Pain and suffering Court awards in BC personal injury accidents - 2013 sample cases

How have courts valued pain and suffering and loss of enjoyment of life as "compensation" awarded in Personal Injury Cases - article by: Rose Keith, BA JD, Vancouver BC personal injury lawyer - first published 2014. 01.17 BCpersonalinjury.org

Valuing Pain and Suffering:  BC Court Judgements in Personal Injury Cases in 2013

Awards of non pecuniary damages are made in personal injury cases to compensate plaintiff’s for the pain, suffering and loss of enjoyment of life that they experience as a result of the injuries suffered in the accident.  Assessing pain and suffering involves consideration of the Plaintiff’s pre accident condition and analysis of the injuries that were caused or contributed to by the motor vehicle accident as well as an assessment of the impact specific to the Plaintiff of the motor vehicle accident related injuries.

Awards for pain and suffering are individual and take the characteristics and specifics of the individual Plaintiff into consideration.  The awards however also provide an indication of the likely range of damages in a future case as Judge’s strive for consistency amongst awards.  There have been a number of judgments in personal injury cases in the last month. The awards for pain and suffering are summarized below to provide the reader with a basis for understanding the manner in which pain and suffering is valued in British Columbia Courts.

Dang v. Chao - the 35 year old male Plaintiff was injured in a motor vehicle accident in August 2009.  The Trial Judge found that the accident caused soft tissue injuries to the Plaintiff’s neck, shoulders, upper back and middle back, which injuries healed within weeks of the accident.  The accident was also found to have exacerbated symptoms in the Plaintiff’s lower back which had been caused by previous injuries.  The Trial Judge found that those symptoms had subsided to pre accident levels within five months of the motor vehicle accident.  The accident was also found to have exacerbated pre accident TMJ problems for a period of six months.  Non pecuniary damages of $35,000 were awarded for the pain, suffering and loss of enjoyment of life caused by the accident.

Devilliers v. McMurchy - the female plaintiff who was 39 at the time of trial was injured in a motor vehicle accident in September 2008.  The Trial Judge found that the Plaintiff had suffered a significant back injury that led to significant pain that had become chronic and likely permanent.  At the time of trial the Plaintiff was managing her pain with medication and was able to function but with restrictions.  Non pecuniary damages of $75,000 were awarded for the pain, suffering and loss of enjoyment of life caused by the accident.

Grudzien v. Hu - the 46 year old male plaintiff was injured in a motor vehicle accident in January 2010. The Trial Judge concluded that there was an acute phase of recovery of approximately six months where the bulk of the injuries resolved.  At the time of trial the Plaintiff was continuing to experience right knee and low back pain which had become chronic.  The Trial Judge found that there was room for mild improvement symptomatically and functionally but the chances for complete resolution were poor.  The persisting symptoms were found not to be debilitating but were significantly limiting for both recreational and work activities. $50,000 was awarded for pain, suffering and loss of enjoyment of life.

Parker v. Davies - the 23 year old female Plaintiff was injured in a motor vehicle accident in September 2009. An award of $90,000 for pain, suffering and loss of enjoyment of life was made following a finding that at three and a half years after the accident the Plaintiff’s symptoms had plateaued and she was left with pain related limitations.  The Trial Judge found that the injuries had had a significant and broad ranging effect on the Plaintiff’s past, present and future enjoyment of life.  The Trial Judge also found that there was a 25 to 30 percent chance of minor trauma causing further injury that would require surgery.

Chekoy Sr. v. Hoy - the 49 year old male plaintiff was awarded $75,000 for non pecuniary damages at trial five years after being injured in a motor vehicle accident.  The Trial Judge found that the motor vehicle accident had caused an aggravation of the Plaintiff’s pre existing degenerative disc disease in his neck, as well as a new disc herniation causing aggravation of a nerve root.  The Trial Judge found that the injuries would continue to limit the Plaintiff’s ability to do heavy work or work that required repetitive neck flexion and extension, including desk work.  The prognosis for improvement or resolution to the symptoms was poor.

Prince v. Quinn - the 39 year old female Plaintiff was injured in a motor vehicle accident in Mach 2009.  At trial she was found to have sustained soft tissue injuries that resulted in pain in her upper back and neck area and resultant headaches.  The Trial Judge found that the pain resulting from the injuries was constant for a period of approximately three months after which she experienced intermittent episodes of discomfort.  The Plaintiff continued at trial to experience symptoms which made her unable to manager her activities of daily living and although the symptoms would likely diminish over time, it was not expected that they would resolve.  The Plaintiff was awarded $40,000 for loss of enjoyment of life.

Zamperini v. Da Costa - the 37 year old female Plaintiff was awarded $65,000 for pain, suffering and loss of enjoyment of life after the Trial Judge found that the Plaintiff continued to suffer the effects of the injuries at trial four years after the accident.  The Trial Judge concluded that the Plaintiff could expect some improvement in the future but the injuries continued to be irritating but not disabling.  The injuries also made her more vulnerable to injury and exacerbations of her symptoms.

Brewster v. Li - Non pecuniary damages of $90,000 were awarded to the 38 year old female Plaintiff who was injured in a motor vehicle accident in August 2008.  At the time of trial she was found to be suffering rom an ongoing pain disorder.  She remained disabled from work at the time of trial. Although she could anticipate some improvement in her symptoms with further treatment, resolution was not likely.

Tomashewsky v. Linnebank -s the 48 year old male plaintiff was injured in a motor vehicle accident 4 years prior to trial.  The Trial Judge concluded that the medical evidence established that the plaintiff suffered from a combination of mechanical back pain and soft tissue pain.  At the time of trial he was continuing to suffer from back pain when he put any kind of stress on his low back.  The opinion evidence was that disc changes would not have become symptomatic without the motor vehicle accident.  The prognosis for further recovery was guarded. Non pecuniary damages of $85,000 were awarded.

Thibeault v. MacGregor - $35,000 in non pecuniary damages was awarded to the 50 year old female Plaintiff.  The Trial Judge found that she had suffered a moderate whiplash injury to the left side of her neck and shoulder as well as an exacerbation of her pre-existing injury to her mid and lower back.  The Trial Judge criticized the Plaintiff for attempting to attribute virtually all of her post accident woes to the accident.

Article author:  Rose Keith, LLB, former President of the B.C. Trial Lawyers Association (www.tlabc.org, and is well known Vancouver personal injury lawyer. See www.rosekeith.bc.ca - first published 2013 - republished in BCpersonalinjury.org 2014-01-17

© 2013 Rose Keith -re-published in www.bcpersonalinjury.org with permission in 2014

see also Rose's article on Motorbike Insurance in BC
read article “Survivors guide to ICBC: Understanding basic procedures, rights & obligations when dealing with ICBC”

See also article Intro. to damages compensation from personal injury by Vancouver lawyer Bruce Lemer

B.C. Personal Injury Lawyers:  Vancouver BC & Victoria BC

Vancouver Medical Walk-In Clinics try directory Metrotown.info...healthservices if you don't have a family doctor and want some medical attention that does not require an immediate hospital emergency visit.

Photo credits
The photo of cyclist backlit by sun and holding her bike overhead was taken by Norberto Li, San Francisco dentist who is a helmet wearing cycling enthusiast who has also done restorative teeth surgery for patients suffering injury from bike and car accidents.  For more information go to his web site at www.bestsfdentist.com

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