Plaintiff who completed half-marathon after accident awarded $110,000 in non-pecuniary damages for soft-tissue injuries and headaches

In reasons for judgment released last week, the court in Herman v. Paley, 2017 BCSC 728, awarded the plaintiff $110,000 in non-pecuniary damages following a rear-end collision.  Mr. Justice Greyell wrote:

[6]             As stated, the plaintiff was sitting in the passenger seat of her friend’s vehicle when it was rear-ended while stopped. Ms. Herman testified she was not expecting the impact. She said that prior to the impact she was looking to her right. On impact she said her upper body was “jerked” forward and then back by the shoulder seat belt she was wearing.

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[8]             Ms. Herman is 40 years old and currently resides in Penticton with her husband and two children, Hannah, aged 12 and William, aged nine. Her husband is a clinical pharmacist at Penticton Regional Hospital.

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[94]         Ms. Herman’s injury occurred just as she was about to commence her goal of becoming a full-time regular perinatal nurse. The evidence established she was passionate about pursuing her career and would have done so until retirement. She may be able to work to retirement with the assistance of regular rhizotomy injections to control her pain but not at a level close to her plans absent injury from the Accident. Before the Accident, Ms. Herman was a fit, active person who enjoyed outdoor activities with her husband and young family, friends and relatives. These are activities she can no longer enjoy, much to her loss and that of her family members. She is now a bystander to her families activities rather than a participant. She can no longer pursue the type of nursing career she had hoped for. She has suffered a significant injury which will require reduced work hours and injections to control her pain for the rest of her life. Her pain is significant enough that she cannot work more than two continuous 12 hour shifts. Even when she works two consecutive such shifts she is in pain the following day.

[95]         The defendant takes umbrage at the fact the plaintiff trained for and ran (walked) a half marathon in 2015. I view this attempt, which was undertaken with training assistance from her care givers at the time, not as evidence the plaintiff was returning to her former activities but as a stoic effort by Ms. Herman to try to get back to the pre-accident activities she enjoyed. While she completed the run/walk she learned the activity was not something she could continue to do. The fact she tried is one example of her stoicism: other examples are her efforts to work long and back-to-back shifts notwithstanding the pain she is in and her efforts to seek out other work which may be more accommodating to her injuries as demonstrated by her numerous applications for nursing positions.

[96]         After reviewing the authorities relied on by counsel I am of the view an award of $110,000 reflects a proper award for non-pecuniary loss.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0728.htm