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 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 $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

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.

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[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

Court dismisses plaintiff’s claim finding she suffered “no compensable injury”

In reasons for judgment released yesterday, the court in Sandhu v. Raveendran, 2017 BCSC 499, dismissed the plaintiff’s claim for personal injuries concluding the plaintiff did not suffer “any compensable injury” during a low-speed parking lot collision.  Mr. Justice Brown wrote as follows:

[1]             The plaintiff, Ms. Kamaljit Kaur Sandhu (“Ms. Sandhu”), alleges she was injured on March 8, 2012, when a Chevrolet Lumina vehicle (“the Chevrolet”) in which she was a passenger entered a shopping mall parking lot located at 31205 Maclure Road, in Abbotsford, B.C. She says that the Chevrolet was struck (the “Accident”) by a 2011 Honda Odyssey van (“the Honda”) being driven by the defendant, Mr. Rajesh Kuniyil Raveendran (“Mr. Raveendran”). The plaintiff’s husband, the defendant, Mr. Jagdev Sandhu (“Mr. Sandhu”), was driving the Chevrolet.

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[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0499.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 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.

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[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