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Tag: mid back pain

$25,000 Non-Pecuniary Damages Awarded in Low Velocity Impact

Reasons for judgement were released yesterday (Boyd v. Shortreed) by the BC Supreme Court, New Westminster Registry, dealing with a Low Velocity Impact (LVI).  The Plaintiff testified that she was involved in a rear-end crash and that she was injured despite having minimal damage to her vehicle.  Interestingly, the Defendant denied that the crash happened at all.
Mr. Justice Harvey rejected the Defendant’s evidence and concluded that a crash did occur.  Specifically he held that:
[33] The plaintiff reported the accident on April 19, 2005 by telephone and advised the adjuster for ICBC of the damage to her vehicle and the fact she had been injured.  Without first bringing the vehicle to ICBC, she took the car to an auto body shop for repairs and the bumper was fixed.  She testifies that the total cost of repairs was about $360.  No documentary evidence concerning the repairs was ever produced in evidence.  Photographs of the rear bumper of the plaintiff’s vehicle were of little assistance in determining whether there was any damage visible.  It is conceded that the damage amounted to nothing more than an abrasion or scratch requiring repainting.  There was no structural damage to the plaintiff’s car…

[59] There were other inconsistencies in the evidence of the defendant which cause me to reject his evidence as to the happening of the incident.  Accordingly, wherever the evidence of the plaintiff and the defendant conflict, I accept the evidence of the plaintiff as being the accurate version of events.

[60] That being found, I conclude that the defendant struck the plaintiff’s car from the rear.  While I accept there was a situation of peril created by the driver of the tractor trailer, the proximate cause of the collision between the defendant’s vehicle and that of the plaintiff was the inattention of the defendant by travelling too close to the rear of the plaintiff’s vehicle or, alternatively, the condition of the brakes on his vehicle which did not allow him to slow his vehicle in time to avoid hitting the plaintiff’s vehicle.

[61] I do not find the plaintiff’s reaction to the danger created by the tractor trailer driver to be wanting and decline to apportion any fault for the accident to her.  She reacted appropriately to a situation of emergency created by another driver who is not a party to the action.

[62] As a result, the defendant is 100% liable for the collision and resultant damages.

In valuing the Plaintiff’s Non-Pecuniary Damages at $25,000 Mr. Justice Harvey made the following findings with respect to her accident related injuries:

[76] The only new complaint arising from the accident appears to be the onset of mid-back pain.  This is based mainly on self report.  The extent and duration of these symptoms are described in some detail in the reports of Dr. O’Connor and Dr. McKenzie.  This complaint seems to have occasioned the most pain and has persisted, although significantly improved, to the date of trial.  Her recovery was estimated by the plaintiff to be at 85% of normal when she last attended Dr. McKenzie in August 2009.  There is no ongoing disability related to the complaints nor has there been for some since late in 2007.

[77] In summary, the plaintiff suffered an exacerbation of her previous symptoms in her neck and lower back.  I find these complaints had substantially resolved to their pre-accident condition inside of one year.  In April of 2006, according to the notes of Dr. Shah, there was a further onset of lower back pain but, on the whole of the evidence, I cannot relate this flare up to the accident of April 2005.  The injury to her mid-back was as a result of the accident.  It persisted longer and caused her more discomfort than the exacerbation of her pre-existing symptoms.

[78] Accordingly, taking all of this into account, I assess general damages in the amount of $25,000 in respect of her soft tissue injuries.

$40,000 Non-Pecuniary Damages Awarded for "Plateaued" Chronic Mid Back Injury

Reasons for judgement were released this week by the BC Supreme Court awarding damages for injuries and loss in an “unusually straightforward” personal injury case.
In this week’s case (Sharpe v. Tidey) the Plaintiff was involved in a 2006 BC Car Crash.  Fault was admitted by the Defendants lawyer leaving only the issue of quantum of damages to be decided at trial.
Mr. Justice Voith summarized the Plaintiff’s injuries as follows:
I find that since the accident Mr. Sharpe has had a constant and relatively significant level of pain in his mid-back area.  This pain increases after strenuous activity; yet nevertheless, as mentioned above, I accept that such activity assists in maintaining Mr. Sharpe’s baseline level of pain at a generally lower level…. I find that Mr. Sharpe’s present levels of back pain will likely remain static for at least the next 3-5 years.  It appears likely that over the longer term his symptoms will either actually abate or will be perceived by him to fade to some degree.  There is a real prospect that even over the long-term Mr. Sharpe will not fully recover from his injuries.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 the court summarized and applied the law as follows:

[44]         In my view, there are a number of cases provided to me by the plaintiff which are of particular value.  These were Kahle v. Ritter, 2002 BCSC 199 22 M.V.R. (4th) 275, Hicks v. GMAC Leaseco. Ltd., 2001 BCSC 1091, and Isert v. Santos, 1999 BCCA 42, 65 B.C.L.R. (3d) 104.  While each of these decisions involves a plaintiff whose claim had attributes that were different from the instant case, they share certain central features.  In each case the plaintiff was generally able to work following their motor vehicle accident, without interruption or with limited interruption.  They involved persons who were particularly active, whose level of activity and enjoyment of such activities defined them, and who had been able to maintain some or all of the activities, albeit in modified or limited form.  Thus, they involved individuals who were not disabled, but who suffered from some impairment of functionality.  Their recovery had largely plateaued.  In my view, however, the impairment suffered by the plaintiffs in these cases was somewhat more severe than that suffered by Mr. Sharpe.

[45]         Mr. Sharpe is a young man in the prime of his life.  Work, sport, travel and his relationship with Ms. Drinkwater are the cornerstones of his life.  Sport and travel, in particular, are central to his social relationships, his sense of well-being, and his activities with Ms. Drinkwater.

[46]         Mr. Sharpe lives with a constant level of pain that is exacerbated when he engages in the very things that give him pleasure.  His recovery appears to have plateaued.  The prognosis for further recovery for at least a number of years is poor.  Furthermore, increased demands arising from his career and the family he hopes to have are a concern for his future.  Conversely, I recognize that if Mr. Sharpe is to undertake graduate studies and have a family in the future, he will have less time to engage in these various sports or activities.  Furthermore, as he gets older it is inevitable that to some extent he would, in any event, be less involved in the more extreme activities in which he has historically participated.

[47]         In my view, in all of the circumstances, the appropriate award for Mr. Sharpe’s non-pecuniary loss is $40,000.