Tag: non-pecuniary damages

LVI Defence Rejected; $12,000 Awarded For Modest Injuries

Further to my dozens of previous posts discussing ICBC’s Low Velocity Impact (LVI) Defence to tort claims involving crashes with little vehicle damage, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, once again rejecting this defence.
Today’s case is a great example demonstrating that compensable injuries can be sustained even in true ‘low velocity impacts‘.  In today’s case (De Leon v. Harold) the Plaintiff was involved in a two vehicle collision in 2007 in Vancouver, BC.  The Defendant rear-ended the Plaintiff’s vehicle.  Fault for the crash was admitted.  The trial focussed on whether the Plaintiff sustained any injuries.
There was no dispute that the collision was minor.  The Plaintiff described the impact as a “bump“.  The Defendant testified that her car “tapped” the Plaintiff’s car.  The modest impact resulted in $0 in vehicle damage.
Despite this the Plaintiff was injured.  The injuries were, fortunatley, relatively modest and made a meaningful recovery within 6 months.  ICBC defended the case based on the LVI program and argued that the Plaintiff was not injured in the collision.  Madam Justice Power rejected this argument and in doing so repeated the following helpful reasons addressing the LVI defence:

[14]         In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:

[5]        The courts have long debunked the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer [1993] B.C.J. No. 474 (S.C.), Thackeray J. as he then was, made the following comments that are still apposite today.

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is the philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have not heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process.”  In particular he noted that there was no evidence to substantiate the defence theory in the case before him. . . .

[15]         In Dao v. Vance 2008 BCSC 1092 Williams J. stated:

[18]      This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is, it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19]      In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle is slight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

Madam Justice Power assessed the Plaintiff’s non-pecuniary damages at $12,000 and in doing so made the following findings about her injuries:

[19]         I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as the result of the accident. I am satisfied that the injuries were substantially resolved within two months of the accident as the result of the plaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completely resolved within six months…

[22]         Having regard to the fact that each award must be based on the unique circumstances of the case, and that the plaintiff’s stoicism is a factor that should not penalize the plaintiff (Giang v. Clayton 2005 B.C.J 163 2005, (B.C.C.A.)), I am of the view that an appropriate award for the plaintiff’s non-pecuniary damages in this case is $12,000. The plaintiff will be awarded $1,200 for four days of lost work as the agreed-to amount of the parties for special damages.

[23]         Therefore the total damage award is $13,200. Costs may be spoken to or written submissions may be made at the agreement of the parties.

BC Court of Appeal Discusses Non-Pecuniary Damages for Chronic Pain

Reasons for judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair range of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic pain caused by the negligence of others.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a motorcycle accident in 2005.  The Defendant was found fully at fault for the crash.    The Plaintiff suffered a fractured tibia and fibula.  These bony injuries went on to good recovery however the Plaintiff was left with chronic pain as a consequence of the collision.  At trial the Plaintiff was awarded $562,000 in total compensation for the injuries including a non-pecuniary damages award of $125,000.  (You can click here to read my post summarizing the trial judgement)
The Defendant appealed arguing that this assessment was inordinately high.  The BC Court of Appeal disagreed and held that in cases of chronic pain which affect functioning there is nothing inappropriate with non-pecuniary damage awards well over $100,000.  Specifically the BC High Court held as follows:

[32]         A review of those cases supports the respondent’s argument that the trial judge’s award of $125,000 was within the acceptable range.  In Moses v. Kim, 2007 BCSC 1388, the plaintiff was struck while crossing the Trans-Canada highway, breaking his legs.  While the breaks healed, the plaintiff was left with pain in his legs, back and hip.  As he had been a very physical person prior to the accident, hunting, fishing, logging and playing sports, much of his life was affected.  In addition to restricting the activities he could enjoy, this led him to become shorter tempered and angrier.  He was awarded $165,000 in non-pecuniary damages.

[33]         The plaintiff in Funk v. Carter, 2004 BCSC 866, was also struck by a vehicle and suffered broken legs, as well as some soft tissue injuries.  While the plaintiff underwent surgery, the injuries did not heal well, and he was left with chronic pain and impaired mobility.  As with the case at bar, and with Moses, the plaintiff had been “very fit” prior to the accident, and had “a great deal of difficulty adjusting psychologically”.  As a result, he was awarded $140,000 in non-pecuniary damages.

[34]         Moore v. Brown, 2009 BCSC 190, was a case similar to that at bar where the plaintiff was on a motorcycle when struck by the defendant.  He suffered substantial injuries, including a shoulder injury, a leg ligament tear, knee problems and a foot injury.  The accident also led to chronic neck pain, headaches and lumbar problems.  Three years later, at trial, the plaintiff was still experiencing difficulties, including an altered gait and difficulty continuing in his work as a geo-scientist.  The trial judge awarded non-pecuniary damages of $115,000.

[35]         In Dufault v. Kathed Holdings Ltd., 2007 BCSC 186, the plaintiff fell while descending the stairs at the defendant’s business.  The fall resulted in knee injuries that the trial judge accepted would likely require knee replacement surgery.  This was exacerbated by chronic pain, hip problems, and some resultant mild depression.  Taking these considerations into account, the trial judge awarded $110,000 in non-pecuniary damages.

[36]         Finally, in Mosher v. Bitonti, 1998 CanLII 5186 (B.C.S.C.), the plaintiff sued two defendants for separate accidents.  The trial judge found that the plaintiff had suffered fractured right leg bones as a result of the first accident, which caused muscular damage.  He accepted that these were “very significant injuries” and that the plaintiff had suffered a painful recovery.  While there was a small chance of future degenerative arthritis, the plaintiff was left with a normal gait, but with some difficulty squatting, kneeling or crouching.  Those injuries resulted in the plaintiff being awarded $80,000 in non-pecuniary damages.

[37]         As can be seen from those cases, trial judges have assessed non-pecuniary damages at well over $100,000 where there is an element of significant ongoing pain and, particularly, where the plaintiff had previously enjoyed an active lifestyle or a physical vocation….

[39]         I agree with the respondent that the trial judge did not assess damages on the basis of a well-resolved fracture.  Rather, the award for non-pecuniary damages was largely based on the trial judge’s conclusions that the respondent suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life.  Viewed in this way, the award cannot be said to be inordinately high.  The chronic pain cases cited by the trial judge support her assessment.

[40]         I would not accede to this ground of appeal.

Another point of interest in today’s case were the Court’s comments about gathering new evidence after trial to challenge an award for ‘diminished earning capacity‘.  At trial the Plaintiff was awarded $250,000 for his loss of earning capacity.  The Defendant appealed and asked the Court of Appeal to force the Plaintiff to produce “documents pertaining to his employment since the trial“.  The BC High Court refused to do so and provided the following useful comments:

[43]         An appellate court should decline to exercise its discretion to make an order to admit “new evidence”, unless that evidence would tend to falsify an assumption that the trial judge made about what was, at the time of judgment, the future:  see Jens v. Jens, 2008 BCCA 392 at para. 29, citing North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d) 201 (C.A.)(sub nomNorth Vancouver (District) v. Lunde).

[44]         It is unnecessary for me to review in detail the nature of the evidence tendered on the application by the appellant and in reply by the respondent.  Suffice it to say that the conclusions the appellant contended should be drawn from her proposed new evidence were clearly and persuasively refuted by the respondent in an affidavit and, in any event, did not rise to the necessary factual standard that would properly form the basis for a successful application for admission of new evidence.

More on ICBC Claims and Lack of Objective Signs of Injury


As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.
In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.
The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.
The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.

$75,000 Non-Pecuniary Damages for Ruptured Posterior Cruciate Ligament


Reasons for judgement were released this week by the BC Supreme Court, Port Alberni Registry, awarding a Plaintiff just over $220,000 in total damages for injuries and loss sustained as a result of a 2007 BC motor vehicle collision.
In this week’s case (Haley v. Gust) the Plaintiff was operating her motorcycle when she was struck by a left-turning motorist.  The Defendant admitted full fault for the crash.  The trial focused on the extent of and value of the Plaintiff’s injuries.
The Plaintiff’s most serious injury was a tear to her posterior cruciate ligament in her left knee.  The injury was expected to lead to long term pain and limitations with the possibility of a total knee replacement in the years to come.  In awarding the Plaintiff $75,000 for her non-pecuniary damages Madam Justice Dardi made the following findings about the extent of the injury and it’s interference with the Plaintiff’s life:
[50] In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…
[57] She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….

60] While she attempts to remain as active as possible (she now participates in “quadding”), she remains limited when compared to her pre-accident activities. Since the accident, she has become very cautious about any activity that might injure her knee. She is no longer able to participate in mini-triathlons and dirt-biking with her family. She cannot ski or participate in water sports. It is likely she will continue to be restricted for the rest of her life to some degree in respect of the scope of the activities she would have enjoyed but for the accident.

[61] I have also considered as a factor in my assessment the adverse emotional impact of Ms. Haley’s inability to pursue a line of work which she clearly enjoyed…

[65] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Haley’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $75,000.

$135,000 Non-Pecuniary Damages Awarded for Torn Pectoralis Major Muscle

(UPDATE: May 9, 2012 … The Trial Judge’s findings regarding liability were appealed.  The Appeal was dismissed today.)

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding just over $450,000 in damages for injuries and losses arising out of a 2006 BC Motor Vehicle Collision.
In today’s case (Power v. White) the Plaintiff was involved in a 2 vehicle collision.  As the Plaintiff was driving down the Island Highway a deer ran into his lane of travel threatening collision.  The Plaintiff reacted suddenly by changing into the right lane and braking as hard as he could.  Unfortunately this was not sufficient and the Plaintiff’s vehicle struck the deer.  Shortly afterwards the Defendant, who was travelling in the right lane, collided with the rear of the Plaintiff’s vehicle.  Fault was at issue however the Mr. Justice Verhoeven found that the Plaintiff reacted reasonably to the threatened collision and that the Defendant was 100% at fault for failing to drive with all due care and attention.
The Plaintiff suffered various injuries the most serious of which was a tear to his pectoralis major muscle.  This injury did not fully heal and was expected to effect the Plaintiff well into the future.  The Plaintiff’s family doctor provided the following evidence with respect to the severity of this injury:

In review, Mr. Power sustained injuries to his right pectoralis major (partial tear) to the right T-6 area as well as some transient injuries to the soft tissues in his right shoulder and base of neck and right buttock area. These complaints started after his accident and have been persistent and continuous since that time. Institution of physiotherapy, chiropractic and exercised based therapy have been useful in increasing some of his functional capacity since the accident, but have plateaued in that the pain from either his right pectoralis area or the T-6 area have limited any further advancement of intensity or duration of his exercise. These injuries have significantly limited his recreational activities, particularly swimming, biking and running as well as his ability to care for his house and yard, particularly the use of his power saw, shovels and mowing his lawn. At work he generally does not have a lot of limitation as he is able to get up from his seat when he needs to but does have limited sitting capacity as has previously been outlined. He does and would have some problems turning some of the heavy valves and climbing the ladders if there is a breakdown at the mill, however he does have a partner and this has generally worked out that the partner has done this.

Mr. Power has sustained significant injuries from the accident. His functional limitations have been outlined in detail. They are significant for his recreational and household and yard activities. At this time I do not see a significant future recovery for these and at the moment I am unable to find a surgeon who would consider repairing this injury, although I will persist in searching the literature for a possible solution for this problem. Mr. Power has shown he is determined to remain active, having returned to work promptly after his accident, followed all of my instructions as well as his therapist’s instructions to the letter and done a persistent and significant job in increasing his activities to what is now his limit due to pain in the aforementioned areas and I do not see his disabilities resolving in the near future.

Mr. Justice Verhoeven awarded the Plaintiff $135,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court provided the following reasons:

[82]         In this case, Mr. Power has suffered a very significant and permanent loss to the lifestyle he previously enjoyed. Virtually all of his previous physical activities have been severely curtailed. Prior to the accident Mr. Powers physical vigour was central to his life and lifestyle. His mood and emotional well being have been negatively affected. His relationship with his wife has been harmed. His ability to improve and maintain his property, quite obviously a source of great pleasure and pride to him formerly, is all but completely gone. He has not and will not in future be as physically fit as he previously was. It is reasonable to infer that this may affect his health long term. I think it likely that Mr. and Mrs. Power will sell their five acre property and move into a residence that does not require so much effort to maintain…

[84]         In all these circumstances, I assess the plaintiff’s non-pecuniary loss at $135,000.

$45,000 Non-Pecuniary Damages Awarded for Chronic Mild-Moderate Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.
In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.
Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft?tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non?pecuniary damages in this case is $45,000.

BC Injury Law Podcast: Non-Pecuniary Damages


This is the first in what I intend to be a series of podcasts discussing topics of interest involving ICBC and other BC personal injury claims.
Today’s topic is valuing a person’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of injuries caused by the fault of another.  To listen simply click on the following link:  bc-injury-law-podcast-non-pecuniary-damages
The case discussed in this Podcast is Stapley v. Hejslet, 2006 BCCA 34 and can be found by clicking here.

How Can the Same Injury Have Different Values in an ICBC Claim?


As I’ve previously written, the exact same injuries can be valued differently by a Court when ICBC Claims go to trial.  When a judge or jury awards money for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the award isn’t made by following a chart or a mathematical calculation, instead the award is made by ‘assessing‘ damages.
An assessment is just as flexible as it sounds.  There is no right award for pain and suffering.  While past cases (what lawyers call precedents) are instructive, they only serve to provide a ‘range‘ of acceptable awards.  So long as a trial award falls within the acceptable range of damages it will not be interefered with if challenged on appeal.
In practice this means that two people with similar injuries can be awarded different amounts for their claims and both outcomes can be correct in law.  Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, discussing the ranges of damages in BC personal injury lawsuits.
In today’s case (Anderson v. Cejka) the Plaintiff was involved in a 2006 rear-end crash in Parksville, BC.  Fault for the crash was admitted.  The Court was asked to value the Plaintiff’s claim for pain and suffering.
Mr. Justice Halfyard found that the Plaintiff suffered from a Grade 2 Whiplash Disorder which took a long time to recover.  The Plaintiff sought an award between $40,000 – $50,000, ICBC submitted that an award of $15,000 – $25,000 was more appropriate.  The Court went on to award the Plaintiff $20,000 for his non-pecuniary damages and in doing so the Mr. Justice Halfyard made the following comments about ranges of damages:

[84]         In my opinion, previously-decided cases, even where there are some similarities with the case at bar, can only assist in establishing a general range of damages which may apply to a particular case. This is because no two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. Moreover, the injuries (or combination of injuries) sustained by one plaintiff will never be the same as those incurred by another, in kind or severity. Additionally, the reaction of any two persons to the pain of a similar injury or to particular treatments will rarely if ever be the same. Other differentiating features may be the apparent length of the recovery period and, if the plaintiff has not recovered, the kind and extent of residual effects remaining from the injury at the time of trial, and whether any of the effects will be permanent.

[85]         I have reviewed the cases cited by counsel, in light of the facts which I have found. Due to significant differences, I see no useful purpose in discussing them. There is no legal formula which can be used to measure the amount of pain and suffering and loss of enjoyment of life that a plaintiff has experienced as a result of an injury caused by the defendant. In my opinion, the range of damages for non-pecuniary loss in this case is the range suggested by Mr. Dreyer, namely, $15,000 to $25,000.

[86]         The pain suffered by the plaintiff was never serious. He himself consistently described its severity as being one or two on a scale of ten. Within a few months after the accident, the symptoms became intermittent. Eventually, they became few and far between. The plaintiff was never disabled by the pain, to any significant extent. I must be careful not to penalize the plaintiff for being stoical in the face of pain. But I do not find that this is the case here. I award $20,000 for this head of damages.

When trying to determine how much your personal injury claim is worth the best thing you can do is read as many cases as you can dealing with similar injuries so you can determine a realistic range for your injuries.

BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Reasons for judgement were released today by the BC Court of Appeal discussing an appropriate amount for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for accident related Fibromyalgia.
In today’s case (Poirer v. Aubrey) the Plaintiff was injured in a 2006 rear-end car crash in BC.  She suffered injuries which resulted in chronic pain.  There was evidence that some of the effects of her injuries were likely permanent.  At trial the Plaintiff was awarded just over $220,000 in total damages for her injuries and loss (click here to read my summary of the trial judgement).
The Plaintiff appealed arguing that the damage award was low and the trial judge made an error in finding that there was a ‘real and substantial possibility…that (the Plaintiff’s) pain and discomfort will be relieved and her functioning improved“.  The BC High Court agreed that the evidence did not support such a finding and that the trial award was low.  The Court substituted an award of $528,503 which included an increase in the non-pecuniary damages award of $60,000 to $100,000.
In assessing the Plaintiff’s non-pecuniary loss for chronic pain from soft tissue injuries at $100,000 the BC Court of Appeal noted as follows:

[25]         I consider the evidence establishes that, as the judge said, there is a “real and substantial possibility” Ms. Poirier’s injury will prove to be permanent.  There is no cure.  There is treatment for her condition, but the prospect of her pain being relieved to a significant degree is indeed guarded.  She is unlikely to ever be pain free and can at best hope that, with continued treatment, she may in time achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment.

[26]         Ms. Poirier cites three awards in particular that she says reflect what plaintiffs who have suffered somewhat comparable non-pecuniary losses to hers have been awarded: Hooper v. Nair, 2009 BCSC 862; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; and Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203.  The respondents cite Heartt v. Royal, 2000 BCSC 1122; Mowat v. Orza, 2003 BCSC 373; and Esau v. Myles, 2010 BCSC 43.  These awards reflect a broad range: those cited by the respondents are $50,000 to $70,000; those cited by Ms. Poirier are $85,000 to $125,000.  I consider Ms. Poirier’s loss to be more consistent with the losses in the awards she cites.  Of particular significance is the permanent nature of her injury that causes her ongoing debilitating pain, the effect it has had and will continue to have on the enjoyment of her life, and the uncertainty there is that her condition will in time improve even to the point of permitting her to return to work part time.

[27]         I would set aside the judge’s award of $60,000 for non-pecuniary loss and substitute an award of $100,000.

Non-Pecuniary Damages for Thoracic Outlet Syndrome Assessed at $85,000

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a left sided Thoracic Outlet Syndrome (TOS) which arose after a series of accidents.
In today’s case (Lee v. MacLean) the Plaintiff was involved in two 2003 motor vehicle accidents.  The Defendants were found liable for the collisions focusing the trial on the cause of the Plaintiff’s injuries and their value.
Determining the cause of the Plaintiff’s injuries was no easy task as the Plaintiff was injured in previous motor vehicle collisions and continued to suffer pain from those events.   By the time of his 2003 accidents the Plaintiff still had pain in his neck, right shoulder and lower back as a result of his previous accidents.  The 2003 accidents aggravated these injuries and caused new symptoms.  Specifically the Court found that the 2003 collisions “triggered the onset of the thoracic outlet symptoms on (the Plaintiff’s) left side“.
The Court heard expert evidence from Dr. Peter Fry, a vascular surgeon with expertise in thoracic outlet syndrome.  He provided the following evidence with respect to the cause and severity of the Plaintiff’s left sided TOS:

I think significantly at the present time he shows evidence of more serious compression of the thoracic outlet given that there is clinical evidence that the venous drainage of the arm on the left is impaired compared to the right side.  This is an indication of fairly severe compression in this area, basically involving not only the vein but the artery where you can develop a bruit or turbulence during provocative testing for thoracic outlet syndrome and the reproduction of neurological symptoms that appear to involve both upper and lower plexus.

This being the case, I think it is highly that at some point in time Mr. Lee is going to require definitive surgery for thoracic outlet syndrome on the left.

I would opine that the accident of October 2003 was most likely responsible for provoking or exacerbating symptoms on the left side in a setting where he clearly had previous compression of the thoracic outlet and was therefore somewhat vulnerable to this injury.

Mr. Justice Gaul assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000.  The court then reduced this award by 25% to take into account the Plaintiff’s pre-existing injuries.  Mr. Justice Gaul provided the following reasons:

[118]     Applying the principles enunciated in Filsinger, I am satisfied Mr. Lee is both a “crumbling skull” and “thin skull” plaintiff.  The determination of which depends upon the precise injury.

[119]     The neck, right shoulder and lower back pains Mr. Lee complained of following the 2003 Accidents were quite similar to those he complained of after the 1990s Accidents.  I am satisfied that these symptoms would have continued to manifest themselves even if Mr. Lee had not been involved in the 2003 motor vehicle accidents.

[120]     With respect to the left side of Mr. Lee’s body, the issue is more difficult.  I accept the evidence of Dr. Fry that in 1998 Mr. Lee exhibited signs of thoracic outlet syndrome on the left side of his body, even though Mr. Lee was asymptomatic at the time.  I am persuaded by the evidence of Dr. Fry and Dr. Shuckett that the nature of Accident #1 and Accident #2 were such that they triggered the onset of the thoracic outlet syndrome symptoms on Mr. Lee’s left side and are therefore attributable to those accidents.

[121]     I also find that the concentration problems, headaches and associated vision problems that arose after the 2003 Accidents can at least be partially attributed to those accidents…

[123]     Given the pre-existing condition of Mr. Lee and the fact that the symptoms on the right side of his body were likely to have continued, notwithstanding the 2003 Accidents, I find that it is appropriate to make a 25% reduction in the non-pecuniary damages as well as the award for loss of earning capacity…

[135]     I found Mr. Lee to be a credible witness when he described the timing, nature and extent of his injuries.  In doing so, I accept that he had pre-existing pains prior to the 2003 Accidents, some of which were identical to those which developed after the 1990s Accidents.

[136]     Mr. Lee is entitled to be compensated for his injuries.  I do not find those injuries to have been as trivial or transient as suggested by the defendants.  On the whole I favour Mr. Lee’s description of the injuries and find that an appropriate award for non-pecuniary damages to be $85,000.  There will, however, be a 25% contingency discount to this amount on account of Mr. Lee’s pre-existing physical ailments.

[137]     As a result, the award for non-pecuniary damages is $63,750.

You can click here to read my archived posts of other recent BC Injury Cases awarding damages for accident caused Thoracic Outlet Syndrome.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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