$50,000 Non-Pecuniary Damages for Shoulder Impingement in ICBC Claim
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for accident related soft tissue injuries and shoulder impingement.
In last week’s case (Dial v. Grewal) the Plaintiff was involved in a 2006 BC motor vehicle collision. Fault for the crash was admitted focusing the trial on the value of the claim. The Plaintiff faced some credibility challenges at trial and the Court found that she “exaggerated” some of her testimony about the extent of her symptoms however Associate Chief Justice MacKenzie found that the plaintiff did suffer real injuries including traumatic right shoulder impingement. In assessing the Plaintiff’s non-pecuniary damages at $50,000 the Court made the following findings:
[4] For the reasons that follow, I find on the evidence as a whole that an appropriate award for non-pecuniary damages is $50,000 for the injuries the plaintiff sustained to her neck and right shoulder, the aggravation of her pre-existing low back condition and headaches, and more minor injuries to her ribs, and dizziness…
[190] The purpose of a non-pecuniary damage award is to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. While each award must be made with reference to the particular facts of the case, other decisions may assist the court in arriving at an award that is fair to both parties: Smaill v. Williams, 2010 BCSC 73 at para. 78…
[194] The plaintiff relies on the following cases in support of her submission that $80,000 is the appropriate quantum for non-pecuniary damages: Kasic v. Leyh, 2009 BCSC 649;Predinchuk v. Spencer, 2009 BCSC 1396; Thomas v. Bounds, 2009 BCSC 462; and Lee v. Metheral, 2006 BCSC 1841.
[195] I find, conversely, that these cases support higher awards than is fair in this case because the defendants have no obligation to compensate the plaintiff for symptoms attributable to her pre-accident low back condition. That said, I find that an award that is just and fair to both parties is $50,000.
[196] As I have already discussed, the plaintiff’s testimony about her symptoms and pain was at times vague and at others, exaggerated. Nevertheless, I accept that she suffered substantial pain for months after the accident, as is supported by the medical evidence in this case. Her pain gradually improved, and she was able to substitute for her husband at work about 14 to 18 months after the accident, albeit primarily for a few hours at a time but also with a few full-time shifts. By that time, her neck and shoulder pain were manageable. The aggravation of her pre-existing low back condition had also resolved such that her back had returned to its pre-accident condition.