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$80,000 Award for soft tissue injuries to neck and back

Hauer & Co. > Personal Injury  > $80,000 Award for soft tissue injuries to neck and back

$80,000 Award for soft tissue injuries to neck and back

In the recently rendered decision of Senger v. Graham, 2018 BCSC 257, the plaintiff, a dental hygienist, was involved in a motor vehicle accident on August 6, 2014 in Nanaimo, B.C. The plaintiff was jolted forward then back on impact and suffered soft tissue injuries to her neck and back. Ms. Senger continued to work after the accident but not as much as she wanted to. Ms. Senger tried to be active although, as she testified, her injuries had put a limit on the activities she could do. She was once an avid equestrian but could not ride anymore. She used to enjoy kayaking but again, after the accident found it too painful. She had limitations in the gym that she never had before, which frustrated her because she was so young.  Housework was hard on her back. Even intimacy with her boyfriend was difficult. According to Ms. Senger’s father, she did not seem as happy as she was before the accident.

In deciding on an appropriate non-pecuniary damage award for pain and suffering, the court noted that an award of non-pecuniary damages does not depend upon the seriousness of the injury, but on its ability to ameliorate the condition of the victim considering his or her particular situation. The gravity of the injury alone is not determinative. An appreciation of the individual’s loss is the key. There is no “tariff”. An award will vary in each case to meet the specific circumstances of the individual case: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637. The Court opined on the factors considered in assessing the loss:

[42]        In Gohringer v. Hernando-Lazo et al., 2009 BCSC 420, Russell, J. outlined the factors to be considered by the Court in assessing non-pecuniary damages:

[81] The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136.

[82] There are a number of factors that courts must take into account when assessing this type of claim. Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

The plaintiff sought $80,000 under this heading, while the defendant submitted the appropriate range is $60,000 to $70,000.

The plaintiff relied on Cleeve v. Gregerson et al, 2007 BCSC 1112 [Cleeve], and Knight v. Belton, 2010 BCSC 1305 [Knight] in support of her position. The defendant cited Dosangh v. Xie, 2017 BCSC 1937, Lal. v. Le, 2016 BCSC 1324, Hinder v. Yellow Cab Co., 2015 BCSC 2069, and Whttp://<http://canlii.ca/t/2cltfelch v. Tietge, 2017 BCSC 395.

The Court considered the cases cited by both parties, and preferred the plaintiff’s cases as they were factually closer to the case at bar and awarded Ms. Senger $80,000 for her pain and suffering.

[47]        In Cleeve, the plaintiff was 21 at the time of the motor vehicle accident and worked as a dental assistant. Her plan was to become a dental hygienist. Injuries suffered in the accident left her with persistent symptoms including headaches, neck pain and periodic pain that radiated into her upper back and along her right shoulder – symptoms similar to Ms. Senger’s. At the time of trial, Ms. Cleeve was working four days per week but her future was uncertain. The court found that it was unlikely that the plaintiff could go on to become a dental hygienist and that it was unlikely that another dentist, after her current employer retired, would accommodate her injuries. Finding that the injuries prevented the plaintiff from pursuing dental hygiene and limited her participation in sports and leisure activities that she enjoyed, the court awarded her $85,000 in non-pecuniary damages. The present value of that award is approximately $97,000.

[48]        In Knight, the 40-year old plaintiff was a dental hygienist who suffered a grade 2 strain of her thoracic spine and was suffering chronic pain in a car accident. Like Ms. Senger, Ms. Knight’s symptoms were exacerbated by work. The court held that because of her chronic pain she likely would be unable to work more than two days per week, and could no longer engage in activities she enjoyed. The court awarded her $75,000 in non-pecuniary damages, which has a present value of approximately $83,000.

[49]        Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.

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