$65,000 Non-Pecuniary Damage Assessment for Chronic Headaches and Soft Tissue Injuries
Adding to this site’s archived posts of BC non-pecuniary damage assessments for chronic headaches, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In last week’s case (Fell v. Morton) the Plaintiff was involved in a 2009 rear-end collision. Fault was admitted by the rear motorist. The Plaintiff suffered from pre-existing neck and upper back pain along with “headaches that were brought on by exertion“. Following the crash she suffered soft tissue injuries to these regions along with a recurrence of frequent migraine headaches. These aggravated symptoms continued to the time of trial and the prognosis for full recovery was poor. In assessing non-pecuniary damages at $65,000 Madam Justice Fenlon provided the following reasons:
[23] Having considered all of the evidence, I find that Ms. Fell suffered soft tissue injuries to her upper neck and back as a result of the accident. I further find that those injuries triggered a recurrence of migraine headaches that had been almost entirely in remission since the birth of her first son.
[24] The migraines initially occurred twice per week, gradually decreasing to about once or twice each month by the time of trial. Ms. Fell’s headaches are debilitating, involving nausea and extreme sensitivity to light and sound. They sometimes last for two or three days, and all Ms. Fell can do is lie in a darkened room. She could not attend her wedding reception in Mexico in April 2010 because of a migraine headache…
[28] I find that prior to the accident Ms. Fell tended to suffer regularly from neck and upper back pain and headaches that were brought on by exertion. She sought regular massage therapy and chiropractic treatment in relation to those symptoms. She also had a proclivity to develop migraine headaches, and that condition meant she was susceptible to something else triggering her headaches in future.
[29] Ms. Fell should not be compensated for her pre?existing condition or the potential for it to reoccur quite apart from the injuries sustained in the motor vehicle accident…
[38] Ms. Fell is a stoic individual whose attitude in the face of life’s difficulties is to get on with it, in her words, “to suck it up”. She should not receive a lower award of non-pecuniary damages because of that stoicism. Indeed, to the contrary, it is appropriate to include under this head the suffering she endured while she pushed herself to keep working after the accident, despite her injuries.
[39] In summary, the injuries from the accident have affected all areas of Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre?existing condition and proclivity to develop migraine headaches.
[40] Taking all of these considerations into account, I set non-pecuniary damages at $65,000.