$45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries
Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.
In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month. Fault was admitted by the Defendants for both collisions. The crashes caused an overlapping indivisible injury and damages were assessed globally.
The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments. This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.
In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:
[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).
[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…
[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.
[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.