(Please note the Trial Court’s decision regarding mitigation of damages in the below post was overturned on Appeal. You can click here to read the BC Court of Appeal’s judgement)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with an assessment of damages for a shoulder injury, specifically a post traumatic tendinopathy.
In today’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC. Her vehicle was struck while travelling through an intersection by the Defendant who failed to stop at a stop sign. Fault was admitted by ICBC focusing the trial on the Plaintiff’s injuries.
- Non-Pecuniary Damages Discussion
The Plaintiff suffered various soft tissue injuries to her neck and back that healed before trial. The Plaintiff’s worst injury was to her left shoulder. Dr. Day, an orthapeadic surgeon gave evidence that the Plaintiff suffered an “abnormality in the subscapularis tendon at the site of the superior border. In addition there was inflammation in the subacromial bursa.” Dr. Day also testified that the plaintiff had a “post traumatic tendinopathy causing some discomfort“.
The Plaintiff required surgery to “clean up” a “thick, tight subacromial bursa” because this caused irritation.
Following this the Plaintiff continued to have some shoulder pain which was aggravated by certain movements. The Court accepted that this would likely continue into the future. In assessing the non-pecuniary loss the Plaintiff suffered as a result of her injuries at $60,000 Madam Justice Kloegman found as follows:
 Due to the plethora of shoulder injury cases in the case law, it is important to distinguish the plaintiff’s shoulder injury from some of the shoulder injuries suffered by other plaintiffs in other cases. In the case at bar, the plaintiff does not have:
1. neurological deficit;
2. instability in her shoulder;
3. frozen shoulder;
4. restricted range of motion;
5. dislocation or subluxation;
6. arthritis; and
7. muscle wasting.
 However, I accept that the plaintiff does have ongoing chronic pain in her shoulder which is exacerbated by certain movements. There was no suggestion that the plaintiff was a malingerer or was exaggerating her symptoms. Notwithstanding that pain is a subjective symptom, the medical professionals found some objective corroboration in the tendinopathy and bursitis. Unfortunately, the plaintiff will likely continue to suffer various degrees of pain in her left shoulder in the future. To this extent she is mildly restricted in her activities and potential for employment.
 In summary, I find that the accident caused injury to the plaintiff, primarily in her left shoulder joint, which injury is mildly impairing and likely of a permanent nature. This injury has caused and will continue to cause the plaintiff pain and suffering, and has caused and will continue to cause some loss in her ability to earn income both in the past and the present. ..
 As I have found that the plaintiff is likely permanently impaired, albeit to a minor degree, the cases of Thauli, Grant and John are more helpful. Reviewing these cases and keeping in mind the more severe injuries described in those cases, I am of the view that $60,000 is reasonable compensation for the plaintiff’s pain and suffering in this case.
- Failure To Mitigate
This case is also worth reviewing for the Court’s discussion of the law of mitigation. Here Madam Justice Kloegman found that the unreasonably failed to follow her doctors advice to have a cortisone injection in her shoulder. The court found that there was a chance that this would have improved her symptoms.
The Plaintiff did not follow her doctor’s recommendation apparently because of “what she read on the internet” and discussions she had “with her claims adjuster and chiropractor“. The court found that these were unreasonable explanations for not following the doctor’s advice and as a result reduced the Plaintiff’s damages by 10%. The Courts discussion of mitigation can be found at paragraphs 34-35 of the reasons for judgement.