Tag: pain and suffering database

More on Chronic Soft Tissue Injuries

Today reasons for judgment were released by the BC Supreme Court in 2 separate cases dealing with chronic soft tissue injuries.  I summarize these below in my continued effort to grow this public database addressing awards for pain and suffering in ICBC and other BC Injury Claims.
In the first case (Warren-Skuggedal v. Eddy) the Plaintiff was involved in a very serious collision in Prince George, BC.  The defendant was “driving well in excess of the speed limit…(he) lost control and the truck swerved into the lane in which (the Plaintiff) was driving…the force of the impact tore (the defendants) vehicle in half“.
Fault was not at issue, rather, the court dealt solely with the issue of damages.  The Plaintiff unfortunately had some serious pre-existing health issues and Mr. Justice Sewell had to decide “the true extent of Ms. Warren-Skuggedal’s injuries and disabilities and the extent to which they are attributable to the injuries she suffered in the accident. ”
In valuing the Plaintiff’s non-pecuniary damages at $60,000, Mr. Justice Sewell summarized her injuries, their relationship to the collision and their effect on her life as follows:
[19] I conclude that Ms. Warren-Skuggedal suffered soft tissue injuries in the accident which aggravated her pre-existing depression and anxiety.  I find that she genuinely experiences the symptoms she has described although I do think that she does exaggerate and dramatize them to a certain extent….

[23]         I conclude that some of the symptoms Ms. Warren-Skuggedal reports are attributable to the accident but that the more serious ones are attributable to her pre-existing condition.  Specifically I find that the anxiety, depression and cognitive problems she experiences are not caused by the accident.  As I understand the law in this area the onus is on Ms. Warren-Skuggedal to prove, on a balance of probabilities, that her symptoms would not be present but for the negligence of the defendant, which led to the injuries and trauma suffered in the accident.  I do not think that she has met that onus with respect to the difficulties described in this paragraph.  I think it is more likely that she would have continued to suffer from depression, anxiety and cognitive difficulties even if she had not been injured in the accident.  The difficulties were part of her original position.

[24]         I must also conclude that Ms. Warren-Skuggedal’s inability to find employment since the accident and any impairment of her capacity to earn income in the future are not attributable to the accident.  While I base this conclusion on the whole of the evidence I note that it is consistent with the opinions expressed by Dr. Reddy and Dr. Hirsch, both of whom concluded that the motor vehicle accident did not negatively affect her employment prospects.

[25]         On the other hand, I do conclude that Ms. Warren-Skuggedal does suffer chronic pain as a result of the defendant’s negligence.  I also find that it is likely that she will continue to suffer from that pain for the foreseeable future.  I also conclude that that pain has resulted in some permanent restriction of Ms. Warren-Skuggedal’s ability to enjoy recreational activities and carry out such household tasks as heavier cleaning and gardening.

This case contains a useful analysis of the Courts role in wading through injuries both related to and unrelated to an accident.  The full judgement is worth reviewing for anyone interested in this area of the law.
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The second case released today (Gordon v. Timins) involved a 2005 BC Car Crash.  The Plaintiff’s vehicle was rear-ended by a u-haul truck.  This collision was significant enough to propel the Plaintiff’s vehicle into the vehicle in front of her.
The Plaintiff’s main injury was chronic neck pain.  Mr. Justice Cullen awarded the Plaintiff $45,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  He summarized this lasting injury as follows “In the result Ms. Gordon is left with an injury to her neck that, I find, never fully abates and is aggravated by aspects of her work.  I also find that the plaintiff’s neck pain when aggravated is associated with headaches, some dizziness and impaired sleep patterns with consequential fatigue. ”
In reaching this conclusion the court largely accepted the evidence of Dr. Dhawan, a specialist in physiatry, whose evidence was summarized as follows:

[96]         Dr. Dhawan was a specialist in physiatry or physical medicine.  He testified that the neck has a complicated anatomy with soft and hard tissue structures.  It has ligaments in front and the muscles on top of that.  If the muscles or ligaments are torn, it can lead to instability of the structure.  Dr. Dhawan’s diagnosis of the plaintiff when he saw her on July 18, 2008 was that she had torn muscles and ligaments.  He said that ligaments take longer to heal than muscles because they have less blood supply.  Scar tissue can form and it is not as strong as the original ligament and can stretch or tear more easily and can remain inflamed after forming.  He testified that in the case of a rear-end accident, the usual source of pain is the upper facet joints.  In his report, he reported no boney discogenic or neurological injury, characterizing it as a soft tissue injury.  He noted that the plaintiff “was referred to Kevin Tam … who was able to help her tremendously.”  He noted that she has difficulty in extending her head upwards to prune trees.  He recommended injection therapy – local steroid and anaesthetic injections, 2 – 3 times over a 2 – 3 month period.  He testified that those injections with a stretching and posture control program could resolve the syndrome of soft tissue injury.

[97]         He opined there would be no permanent sequelae like development of arthritis or any need for surgery and no disability from her work as a landscaper/arborist.

[98]         Dr. Dhawan concluded, however, that given the chronicity of her symptoms “some symptoms of neck and shoulder girdle pain may remain on a longer term basis and she will have to learn to live with pain and a quick resolution of symptoms is not likely.”…

[100]     Dr. Dhawan noted that although the degenerative changes are unrelated to the motor vehicle accident, “…individuals who have such changes in the neck do not respond well through treatment and have more prolonged symptoms after soft tissue injuries and symptoms of neck pain may persist for several years and may become chronic.”

[101]     Dr. Dhawan noted in Appendix 3 to his July 18, 2008 report that the plaintiff’s neck extension was only 25% of normal without pain.  He concluded that that was an objective symptom and consistent with his diagnosis.

$70,000 Non-Pecuniary Damages Awarded for Patellafemoral Pain Syndrome

Reasons for judgment were released yesterday (Fortin v. Cousins) by the BC Supreme Court awarding a Plaintiff just over $300,000 in damages as a result of a 2004 BC Car Crash.
The Plaintiff’s main injury involved his knees and was described by his orthopaedic surgeon as follows:
In the motor vehicle accident of March 28, 2004, Mr. Fortin’s principal injury for which there are ongoing symptoms is contusion of the right and left knees.  It is the writer’s opinion that Mr. Fortin must have sustained anterior blunt trauma to the right and left knees.  He presents with ongoing symptoms consistent with patellofemoral degeneration.

Currently, the discomfort in the right and left knees related to presumed chondromalacia patellae (post traumatic), is not impairing Mr. Fortin in his work.  He obviously is very happy about his present employment.  He has aspirations to, at some time, own his own company and not have to do hands on work.  It is the writer’s opinion that if Mr. Fortin continues in his current occupation long term as a pipefitter, he will experience progressive problems with the right and left knee.

I reviewed with Mr. Fortin the job requirements of a pipefitter in stainless steel.  The requirements are obviously quite rigorous and all his co-workers have musculoskeletal complaints related to the occupation.

The writer does not anticipate there will be spontaneous improvement in the complaints referable to the right and left knee.  Currently, Mr. Fortin is following instructions with regard to the protection of his knees throughout the course of his activities as a pipefitter.

The long term prognosis is guarded if Mr. Fortin remains in precisely his current role as a pipefitter.  One could anticipate that in 10 to 20 years in this particular occupation, he might become disabled for (sic) continuing on.  At the present time there are no operative interventions which would prolong the life of either the right or the left knee.  Mr. Fortin is already making plans to attempt to advance to a supervisory position and eventually, to be an independent contractor of a pipefitting company.  Were Mr. Fortin to follow this career path, it is in the writer’s opinion that his knees would not be a barrier to his future employment.

In valuing the Plaintiff’s non-pecuniary damages (pain and suffering) at $70,000 Mr. Justice Harvey noted the following:

49] The purpose of non-pecuniary damage awards is “to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at ¶134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 260-265; and Kuskis v. Hon Tin, 2008 BCSC 862 at ¶135.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as guides to assist the court in arriving at an award that is just and fair to both parties: Kuskis at ¶136.

[50] Russell J. discussed this process in Hoang v. Smith Industries Ltd. et al., 2009 BCSC 275 at ¶33:

There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.))

[51] Here, Mr. Fortin has suffered significant injuries as a result of a horrific accident.  Happily, with the exception of the problem with his knees, which is permanent, his other complaints resolved over time.  Approximately one year following the accident, Mr. Fortin’s other injuries had resolved and no longer were interfering with either his employment or his enjoyment of life.

[52] His knee symptoms, although mild at present, will create ongoing problems for him both in his vocational and recreational pursuits.  The more he is obliged to work “on the tools”, the greater the interference with both.

[53] Counsel for the plaintiff suggests an award of $90,000 to $100,000 for non-pecuniary loss.  Counsel for the defendant distinguishes the authorities relied upon for the plaintiff and suggests, instead, a range of $30,000 to $45,000, noting, amongst other things, that there has been no surgery to the plaintiff’s knees nor is it anticipated that such will occur in the future.

[54] Both counsel cited Gernitz v. Mowat, 1992 CarswellBC 2460 (S.C.) [Gernitz], presumably because the facts there were remarkably similar to the facts in this case but for the plaintiff’s age.  In Gernitz, the award for non-pecuniary loss was $35,000.  Counsel agreed that grossing up the award from 1992 to present day value results in an award of approximately $47,000.

[55] The major distinguishing factor in Gernitz was the age of the plaintiff who was 56 at the time of trial.  Here the plaintiff is 27 and will be subject to a much longer period of pain and restriction in his social pursuits.  Accordingly, having regard to all of the authorities cited by counsel on the question of non-pecuniary damages, I award the sum of $70,000 under this heading of loss.

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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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