arrives home, she is usually not able to do much of anything beyond taking a hot shower and resting on the couch with a hot pack.  Fortunately for Ms. Suthakar, her symptoms are manageable without medication on her days off.

[119]     The ill‑effects of the Accident have adversely impacted the quality and enjoyment of Ms. Suthakar’s interactions with her sons.  She is not able to play with them in the same way as before and is quick to anger.  Also of significance for this young woman is that her injuries have interfered with her intimate relationship with her husband.

[120]     In prior cases, I have observed that enduring pain, even when it is intermittent and mostly low-grade, can compel unwelcome adjustments to one’s work life and lifestyle and cloud the pleasures of life, as it has in Ms. Suthakar’s case.  Working in pain during the majority of her shifts has become part of Ms. Suthakar’s everyday work life and is likely to continue for many years to come, if not indefinitely.

[121]     I have reviewed the authorities placed before me by counsel.  The cases submitted by Ms. Suthakar’s counsel are more instructive than those relied on by the defendants.  In any event, the case law only provides general guidelines for what is, at its core, a highly individualized assessment.

[122]     Having regard to the Stapley factors and the other case authorities in the context of the evidence in the case at hand, in my opinion, a fair and reasonable award for Ms. Suthakar’s non-pecuniary damages is $70,000.