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Tag: stoicism

Assessing Damages for an "Old School" Plaintiff with Soft Tissue Injuries

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries sustained by a Plaintiff who sought very little medical treatment.
In this week’s case (Baker v. Clark) the Plaintiff was injured in a collision for which the Defendant was at fault.  He suffered soft tissue injuries and was assessed by his family physician.  By the time of trial the Plaintiff still had symptoms but had not seen his physician for over two years.  The Court accepted that this was due to the plaintiff’s stoic ‘old school’ attitude.  In assessing non-pecuniary damages at $30,000 Mr. Justice Crawford provided the following reasons:
[59]         I am satisfied Mr. Baker sustained soft-tissue injuries to his neck and upper-back. He attended physiotherapy, but no report was tendered from the physiotherapist. That treatment evidently was for his neck and upper-back. Mr. Baker made no complaint of headaches. He was off work for three months and returned in late July 2011. After experiencing difficulty with both his neck and his low-back that became evident with the hours of sitting required of a taxi driver, he purchased an ObusForme to help his seated posture. He found that getting in and out of the cab regularly when he would stand-up and stretch eased his neck and back pain.
[60]         Dr. McKenzie’s independent assessment confirmed the neck injury though the doctor was somewhat guarded in his ongoing opinion. However, regarding Mr. Baker’s low-back pain, the doctor concluded the pain was due to de-conditioning and not because of the car accident. I am driven to an opposite conclusion for it seems equally sensible, if not more sensible, that Mr. Baker’s de-conditioning was because of the car accident…
[64]         A fair conclusion is that Mr. Baker is a “old-school” man: he is robustly built and of few words; he does not complain, and indeed, he rarely saw a doctor before the accident and then only to get his health check as the taxi company requires.
[65]         He also has not seen his family doctor about his injuries for some two years. Dr. Jones, his family doctor, wrote his letter of opinion in December 2011, some eight months after the accident. Both Dr. Jones and Dr. McKenzie were guarded about the long-term prognosis for complete recovery of Mr. Baker’s soft-tissue injuries. I conclude they were guarded due to Mr. Baker’s age and the likelihood that patients in their sixties are not going to recover from soft-tissue injuries as they might have in their earlier decades…
[67]         Counsel provided a number of cases, and of course, none are precisely alike. But I do find the defendant’s cases more on point or more similar to Mr. Baker’s situation. On the other hand, Mr. Baker’s leisure activities in his retirement are being substantially affected. I accordingly award him $30,000 general damages.

$70,000 Non-Pecuniary Damages Awarded to "Stoic" Plaintiff

Plaintiffs should not be punished with reduced damages in a personal injury claim simply because they are stoic in dealing with their injuries.  Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, discussing this in the context of a chronic soft tissue injury claim.
In yesterday’s case (Courtney v. Huthinson) the Plaintiff was involved in a 2008 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff, a 48 year old logger, suffered a chronic soft tissue injury to his neck which produced symptoms of pain and headaches.  The symptoms continued on to the time of trial and were not expected to further recover.
Despite the chronic nature of the Plaintiff’s injuries he carried on with a stoic attitude minimizing his complaints.  In assessing non-pecuniary damages at $70,000 Madam Justice Power made the following findings with respect the Plaintiff’s injuries and his stoicism:

[16] Dr. MacKean’s opinion was that Mr. Courtney had suffered a Grade two whiplash associated disorder to the cervical spine and upper back with persistent daily neck pain greater on the right than left side, and headaches. She is of the opinion that the ongoing persistent neck pain and headaches is due to injuries sustained in the accident.

[17] Of significance Dr. MacKean noted that:

He has most likely reached the point of maximal medical improvement. It has been almost 3 years following the date of motor vehicle accident and he has not seen significant improvement over the past two years with regards to improvement in his neck pain symptoms.

[18] Dr. MacKean in her report and in her evidence noted that the disc degeneration seen in the MRI was less likely the cause of the ongoing pain he was experiencing since it was asymptomatic prior to the accident…

[23] Mr. Courtney came across in his evidence as a quiet man who was committed to his personal health and fitness and who was conscientious and proactive about pursuing his treatment options. He did not appear to exaggerate or overstate his evidence. When he made errors in his evidence for example with respect to his work history, he acknowledged them and any errors appear to be reasonable based on the passage of time, and Mr. Courtney’s knowledge. He is clearly a hardworking man who has worked through pain caused by the accident in order to provide for his family. The ongoing pain is primarily neck pain which is aggravated by activities which require neck extension and occasional headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney. Based on the evidence I would characterize Mr. Courtney as a stoic individual…

[44] I have already found Mr. Courtney to be a stoic individual who does not complain and indeed his return to work post-collision is consistent with the behaviour of a hardworking, stoic individual. As noted, he should not be penalized as a result of his stoicism.

[45] In all of the circumstances, I conclude that an appropriate sum under this head is $70,000.