Tag: soft tissue injuries

$75,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing non-pecuniary damages at $75,000 for persistent soft tissue injuries.

In today’s case (Stapleton v. Andrew) the Plaintiff was involved in a 2015 intersection collision.  The Defendant accepted fault.  The crash caused soft tissue injuries which lingered to the time of trial and were not expected to experience significant improvement in the future.  In assessing non-pecuniary damages at $75,000 Mr. Justice Skolrood provided the following reasons:

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$25,000 Non-Pecuniary Assessment for STI's With Full Recovery Within Two Years

Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
In last week’s case (Nemoto v. Phagura) the Plaintiff, who recently moved to Canada from Japan, was injured in a 2008 collision.   She was 13 at the time.  Fault was admitted by the offending motorist.  She suffered soft tissue injuries to her neck and lower back.   She also experienced anxiety while riding in a vehicle subsequent to the collision.  In assessing non-pecuniary damages at $25,000 Mr. Justice Smith provided the following reasons:
[16]         On the evidence before me, I find that the plaintiff suffered significant pain and limitations from the date of the accident until approximately the end of 2008, with intermittent, lingering difficulties for at least another year, but had achieved full physical recovery no later than two years after the accident. The physical difficulties in the immediate post-accident period were likely more difficult for the plaintiff to deal with than might otherwise have been the case because she was, at the same time, adjusting to a new school and life in a new country.
[17]         I also find that the plaintiff experienced severe anxiety while riding in cars for approximately two years and that anxiety still affects her efforts to learn to drive. For purposes of assessing damages, it does not matter that this anxiety may, to some extent, be influenced by the fact that her mother has similar fears and anxiety flowing from the same accident. In any event, there is no reason to believe this will be a long-term problem.
[18]         The plaintiff is in Canada on a student visa, which does not permit her to work, so there is no claim for income loss. I find there is no need for any future care arising from the accident…
[22]         In all the circumstances, I assess the infant plaintiff Rui Nemoto’s non-pecuniary damages at $25,000…

Personal Injury Claims Are Not "Measured by the Number of Doctors Seen"


The value of a personal injury case has little to do with the number of doctor visits a Plaintiff has.  I’ve discussed this topic previously.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, further addressing this matter.
In today’s case, (Tarzwell v. Ewashina) the Plaintiff was injured in a 2007 motor vehicle collision.  She suffered from chronic soft tissue injuries affecting her trapezius muscles and low back.   The injuries were on-going at the time of trial and the Court accepted that the symptoms would linger into the future.  Non-Pecuniary damages of $60,000 were awarded.  Prior to arriving at this assessment Mr. Justice Dley provided the following comments making it clear that the number of doctor visits does not measure the quantum of a personal injury claim:
[67] If a plaintiff’s claim was to be measured by the number of doctors seen or by the number of medical consultations attended, then that would unjustly marginalize victims such as Ms. Tarzwell. She has chosen not to burden the medical system with unnecessary visits to physicians who would give her no further advice than what she had already been provided and followed. She should not be penalized for that.
This case is also worth reviewing for the Court’s comments to the lawyers involved in the litigation for their efficient use of Court time.  Illustrating that meaningful claims can be litigated with little Court time Mr. Justice Dley provided the following compliments:

[5] This case was presented with uncompromising efficiency. Counsel were meticulous in focusing on those matters that were actually in dispute.

[6] The evidence was concluded in a day along with an additional half day for argument.

[7] The medical evidence consisted of two reports. There was no wasted expense by tendering marginal evidence that would have done little to assist the Court.

[8] A case that takes little time to present does not mean that damages are nominal. It is the quality and substance of the evidence that matters. Style should never trump substance.

[9] If an example of proportionality needed a model case, counsel have succeeded here in illustrating how litigation can be conducted.

$60,000 Non-Pecuniary Damage Assessment for STI's Imposed on Pre-Existing Injuries

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.
In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.

$25,000 For "Mild to Moderate" Lingering Soft Tissue Injuries

Adding to this ever-growing British Columbia non-pecuniary damages (pain and suffering) caselaw database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a claim involving lingering soft tissue injuries.
In today’s case (Manson v. Kalar) the Plaintiff was involved in a rear-end collision in 2008.  The crash was fairly significant resulting in over $5,000 in damage to the Plaintiff’s vehicle.  Fault for the collision was admitted focusing the trial on the value of the claim.
Madam Justice Boyd ultimately found that the Plaintiff suffered mild-moderate soft tissue injuries and that while these were on-going some three years after the fact there was still room for improvement.  In assessing non-pecuniary damages at $25,000 the Court provided the following reasons:
[38]The plaintiff here has suffered injuries which are limited to his lower back and neck.  He has pursued very little treatment for his injuries and, despite his doctor’s recommendations, he has not attended few physiotherapy treatments or undertaken any core muscle conditioning programs.  Nevertheless it is expected that he will recover in the foreseeable future.  As I have already noted, while I satisfied that his ongoing pain and discomfort has limited his participation in his former sporting activities, some of his social withdrawal appears to be the result of other factors. ..
[46]In the case at bar, the plaintiff has suffered a mild to moderate soft tissue injuries, where the symptoms have persisted for almost three years since the accident and are still not resolved.  In these circumstances, I find that a fair and reasonable award of damages is $25,000.
For more on this topic you can click here to access my archived posts of other recent BC court cases dealing with damages for soft tissue injuries.

More on Valuing Damages for Modest Soft Tissue Injuries


As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges.  The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement.  The best way to do this is to review as many cases as possible dealing with similar injuries.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.
In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC.  Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash.  The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck.  These were acute for three months and disabled the plaintiff from work during this time.  From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash.   Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60]        Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61]        Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62]        I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63]        In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64]        I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present).  Another great resource is Canlii, a free Canadian legal case-law database.

Another Judicial Rejection of ICBC's "Low Velocity Impact" Defence


I’ve written numerous times that ICBC’s Low Velocity Impact Defence (“LVI”) is not a legal principle.  A defence based on this principle was rejected yet again in reasons for judgement released today by the BC Supreme Court, Vancouver Registry,
In today’s case (Hunter v. Yuan) the Plaintiff’s vehicle was rear-ended by a taxi driven by the Defendant in 2006 in North Vancouver, BC.  Fault for the crash was admitted by the rear motorist.
Both parties agreed that the accident was “minor in nature“.  Despite the minor nature of the crash the Plaintiff was injured and continued to be troubled by her injuries by the time the claim reached trial some 4 years later.  The Defendant argued that this was a “minor accident which resulted in a minimal injury“.  In keeping with ICBC’s LVI policy the Defendant argued that the Plaintiff should receive nothing for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) or in the alternative “If the court were to award damages for non-pecuniary loss, the defence suggests that an award should be very modest“.
Madam Justice Morrison rejected the defence submission and awarded the Plaintiff damages for her losses including $35,000 for non-pecuniary damages.  In arriving at this figure the Court provided the following reasons:

[68]        First, I found the plaintiff to be entirely credible.  She did not seek to exaggerate, and gave her evidence in a very direct manner.  She was responsive to questions, and did not seek to avoid or be defensive with the tough questions posed on cross-examination.  I certainly accept her evidence with regard to her symptoms, past and present.  There is no credible or reliable evidence of any pre-existing injuries or conditions, and her injuries and ongoing symptoms are due to the accident of October 20, 2006.

[69]        It is true that the force of the accident was not major, but the evidence points to no other cause of the injuries and symptoms experienced by the plaintiff, other than the accident of October 20, 2006.

[70]        To say that the plaintiff experienced only three weeks of disability, or six or eight weeks at the most, is to ignore most of the evidence of the plaintiff, her family doctor, her fiancée, her father and Dr. Travlos.

[71]        Although by the summer of 2008 the plaintiff felt she was 85% recovered, she testified that at the present time, the flare-ups occur frequently, sometimes once every week or two, or more often, if she does activities that cause such flare-ups.  The flare-ups result in tension and muscle knots between her shoulder blades, particularly toward her right shoulder and neck area, and headaches occur.  She has sleep disruptions, difficulty getting to sleep, and voluntarily avoids some activities that she enjoyed prior to the accident; she avoids them rather than put herself in a position where pain or a flare-up will occur.

[72]        The evidence would indicate that her recovery has plateaued.  She takes Tylenol and Cyclobenzaprine on occasion, and she finds that she must remain active and exercise, as inactivity will make her symptoms worse.

[73]        The plaintiff’s pain is not chronic and continuous, but she suffers pain and increased pain with certain kinds of exertion.  It has been four years since the accident occurred, and Ms. Hunter continues to have pain in her shoulders, particularly her upper right back, and neck.  Ordinary daily activities such as carrying groceries, doing the laundry, vacuuming, and certain types of cleaning cause flare-ups, which result in pain.

[74]        Counsel for the plaintiff, in addressing the issue of non-pecuniary damages, has cited six cases where non-pecuniary damages ranged from $30,000 to $50,000.  Relying primarily onJackman v. All Season Labour Supplies Ltd. and Crichton v. McNaughton, the plaintiff submits that an award of $40,000 would be reasonable for non-pecuniary damages.

[75]        I agree that those two cases are helpful, given the evidence in this case, and I would award $35,000 for non-pecuniary damages.

This judgement demonstrates the reality that minimal crashes can result in injury including long-standing injury. The LVI Defence is divorced from medicine and law.  The rare occasions when the LVI defence succeeds before a judge is where the Plaintiff is found to lack credibility.   When injuries are supported with medical evidence it is rare for a lack of substantial vehicle damage to prove fatal to a personal injury lawsuit.

Indivisible Injuries in Action


As I recently discussed, the law in British Columbia requires a Defendant to compensate a Plaintiff for any indivisible injury caused by their wrongdoing.  If a subsequent event contributes to or aggravates the injury a defendant cannot reduce the amount of compensation the Plaintiff is entitled to.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this principle of law.
In this week’s case (Fillmore v. McKay) the Plaintiff was involved in 2005 motor vehicle collision.  The Plaintiff was riding his bicycle when he was struck by the Defendant’s vehicle.  The Defendant initially denied being at fault but during trial admitted that the collision was indeed a result of her negligence.  The Plaintiff suffered various soft tissue injuries and a traumatic brain injury.
At trial the Defendant argued that some of the Plaintiff’s injuries were made worse during a subsequent fall and that this should reduce the compensation the Plaintiff should receive.  Mr. Justice Truscott rejected this argument and provided the following useful comments demonstrating the law relating to indivisible injuries in BC:

[145]     The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

[146]     I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

[147]     As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

[148]     Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

Why Soft Tissue Injury Claims Should Not Be Judged by a Higher Legal Standard


From time to time BC Courts appear to scrutinize soft tissue injury claims more carefully than claims with objective injuries.  When doing so a very familiar quote from Mr. Justice McEachern is cited where he said “I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”
This quote comes from the 1981 case Butler v. Blaylock and is often advanced by defence counsel in an effort to have a Court dismiss soft tissue injury claims.   This quote has been repeated many times in recent judgements and recently the BC Court of Appeal referenced this authority in Mariano v. Campbell.

However, what was not noted by the Court and should be next time a defence lawyer brings this quote to the Courts attention is that Mr. Justice McEachern’s decision is Blaylock was overturned by the BC Court of Appeal in 1983 where the Court held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.
14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.
In addition to the above, a subsequent case from the Supreme Court of Canada made it clear that all civil cases, regardless of the allegations or the nature of a lawsuit, need to be judged with the same civil standard.  In F.H. v. McDougall the Canadian High Court stated as follows:
I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.  Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.  However, these considerations do not change the standard of proof…
[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care.  I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case.  There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

I hope this ‘history lesson’ helps anyone confronted with an attack on Plaintiff credibility during a soft tissue injury trial.

BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.
In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).
During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.
It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.


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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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