Non-Pecuniary Damages for Thoracic Outlet Syndrome Assessed at $85,000
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a left sided Thoracic Outlet Syndrome (TOS) which arose after a series of accidents.
In today’s case (Lee v. MacLean) the Plaintiff was involved in two 2003 motor vehicle accidents. The Defendants were found liable for the collisions focusing the trial on the cause of the Plaintiff’s injuries and their value.
Determining the cause of the Plaintiff’s injuries was no easy task as the Plaintiff was injured in previous motor vehicle collisions and continued to suffer pain from those events. By the time of his 2003 accidents the Plaintiff still had pain in his neck, right shoulder and lower back as a result of his previous accidents. The 2003 accidents aggravated these injuries and caused new symptoms. Specifically the Court found that the 2003 collisions “triggered the onset of the thoracic outlet symptoms on (the Plaintiff’s) left side“.
The Court heard expert evidence from Dr. Peter Fry, a vascular surgeon with expertise in thoracic outlet syndrome. He provided the following evidence with respect to the cause and severity of the Plaintiff’s left sided TOS:
I think significantly at the present time he shows evidence of more serious compression of the thoracic outlet given that there is clinical evidence that the venous drainage of the arm on the left is impaired compared to the right side. This is an indication of fairly severe compression in this area, basically involving not only the vein but the artery where you can develop a bruit or turbulence during provocative testing for thoracic outlet syndrome and the reproduction of neurological symptoms that appear to involve both upper and lower plexus.
This being the case, I think it is highly that at some point in time Mr. Lee is going to require definitive surgery for thoracic outlet syndrome on the left.
I would opine that the accident of October 2003 was most likely responsible for provoking or exacerbating symptoms on the left side in a setting where he clearly had previous compression of the thoracic outlet and was therefore somewhat vulnerable to this injury.
Mr. Justice Gaul assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000. The court then reduced this award by 25% to take into account the Plaintiff’s pre-existing injuries. Mr. Justice Gaul provided the following reasons:
[118] Applying the principles enunciated in Filsinger, I am satisfied Mr. Lee is both a “crumbling skull” and “thin skull” plaintiff. The determination of which depends upon the precise injury.
[119] The neck, right shoulder and lower back pains Mr. Lee complained of following the 2003 Accidents were quite similar to those he complained of after the 1990s Accidents. I am satisfied that these symptoms would have continued to manifest themselves even if Mr. Lee had not been involved in the 2003 motor vehicle accidents.
[120] With respect to the left side of Mr. Lee’s body, the issue is more difficult. I accept the evidence of Dr. Fry that in 1998 Mr. Lee exhibited signs of thoracic outlet syndrome on the left side of his body, even though Mr. Lee was asymptomatic at the time. I am persuaded by the evidence of Dr. Fry and Dr. Shuckett that the nature of Accident #1 and Accident #2 were such that they triggered the onset of the thoracic outlet syndrome symptoms on Mr. Lee’s left side and are therefore attributable to those accidents.
[121] I also find that the concentration problems, headaches and associated vision problems that arose after the 2003 Accidents can at least be partially attributed to those accidents…
[123] Given the pre-existing condition of Mr. Lee and the fact that the symptoms on the right side of his body were likely to have continued, notwithstanding the 2003 Accidents, I find that it is appropriate to make a 25% reduction in the non-pecuniary damages as well as the award for loss of earning capacity…
[135] I found Mr. Lee to be a credible witness when he described the timing, nature and extent of his injuries. In doing so, I accept that he had pre-existing pains prior to the 2003 Accidents, some of which were identical to those which developed after the 1990s Accidents.
[136] Mr. Lee is entitled to be compensated for his injuries. I do not find those injuries to have been as trivial or transient as suggested by the defendants. On the whole I favour Mr. Lee’s description of the injuries and find that an appropriate award for non-pecuniary damages to be $85,000. There will, however, be a 25% contingency discount to this amount on account of Mr. Lee’s pre-existing physical ailments.
[137] As a result, the award for non-pecuniary damages is $63,750.