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

Court awards $110,000 in non-pecuniary damages for soft-tissue injuries, headaches, and dizziness

In reasons for judgment released today, the court in Rousta v. MacKay, 2017 BCSC 644, awarded the plaintiff $110,000 in non-pecuniary damages soft-tissue injuries, headaches, and dizziness sustained in a rear-end collision.  The plaintiff in Rousta was 59 at the time of the accident and continued to experience pain at the time of trial.  In giving reasons, Mr. Justice Skolrood wrote:

[80]         The evidence establishes that the plaintiff suffered soft tissue injuries to her neck, shoulders and back as well as an injury to her right hip as a result of the accident. I accept her evidence that she still experiences pain in these areas, although I note the evidence of both Dr. Cameron and Dr. Dost that when they examined her, both in the summer of 2016, she had a full range of motion in her neck and back. A fair assessment is that these injuries will continue to cause her some pain and discomfort but are not by themselves disabling.

[81]         The evidence also establishes that the plaintiff suffered an inner ear injury with resulting visual vestibular mismatch which continues to cause her difficulty, although not to the same degree as shortly following the accident. Again referring to Dr. Cameron’s and Dr. Dost’s examinations of the plaintiff in mid-2016, both indicated normal balance and coordination.

[82]         The plaintiff has also experienced consistent headaches since the accident, and I am satisfied that they still continue to bother her, although Dr. Cameron and Dr. Barton are optimistic about improvement with better management.

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[94]         Considering the impacts of the accident on the plaintiff, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $110,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0644.htm

Court awards plaintiff $90,000 in non-pecuniary damages for soft-tissue injuries and headaches

In reasons for judgment released today, the court in Willett v. Rose, 2017 BCSC 627, awarded the plaintiff $90,000 in non-pecuniary damages for soft-tissue injuries and headaches that resulted from a motor vehicle collission.  The plaintiff in Willett was a 51-year-old realtor who had a longstanding pre-accident history of migraines.  In making the award, Mr. Justice Smith wrote as follows:

[1]             The plaintiff was injured in a motor vehicle accident near Prince George, British Columbia on February 16, 2010. Seven years later, the plaintiff says she continues to suffer from neck pain and stiffness that in turn leads to debilitating migraine headaches. The defendant says the plaintiff had a long history of migraines before the accident and returned to her pre-accident condition within a few months. The defendant also says the plaintiff was partly responsible for the accident.

[20]         The plaintiff says she still has limited mobility and discomfort in her neck, although she can have pain free periods lasting up to a week or two. But when she has neck pain she says the pain will spread across the left side of her head or to a band across the forehead. She says she still gets headaches two or three times a month. These last a day or two if they do not develop into full migraines; but the migraines, which are more frequent than her “normal” headaches, can last up to five days. When she has a migraine, she says she needs to go to bed in a dark room with cold compresses and is sensitive to light, touch, sounds and smells.

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[22]         The plaintiff, who is now 51, has a pre-accident history of migraines going back to her early teens. She says these were always associated with her menstrual periods and stopped when she went into menopause in 2012. She says the present migraines are both more severe and more frequent.

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[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future.

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[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0627.htm