Plaintiff awarded $80,000 in non-pecuniary damages for fractured leg

In reasons for judgment released last week, the court in Sohal v. Singh, 2017 BCSC 734, awarded the plaintiff $80,000 in non-pecuniary damages following a car accident in which she suffered a fractured patella.  Mr. Justice Skolrood wrote:

[3]             The plaintiff was 47 years old at the time of the accident and 53 years old at the time of trial. She has been a widow since 2001 and has two children, a daughter currently 25 years old and a son currently 21 years old.

[4]             The plaintiff lives in New Westminster and both of her children currently live with her while they attend university.

...

[13]         The plaintiff described the impact as feeling like she had been struck in the right knee by a hammer. It was subsequently determined that she had fractured her patella. She also felt immediate tightness in her neck and shoulders.

...

[34]         The plaintiff called two treating physicians to give evidence. Dr. Darius Viskontas is an orthopaedic surgeon who first saw the plaintiff on December 16, 2011 on referral from Royal Columbian Hospital. At that time, he diagnosed her with a fractured right patella, based on x-rays that had been done, and he prescribed her a brace. Thereafter, Dr. Viskontas continued to see the plaintiff periodically up until May 2013. Over that period of time, her patellar fracture healed well but she continued to complain of pain in the knee and leg.

...

[52]         In my view, the plaintiff’s injuries and ongoing complaints, as well as the impacts on her, most closely align with the facts of the authorities that she relies on rather than those advanced by the defendant. Considering those authorities and the principles emanating from Stapley, I find that a reasonable award of non-pecuniary damages is $80,000.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0734.htm

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.

...

[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 and “adjustment disorder”

In reasons for judgment released today, the court in Bivadi v. Coggans, 2017 BCSC 656, awarded the plaintiff $110,000 in non-pecuniary damages for soft-tissue injuries and adjustment disorder.  Mr. Justice Smith wrote:

[64]        The evidence supports a conclusion that the plaintiff’s pain, his associated psychological problems, and the effects of prescription medication combined to be significantly disabling for about a year after the accident. After that, there was a process of slow improvement, with symptoms still present at trial two and a half years after the accident. The medical prognosis at the date of trial was for continued improvement, but with complete recovery from pain unlikely. However, the plaintiff appears to have acquired some skills to manage his pain, with a resulting improvement in his mental state.

[65]        In Unger v. Singh, 2000 BCCA 94 [Unger], the Court of Appeal said that in cases involving primarily soft-tissue injuries with some emotional problems such as sleep disruption, nervousness or depression, the decided cases indicated a range of non-pecuniary damages awards from $35,000 to $125,000: at para. 32. Counsel for the plaintiff submitted that when adjusted to 2015 dollars, that range would be approximately $46,000 to $166,000.

[66]        In Unger, the plaintiff was involved in two motor vehicle accidents. The first caused soft-tissue injuries, psychological, and emotional problems which were largely resolved by the time of the second accident a year and a half later. The second accident caused some minor aggravation, but by the time of trial about two years after the first accident, the plaintiff had resumed most of her pre-accident activities. The Court of Appeal reduced a jury award to $90,000.

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[68]        Having regard to the severity of the plaintiff’s initial symptoms, his substantial but far from complete improvement by the time of trial, the probability of continued symptoms in the future and the fact that the plaintiff was at risk for developing pain at some point from his pre-existing degenerative condition, I assess his non-pecuniary damages at $110,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0656.htm

Court awards $85,000 in non-pecuniary damages for soft tissue injuries

In reasons for judgment released today, the court in Harris v. Kraus, 2017 BCSC 640, awarded a 30-year-old mother of three with pre-existing depression $85,000 in non-pecuniary damages for soft tissue injuries.  Mr. Justice Betton wrote as follows:

[20]         The plaintiff says that 4.5 years post-collision she continues to suffer with constant pain and with ups and downs in her daily experience.

[21]         She argues that given her age and the significant impact on her enjoyment of life, including her role as a mother of three young children, an award of $110,000 is appropriate.

...

[73]         The plaintiff is a young mother of three who has and will continue to deal with chronic pain. It is obvious that this has affected all aspects of her life. Apparently and understandably, the most difficult part of that has been the impact on her ability to parent. Emotionally and physically she is limited in this regard.

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[77]         Counsel have referenced numerous authorities, all of which are helpful. It is always possible to find features of other decisions that distinguish them from the facts at bar. But for the medical opinions that the plaintiff will improve, I would award an amount in the range suggested by the plaintiff. Taking into account that optimism, but recognizing the uncertainties associated with it, I award $85,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0640.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.

...

[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.

...

[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.

...

[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.

...

[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

Court awards plaintiff non-pecuniary upper limit cap of $367,000 despite no paralysis or brain injury

In reasons for judgment released today, the court in Wilhelmson v. Dumma, 2017 BCSC 616, awarded the plaintiff the upper limit cap of $367,000 in non-pecuniary damages after suffering “catastrophic” physical injuries (but which did not involve any paralysis or brain injury).  In giving reasons for judgment Madam Justice Sharma wrote:

[168]     Ms. Wilhelmson seeks between $325,000 and $360,000 in general damages for pain and suffering. The defendant says an award of $300,000 is appropriate. There is no dispute that the controlling case law limits the maximum damages available to be $367,000 in today’s dollars.

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[171]     ... The defendant’s position is that the upper limit for general damages (as per Andrews but converted to today’s currency) is reserved for only the most catastrophic cases, involving severe brain injury or paralysis. So while the defendant accepts Ms. Wilhelmson has suffered severe injuries, he says the upper limit is not justified in this case...

...

[180]     The defendant pointed out that the cases to which he referred where the maximum or near-maximum award was made, all deal with people suffering a different category of injury: severe brain damage that has altered people’s independence and personality. The defendant points out that the plaintiffs in the cases he cites all require near-constant supervision, unlike Ms. Wilhelmson. However, that merely distinguishes those cases rather than providing support for the defendant’s position.

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[184]     The defendant says the “most” catastrophic injuries that justify the maximum award of damages are only those involving paralysis or severe brain injury. No case was cited to me that stated that principle and in my view, Walker J.’s comment in Sangra are inconsistent with that position.

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[187]     Non-pecuniary damages are compensation for the intangible impacts the accident has on the plaintiff for pain, suffering and loss of enjoyment of life. The question before me is whether the pain and suffering the accident has caused Ms. Wilhelmson justifies awarding her the maximum or near maximum amount of damages.

[188]     I find that it does and I award her $367,000 in general damages.

[193]     Taking all of these factors into account, I find she is entitled to the maximum award of damages for non-pecuniary damages and I award her $367,000. The plaintiff submitted she is entitled to the maximum, but only sought $360,000 based on counsel’s understanding that the maximum was reserved for cases involving paralysis and/or severe brain injury. I do not find the case law cited to me to support that supposition and therefore the plaintiff is entitled to the maximum.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0616.htm#_Toc479755192

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

In reasons for judgment released today, the court in Leach v. Jesson, 2017 BCSC 577, awarded a 50-year-old plaintiff $110,000 in non-pecuniary damages for soft-tissue injuries following a serious rear-end collision.  Mr. Justice Funt wrote:

[7]             At the time of trial, the plaintiff was 50 years old and had been married to his spouse for 24 years. They have four adult children.

[8]             For the past 25 years, the plaintiff has worked in both residential and commercial construction. In recent years, the residential construction has involved home renovations.

[24]         As a result of the Accident, the plaintiff now suffers from neck and shoulder pain, low back pain, and headaches. Initially, as the plaintiff described, he had no strength in his neck and had to support it. He now has stability in his neck but there is considerable residual pain which has plateaued.

...

[69]         Recognizing the degree of the plaintiff’s injuries and their effect on his enjoyment of work, family, and leisure activities, and the plaintiff’s age, the Court will award $110,000 as non-pecuniary damages.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0577.htm

Motorcyclist awarded $115,000 in non-pecuniary damages for fractured ankle

In reasons for judgment released on Monday, the court in Ward v. Walker, 2017 BCSC 484, awarded a 52-year-old motorcyclist $115,000 in damages after he suffered a fractured ankle in a motorcycle accident .  Madam Justice Beames wrote as follows:

[1]             THE COURT:  On August 3, 2013, the plaintiff was injured when the motorcycle he was riding was struck violently from behind by a motorcycle that was owned and had been being ridden by the defendant. At the commencement of the trial, the defendant admitted liability for the accident.

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[6]             Ambulances and other emergency vehicles attended the scene. The plaintiff was transported to the Arrow Lakes Hospital in Nakusp and then later that day to the Vernon Jubilee Hospital. On August 4, 2013, he had surgery, specifically an open reduction and internal fixation of his fractured ankle. He had both medial malleolar and posterior malleolar fractures. The rupture at the front of his ankle caused by the broken bone was sutured.

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[17]         At the time of the accident, the plaintiff was 49. He is now 52. He has worked in the glazing industry since he graduated from BCIT in 1985, except for short stints working for Corrections B.C. immediately after his graduation, and for his brother‑in‑law in a steel fabrication business. He has two adult children from his first marriage and two adult stepchildren with his current wife who is an elementary school teacher. He has one grandchild and another on the way.

[18]         He had and continues to have a close relationship with his children, stepchildren, and siblings, and he provides care and companionship for his elderly mother who has Alzheimer's and is a resident in a care facility.

[19]         Prior to the accident, the plaintiff was very active, energetic, optimistic, and happy. He shared inside and outside domestic duties with his wife and two stepchildren. He performed home maintenance and repairs, including reroofing his home with cedar shingles. He camped, cycled, motorcycled, ran, hiked, snowboarded, dog‑walked, and played ball with his friends and family. He also worked out at the gym.

[20]         Since the accident, I accept that all of the plaintiff's recreational pursuits have been curtailed. He has been able to resume some of his activities on a very reduced or modified basis, while other activities are no longer possible, even with modification. I find the same applies to the plaintiff's domestic activities. He has returned to some, such as cooking, without modification, and others, such as laundry, on a modified basis. Some other duties such as lawn mowing are painful and difficult for him and he does them only occasionally. Some of his previous activities around the home, such as any activity requiring the use of a ladder, are no longer possible or safe for him.

...

[28]         I have read all of the cases provided to me by counsel. Each is, of course, distinguishable on its facts from the case before me. I find that Rizzolo v. Brett, 2010 BCCA 398 (CA) aff’g 2009 BCSC 732, is most factually similar, although that plaintiff was somewhat younger than the plaintiff in this case.

[29]         I award the plaintiff $115,000 in non‑pecuniary damages.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0484.htm

Plaintiff awarded $75,000 in non-pecuniary damages for soft-tissue injuries

In reasons for judgment released on St. Patrick’s Day, the court in Owen v. Peljhan, 2017 BCSC 423, awarded a 42-year-old plaintiff $75,000 in non-pecuniary damages for soft-tissue injuries.  In giving reasons, Mr. Justice Gaul wrote as follows:

[46]        Ms. Owen asserts that the injuries she suffered as a result of her motor vehicle accident have had a significant impact on her overall enjoyment of life. She points to the fact that she is no longer employed in the financial investment industry; is no longer able to pursue her vigorous physical fitness routines; is no longer as socially active; and generally suffers from a lack of energy and drive that at time borders on exhaustion. As she explained in her testimony, “there’s a certain exhaustion, like my bones feel tired. And I know that’s a physical feeling, but it’s emotional too because I feel like I’m on the outside looking into my old life, if that makes sense?

[52]        In my opinion, the extent and gravity of the injuries suffered by Ms. Owen are not as significant as she claims. While Ms. Owen has not returned to the level of activity and enjoyment of life that she had prior to the accident, she has succeeded in returning to what by any reasonable yardstick would be considered a healthy and active lifestyle. Moreover, I am not convinced that the pain and discomfort from Ms. Owen’s accident injuries prohibited her from carrying on with her career goal of becoming a Certified Financial Planner. Having said all of this, I do accept that she continues to suffer from the chronic pain, principally in her neck and shoulders and that this has had a detrimental impact on her ability to her enjoyment of life.

[53]        In my respectful view, the case authorities submitted by counsel for Ms. Owen reflect fact patterns that are more aggravating than Ms. Owen’s. For example, unlike the circumstances in some of those cases, Ms. Owen’s injuries have not been debilitating, nor has she suffered any significant emotional trauma or serious marital discord.

[54]        In my opinion, an award of $75,000 would fairly compensate Ms. Owen for her non‑pecuniary damages.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0423.htm

Plaintiff rear-ended three times awarded $85,000 in non-pecuniary damages for soft-tissue injuries

In reasons for judgment released yesterday, the court in  Dhillon v. Singer, 2017 BCSC 414, awarded a 44-year-old plaintiff $85,000 in non-pecuniary damages for soft-tissue injuries.  In giving reasons, Madam Justice Fleming wrote as follows:

[143]     After each of the three accidents, the first and third in particular, Mrs. Dhillon endured significant pain symptoms and headaches. Following the first and third accidents, her pain symptoms were severe enough to prevent her from working at all for some months. Her sleep was very disrupted. Since her return to work in November 2013, Mrs. Dhillon has continued to experience variable levels of pain in her neck, shoulders, upper and lower back and psychological and cognitive symptoms, all of which have improved and are likely intermittent, but now chronic. Ongoing pain has affected Mrs. Dhillon’s intimate relationship with her husband. She has also been somewhat less able to play badminton with her children and she avoids more elaborate cooking, something she loved to do before the accidents. Mrs. Dhillon has and will continue to experience some pain while working although not to the extent she claims. Mrs. Dhillon’s mood symptoms are reasonably well managed, although she continues to have low moments and feelings of anxiety in response to pain and fatigue. On the whole, however, the plaintiff is able to enjoy her family and everyday life and take pride in her work.

[144]     Applying the factors identified in Stapley to the facts of this case and bearing in mind my review of the authorities provided by the parties, I conclude an award of $85,000 is fair and reasonable.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0414.htm#_Toc477183397

Court awards “peripatetic” plaintiff $213,449 in damages for soft tissue injuries

In reasons for judgment released earlier this week, the court in Welch v. Tietge, 2017 BCSC 395, awarded a somewhat nomadic plaintiff $213,449 in damages following a car accident in which she suffered soft-tissue injuries.  The plaintiff in Welch was 28 years old at the time of the accident and worked a series of bartending/service jobs following the accident.  In awarding $70,000 in non-pecuniary damages, and $100,000 for loss of future earning capacity, Mr. Justice Johnston wrote as follows:

[10]         Ms. Welch testified that she had always experienced anxiety, that it was not a daily occurrence, but if she became stressed, she suffered panic attacks. She occasionally took Ativan prescribed for this condition, but took no anxiety medication on a permanent basis. Ms. Welch testified that she had missed work as a result of anxiety before her accident.

[23]         Ms. Welch had cosmetic surgery in the form of breast augmentation on October 29, 2012, with Dr. Smith as her surgeon. She did not recall discussing recovery time with Dr. Smith, or being told to avoid heavy lifting after surgery, although she agreed that would make sense.

[79]         There is also the fact that Ms. Welch has led a somewhat peripatetic life between the accident and trial. She had developed a relationship with Mr. Shaw, who lived in Kelowna, before the accident. When the accident occurred, Ms. Welch and Mr. Shaw had separated, but the break was not so final that Mr. Shaw did not contribute to Ms. Welch’s cosmetic surgery at the end of October 2012, and send her money for living expenses from time to time. Even if there had been no accident, I find that it is probable that Ms. Welch’s income in the fall of 2012 would not have been significant.

[80]         The evidence is neither clear nor satisfactory as to how long Ms. Welch would have been unavailable to work as a care aide after her cosmetic surgery, as her own estimate of a month has a poor foundation, and there is no other evidence on the point. She would have been unavailable for some time in November 2012, however.

[81]         From early 2013, Ms. Welch’s employment would have been interrupted each time she moved: to Lloydminster, to Vancouver, to Calgary, to Vancouver, finally landing in Edmonton in September 2014. Some of these moves were driven by economics in that Ms. Welch could not earn enough as a bartender to live on her own in Vancouver. I am not persuaded that she would have been any more successful as a casual or on-call care aide, at least enough to avoid some of her moves.

[90]         Ms. Welch has made any attempt to assess damages for lost income between accident and trial so difficult that it is almost impossible. She has established that her injury has adversely affected her ability to work as a care aide, and has satisfied me on a balance of probabilities that there is some loss of earning capacity to trial for which she should be compensated. On the other hand, she is not entitled to recover damages for a loss which she could have avoided by acting reasonably, and I am persuaded that Ms. Welch has not acted reasonably in that she has not sought out or maintained employment she has shown herself capable of doing.

[92]         If, in assessing that loss, I inadvertently ascribe more earned income to Ms. Welch than she has actually earned, it will be because of her failure to properly record or report income from tips or aesthetician work.

[97]         Before the accident Ms. Welch’s low academic and vocational potential had limited her career opportunities. Her earnings potential lay more in the physical or service occupations than in those requiring intellectual capacities she did not possess. Working as a care aide was a good fit for Ms. Welch, but it was not the only field for which she was suited: she has worked in retail sales, in food and beverage serving jobs, and has been trained on-the-job to work as a laser technician, doing facials, hair removal and skin rejuvenation.

[108]     In assessing this head of damages, I repeat that Ms. Welch had a less than stellar work history before the accident, she demonstrated a willingness to change jobs to accommodate her personal life, and she gave up or lost jobs with some frequency. Her post-injury approach to employment has not been a great improvement. She has moved several times, again interrupting her employment. She has also appeared willing to have others support her rather than pursuing gainful employment she is capable of doing.

[111]     My assessment of Ms. Welch’s enthusiasm for work leads me to assess her future earning capacity loss, on the capital asset approach, at $100,000. In arriving at that figure, I have considered not only the usual contingencies, both positive and negative, that apply to such awards, but those peculiar to Ms. Welch, as revealed by the evidence

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0395.htm

Plaintiff who developed drug addiction after accident awarded $248,996 in damages

In reasons for judgment released today, the court in Smith v. Wind, 2017 BCSC 342, awarded a 47-year-old plaintiff $248,996 in total damages following a motor vehicle accident.  The plaintiff in Smith was rear-ended and sustained soft-tissue injuries to his shoulder and neck.  He subsequently developed an addiction to Oxycodone.  Prior to the accident the plaintiff had used OxyCocet to deal with knee pain, and had also suffered from a heroin addiction.  In discussing the evidence and ultimately awarding $65,000 in non-pecuniary damages, Mr. Justice Dley said as follows:

[5]             Mr. Smith is 47 years old. He is married and has two children, aged 19 and 10. He is the breadwinner for the family.

...

[7]             He has had addictions to drugs including heroin and has been to detox residential facilities and taken counselling for addictions.

[25]         In September 2012, Mr. Smith said that Dr. Baldelli prescribed Oxycodone for his shoulder pain. He became addicted to the drug and went through a painful weaning off.

[26]         In March 2015, when the pain increased, Mr. Smith bought Oxycodone from Craigslist. It was as a result of his wife’s intervention that he sought further treatment for the addiction. He has since remained drug-free, but remains concerned that he is at risk to re-use if the pain worsens.

...

[46]         Dr. Baldelli was of the view that the pain from the shoulder injury was the catalyst of Mr. Smith’s addiction to Oxycodone, even though he had pre-existing knee and reflux issues.

[51]         Mr. Smith was also treated by Dr. Coleman, an addiction specialist. Dr. Coleman, in his September 19, 2014 report, referred to Mr. Smith’s long history of codeine use prior to the collision. Dr. Coleman was concerned that an active substance dependence disorder may have been “smouldering” for a number of years prior to the collision.

...

[107]     Mr. Smith suffered depression and developed a dependency on Oxycodone. His addiction and weaning off caused him emotional suffering which impacted his family life.

[108]     Dr. Baldelli did not attribute Mr. Smith’s emotional suffering or addictions solely to his shoulder symptoms. Instead, Dr. Baldelli opined that all of his ailments contributed. It is not necessary that the shoulder injury be the sole cause of Mr. Smith’s emotional or addiction issues. It is sufficient if he proves that the shoulder injury materially contributed to the other health issues.

[110]     It is apparent from the opinions of Drs. Baldelli and Coleman that Mr. Smith’s use of Oxycodone caused him to develop a dependency. Although his substance dependence disorder may have been “smouldering” prior to the collision, it was ignited after the collision. Mr. Smith’s knee and reflux disease were factors in his being prescribed Oxycodone, but so was the shoulder injury. I, therefore, conclude that the shoulder injury was a material factor in the addiction and the depression that ensued.

...

[120]     Mr. Smith’s neck and headaches cleared up shortly after the collision. However, Mr. Smith suffered from drug addiction and depression. These issues affected his relationships with his family. He became withdrawn and distant. His marriage was in jeopardy.

[121]     Mr. Smith had a difficult time weaning off Oxycodone, and suffered a relapse in 2015. He has now recovered and is clean, although there remains the risk of future relapses.

...

[135]     I have assessed the non-pecuniary loss at the high end to ensure that Mr. Smith is fully compensated for his loss, particularly because of the possible future surgery and any risks (albeit low) associated with it. I assess Mr. Smith’s non-pecuniary damages at $65,000.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0342.htm

Plaintiff awarded $13,050 in damages after jury trial

In reasons for judgment released today, the court in Harder v. Poettcker, 2017 BCSC 312, awarded the plaintiff $13,050 in damages after a jury found him 85% contributorily negligent in a motor vehicle accident.  The plaintiff appealed the jury's finding on liability but that appeal was dismissed.  The court of appeal then directed the matter back to the trial judge for an assessment of damages.  In discussing damages, Mr. Justice Sigurdson said as follows:

[1]             The plaintiff, then 66 years old, was injured on February 3, 2009 when the motor vehicle he was backing out of a parking spot in a shopping mall was struck from behind by a vehicle driven by the defendant.

[2]             The matter was tried by a jury. The jury found the defendant negligent but found the plaintiff to be 85% at fault. On appeal, the Court of Appeal directed the jury verdict on liability to be entered but referred the assessment of damages to me as the trial judge.

[3]             This is the assessment of damages. Given the apportionment of liability the plaintiff is entitled to be compensated for 15% of the damages that I assess.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.

...

[117]     I have concluded that the soft tissue injuries that the plaintiff suffered in the motor vehicle accident had resolved by the time of the trial.

[118]     Because I have concluded that the plaintiff’s injuries from the accident have resolved I make no award to the plaintiff for any sum for cost of future care or loss of future housekeeping capacity.

[119]     Based on the finding of contributory negligence, the plaintiff is entitled to an award of 15% of the damages that I have awarded (general damages of $50,000, loss of housekeeping capacity of $10,000, recovery of monies paid to third parties $15,000, and special damages of $12,000) and that amounts to (15% of $87,000) $13,050.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0312.htm

Plaintiff awarded $80,000 in non-pecuniary damages for “moderate” soft tissue injuries

In reasons for judgment released today, the court in Catling v. Poteryko, 2017 BCSC 311, awarded the plaintiff $80,000 in non-pecuniary damages for soft tissue injuries which persisted to the time of trial and the court described as ”moderate” .  The plaintiff in Catling was a 60-year-old plumber who operated his own small plumbing company, and who suffered soft-tissue injuries after a serious car accident in which his vehicle was broadsided by the defendant.  The plaintiff was able to continue working after the accident, though he did so in pain.  In finding the plaintiff entitled to $80,000 in non-pecuniary damages, Mr. Justice Thompson said as follows:

[20]        Mr. Catling has suffered the effects of moderate soft-tissue injuries. He has endured more pain than others would have in his efforts to carry on his work as he did before the MVA. He has lost the enjoyment and social contact he derived from golf. He used to use his ATV frequently and ski occasionally, but those pleasures are gone. Most significantly, Mr. Catling suffers the frustration of prematurely losing his leadership role in the family company that he and his wife built. His frustration has led to some friction in the family.

[21]        With his wife, Mr. Catling made the decisions for the company. With his long experience and intense interest in the business, he derived much pride and pleasure from his role at the centre of this successful enterprise. He was 56 years old at the time of the MVA, and I expect that he had nearly another decade ahead of him before he would reasonably think of turning the reins over to his sons. He is now a company employee, albeit a valuable one when it comes to estimating and acquiring lucrative water line work. But it was apparent when listening to the evidence of Mr. Catling and his family members that it does not sit well with Mr. Catling that he is unable to keep up on the physical side of the plumbing jobs.

...

[25]        I assess Mr. Catling’s non-pecuniary damages at $80,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0311.htm

Plaintiff awarded $95,000 in non-pecuniary damages for Chronic Pain and Depression

In reasons for judgment released last Friday, the court in Jamal v. Kemery-Higgins, 2017 BCSC 213, awarded the plaintiff $95,000 in non-pecuniary damages for chronic pain disorder, depression disorder and generalized anxiety symptoms.  The plaintiff in Jamal was a 36 year-old mother of two young children who had worked a Registered Massage Therapist and operated a successful Spa and Wellness Centre before the accident, which she was subsequently forced to sell due to her injuries.  In discussing the appropriate amount of non-pecuniary damages, Madam Justice Morellato wrote as follows:

[55]         Ms. Jamal seeks an award of $180,000 for non-pecuniary damages.  Counsel for the defendants submit that Ms. Jamal ought to be awarded non-pecuniary damages of $90,000, subject to the duty to mitigate her loss. 

...

[59]         ...The evidence establishes that Ms. Jamal has suffered both physically and emotionally for a number of years as a result of the accident.  She is not able to work full-time in her chosen vocation, and she has developed a moderately severe chronic pain disorder, a depressive disorder and an anxiety disorder... In addition, Ms. Jamal has not been able to resume the active lifestyle she enjoyed prior to the collision, and she has suffered some cognitive impairment such as memory loss and lack of concentration which she attributes to her “flare-ups” or her chronic pain.  Ms. Jamal’s relationship with her children has also been negatively impacted due to her persistent pain.  In this light, and after reviewing the cases cited by counsel for both parties, I am of the view that the appropriate amount of non-pecuniary damages in this case is $95,000.

The text of the full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/02/2017BCSC0213.htm

Court awards $120,000 in non-pecuniary damages to 24 year-old plaintiff with "chronic mechanical back pain"

In reasons for judgment released today, the court in Brown v. Mitchell, 2017 BCSC 125, awarded $120,000 in non-pecuniary damages to a 24 year-old plaintiff who suffered from “chronic mechanical pain” as well as vision problems after being involved in two motor vehicle accidents.  Prior to the accidents the plaintiff worked as a dental assistant and was a competitive baseball player.  While she was able to return to playing baseball after the accidents, she suffered pain while doing so.  The court also awarded $120,000 in damages for future loss earning capacity, on the basis that the plaintiff was no longer able to work as a dental assistant and would have to retrain for work in a new field.  In giving reasons for judgment, Mr. Justice Ball wrote as follows:

[24]        The plaintiff’s case may be summarized as follows: she was involved in two motor vehicle accidents, detailed above, the first of which was more serious than the second accident. After a brief period of dizziness, the plaintiff suffered immediate pain in her right lower back which radiated into her right buttocks and right leg. The injuries reported by the plaintiff included a lack of steadiness in her vision which caused her to have difficulty tracking lines of text on a computer screen.

[25]        This second accident aggravated the neck and back pain which arose from the first accident but the symptoms were resolved within three months.

[43]        At the end of the day the evidence generally supports the proposition that this plaintiff will not have a pain free future and that painful symptoms will persist.

...

[46]        The plaintiff has had to change her occupation from one she was highly successful at and had trained at some considerable expense to obtain. She remains with a significant debt which she will now have to pay off without the immediate expectation of an increased salary.

...

[48]        Having reviewed the cases cited by counsel for both parties, I am satisfied beyond a balance of probabilities that the appropriate award of general damages in this case is $120,000.

[49]        The plaintiff had potential for advancement in the dental field and her employer testified that he would provide opportunities for that advancement to take place. The plaintiff also achieved raises in her salary during the eight months preceding the first accident. Without repeating more of the foregoing I am satisfied that the plaintiff has lost a significant capital asset in that she cannot continue her chosen profession for which she has paid a significant sum for training which was clearly successful. Her future income loss, I fix at $120,000.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0125.htm

Court awards $175,000 in non-pecuniary damages for plaintiff with "Somatic Symptom Disorder"

In reasons for judgment released today, the court in Domil v. Cheung, 2017 BCSC 65, awarded $175,000 in non-pecuniary damages to a plaintiff diagnosed with “Somatic Symptom Disorder” whose condition had a “largely psychological basis” and was more akin to a “Conversion Disorder as opposed to a Chronic Pain Disorder”.  In giving judgment, Mr. Justice Skolrood wrote as follows:

[103]     The real issue for Ms. Domil...is her psychological condition. I agree with Dr. Janke’s assessment that Ms. Domil’s “preoccupation with symptoms and the development of unusual and non-physiological symptoms” are the principal barriers to her experiencing a higher degree of recovery. That is also the opinion of Dr. Anton.

[105]     That said, I agree with the defendants that Ms. Domil tended to describe herself as more disabled than she actually is based on her activities of daily life. On her own evidence and that of her husband, Ms. Domil now walks regularly, drives, goes to the gym and pool, organizes the children for school daily, attends church and attends a weekly Christian Life program. She is also back cooking and doing housework to the extent that Mr. Domil described as “getting back to normal.”

[117]     Considering the impacts of the accident on Ms. Domil, including the physical and emotional symptoms that she has experienced and will continue to experience…I find that an award of $175,000 for non-pecuniary damages is appropriate.

The full text of the decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0065.htm

Court awards motorcyclist $850,000 in loss of earning capacity

In reasons for judgment released yesterday, the court in Sundin v. Turnbull, 2017 BCSC 15, awarded a 33 year-old plaintiff $850,000 for loss of future earning capacity.  In Sundin, the plaintiff had been rear-ended while riding his motorcycle and suffered a variety of physical and psychological injuries, including chronic pain and adjustment disorder.  In finding that the plaintiff was also entitled to $175,000 in non-pecuniary damages, Madam Justice Gerow wrote as follows:

[26]         Mr. Sundin has not adjusted well to the chronic pain, and has been diagnosed with an adjustment disorder. He is having trouble accepting he is not going to fully recover, and is going to have to live with chronic pain.

[77]         In my view, the expert evidence supports a finding that Mr. Sundin will continue to suffer from chronic pain and cognitive and memory problems in the future, and will likely suffer flare ups of both his physical and psychological symptoms from time to time.

...

[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[156]      Accordingly, I have concluded that as a result of the accident, Mr. Sundin has lost the opportunity to pursue many careers involving heavy physical demands, including firefighting and policing or corrections. It is clear from the evidence that Mr. Sundin is unlikely to be successful in retraining in a formal setting. However, Mr. Sundin has the capacity to work at jobs that can accommodate his limitations.

[157]     This is a difficult case because Mr. Sundin’s ability to keep employment or find full time employment in more sedentary or recreation oriented jobs will likely be limited due to his mood issues, irritability, indecisiveness and inability to get along with people. On the other hand, Mr. Sundin may be able to find and keep employment in the hunting or working outdoors. However, that kind of work is seasonal.

[158]     Having considered all of the evidence, including Mr. Sundin’s age and residual capacity to earn income, I am of the view that the appropriate award for loss of future income earning capacity is $850,000. This award takes into consideration the fact that Mr. Sundin has not established that he would have applied for the RCMP but for the accident, but that he has established he would have applied for and obtained full time employment, likely in the fitness or recreation field. In my view, given his experience at the Canada Games Centre, it is unlikely Mr. Sundin will be able to obtain full time employment dealing with the general public which significantly limits that career possibility.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0015.htm

 

 

Court Awards $100,000 in Non-Pecuniary Damages for Plaintiff with Pre-Existing Disability

In reasons for judgment released this morning, the court in Ramchuk v. Wagar, 2016 BCSC 2342, awarded a plaintiff $100,000 in damages for non-pecuniary loss.  The plaintiff in Ramchuk had a pre-existing back injury which had permanently disabled him from work and resulted in him being addicted to opioid painkillers and walking with the use of a cane.  The court said:

[2]             Mr. Ramchuk was 51 years old at the time of the Collision. At that point he had been on an Alberta Workers' Compensation Board (“WCB”) pension for approximately 11 years. He started receiving the pension after sustaining significant back injuries (the “Workplace Injury”) after a fall from a roof while working as a sheet metal worker in September 1996…

[5]             Mr. Ramchuk’s prescription medication consistently included opioids, at times prescribed at levels now recognized as inappropriate and even dangerous. Medical professional associations have reconsidered the prescribing of opioids over the last few years and have recommended that physicians significantly cut back on the use of opioids to manage chronic pain. Studies have recognized that continuing high dosages have little long-term beneficial effect and can lead to addiction and other health risks. From the evidence heard in this case, it appears an ongoing debate exists as to what dosage is potentially beneficial and yet safe for treatment.

[11]         Mr. Ramchuk said he could manage the pain from the Workplace Injury by employing postures and strategies he adopted when the pain became disabling. His sleep pattern developed into periods of three to four hours’ sleep, following which he would wake to change his posture. Mr. Ramchuk kept a cane with him throughout his daily activities, but only used it occasionally.

[48]         As is always the case, assessments are individual to the particular circumstances of the individual involved. In this case, I accept that the loss of lifestyle factor is a significant one and set non-pecuniary general damages in the sum of $100,000.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/23/2016BCSC2342.htm