Non-Pecuniary Damages for Chronic Soft Tissue Injuries Discussed
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering the value of chronic soft tissue injuries following a motor vehicle collision.
In today’s case (Harris v. Zabaras) the Plaintiff was injured in a pretty forceful rear-end collision involving two pick up trucks. Fault for the crash was admitted leaving the Court to focus on the extent and value of injuries and loss.
The Plaintiff suffered from soft tissue injuries to his neck and upper back in the collision. The injuries, while they improved somewhat by the time of trial, were expected to have some lasting consequences. In assessing the non-pecuniary damages at $50,000 Madam Justice Schultes provided the following analysis:
[66] Adjusted to current dollars, a guide to the range of awards for soft tissue injuries accompanied by emotional problems such as sleep disruption, nervousness or depression is approximately $42,000 – $150,000: Unger v. Singh, 2000 BCCA 94 at para. 32…
[68] When characterizing the effects of the plaintiff’s injuries for the purposes of non-pecuniary damages, I do not think it is helpful to attempt to choose between the labels of “mild” and “mild to moderate” that have been offered by two of the medical witnesses. At the end of the day, what is important is the pain the plaintiff experiences as a result of the injuries and how that impacts his life.
[69] In that regard, while there has been some reduction in the frequency of the plaintiff’s headaches, he remains subject to neck and left arm pain whenever he undertakes strenuous physical activity. As Dr. Travlos put it, “he will generally pay the consequences for doing such activities”.
[70] The extent of his resulting disability is that he must either avoid strenuous physical activity or divide it into more manageable chunks that will not provoke symptoms. This compromises his ability to engage fully in the recreational building or maintenance activities that have previously been a source of pleasure to him and in turn has led to a level of depression in the face of his more limited prospects.
[71] Even if he is able to relieve his symptoms somewhat through the steps that have been recommended to him, the consensus of medical opinion is that they will persist.
[72] However I note that the plaintiff speaks of being unable for the most part to engage in these activities any longer whereas Dr. Travlos has encouraged him to continue to be as active as possible, bearing in mind that his capacity for working continuously will be reduced and that he will experience pain as a result.
[73] This relates to Dr. Devonshire’s observation that the plaintiff may be over-rating his pain, because he has not required any “significant analgesia” ( by which I think she means prescription- level painkillers) to control it.
[74] While I am satisfied that the physical symptoms that the plaintiff, his wife and the Grieves have described are genuine, he nevertheless appears to view them as imposing somewhat greater limitations on his physical activities than may actually be the case.
[75] Perhaps the fairest way to characterize the effect of his symptoms is that they place meaningful restrictions on his ability to pursue strenuous physical activities in the manner and to the extent that he previously did…
[79] Taking into account all of the circumstances and the authorities, I think that an award of $50,000 for non-pecuniary damages is appropriate in this case. In arriving at this amount I am mindful of the fact that the award in Hanna, when adjusted to current dollars, falls within a similar range, even though it involved a brachial plexus injury. The effect on the plaintiff in that case however, was quite similar to the plaintiff’s situation, so I do not think that diagnosis in itself limits its applicability.
The Plaintiff’s damages were reduced by 10% for failing to take some steps which could have improved his accident related symptoms. The court’s discussion of ‘failure to mitigate’ set out at paragraphs 80-88 of the reasons for judgement are worth reviewing for a quick introduction to this area of personal injury law.