Non-Pecuniary Damages Discussed for "Waxing and Waning" Soft Tissue Injuries
As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.
Not all injuries have the same course of recovery. Some soft tissue injuries never heal. Sometimes they cause constant chronic pain. Other times these injuries largely recover but ‘wax and wane’ with activity. What is the fair value of a soft tissue injury with symptoms that come and go over the years? Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision. The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision. The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.
The Plaintiff suffered soft tissue injuries. These affected her neck and upper back and caused headaches. her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime. Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000. In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:
[78] Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.
[79] They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….
[96] At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.
[97] Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.
[98] It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.
[99] As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…
[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.