$75,000 Non-Pecuniary Assessment for Soft Tissue Injuries Resulting in Chronic Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for Judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries.

In the recent case (Kagrimanyan v. Weir) the Plaintiff was involved in a rear-end collision caused by the Defendants.  Liability was admitted.  The crash caused various soft tissue injuries which led to chronic pain.  Full resolution of the Plaintiff’s symptoms was not expected.  In assessing non-pecuniary damages at $75,000 Mr. Justice Riley provided the following reasons:

[54]         I must consider the nature of Ms. Kagrimanyan’s injuries, and the impact of those injuries on Ms. Kagrimanyan’s quality of life. In terms of the immediate or short term effects of the accident, Ms. Kagrimanyan suffered a neck sprain and soft tissue injuries causing intermittent headaches, neck and upper back pain, and lower back pain extending into her leg. The headaches, neck and upper back pain have largely resolved over time. However, Ms. Kagrimanyan continues to suffer from lower back pain which has become chronic. There is a consensus amongst the medical experts who testified at trial that Ms. Kagrimanyan has plateaued in her recovery, and that she is likely to have some degree of continuing pain, made worse by fatigue or prolonged physical effort, including standing or even sitting in one position for an extended period of time.

[55]         In assessing the extent of Ms. Kagrimanyan’s loss, I must take into account that at the time of the accident she was 35 years old, and she is now 40. According to the evidence, she will continue to suffer from some degree of pain, at least on an intermittent basis, for the balance of her life. Ms. Kagrimanyan may be able to better manage or cope with her limitations through improved physical conditioning, but I find based on all of the expert medical testimony that Ms. Kagrimanyan is not likely to achieve full recovery. This is a significant factor when determining a damage award that will fairly and reasonably compensate Ms. Kagrimanyan for the injuries she has suffered and the resulting impact on her life.

[56]         I also accept that Ms. Kagrimanyan has become deconditioned over time, and that with improved physical fitness she may be better able to manage her discomfort and limitations. On this point, I accept the testimony of Dr. Gray that while enhanced conditioning may improve Ms. Kagrimanyan’s ability to cope with pain, it is unlikely to eliminate the pain itself.

[57]         In terms of the overall effect of the accident on Ms. Kagrimanyan’s quality of life, I find that the injuries and resulting chronic pain have impacted and will continue to impact her recreational, social, and domestic activities. She is unable to engage in some of the recreational pursuits she used to enjoy. She is still able to socialize and do housework, but finds these things more difficult than they used to be. She has also experienced and will continue to experience pain and fatigue at work. As Dr. Gray put it, Ms. Kagrimanyan’s injuries have left her with a mild form of disability. While able to remain “durably employed”, Ms. Kagrimanyan experiences increasing discomfort over the course of the work day, and as the work week progresses.

[58]         I conclude that Ms. Kagrimanyan should be awarded non-pecuniary damages of $75,000. This quantum of damages takes into account all of the non-pecuniary impacts of the accident, including added difficulty in performing household tasks. Although Ms. Kagrimanyan has made a discrete claim for housekeeping as a cost of future care, the particular nature of Ms. Kagrimanyan’s injuries and their impact on her ability to do housework is, in my view, properly addressed under the rubric of non-pecuniary damages. The only exception is with respect to heavy duty or seasonal housework, a discrete category of housework that can be dealt with by way of a pecuniary damage award as explained below.

Occupier’s Liability Claim Dismissed Where Plaintiff Did Not Know Why He Fell Down Stairs

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an occupier’s liability lawsuit involving a plaintiff who was injured after falling down stairs.

In the recent case (Goddard v. Bayside Property Services Ltd.) the plaintiff “fell on a wooden exterior staircase outside a fire exit” at the rear of a property owned by the Defendant.  The Plaintiff did not know why he fell and did not produce any evidence documenting the stairs being a hazard at the time of the fall.  In dismissing the claim via a summary trial application Mr. Justice Ball provided the following reasons:

[17]         In this case, the plaintiff advanced a theory about what caused his fall, but the Court cannot speculate in respect to a theory; the cause of the fall has not been established on the evidence called by the plaintiff.

[18]         The standard of care under the Act and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm. Whether a risk is reasonable or unreasonable is a question of fact and must be determined based on the circumstances of the case: Agar v. Weber, 2014 BCCA 297 at para. 30.

[19]         The existence of stairs by itself is not an unreasonable risk of harm, but a risk that persons in our society face on a daily basis. The existence of stairs is not therefore something from which the defendants needed to protect the plaintiff: Trinetti v. Hunter, 2005 BCCA 549 at para. 11; Delgado v. Wong, 2004 BCSC 1199 at para. 25.

[20]         The fact of the plaintiff’s fall does not establish that the occupier failed to take reasonable care to ensure the plaintiff was reasonably safe. The plaintiff’s uncontroverted evidence, which was accepted by the defendants, is that he does not know what caused him to fall. If that is the case, he cannot establish the defendants caused the fall and he fails then to establish either negligence or breach of a duty under the Act.

[21]         Further, given the detailed description of the inspection and maintenance of the staircase involved by the staff and owners of the strata, the defendants have met the requisite standard of care under both the Act and common law negligence.

[22]         While the Court heard argument concerning allegations the plaintiff was negligent and submissions relating to quantum of damages, I do not regard those matters as necessary for the purpose of giving judgment.

[23]         In the circumstances of this case, the plaintiff has clearly not met the onus which he bears, and as a result the action falls to be dismissed.

$65,000 Non-Pecuniary Assessment for Chronic “Low Level” Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which resulted in chronic, albeit ‘low level’ pain for a Plaintiff.

In the recent case (McGoningle v. Parada) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered various soft tissue injuries which largely improved however she was left with chronic low level pain.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bracken provided the following reasons:

[56]         I find that the plaintiff suffered a soft tissue injury to her neck, back and shoulders in the accident.  She experienced pain and restricted movement for a few months before things began to improve…

[59]         I find the plaintiff’s condition has clearly improved, but she still suffers a level of pain that impacts her ability to do any heavy lifting or carving of large pieces.  She is able to create small crafts and perform light duties at the soup kitchen…

[61]         I am satisfied on the evidence that the plaintiff still suffers from a low level of pain that interferes with her daily life and limits her ability to perform heavy work and causes some pain in her work creating small crafts.  It appears that a program of physiotherapy, massage therapy and acupuncture did result in improvement, but the plaintiff was either unable or unwilling to follow the recommended course of treatment…

[69]         I agree with the defendant to the extent that the plaintiff’s injuries have improved significantly since the date of the accident and, even though the plaintiff suffers from chronic pain, she has made significant progress to the point that she has almost full range of motion of her upper body, neck and shoulders with pain only at the extremes of rotation.  I find the appropriate amount for non-pecuniary damages is $65,000.

BC Lions Streaker Alleges Brain Injury After Hit By Marcell Young – Quick Legal Breakdown

Earlier this week a streaker thought it was a good idea to run onto the field during a CFL game.  Not taking too kindly to the unwanted interruption Marcell Young of the BC Lions took matters into his own hands and put an end to the streakers 15 seconds of fame.

The ‘fan’ has now hired a personal injury lawfirm and is alleging the incident caused brain injury.  The firm published a press release noting “Our client suffered serious injuries, including a mild traumatic brain injury, as a result of being violently struck by BC Lions player Marcell Young.  Our client has been released from the hospital and is now recovering at home.  His future prognosis remains unclear. ”  These allegations of injury have yet to be proven in Court.

So is there merit in this potential lawsuit?  While controversial, there can be.

The fan had no business being on the field.  Interrupting the game can bring a host of legal consequences for the fan.  However, security guards, players or anyone else looking to end the streaker’s ill-conceived fun must do so with a reasonable amount of force in the circumstances.  Exceeding this can bring damages under the tort of battery.

The law of battery is rather straightforward.  A Plaintiff simply needs to prove that the Defendant made intentional and unwanted contact with him and harm indeed occurred as a result of the contact.

From there a Defendant is free to raise defenses such as consent, provocation or self defense.  BC Courts have stated as follows when justifying battery via self defense:

Self defence imports the idea that the defendant is under attack at the hands of the plaintiff, or reasonably believes that he will be subject to such an attack, even if the plaintiff has neither the intention nor the power to make such an attack. Even if the circumstances entitle the defendant to claim he was acting in self defence, he cannot escape liability unless he discharges the burden of proving that the amount of force he used was reasonable in all the circumstances. This will depend on the court’s assessment of the situation, taking into account the form and nature of the plaintiffs attack on the defendant and the reasonableness of the response of the defendant.

And the following for provocation:

In order to amount to provocation, the conduct of the plaintiff must have been “such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault.”  

$20,700 “Accelerated Depreciation” Claim Succeeds Following Vehicle Damage in Crash

Reasons for judgement were published this week by the BC Provincial Court ordering a Defendant (insured by ICBC) to pay over $20,000 in vehicle depreciation after a crash.

In the recent case (Chiang v. Kunar) the Plaintiff purchased a Mercedes for just over $68,000.  The following year the Plaintiff was involved in a crash caused by the negligence of the Defendant.  The crash caused over $34,000 in repair costs leaving the vehicle far less valuable after repairs.  The Plaintiff sued to recover the value of this accelerated depreciation but ICBC argued that there was no loss.  In siding with the Plaintiff, who to his credit succeeded in litigation while self represented, The Honourable Judge K. Arthur-Leung provided the following reasons:

      I am satisfied that the Claimant has met the burden of proof, and that this low to mid-level luxury vehicle was indeed a customized vehicle that was in the high end of its own category of Mercedes Benz, and sustained accelerated depreciation.  The Bill of Sale shows thousands of dollars of extras that he ordered for this Vehicle.  It was a rare vehicle at the time that it was initially in the Vancouver market, and the experts both testified that it remains an in demand vehicle if it was not in an accident.

In addition, the decision of Rutter v. Adams, 2016 BCSC 554 (CanLII) at paragraph 314 relies upon Signorello v. Khan, 2010 BCSC 1448 (CanLII) to include quantification that “…such losses can include a ‘loss of use and the inconvenience of having to return the vehicle on several occasions’.”  In addition, in Cummings v. 565204 BC Ltd., 2009 BCSC 1009 (CanLII), the Court relied upon Reinders v. Wilkinson, 1994 CanLII 2527 (BC CA)1994 CanLII 2527 (BCCA) that it is not necessary for the party to sell the vehicle in order to succeed in a claim for accelerated depreciation.  The damage sustained to this Vehicle was not merely cosmetic and required significant repair, to wit it remains outstanding with ongoing operational and mechanical problems…

THEREFORE THIS COURT ORDERS JUDGMENT TO THE CLAIMANT AGAINST THE DEFENDANTS, JOINTLY AND SEVERALLY AS FOLLOWS:

a)            The amount of $20,700.00, for accelerated depreciation of the Vehicle ($18,000.00 plus 15% tax);

b)            Interest on the sum of $20,700.00 as of February 26, 2015, in accordance with the Court Order Interest Act;

c)            The amount of $1,990.08 in general damages as claimed by the Claimant;

d)            Interest on the sum of $1,990.08 as of May 9, 2016, in accordance with the Court Order Interest Act;

e)            The amount of $472.50 for the cost of the Coast Auto Appraisal Report;

f)            Court attendance fees of Mr. Sparrow of Coast Auto Appraisal in the amount of $1,155.00;

g)            Court filing fees in the amount of $156.00; and

h)            Service fees in the amount of $30.00.

$85,000 Non-Pecuniary Assessment for Chronic Pain With Guarded Prognosis

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained from two vehicle collisions.

In today’s case (Harry v. Powar) the Plaintiff was a pedestrian struck by a vehicle in a crosswalk in 2012.  She was involved in a rear end collision the following year.  The collisions resulted in ” headaches, chronic myofascial pain syndrome, cervical facet joint syndrome and lumbar facet joint syndrome” with a guarded prognosis for full recovery.  In assessing non-pecuniary damages at $85,000 Madam Justice Winteringham provided the following reasons:

[79]         I have found that Ms. Harry’s most significant injuries are the headaches, chronic myofascial pain syndrome, cervical facet joint syndrome and lumbar facet joint syndrome. ..

[84]         Ms. Harry was in her early thirties at the time of the Accidents. Sadly, the symptoms connected to her injuries are ongoing and I accept that her prognosis for a full recovery is guarded although she may experience some improvement with further treatments.

[85]         The evidence demonstrates that Ms. Harry has tried to manage her pain in a way that enables her to carry on with her life.  That is not to say her pain is insignificant.  Rather, I have found that Ms. Harry has done almost all that she can to pursue her career despite the defendants’ negligence.  It is also clear from the evidence that the energy exerted on pursuing her professional endeavours has taken a toll on the other aspects of her life.  She does not have the energy or the physical well being to regularly conduct day-to-day household tasks, engage in social events or participate in physical activity – all of which formed an integral part of her life before the accidents. ..

[90]         In all of the circumstances and taking into account the authorities I have been referred to, I am satisfied that an award of $85,000 will appropriately compensate Ms. Harry for her pain and suffering and loss of past and future enjoyment of life for which the defendants are responsible.    

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from ILSTV

You have Successfully Subscribed!

Pin It on Pinterest