Tag: Westfield v. Lindstrom

$50,000 Non-Pecuniary Assessment for Chronic AC Joint Injury

Adding to this site’s archived posts addressing BC non-pecuniary assessments for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic AC joint injury.
In last week’s case (Westfield v. Lindstrom) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from soft tissue injuries which largely recovered her AC joint injury remained problematic at the time of trial that were expected to continue indefinitely.   In assessing non-pecuniary damages at $50,000 Mr. Justice Abrioux provided the following reasons:
[58]         I make the following findings of fact based on my consideration of the evidence, both lay and expert, as a whole:
a.         prior to the Accident the plaintiff had occasional difficulties with her low back.  In addition, she had degeneration in her right shoulder area.
b.         the plaintiff also suffered from asthma and had respiratory problems, which affected her daily living activities to various degrees from time to time.  These difficulties made her more susceptible to developing a more serious condition in the future.  That in fact occurred after the Accident.  The development of the respiratory condition to its current stage which the plaintiff concedes is “serious and disabling,” plays an important role in her day-to-day functioning and ability to enjoy the amenities of life.
c.        the plaintiff sustained various soft tissue injuries in the Accident.  It is also likely she sustained an injury to the AC joint in the right shoulder.  Although the plaintiff has recovered from certain of these injuries she has ongoing pain and discomfort to her right shoulder, with associated discomfort in her neck, which is likely permanent.
d.         the Accident injuries affected the plaintiff’s “original position”, that is, the state of her health and its effects on her functioning prior to the Accident.  This original position included a right shoulder with degenerative changes.
e.         although the plaintiff has indicated she would be prepared to undergo an operation to her right shoulder if that were recommended to her, she has not established that recommendation is likely to occur.  There is evidence the operation could pose a significant risk to her life.  Quite understandably, the plaintiff testified she would not undergo the surgery if there were in fact such a risk to her.  There was no evidence from an anesthesiologist to the effect the plaintiff’s respiratory condition would not in fact result in a significant risk to her life were she to undergo an operation which involved a general anesthetic.  This is what would likely occur in this case.
f.          while the plaintiff does have some ongoing pain and restriction to her shoulder which is likely to be permanent, the effect of the ongoing Accident injuries plays a considerably less negative role in her day-to-day functioning than do the ongoing effects of her serious respiratory condition.
g.         the plaintiff has downplayed to some extent the respective contributions to her current state of health caused by the Accident injuries on the one hand and the respiratory condition on the other.
h.         notwithstanding this, the injuries sustained in the Accident do affect, to some extent, the plaintiff’s current ability to function and the quality of her life generally.  I accept the plaintiff’s evidence and that of her family members that she is no longer as happy and outgoing as she was prior to the Accident.  I do not, however, accept that this state of affairs is entirely due to the injuries sustained in the Accident.  The effect of the respiratory condition on the plaintiff’s life, which includes being the sole cause of her inability to work in a position which provided her with great personal satisfaction as a special needs educational assistant, also contributes to her current psychological state.
i.          the plaintiff has made significant recovery from the effects of the injuries sustained in the Accident.  This occurred within approximately 18 months to two years after the Accident.  She is left, however, with ongoing aches and pains to her upper back and right shoulder area.  These will continue indefinitely to some degree.  The ongoing effects of the injuries sustained in the Accident also affect to some degree her ability to perform certain household tasks…
[72]         I conclude the effect of the plaintiff’s injuries in this case, while generally comparable to those in Rozendaal and Bhadlawala, are somewhat more severe insofar as the day-to-day enjoyment of life and ability to function is concerned.  I award the plaintiff $50,000 under this head of damages, which includes $5,000 for loss of past and future loss of housekeeping capacity.

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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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