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Tag: Savoie v. Williams

$75,000 Non-Pecuniary Asssessment For Onset of Symptoms in Pre-Existing Degenerative Changes

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archives addressing damages for collisions triggering symptoms in pre-existing degenerative changes, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with such an injury.
In last week’s case (Savoie v. Williams) the Plaintiff was injured in a collision when the Defendant ran a stop sign.  Although fault was not admitted the Defendant was found fully at fault.  The 53 year old plaintiff, who was fit and active, suffered soft tissue injuries.  She also had degenerative changes in her neck which pre-existed the collision.  Following the crash these became symptomatic and the symptoms were expected to linger into the future.  In assessing non-pecuniary damages at$75,000 Mr. Justice Johnston provided the following reasons:
[34]         Dr. Maloon agreed that there was no indication that the plaintiff had any complaints arising from these areas of her body prior to the accident, and described as a “million dollar question” the reason some people with similar wear and tear will have pain or other symptoms from the wear and tear, whereas others will not.
[35]         Dr. Maloon also said that once there are wear and tear changes to the neck, nothing can be done to change the natural course of that condition; it is a mechanical problem and treatment is largely symptomatic.
[36]         At page 6 of his written opinion Dr. Maloon says:
It is possible that the soft tissue strain that she sustained initiated the symptoms of degenerative changes that have persisted to date.
[37]         I conclude that Ms. Savoie’s initial soft tissue injuries, which I consider moderate to severe, have plagued her from the time of the accident until the date of trial. I also find that these injuries precipitated symptoms from the pre-existing (but asymptomatic) degenerative state of her neck and upper back, that the combination of the injury and the degeneration has created more discomfort than either would alone, and that to the extent that the continuing symptoms come from the degenerative neck condition, it is unlikely they will ever completely go away.
[38]         I have reviewed the authorities tendered by each counsel and consider that the facts of this case more nearly approximate the facts in Ortega v. Pena, 2012 BCSC 1884, and Thomas v. Wormsley, 2009 BCSC 919.
[39]         In personal injury litigation there never are identical plaintiffs, circumstances or injuries and consequently authorities are, at the best, guidance on the question of damages.
[40]         On the evidence before me, I assess Ms. Savoie’s non-pecuniary damages at $75,000.

Diminished Homemaking Capacity Award Made Despite "No Evidence By Which Services Can Be Valued"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking a practical approach to damages for diminished homemaking capacity.
In this week’s case (Savoie v. Williams) the Plaintiff was injured when the Defendant ran a stop sign causing a collision.   The crash caused soft tissue injuries and further caused pre-existing degenerative changes in the Plaintiff’s neck and upper back to be symptomatic. Although the Plaintiff missed little time from work she struggled in her daily household activities and modified/limited how these were conducted.  ICBC argued that no award should be made because there was no evidence that she was completely disabled from household tasks.  In dismissing ICBC;s argument and assessing the loss at $20,000 Mr. Justice Johnston provided the following practical reasons:
[51]         It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).
[52]         I agree with the Third Party that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…
[55]         The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach. I note that the court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.
[56]         I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.
[57]         I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.
[58]         I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.
[59]         I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.
[60]         Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.