Chronic pain can generally be defined as pain lasting longer than six months, however can also refer to pain lasting longer than three months. It can be distinguished from acute pain, which generally lasts less than 30 days. Chronic pain also differs from acute pain in that, with chronic pain, particularly in long lasting durations of it, it is more difficult to find the cause of the pain. Chronic pain can also be more resistant to treatment than acute pain, which can be more treatable.

 

Chronic pain is sometimes also referred to pain than lasts beyond the normal expected period of healing. Chronic pain can be associated with different medical conditions, such as arthritis, fibromyalgia, and sciatica. Fortunately, chronic pain scenarios are not the norm in ICBC injury claims.

 

There are different forms of treatment for people suffering from chronic pain, such as pain management clinics. Common medications used to treat chronic pain include acetaminophen, ibuprofen, aspirin, COX-2 inhibitors, and opiods. Non-pharmacologic treatments include exercise, physiotherapy, counseling, electrical stimulation, and acupuncture.

 

DETRIMENTAL EFFECT on ABILITY to WORK

 

In Morlan v. Barrett, the British Columbia Court of Appeal commented that chronic pain, over a period of time, can have a detrimental effect on a person’s ability to work, no matter how accommodating an employer may be.

 

[37]           Ms. Morlan also called as witnesses her husband, daughter, son, a friend, and a former co-worker.  They gave evidence of the changes they had observed in Ms. Morlan since the accidents; e.g., less energy, exhaustion, inability to do certain things.  Her family members testified that her condition appeared to be getting worse and expressed concern with respect to her ability to continue working. 

 

[38]         In considering whether Ms. Morlan had established an entitlement to damages for loss of future earning capacity, the trial judge properly had regard to Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.  As Mr. Justice Major stated in that case, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not a mere speculation”.

 

[39]         As previously mentioned, the trial judge gave two reasons for finding that there was a real and substantial possibility that fibromyalgia would shorten Ms. Morlan’s working career.  The first reason was based on what he described as “common experience” that a person with a stable but persistent energy-draining condition will find it more difficult to continue working as he or she grows older.  The second reason, based on Dr. Beck’s evidence, was that there was a substantial possibility that Ms. Morlan’s condition would worsen over time.

 

[40]         With respect to the first reason, the appellants submit that it was not open to the trial judge to have regard to “common experience” as there was no evidence to support this being so.  I disagree.

 

[41]         Accepting that, to use the expression used at trial and at the hearing of this appeal, Ms. Morlan’s condition had “plateaued”, the fact remains that she would forever suffer from debilitating chronic pain along with headaches, symptoms that could be reduced, but not eliminated, by medication.  In other words, throughout each and every day of her life, Ms. Morlan would have to cope with some level of discomfort.  In my view, it was open to the trial judge to find—essentially as a matter of common sense—that constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person’s ability to work, regardless of what accommodations an employer is prepared to make.  Indeed, with regard to Ms. Morlan, this is reflected in Ms. Craig’s report:  see para. 34 above.

 

ONGOING PAIN at TIME of TRIAL

 

In Brown v. Bevan, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, out of pocket expenses, diminished earning capacity, and cost of future care. Liability was in dispute. The Plaintiff alleged that she continued to suffer from a variety of ailments, including pain in her back, neck, shoulders, and knees, at the time of trial. The Court ruled that the Defendant was wholly liable for the accident, and awarded $95,000.00 to the Plaintiff for four and a half years of pain and suffering, with pain in certain areas expected to continue indefinitely.

 

[174]     The plaintiff has suffered significantly from the injuries the collision caused. Despite her efforts to soldier on with work and home life, she continues to suffer from headaches, neck, upper back, knee and left heel symptoms. She will suffer from these symptoms well into the future and quite likely permanently.

[175]     The plaintiff is to be given credit for moving forward with her life as best as she could despite her injuries. As Goepel J. stated in Guthrie v. Narayan 2012 BCSC 734 at para 30:

Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. … She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as a result of the accident.

[176]     The medical evidence is consistent: the plaintiff’s symptoms have likely plateaued. While she will not get any worse than she currently is, she likely will not improve. While she can function, it is at a much lower level than before the accident.

[177]     Having regard to all the evidence, the principles set out in Stapley v. Hejslet, 2006 BCCA 34 the plaintiff suffering for 4.5 years to date and continued future suffering … , I award $95,000 in general damages.

 

In Kumar v. Elpidio, the Plaintiff was injured as a standing passenger on a bus when the Defendant ran a stop sign, causing the bus to stop suddenly. Although the Plaintiff did not fall, she did suffer injuries to her neck, back, scapula, and ribs. She brought an ICBC to claim compensation for her injuries sustained therein, as well as her economic loss, and cost of future care. She suffered from myofascial chronic pain syndrome for close to four years by the time of trial. The Court would eventually $80,000 for the Plaintiff’s chronic pain condition.

 

[31]        Taking all of the evidence into account, however, I do conclude that Mrs. Kumar demonstrated a certain tendency to exaggerate.  I do not mean this in the sense of any deliberate attempt to mislead the court.  I am satisfied that Mrs. Kumar is an honest person.  The problem seems to be inherent in her sense of self-perception.  It is this tendency that explains, as I see it, the inconsistencies in the evidence concerning domestic help, her somewhat exalted description of her pre-accident activities, her pain perception as described in court notwithstanding reports of improvement recorded by her physicians, and some of the inconsistencies observed by Ms. Barr including that Ms. Kumar was seen to have greater mobility in the left shoulder and arm when she was distracted or unaware that she was being observed.

 

[32]        The defendant does not suggest, and I do not find, that Mrs. Kumar is in any way a malingerer.  That she genuinely suffers from the chronic pain disorder that has been diagnosed is clear.  I find it equally clear that this condition has disabled her.  No expert has suggested otherwise.  But in assessing her damages, I am not prepared to take everything exactly as she described it, and I feel obliged to pay careful attention to the expert evidence.

 

[36]        While no two cases are directly comparable, I consider Mrs. Kumar’s situation to be in the mid area of the total range covered by these cases.  I base this on a number of factors including her age, the extent of her disability and the extent of her injuries.  For instance, although she suffers chronic pain in common with most of these plaintiffs, she did not suffer actual mechanical injury that required medical intervention.  I conclude that the appropriate award in this case is $80,000.

 

In Clark v. Kouba, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC injury claim for damages arising therein. The Plaintiff’s injuries were soft tissue in nature. By the time of trial over six years after the accident, the Plaintiff’s symptoms still persisted. The Court awarded $85,000.00 for pain and suffering, finding that the Plaintiff’s injuries negatively affected all aspects of the Plaintiff’s life, including her relationship with her husband and children.

 

[72]        In this case, it is clear that the soft tissue injuries the plaintiff suffered have impacted all aspects of the plaintiff’s life.  In addition to the physical symptoms I have detailed above, her injuries have impacted her personal relationships including her relationship with her husband and children.  She has difficulty in performing some household chores, including making the beds and laundry and she has to call upon her husband and children to perform those tasks.

 

[73]        The plaintiff has been dedicated to her own rehabilitation and such efforts in my view cannot be used to diminish the extent of her injury.  In that sense she can be considered a stoic individual.  Formerly she engaged in her recreational pursuits such as long distance running and yoga, for her own physical enjoyment.  Now when she engages in them it is for an additional purpose, in order to assist in managing her chronic pain.

 

[74]        I conclude that, as a result of the accident, Ms. Clark has suffered pain and loss of enjoyment of life, and her prognosis for the future is guarded.  All of the authorities cited by both plaintiff’s counsel and the defence make it clear that each case is unique and must be determined on its own facts.  This case is unusual, because the plaintiff is still able to participate in her recreational pursuits, including marathon running, and has completed a marathon in a second personal best time since the accident.

 

In Ortega v. Pena, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for her injuries. By the time of trial, she had suffered chronic pain for approximately six years. The Court would eventually award $80,000.00 for damages for pain and suffering.

 

[85]        Ms. Ortega has suffered significant injuries to her mid and lower back and to her neck and shoulders. Her ongoing back pain is likely aggravated by pre-existing problems in her lumbar spinal area.

 

[86]        Her injuries have significantly impacted her ability to perform at work. She is unable to complete tasks that she did before the accident and there are other tasks that take longer to complete. She is unable to work the long hours she once worked before the accident.

 

[87]        Her injuries have also interfered with her enjoyment of life. She is now unable to dance or take long walks.

 

[88]        I find it likely Ms. Ortega will be troubled by ongoing pain in the future and that she will be restricted in her work hours (as compared to her former 12 hour work days). The conditioning programs and treatment recommended by her care givers are intended to assist her in pain management. According to Dr. Caillier, this treatment will ultimately enable her to undertake some of the tasks she presently cannot perform.

 

In Strazza v. Ryder, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for his injuries. By the time of trial, which was slightly over three years after the motor vehicle accident, the Plaintiff continued to suffer neck and back pain. The Court awarded $60,000.00 for pain and suffering.

 

[65]         There is no dispute that Mr. Strazza suffered injuries as a result of the accident.  The basic facts are confirmed by Mr. Strazza’s evidence, the clinical records for the months immediately following the accident and by the opinion evidence from Dr. MacKean and Dr. Killian.  Although they use slightly different terminology, both Dr. MacKean and Dr. Killian diagnose Mr. Strazza as suffering a grade II whiplash disorder, affecting Mr. Strazza’s cervical and thoracic spine, as a result of the accident. 

 

[66]         The medical experts disagree however on whether Mr. Strazza’s injuries have now healed.  In Dr. MacKean’s opinion, they have not, and they will probably not resolve completely.  In Dr. Killian’s opinion, the injured soft tissues have healed.

 

[67]         Mr. Strazza himself reports that he continues to experience pain.  It is not debilitating, and Mr. Strazza has not claimed that it is.  It has not prevented him from working or doing household chores or working on his car.  As Mr. Strazza describes it, he can basically do everything he did before the accident, but with pain.  Mr. Strazza describes his situation as one where he works and carries on despite his pain symptoms, which he does his best to alleviate by taking over-the-counter medications or by calling on someone to help.  As a result of his pain symptoms, Mr. Strazza has modified some of his activities, both leisure and work-related, since the accident.  Friends – Ms. Miller and Ms. Goalder – gave evidence of their observations in this respect, and their evidence supported Mr. Strazza’s.  The changes in Mr. Strazza are not drastic, but they are changes nevertheless.

 

[73]         I therefore find that, as a result of the accident, Mr. Strazza sustained soft tissue injuries to his cervical spine and his thoracic spine.  Specifically, and as set out in Dr. MacKean’s February 8, 2012 report, I find that Mr. Strazza sustained a grade II whiplash associated disorder in the cervical spine, which (as of trial) was resolving and a grade II whiplash associated disorder in his thoracic spine with residual pain and muscle spasm involving the left mid to lower thoracic region.  Based on Mr. Strazza’s evidence (supported by the evidence from Ms. Miller and Ms. Goalder), he continues to experience some pain as a result of his injuries.  I therefore find, based on this evidence and the opinion evidence from Dr. MacKean, that Mr. Strazza’s pain symptoms will probably not resolve completely, although they can be improved with a regular exercise program and pain relief can be obtained through occasional use of over-the-counter medication.

 

In Mohan v. Khan, the Plaintiff suffered from chronic pain four and a half years post accident. Despite the Court believing that the Plaintiff somewhat exaggerated her injuries, and that mitigation was also an issue, the Court nevertheless awarded $100,000 for pain and suffering.

 

[159]     Based on the evidence of the medical experts it is apparent that chronic pain disorder is a condition that involves both physical trauma and psychological factors.

 

[160]     The diagnosis of chronic pain disorder is largely subjective in nature and based on the plaintiff’s description of her condition to the medical practitioners supported by some testing. The expert evidence is that this condition cannot be objectively confirmed. If the plaintiff’s account of her condition as a result of the accident is not convincing then the hypothesis upon which the expert opinions are based is undermined. (see Samuel v. Chrysler Credit Canada Ltd. 2007 BCCA 431 at paras. 15, 49 and 50).

 

[163]     Based on the testimony of the medical experts I am satisfied that the pain described by the plaintiff, in large part, is real and I do not find her to be dishonest. However, in my view, she has exaggerated her symptoms to some degree.

 

[168]     Having considered these opinions and the opinions of the other experts, I am satisfied that the motor vehicle accident, which I have already determined to have resulted from the defendant Mohan’s negligence, was largely, although not exclusively, the cause of the plaintiff’s “constellation” of conditions. The plaintiff has established on a balance of probabilities that the defendant’s negligence materially contributed to her condition. I am also satisfied that the plaintiff’s condition is not motivated by a desire for secondary gain. By that I mean the third principle stated by Lambert J. I accept that the plaintiff wishes to be free from her pain; however, her failure to mitigate, much like the exaggeration of her symptoms, in my view should be considered in the determination of damages.

 

[169]     Dr. Anderson and Dr. Caillier both expressed the opinion that the plaintiff suffered from chronic pain disorder. None of the medical experts said that the plaintiff does not suffer from chronic pain disorder. The defendant’s expert neurologist Dr. Teal opined that the plaintiff’s primary problems were related to symptoms of pain which are significantly amplified by psychological factors. At the same time, he agreed with counsel for the plaintiff that some of his observations were consistent with someone with chronic pain disorder.

 

In Kardum v. Aasadi-Moghadam, the Court awarded $70,000 for pain and suffering to the Plaintiff, who had suffered with neck pain, back pain, and shoulder pain for four years by the time of trial, with the pain ongoing.

 

[33]         The accidents caused injury to Mr. Kardum; one major issue in this action is the extent to which those injuries have resulted in permanent consequences for Mr. Kardum.

 

[34]         Mr. Kardum reports that since the accidents he has had constant discomfort in his neck, between his shoulder blades and in his head. The most troubling pain occurs in the back left side of his neck. He said the muscle in that area tightens and causes pain to go into his top left shoulder and down his spine to an area between the shoulder blades.  He describes the neck soreness as being inside his neck and not at the skin level. It feels like something is pressing in from the neck into his temple. He says he has a headache “pretty much all of the time” although the intensity varies; this fluctuation occurs with different types of activity including exercise. He says his symptoms worsen as the day progresses. His best time is in the morning. He said that when he flies, sitting in a fixed spot increases the strain on his neck. Also, some of his postures at work also increase his neck pain.

 

[35]         He described four ongoing problems:

 

i.        when sitting for prolonged periods of time (in airline seats) pain is aggravated;

ii.        particular types of exercise will aggravate the strain and pain;

iii.       standing aggravates the pain; and

iv.       the discomfort interferes with his sleep.

 

[112]     I conclude that Mr. Kardum suffered a chronic soft tissue injury to his neck, shoulder, and upper back region caused in the accidents of 2007 and 2009. In addition to those injuries Mr. Kardum suffers ongoing chronic headaches and disrupted sleep secondary to his neck pain. His prognosis is guarded and it is unlikely that he will become symptom free. The intensity of these symptoms will vary over time and he will likely achieve some improvement over the next one to two years. The measure of that improvement is unknown but may be a function of his efforts in pursuing the recommendations of Dr. Caillier.

 

[161]     I conclude that Mr. Kardum suffers from chronic pain involving his left posterior lateral neck, his posterior shoulder, and upper back region. He continually has headaches and disrupted sleep secondary to the pain involving his neck. He has some prospect of improvement in symptoms but will likely have a measure of pain or discomfort for the balance of his life.

 

[173]     I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.

 

In Harris v. Zabaras, the Plaintiff suffered neck pain and back pain for three and a half years by the time of trial, at which point he was still symptomatic. The Court awarded $50,000.00 for pain and suffering.

 

[68]         When characterizing the effects of the plaintiff’s injuries for the purposes of non-pecuniary damages, I do not think it is helpful to attempt to choose between the labels of “mild” and “mild to moderate” that have been offered by two of the medical witnesses. At the end of the day, what is important is the pain the plaintiff experiences as a result of the injuries and how that impacts his life.

 

[69]         In that regard, while there has been some reduction in the frequency of the plaintiff’s headaches, he remains subject to neck and left arm pain whenever he undertakes strenuous physical activity. As Dr. Travlos put it, “he will generally pay the consequences for doing such activities”.

 

[70]         The extent of his resulting disability is that he must either avoid strenuous physical activity or divide it into more manageable chunks that will not provoke symptoms. This compromises his ability to engage fully in the recreational building or maintenance activities that have previously been a source of pleasure to him and in turn has led to a level of depression in the face of his more limited prospects.

 

[71]         Even if he is able to relieve his symptoms somewhat through the steps that have been recommended to him, the consensus of medical opinion is that they will persist.

 

[72]         However I note that the plaintiff speaks of being unable for the most part to engage in these activities any longer whereas Dr. Travlos has encouraged him to continue to be as active as possible, bearing in mind that his capacity for working continuously will be reduced and that he will experience pain as a result.

 

[73]         This relates to Dr. Devonshire’s observation that the plaintiff may be over-rating his pain, because he has not required any “significant analgesia” ( by which I think she means prescription- level painkillers) to control it.

 

[74]         While I am satisfied that the physical symptoms that the plaintiff, his wife and the Grieves have described are genuine, he nevertheless appears to view them as imposing somewhat greater limitations on his physical activities than may actually be the case.

 

[75]         Perhaps the fairest way to characterize the effect of his symptoms is that they place meaningful restrictions on his ability to pursue strenuous physical activities in the manner and to the extent that he previously did.

 

CHRONIC PAIN AWARDS of MORE THAN $100,000

 

In Rizzolo v Brett, the British Columbia Court of Appeal discussed non-pecuniary damages awards in the context of chronic pain, stating that awards for pain and suffering over $100,000 are certainly not inappropriate.

 

[32]         A review of those cases supports the respondent’s argument that the trial judge’s award of $125,000 was within the acceptable range.  In Moses v. Kim, 2007 BCSC 1388, the plaintiff was struck while crossing the Trans-Canada highway, breaking his legs.  While the breaks healed, the plaintiff was left with pain in his legs, back and hip.  As he had been a very physical person prior to the accident, hunting, fishing, logging and playing sports, much of his life was affected.  In addition to restricting the activities he could enjoy, this led him to become shorter tempered and angrier.  He was awarded $165,000 in non-pecuniary damages.

 

[33]         The plaintiff in Funk v. Carter, 2004 BCSC 866, was also struck by a vehicle and suffered broken legs, as well as some soft tissue injuries.  While the plaintiff underwent surgery, the injuries did not heal well, and he was left with chronic pain and impaired mobility.  As with the case at bar, and with Moses, the plaintiff had been “very fit” prior to the accident, and had “a great deal of difficulty adjusting psychologically”.  As a result, he was awarded $140,000 in non-pecuniary damages.

 

[34]         Moore v. Brown, 2009 BCSC 190, was a case similar to that at bar where the plaintiff was on a motorcycle when struck by the defendant.  He suffered substantial injuries, including a shoulder injury, a leg ligament tear, knee problems and a foot injury.  The accident also led to chronic neck pain, headaches and lumbar problems.  Three years later, at trial, the plaintiff was still experiencing difficulties, including an altered gait and difficulty continuing in his work as a geo-scientist.  The trial judge awarded non-pecuniary damages of $115,000.

 

[35]         In Dufault v. Kathed Holdings Ltd., 2007 BCSC 186, the plaintiff fell while descending the stairs at the defendant’s business.  The fall resulted in knee injuries that the trial judge accepted would likely require knee replacement surgery.  This was exacerbated by chronic pain, hip problems, and some resultant mild depression.  Taking these considerations into account, the trial judge awarded $110,000 in non-pecuniary damages.

 

[36]         Finally, in Mosher v. Bitonti, 1998 CanLII 5186 (B.C.S.C.), the plaintiff sued two defendants for separate accidents.  The trial judge found that the plaintiff had suffered fractured right leg bones as a result of the first accident, which caused muscular damage.  He accepted that these were “very significant injuries” and that the plaintiff had suffered a painful recovery.  While there was a small chance of future degenerative arthritis, the plaintiff was left with a normal gait, but with some difficulty squatting, kneeling or crouching.  Those injuries resulted in the plaintiff being awarded $80,000 in non-pecuniary damages.

 

[37]         As can be seen from those cases, trial judges have assessed non-pecuniary damages at well over $100,000 where there is an element of significant ongoing pain and, particularly, where the plaintiff had previously enjoyed an active lifestyle or a physical vocation….

 

In Taraviras v. Lovig, the Plaintiff was awarded $300,000 at trial for chronic neck, back, and leg pain, in a case where there was no catastrophic injury. The award was reduced to $200,000 by the British Columbia Court of Appeal, but still represents a substantial award.

 

[34]         This case is not one in which the victim has suffered catastrophic injury.  Mr. Taraviras’ permanent disability is, by all accounts, a moderate one, thus it is irrelevant how Mr. Taraviras’ injuries compare to those of the plaintiffs in the Supreme Court Trilogy (Moskaleva at para. 132). 

 

[35]         What is relevant is how the non-pecuniary award in this case correlates to Mr. Taraviras’ particular circumstances.

 

[36]         In my review of the non-pecuniary jury verdict in this case, I must accept that the jury resolved all evidentiary conflicts in favour of Mr. Taraviras.  I have described some of his evidence and I proceed on the assumption that the jury did accept this evidence.  In other words, the question to be resolved is – taking Mr. Taraviras’ case at its most favourable, is the award nevertheless so exorbitant that it would shock this Court’s conscience and sense of justice? (Moskaleva at para. 116; Whiten v. Pilot Insurance Co., 2002 SCC 18).

 

[53]         In Bransford, a 26-year-old woman was injured in a motor vehicle accident.  Both before and after the motor vehicle accident she worked as a flight attendant but her neck pain eventually led to her leaving a succession of jobs.  By trial, she was unable to work and was on disability benefits.  She was diagnosed with thoracic outlet syndrome.  She underwent surgery but it did not alleviate her pain and disability.  The jury awarded her $385,000 for non-pecuniary damages.  The trial judge reduced the award to the upper limit of $327,000.  On appeal this Court, per Hall J.A., found that the award was “sufficiently anomalous that it [called] for appellate intervention” and reduced the award to $225,000 (at para. 22).

 

[54]         I also found the case Knauf v. Chao, 2009 BCCA 605, to be a helpful appellate-level comparator.  In Knauf, the jury awarded $235,000 in non-pecuniary damages for a permanent soft-tissue injury.  The plaintiff was age 35 at the time of the accident.  Her injuries forced her to quit her part-time job as a server and to curtail her recreational activities.  The court considered the plaintiff’s injuries to be significantly less serious than those suffered by the plaintiff in Moskaleva (paras. 48-49).  Having found that the award was wholly disproportionate, the court reduced it to $135,000, noting that improper comments made by plaintiff’s counsel may have influenced the jury (paras. 57-58).

 

[55]         Here, Mr. Taraviras testified that his life had, in almost all respects, been affected by this accident.  He could no longer work in the same robust way he had worked previously.  His renovation and property acquisition business was limited by his inability to do the heavy maintenance and renovation work.  He could no longer participate in his previous active sporting life.  His personal relationships were affected by his short temper and more sedentary lifestyle.  He complained of constant pain in his leg and back.  He could no longer enjoy his employment.  Taking the plaintiff’s case at its most favourable, I would conclude that Mr. Taraviras’ injuries in this accident had a devastating effect on his previously active and energetic life.  I must assume that the jury did not accept the proposition advanced by the defendants that his pre and post-accident injuries were causative.

 

[56]         Even accepting Mr. Taraviras’ case as I have, I am of the view the award for non-pecuniary damages does require appellate intervention.  This is one of those awards that is so out of all proportion to the circumstances of the case that it would shock the conscience of the court to leave it undisturbed.  It is wholly out of proportion to the injuries suffered by Mr. Taraviras and must be set aside.  In granting considerable deference to the jury and using the judge alone and appellate cases as some guidance, I would reduce the award from $300,000 to $200,000.

 

AWARDING DAMAGES for CHRONIC PAIN where there is NO OBJECTIVE EVIDENCE of INJURIES

 

Objective evidence of injuries includes x-rays, magnetic resonance imagings (MRIS), CT Scans, etc … that prove there is an actual injury. Subjective evidence, on the other hand, is when a person complains of pain, yet there is nothing that can objectively verify their complaints. This is sometimes the case when dealing with soft tissue injuries.

 

In Kasidoulis v. Russo, the Court awarded non-pecuniary damages to the Plaintiff, and made the following comments about cases where there is a lack of objective proof.

 

[36]         As is not uncommon in cases of this sort, the critical issue in this case is the extent to which the injuries Ms. Kasidoulis suffered in the accident are the cause of the difficulties described in the evidence.  Counsel for the defendant did not seriously question or cross-examine Ms. Kasidoulis with respect to her reported symptoms.  Similarly, he did not appear seriously to challenge the impact that those symptoms were having on Ms. Kasidoulis’ life and her ability to cope with the demands of her life.  Counsel however did point out that Ms. Kasidoulis is subject to stress not caused by the accident.  In particular he pointed out the considerable stress being put on Ms. Kasidoulis as a result of her family’s financial predicament and as a result of having primary care responsibilities for three young children.  Mr. Robinson submits that these factors, coupled with the absence of objective evidence of injury, should lead to the conclusion that Ms. Kasidoulis would probably have suffered the lost income she claims whether or not she was involved in the motor vehicle accident.  I also understand him to submit that her symptoms have been aggravated by the stress of her life and that the defendant should not be held responsible for any consequence of such stresses.

 

[37]         This case therefore requires consideration of the law as laid by the Supreme Court of Canada and our Court of Appeal with respect to causation.  The law with respect to causation has been recently addressed and reviewed in Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke, 2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

 

[38]         These cases establish the proposition that to impose liability on the defendant  I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms but for the accident or, in other words, that the injuries she suffered in the accident were a necessary cause of her post accident symptoms.

 

[39]         I find that Ms. Kasidoulis suffers from debilitating mid and low-back pain.  This pain and attendant low energy have had a significant impact on her life.  I find that the symptoms being experienced by Ms. Kasidoulis are an indivisible injury which would not have occurred but for the injuries she suffered in the motor vehicle accident.

 

[40]         I base this conclusion on a comparison of Ms. Kasidoulis’ energy and capabilities before and after the accident.  I accept her evidence that she is suffering debilitating back pain.  I also rely on Dr. Travlos’ conclusion that Ms. Kasidoulis is suffering from chronic pain syndrome.  I can see nothing in the evidence which supports the assertion that Ms. Kasidoulis would be experiencing the pain or the level of disability she currently experiences had she not been injured in the motor vehicle accident.  I therefore conclude that the defendant is fully responsible for the consequences of Ms. Kasidoulis’ present condition.

 

[41]         I make this finding notwithstanding the lack of objective clinical evidence of serious injury.  I note that neither Ms. Kasidoulis nor Dr. Travlos were cross- examined with respect to the genuineness of Ms. Kasidoulis’ reported symptoms.  In his cross-examination of Dr. Travlos, Mr. Robinson did establish that there was a paucity of objective evidence of injury present.  I note, however, that there is no indication that Ms. Kasidoulis was in any way feigning the symptoms she is experiencing.  Given this fact and the fact that there was ample evidence before me contrasting Ms. Kasidoulis’ personality and abilities before the accident from those she presently possesses and demonstrates, I have no hesitation in concluding that the difficulties that she now faces would not have been experienced but the wrongful conduct of the defendant.

 

[42]     In this case, Ms. Kasidoulis has suffered a significant degradation of her quality of life.  However the evidence also establishes that she has not been as pro-active as she might have been in taking steps to better equip herself to deal with her post-accident state.  I appreciate that her failure to pursue physical fitness and rehabilitation programs can in part be explained by her accident-induced low energy levels.  I also note that Ms. Kasidoulis experienced heightened pain and fatigue when she tried exercise.  I do not think that any reduction of damages for failure to mitigate is warranted.  No treating doctor told Ms. Kasidoulis to continue to exercise in the face of her increased pain.  It was only when the independent medical assessments were prepared that a comprehensive rehabilitation program was recommended.

 

[43]     In assessing damages in this case I therefore intend to proceed on the basis that there are a number of ameliorating measures open to Ms. Kasidoulis if she is provided with resources to pursue them.  In my view, there is a reasonable and substantial possibility that if Ms. Kasidoulis pursues the ameliorating measures recommended by Dr. Travlos and Ms. Robertson, her symptoms and her ability to cope and function will improve somewhat.  I am also of the view that as Ms. Kasidoulis’ children become less dependent on her and enter school, some of the pressures she faces will lessen and her symptoms may well improve.