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Tag: Lumley v. Balilo

$25,000 Non-Pecuniary Assessment for Largely Recovered Soft Tissue Injury

A pattern that is sometimes seen with soft tissue injuries is that of significant recovery with a lingering occasional flare up of symptoms.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.
In this week’s case (Lumley v. Balilo) the plaintiff was involved in a 2009 rear end collision.  The defendant admitted fault.  The Plaintiff suffered soft tissue injuries which largely recovered in 9 months but occasionally flared with activity.  In assessing $25,000 for her non-pecuniary damages Madam Justice Baker provided the following reasons:
[45]         I conclude that Ms. Lumley’s injuries did not incapacitate her from work; or from any of the social and recreational activities she enjoyed before the accident, although discomfort in her neck and back caused her to limit her physical activities for a few months following the accident.  After a few weeks she stopped using prescription medication and relied on occasional use of an over-the-counter analgesic to manage her discomfort.  She had resumed her normal activities by April 2010 – nine months after the accident, although she continued to have stiffness and some discomfort in her neck and muscle tension headaches from time to time.  She was able to combine a full-time job with attendance at a part-time college course to become a physical fitness trainer; and began working as a trainer while completing the course, in addition to working full-time at her regular job.  Although Ms. Lumley testified that she had not improved at all after terminating physiotherapy treatments in February 2010, I conclude that she has made a significant recovery and that her current symptoms are mild and controlled with only occasional use of a non-prescription pain medication…
[57]         Ms. Lumley is a person who enjoyed a high level of fitness before the accident, and derived an important source of enjoyment and satisfaction from her participation in sports and recreational activities.  Ms. Lumley continues to be very fit and active but as a result of the accident, sometimes experiences stiffness or discomfort in her neck; and headaches that her doctor believes are causally related to muscle tension in her neck.  While these residual symptoms are not disabling; they do occasionally interfere with Ms. Lumley’s enjoyment of life and in particular, her enjoyment of the sports and athletic endeavours that are so important to her.
[58]         I am not persuaded, however, that the symptoms are likely to persist in any significant way and that the symptoms Ms. Lumley continues to experience are mild and can be managed with the use of non-prescription analgesics.
[59]         I have considered the authorities cited.  I award Ms. Lumley $25,000 in damages for pain, suffering and loss of enjoyment of life. 

Practice Tip From the Bench: Don't Unilaterally Schedule Hearing Dates

While it is possible for litigants to unilaterally schedule matters under the BC Supreme Court Rules, such a practice is discourteous and not warmly received by the judiciary.  Earlier this year I highlighted judicial criticism of a unilaterally scheduled examination for discovery.  I have recently been provided with unreported reasons for judgement criticising this practice in the context of a scheduled summary trial.
In the recent case (Lumley v. Balilo) the Plaintiff was injured in a motor vehicle collision.  Prior to trial the Defendant scheduled a summary trial application with a unilaterally selected date.  The Plaintiff objected to this practice and further to the merits of the attempt to dispose of the claim summarily.  The Court ultimately dismissed the application on the merits but prior to doing so Madam Justice Dillon provided the following practice advice to counsel considering unilaterally set dates:
[14]  …I consider that the date was unilaterally set, it being the focus of this court under the new rules to encourage direct discussion between counsel with respect to such matters as setting dates and other things so that it does not come for argument as it has today before this court.  So that is a practice point to bring to the attention of counsel, which is certainly not determinative of my disposition of the matter today but as a matter of practice counsel should discuss between themselves available dates.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.