One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.
Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury. So how do courts deal with such claims? Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility. If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC. The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her. The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.
Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses. The award included $45,000 for non-pecuniary damages. In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries. The highlights of the Court’s discussion were as follows:
[12] Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area. In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident. Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005. He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.
[13] I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson. I do not think it is necessary to refer to their evidence in any detail. In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area. The doctors also all agree that there is no objective evidence of underlying injury causing this pain. They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.
[14] Dr. McPherson’s initial opinion was that there was no objective evidence of disability. However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006. I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future. However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.
[15] The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation. The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.
[16] Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area. I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…
[18] Ms. Sylte is 51 years old. She testified that prior to the first motor vehicle accident she was an active, energetic individual. She enjoyed playing mixed softball, golf and skiing. She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster. She was a single mother whose adult son, Josh, lived with her.
[19] Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally. She simply finds these activities too painful to pursue. In addition she no longer skis. She indicated that Josh is now required to do many of the more physically demanding tasks around the house. She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain. She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.
[20] Josh gave evidence at the trial. He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident. He also indicated that his mother had become much less social after the accident. Josh, who is now 31, does much of the heavy work around the house.
[21] Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident. The evidence before me is that these symptoms will be permanent. I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing. She is in more or less constant discomfort from the injuries she has suffered. As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.
[22] I have concluded that there should be a substantial award for non-pecuniary damages in this case. I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability. In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.
