Adding to this site’s archived ICBC case summaries involving shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, assessing damages for a rotator cuff tear requiring surgical intervention.
In today’s case (Mitchell v. Martin) the Plaintiff was involved in a 2009 motorcycle collision caused by the Defendant where “the plaintiff was thrown from his motorcycle and injured his right shoulder, neck and back and suffered from bruising and road rash“.
The Plaintiff’s most serious injury was a rotator cuff tear which required surgical intervention and the Plaintiff was left with chronic pain in the shoulder. In assessing non-pecuniary damages at $85,000 Madam Justice Young provided the following reasons:
 I am satisfied on a balance of probabilities that the labral tear and the rotator cuff tear were caused by the Accident and that the majority of the plaintiff’s right shoulder injuries were caused by the Accident. I prefer the evidence of the surgeon, who not only reviewed the MRI and treated the plaintiff, but actually visualized the shoulder joint during surgery…
 The plaintiff suffered considerable pain and instability of his shoulder while waiting for surgery. This was a time period during which he saw no improvement. After 12 months, he then had to undergo the pain of surgery and a six-month recovery period. The surgery distinguishes this case from many of the defendant’s cases that fall in the lower range.
 The plaintiff is a stoic, motivated individual who enjoyed an excellent recovery because of his rehabilitation efforts so that he has a stable, fully mobile shoulder but he is not without chronic pain. There is no indication that this level three out of 10 pain is going to improve and I expect, given that it has not improved in six years, he will continue to experience it.
 His shoulder pain will affect his productivity at work and in his recreational activities, which impact his enjoyment of life. He does not suffer the level of pain that Ms. Cimino does, however, I take into consideration that award is seven years old and may have been higher in 2016.
 I award $85,000 for non-pecuniary damages.
Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain.
In today’s case (Mayer v. Umabao) the Plaintiff was involved in a 2012 collision. Liability was disputed but the Court found the Defendant fully at fault for the collision.
The Plaintiff sustained a mild traumatic brain injury and suffered from cognitive dysfunction. The court found some of this dysfunction was due to the head injury and the rest due to chronic pain and other factors also linked to the crash. In assessing non-pecuniary damages at $175,000 Madam Justice Young provided the following reasons:
 I am satisfied on the basis of Dr. Chahal’s evidence and Dr. Krywaniuk’s evidence that Mr. Mayer did suffer some trauma to the left side of his head resulting in vestibular difficulties and symptoms of a mTBI. The trauma may have been caused by an acceleration/ deceleration trauma or it may have been caused by a blow to the left side of his head. I find most convincing Dr. Krywaniuk’s evidence. If there was damage to the left vestibular apparatus at the accident then it is likely that the adjacent area of the brain also suffered some trauma. The adjacent area of the brain is the area of the brain that moderates receptive language input where Mr. Mayer reports he has difficulty.
 Having said that, however, I find that the brain injury was quite mild and only affected higher level speech and executive functioning or the ability to multitask. I come to this conclusion because I believe that if the mTBI symptoms were more than very mild, they would have been picked up by Dr. Koss who I find to be a very thorough and careful practitioner who has special training in the area of concussions. The symptoms of brain injury became apparent at work and when judging wine. The irritability, personality changes and memory loss are more likely caused by the long term effects of pain, sleeplessness, anxiety and Mr. Mayer’s somatoform disorder…
 On balance of all of the evidence, I find that the vestibular injury, mTBI and somatoform disorder were caused by the accident and all of them are compensable…
 There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.
Adding to this site’s archived case summaries of soft tissue injury damage awards, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for moderate soft tissue injuries.
In today’s case (Wong v. Toor) the Plaintiff was involved in a 2013 rear end collision. He suffered a moderate soft tissue injury to his neck which was ongoing at the time of trial and posed some lingering difficulties which were expected to continue. In assessing non-pecuniary damages at $45,000 Madam Justice Young provided the following reasons:
 I will analyse the factors before arriving at my conclusion:
(a) The plaintiff was 69 years of age at the time of the accident and 71 at the time of trial.
(b) He sustained a moderate soft tissue injury to the neck.
(c) The pain has ranged between the mild to moderate range and I find that the residual effect of the accident is in the mild/intermittent range but is likely to be permanent.
(d) There are intermittent periods of disability where the plaintiff only gets relief from lying down and resting. He might get more effective relief if he were to take analgesics or pursue more acupuncture.
(e) I find that Mr. Wong has residual discomfort with driving. It is not completely debilitating. He is able to drive but he still feels some ill ease at stop lights.
(f) There has been some loss of enjoyment of life. Mr. Wong enjoyed excellent health before the accident and now he suffers intermittently from neck pain that never goes away. He has curtailed certain leisure activities that he used to enjoy and I find that the pain and fear of driving contributed to his decision to retire.
 Given those findings, Mr. Wong is entitled to $45,000 for general damages.