$90,000 Non-Pecuniary Assessment for Partially Disabling Chronic Pain
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain following a motor vehicle collision.
In today’s case (Swieczko v. Nehme) the Plaintiff was involved in an intersection collision in 2011. The Plaintiff committed to the intersection on a green light but could not turn due to oncoming traffic. The Plaintiff waited until the light turned a stale yellow and began the turn. The Defendant, who was in the oncoming curb lane, came through on what was likely a red light and the vehicles collided. The Court found the Defendant fully liable for the collision.
The Plaintiff sustained soft tissue injuries which resulted in chronic symptoms. In assessing non-pecuniary damages at $90,000 Madam Justice Koenigsberg provided the following reasons:
[40] Mr. Swieczko suffered significant soft tissue injuries as a result of the accident. The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities. His prognosis is poor. Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.
[41] Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline. She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.
[42] Mr. Swieczko was 27 years old at the time of the Accident. He is now 31. He has been engaged in the video game industry for close to nine years. He began as a “quality assurance” tester. This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public. It requires concentration and repetitive tasks. It was described as being a form of detective work. The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days. This career is generally somewhat insecure, as most of the employment is on contract. Mr. Swieczko has been laid off and re-hired several times.
[43] Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job. Mr. Swieczko is obviously a talented, hard-working, ambitious young man. He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted. However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days. Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s. Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.
[44] Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now. While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident. The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter. However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child. Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain. This in turn has required more pain medication and led to frustration.
[45] It must be recognized that this state of affairs is costing Mr. Swieczko psychologically. He is far less able to socialize and enjoy family get-togethers – or physical activity that he enjoyed before the Accident. Thus, Mr. Swieczko is struggling with frustration and emotional despondency from time to time as he contemplates the immediate future, wherein he may not be able to be an active participant in his daughter’s physical recreational life. It was clear from Mr. Swieczko’s evidence that he was taken aback by receiving his poor prognosis in relation to living relatively pain-free and being able to do what he did before. In particular, he had ambitions of participating in such physical activities as karate with his daughter as she matures. He is now very unlikely to be able to do this…
The most significant factor in this case making the assessment of general damages suggested by the plaintiff more appropriate than that suggested by the defendant is the severity and chronicity of pain, which combines with Mr. Swieczko’s increasing emotional struggle over the impairments to his family, marital and social relationships. Adding to this is Mr. Swieczko’s stoicism, which, in this case, has meant he has and continues to work longer and harder to achieve his career goals, but at a significant cost in pain and resort to strong medications.
[52] I assess his non-pecuniary damages at $90,000.
