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Mathematical Aids Should Not Be Ignored When Assessing Diminished Earning Capacity

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

Reasons for judgement were released today by the BC Court of Appeal addressing the proper role of mathematical evidence in assessing damages for diminished earning capacity.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff was awarded $110,000 in past wage loss at the time of trial for a period that spanned over 6 years.  The Court awarded a figure modestly above this for future losses despite findings that the Plaintiff would be limited for the duration of her working career, some 20 more years.  The Plaintiff appealed arguing the trial assessment was inordinately low.  The BC Court of Appeal agreed and substituted a substantially greater figure.  In addressing the proper role of mathematical/statistical evidence in diminished capacity assessments the BC Court of Appeal provided the following reasons:
[36]        This process is “an assessment rather than a calculation” and “many different contingencies must be reflected in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, supra, at para. 70.
[37]        With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure to consider an economist’s projections of a plaintiff’s lost future earning capacity contributed to the judge committing an error in principle, which “resulted in a wholly erroneous estimate of the damages”.
[38]        In cases where the future is hard to predict, a global approach to assessing the loss of future earning capacity is preferable. However, in this case, given the trial judge’s findings of fact, the future is not hard to predict. Ms. Jurczak intended to become a DIR consultant prior to her injuries and because of those injuries she can only work 15 hours per week. The trial judge found as fact that if she was physically able to work 23 hours per week, there was sufficient demand for her skills that she would be able to bill for those hours.
[39]        Additionally, the award for loss of future earning capacity is supposed to compensate Ms. Jurczak for the next 20 to 22 years but is only $10,000 higher than the award for past wage loss.
[40]        In my view, there is a reversible error in the trial judge’s assessment of future loss of capacity. The trial judge’s award bears no correlation to the award for past income loss; nor does it accord with the trial judge’s findings regarding the effect of her injuries on her future ability to work
[41]        Ms. Jurczak does not dispute the trial judge’s findings of fact. Rather, she maintains the trial judge offered no explanation as to why he departed so significantly from the findings in the economist’s report, which he appeared to accept as credible and reliable. Her argument is premised on the assumption the trial judge pulled the figure of $120,000 out of thin air, without having regard to the economist’s calculations.
[42]        It is obvious from the trial judge’s analysis and reasoning that he rejected a purely mathematical approach to calculate Ms. Jurczak’s loss of a capital asset. Instead, it appears he followed the approach in Brown v. Golaiy and awarded Ms. Jurczak $120,000. While the award represents two to three times Ms. Jurczak’s average earnings before the accident and almost double her annual earnings afterwards, the amount has no foundation in the evidence.
[43]        The trial judge was entitled to reject a mathematical approach in the circumstances of this case. However, given his factual findings, in my view the award for loss of future earning capacity is so inordinately low as to amount to an error.
[44]        Having regard to the award for loss of future earning capacity or $110,000 representing a 6 year loss, and considering Ms. Jurczak has about 20-22 years to age 65 and possible retirement, I would increase the award for loss of future earning capacity to $400,000.

$50,000 Non-Pecuniary Assessment For Chronic Low Back Soft Tissue Injury

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

Reasons for judgement were released earlier this month by the BC Supreme Court,  New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010.  She sustained soft tissue injuries to her low back and sacroiliac region.   These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons:
[20]         Ms. Hatch continues to have back pain.  She finds it particularly bothersome after physical exercise and towards the end of the work week.  She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy.  Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis. 
[21]         All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse.  The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve. 
[22]         It is now more than three years since the Accident.  Ms. Hatch has reached a plateau in her recovery.  Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012.  This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time.  The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time.  The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times.  As such, there is no mitigation issue. 
[23]         In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury.  The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores.  The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. ..
[41]          As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar.
[42]         Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages. 

$48,000 Non-Pecuniary Assessment for C5-6 Disc Herniation

Written by admin on . Posted in Uncategorized.


Adding to this site’s archived case summaries addressing C5/6 disc injuries, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Levens v. Lehman) the Plaintiff was injured in a rear end collision.  She had pre-existing neck and back pain.  The collision caused a herniated disc which remained symptomatic at the time of trial and had a 50% likelihood of needing future surgical intervention.  In assessing non-pecuniary damages at $48,000 Madam Justice Hyslop provided the following reasons:
[105]     I have concluded, based on all of the medical evidence and the evidence of Ms. Levens, that as a result of the accident Ms. Levens suffered a herniated disk as seen in the MRI ordered by Dr. Singh in 2011.
[106]     I also conclude that Ms. Levens, due to her pre-existing condition, was more susceptible to a disk herniation as a result of the degenerative changes in her cervical spine.
[107]     I further conclude that Ms. Levens’ back injury was due to myofascial pain which put her into the hospital in November of 2009. Ms. Levens has spinal stenosis in her back unrelated to the accident which was aggravated by the accident. As a result of the accident, I conclude, for about a year, Ms. Levens had additional pain that she would not have had but for the accident…
[144]     At the time of the accident, Ms. Levens was 65 years old and at the time of the trial was age 69. Her most significant injury is the disc herniation in her neck. The pain has been severe. The myofascial pain and arthritis in her back would have been ongoing and not related to the accident. The motor vehicle accident caused increased pain which landed her in the hospital.
[145]     She is disabled as she does not always have a full ROM in her neck. She has been unable to engage in some of her recreational and sporting activities that she engaged in prior to the accident.
[146]     In coming to the amount of her non-pecuniary damages, I take into consideration that Ms. Levens had a pre-existing condition in her neck which was described by Dr. Singh as “the car accident did cause the final blow to the patient’s disc bulging at a spot that was already weak and had some problems previously.”
[147]     I award the plaintiff $48,000.00 in non-pecuniary damages.

Realtor Fee Recovery Discussed Following Collision Related Change of Residence

Written by admin on . Posted in Uncategorized.

If you are injured in a collision and sell your house for more suitable accommodations can the realtor commission fees be claimed as damages?  Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry addressing this.
In this week’s case (Brown v Bevan) the Plaintiff was injured in a 2009 intersection collision.  The Defendant was found fully at fault.  The Plaintiff suffered various injuries which continued to impact her at the time of trial.  She ultimately sold her multilevel townhouse and moved into a one level apartment.  The Plaintiff moved in part because she struggled walking up and down the stairs in her former residence.  She sought damages for the realtor’s commission charged in the sale arguing that this expense was incurred due to the collision.  In refusing these damages Mr. Justice Weatherill provided the following reasons:
[180]      The largest and only disputed item is the claim for $33,801.79 representing the net commissions on the sale of the plaintiff’s Gilford Street town home ($20,680), storage ($599.55), costs associated with purchasing the Homer Street property including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16).
[181]     The issue is whether the costs related to moving are reasonable expenses that can be claimed. But for her injuries and resultant difficulty she had negotiating the stairs inside and outside of home, the plaintiff argues she would never have sold, moved and incurred those expenses. She relies on Rodger v. McDowell, [1994] B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189…
[185]     In Rodger, an award for commission expenses was made in similar circumstances where a plaintiff moved from a two level home to a one level home. The basis of the award is unclear. It apparently was based on defence submissions that “Ms. Rodgers would be adequately and appropriately compensated if she is reimbursed for real estate commission and moving expenses.”
[186]     In Piper, a claim for real estate commissions, moving costs and taxes related to changing residences was dismissed because the plaintiff’s low back injury was not proven to have been caused by the motor vehicle accident.
[187]     In this case, the plaintiff argues the expenses associated with changing residences are directly attributable to the collision and the plaintiff’s prolonged distress from having to use multiple stairs in the Gilford residence on a daily basis. She could not manage them and a move to a single level home was necessary.
[188]     In my view, these expenses are not recoverable from the defendant because:
a.       the principles of compensatory damages in tort require the plaintiff to be compensated for all reasonably foreseeable losses directly or indirectly caused by the tort (BG Checo International Ltd. at para 47);  
b.       the plaintiff is not to be placed in a position better than his or her original one. The court must determine the plaintiff’s “original position” before the tort and her “injured position” after the tort. It is the difference between these two positions that is the plaintiff’s loss (Athey at para 32).
[189]     While the accident indirectly caused the plaintiff’s left heel pain and that moving residences was a foreseeable risk, on the Athey test, the plaintiff’s claim under this head must fail. I find that the plaintiff would have moved residences to a one story home in the future in any event. These expenses would have been incurred regardless, albeit sooner (perhaps a year or two) than otherwise expected. In other words, these expenses were not incurred “but for” the collision.

$30,000 Non-Pecuniary Assessment for Long Lasting Soft Tissue Injury With "Relatively Minimal" Impact

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

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.   The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back.  Her symptoms carried on to the time of trial and were expected to continue indefinitely.  Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function.  In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
[54]         I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
[55]         I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
[56]         With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
[57]          However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
[58]         It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
[59]         Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
[79]         In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain  four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
[80]         Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.

Motorcyclist At Fault for Collision After Making "Poor Reactive Choice"

Written by admin on . Posted in ICBC Liability (fault) Cases.


Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.
In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff.  The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“.  In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:
[42]         I find that the accident happened through no fault on the part of the defendant.  She did what was reasonably expected of her.  She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again.  She cannot be held responsible for his decision to veer to the right.
[43]         The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn.  That evidence struck me as a post hoc rationalization of the plaintiff’s actions.  There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.
[44]         I find this accident happened solely due to the plaintiff’s fault.  He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant.  He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.
[45]         The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.
[46]         The action is, therefore, dismissed.

$70,000 Non-Pecuniary Assessment for Chronic Facet Joint Injury

Written by admin on . Posted in ICBC Spine Injury Cases. 42 Comments on $70,000 Non-Pecuniary Assessment for Chronic Facet Joint Injury

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back injury.
In this week’s case (Bearpark v. Lakhanpal) the Plaintiff was injured in two collisions.  The Defendants accepted fault.  The Plaintiff suffered injury to his facet joints in the L4-S1 region.  This caused chronic pain and resulted in restrictions in the Plaintiff’s ability to do heavier work.  In assessing non-pecuniary damages at $70,000 Mr. Justice Greyell provided the following reasons:
[100]     I am satisfied the evidence presents a consistent and reliable picture of the plaintiff’s injuries, which he did his best to describe in his evidence. His evidence was generally consistent with the findings of his physicians that in the two motor vehicle accidents he sustained and suffers from chronic lower back pain which originates from injury to his facet joints in the L4 – S1 region, shoulder pain which flares up (and was likely aggravated in the bus accidents) and neck pain. His neck pain has now mostly resolved…
[103]      Mr. Bearpark has been left with significant ongoing chronic lower back pain which I find is the result of an injury to his lower back in the L-5-S-1 area. I find this injury to be a direct result of the two motor vehicle accidents. The injury to his lower back bothers him more when he engages in heavy labour and limits him in the job functions he can perform. He is able to tolerate it in the sedentary position he now occupies with accommodations provided to him by his employer.
[104]      I find the injuries to his right shoulder, hand, and knee have mostly resolved. I find that his left shoulder is now more susceptible to injury as a result of an impingement in that shoulder and along with his neck, bothers him, and will likely continue to limit his functional ability when he engages in heavy labour. I find that the ongoing intermittent problems in his neck and left shoulder were caused by the motor vehicle accidents. His left shoulder injury may well have been aggravated by the First Bus Accident. That is, as the defendants submit, not a matter to be considered in this action.
[105]     The plaintiff’s main ongoing and persistent complaint is of ongoing pain in his lower back or organic problems in his lower spine as described above.
[106]     I also find that he is likely still bothered by symptoms of depression and Post Traumatic Stress, including difficulty sleeping, anxiety, and flashbacks to the motor vehicle accidents. The depression likely has an effect on the amount of pain he feels. As described in the medical evidence, the two often go hand in hand…
[110]     Mr. Bearpark is a relatively young man who, at the time of both motor vehicle accidents, had not yet settled into a career path. He was active in both sporting and social activities, although somewhat reserved and shy. The accidents have left him with ongoing chronic back pain, which limits his performance of heavier work involving lifting, bending or twisting, and intermittent pain in his neck and left shoulder. He will likely be restricted to sedentary work in the future as a result of the injuries to his back and shoulder. His physicians have recommended that conditioning and exercises may help him although, as stated above, his prognosis is “guarded”.
[111]     Taking into account the principles outlined in Stapley and the authorities referred to by counsel, I am of the view an appropriate award for non-pecuniary loss in this case is $70,000.

Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

Written by admin on . Posted in Occupier's liability claims, Uncategorized. 63 Comments on Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

BC law requires ‘occupiers’ to take reasonable steps for the safe use of their property.  The law does not require a standard of perfection as was demonstrated in reasons for judgement released this week by the BC Court of Appeal.
In this week’s case (Dandell v. Thompson Rivers University) the Plaintiff slipped and fell while walking down an “icy pathway into a grassy snow-covered hill” while walking to class.  He chose this path despite the availability of a “convenient and well-maintained sidewalk leading right to the place where he was going“.
The Plaintiff suffered severe fractures to his leg and ankle.  He sued for damages arguing that the University was at fault because they knew this shortcut was being used and that it posed a danger.  The case was dismissed at trial and the BC Court of Appeal upheld the dismissal finding that the University acted reasonably.  In reaching this conclusion the BC Court of Appeal provided the following reasons:
[4]             The building Mr. Dandell was going to when he fell opened in 1997.  It is adjacent to a roadway.  The sidewalk alongside runs parallel to the building and then cuts back slightly in a V-shape leading down to the ground level entrance.  Instead of following the sidewalk into the building, many students would cut the corner, as it were, by walking down one of the pathways worn into the grassy hill from various points at the top.  They saved 11 seconds in walking time.  The practice was ongoing year round with the incumbent risk in winter conditions that someone would slip and fall.  This was evident to the university’s administration, although there had never been a report of an injury.  Mr. Dandell had seen students using the shortcut in winter conditions lose their footing, but it did not cross his mind he might fall and be injured.  In hindsight he was, by his own candid admission, “thoughtless” in regard to his safety.  He chose to walk down what was a visibly icy slope instead of using a cleared sidewalk and, near the bottom, he fell…
[11]         I am unable to accept Mr. Dandell’s contention that, by virtue of what was said in Waldick, the university was, as a matter of law, required to eliminate the risk of a student being injured as he was.  InWaldick, the court was concerned with an injury that occurred as a consequence of an occupier’s failure to provide any safe access to a home.  The only access at the time of the incident in question was icy, slippery, and covered with a dusting of snow.  No one could access the home without being exposed to a risk of the injury that was suffered.  As is made clear in the passage quoted above, the legislation requires positive action to remove or minimize the risk of injury, not in every instance but where the circumstances warrant.  It is the circumstances in any given instance that govern what the occupier must do to take reasonable care to see that those on the premises will be reasonably safe.
[12]         Here there was a well-maintained access to the building the university intended students like Mr. Dandell to use rather than taking the shortcut.  It would have taken him only 11 more seconds.  Far from being arguably irrelevant, the university’s positive action to maintain a safe access to the building was clearly a proper and significant factor in the judge’s application of the legal standard of reasonableness in all of the circumstances. 
[13]         The trial decisions Mr. Dandell cites to support his contention that an alternative access is not necessarily conclusive of the occupier’s duty having been discharged appear to me to be instances where the risk of injury, or the alternative access, although known to the occupier, was not apparent to the person injured.  Kinnear v. Canadian Recreation Excellence (Vernon) Corp. (February 24, 2011), Vernon Docket 39746 (B.C.S.C.), is an example of an alternative access (40 seconds longer) being largely conclusive of the proper discharge of an occupier’s duty in circumstances somewhat similar to those leading to the injury Mr. Dandell suffered.  The existence of an alternative access, like the extent to which the risk taken was apparent, must be a part of all the circumstances to be considered in applying the legal standard in any given case where a choice of access – one safe, the other not – is made.

$75,000 Non-Pecuniary Asssessment For Onset of Symptoms in Pre-Existing Degenerative Changes

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

Adding to this site’s archives addressing damages for collisions triggering symptoms in pre-existing degenerative changes, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with such an injury.
In last week’s case (Savoie v. Williams) the Plaintiff was injured in a collision when the Defendant ran a stop sign.  Although fault was not admitted the Defendant was found fully at fault.  The 53 year old plaintiff, who was fit and active, suffered soft tissue injuries.  She also had degenerative changes in her neck which pre-existed the collision.  Following the crash these became symptomatic and the symptoms were expected to linger into the future.  In assessing non-pecuniary damages at$75,000 Mr. Justice Johnston provided the following reasons:
[34]         Dr. Maloon agreed that there was no indication that the plaintiff had any complaints arising from these areas of her body prior to the accident, and described as a “million dollar question” the reason some people with similar wear and tear will have pain or other symptoms from the wear and tear, whereas others will not.
[35]         Dr. Maloon also said that once there are wear and tear changes to the neck, nothing can be done to change the natural course of that condition; it is a mechanical problem and treatment is largely symptomatic.
[36]         At page 6 of his written opinion Dr. Maloon says:
It is possible that the soft tissue strain that she sustained initiated the symptoms of degenerative changes that have persisted to date.
[37]         I conclude that Ms. Savoie’s initial soft tissue injuries, which I consider moderate to severe, have plagued her from the time of the accident until the date of trial. I also find that these injuries precipitated symptoms from the pre-existing (but asymptomatic) degenerative state of her neck and upper back, that the combination of the injury and the degeneration has created more discomfort than either would alone, and that to the extent that the continuing symptoms come from the degenerative neck condition, it is unlikely they will ever completely go away.
[38]         I have reviewed the authorities tendered by each counsel and consider that the facts of this case more nearly approximate the facts in Ortega v. Pena, 2012 BCSC 1884, and Thomas v. Wormsley, 2009 BCSC 919.
[39]         In personal injury litigation there never are identical plaintiffs, circumstances or injuries and consequently authorities are, at the best, guidance on the question of damages.
[40]         On the evidence before me, I assess Ms. Savoie’s non-pecuniary damages at $75,000.

$45,000 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 case summaries addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injuries.
In last week’s case (Smith v. Both) the Plaintiff was injured in a “not particularly severe” collision in 2009.  She sustained soft tissue injuries which remained symptomatic at the time of trial and were expected to have some lingering consequences.  In assessing non-pecuniary damages at $45,000 Madam Justice Russell provided the following reasons:
[99]         It is clear from the evidence that the impact in the Accident was not particularly severe. In coming to this conclusion, I have considered the fact that the damage to the vehicles was negligible, neither vehicles’ airbags deployed, the defendant’s seatbelt did not lock, and the plaintiff’s car did not move forward far enough to hit the car in front of it.
[100]     However, on the basis of the evidence before me I find that the plaintiff has demonstrated that the pain in her neck, shoulders, and lower back, as well as headaches, were caused by the Accident. These symptoms emerged after the Accident, and according to both the plaintiff’s and the defendant’s medical experts, these pain symptoms are consistent with soft tissue injuries…
104]     I find it is likely she will continue to have some pain resulting from the soft tissue injuries she suffered in the Accident.
[105]     However, I am not satisfied the plaintiff has demonstrated that this pain will not improve or that the residual pain will be severe…
[131]     In the circumstances of this case, considering Ms. Smith’s age, pre-Accident activity level, injuries, severity and duration of pain, interference with lifestyle, and impairment of life and of social relationships, I award the plaintiff $45,000 in non-pecuniary damages.