COURT CASES on SOFT TISSUE/WHIPLASH INJURIES
Each ICBC injury claim decided upon by a Court is very fact specific, and any award granted is very dependent on the unique set of circumstances that the case presents. Courts look at previously decided cases to help them determine a proper amount to award for ICBC injury claims. Counsel for the Plaintiff will typically present a list of cases for the Court’s consideration, as will ICBC’S lawyer. Quite commonly, the Court will arrive at a number in between the two. Lack of mitigation on the part of the Plaintiff can also sometimes result in a deduction from the amount of damages awarded in ICBC injury claims.
CHRONIC SOFT TISSUE PAIN
In Strazza v. Ryder, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for pain and suffering, income loss, and diminished earning capacity. The Plaintiff suffered from neck and back pain that was not fully resolved by the time of trial three and a half years after the accident. The Court would award $60,000.00 to the Plaintiff for pain and suffering, after taking into consideration his age, the affect the injuries had on his life, and the medical evidence that suggested that the symptoms were unlikely to completely resolve.
 However, as of trial, Mr. Strazza was 29. He is, therefore, considerably younger than the plaintiffs in the cases referred to by Mr. Ridgway. That is an important distinguishing factor. On the evidence that I have accepted, Mr. Strazza continues regularly to experience pain, particularly in the mid to lower thoracic region, as a result of the injuries he sustained in the accident, and this pain is unlikely to resolve completely. I have therefore found Mr. Strazza’s injuries, and their consequences for Mr. Strazza, to be more serious and long-lasting than what Mr. Ridgway urged on me. That is also an important distinguishing factor.
 Mr. Strazza is less able to perform physically all of the tasks he was able to do before the accident, and in his current position, he manages to perform what is required of him, but with pain. Leisure activities, such as working on his car, are now more difficult for him physically, and some (such as volleyball) he has given up altogether. Routine household tasks, such as lawn-cutting, are painful, although Mr. Strazza can do them. He requires regular use of medication to control and manage his pain. Because of the physical demands of the job, Mr. Strazza’s dream of becoming a long-haul truck driver has been threatened as a result of the injuries he sustained in the accident.
 Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.
In Manson v Kalar, the Plaintiff suffered from mild to moderate soft tissue injuries to the neck and back, which were unresolved after three years. The Court awarded $25,000 for pain and suffering. Although not explicitly stated as a factor with respect to failure to mitigate, it is implicit in the Court’s ruling that perhaps the amount awarded could have been higher had the Plaintiff sought more treatment, and listened to doctor recommendations.
 …The plaintiff here has suffered injuries which are limited to his lower back and neck. He has pursued very little treatment for his injuries and, despite his doctor’s recommendations, he has not attended few physiotherapy treatments or undertaken any core muscle conditioning programs. Nevertheless it is expected that he will recover in the foreseeable future. As I have already noted, while I satisfied that his ongoing pain and discomfort has limited his participation in his former sporting activities, some of his social withdrawal appears to be the result of other factors. ..
 …In the case at bar, the plaintiff has suffered a mild to moderate soft tissue injuries, where the symptoms have persisted for almost three years since the accident and are still not resolved. In these circumstances, I find that a fair and reasonable award of damages is $25,000.
In MacKenzie v Rogalasky, the Plaintiff had suffered from moderate soft tissue injuries to his neck and back for seven years by the time of trial. The Court ruled that he was suffering from chronic myofascial pain syndrome, and awarded $100,000 for pain and suffering.
 I accept the evidence adduced by the plaintiff that Mr. MacKenzie sustained soft tissue injuries to his neck, shoulder and back as a result of the accident. The symptoms of chronic pain have continued to bother Mr. MacKenzie, and nearly seven years post-accident, he still experiences pain in his neck, shoulder and back, although primarily in the lower back area. While the injuries can be described as moderate soft tissue injuries, I accept the diagnosis and opinion of Dr. Hunt that Mr. MacKenzie has developed chronic myofascial pain syndrome and experiences chronic pain to this day. Thus, the injuries and pain symptoms continue to affect most every facet of Mr. MacKenzie’s work and non-work life. The pain is most significant when Mr. MacKenzie works and overloads his physical tolerance capacity. He has had to leave his chosen profession as a chef due to the increasing pain and difficulty he was experiencing and the failure to see any significant improvement in his condition.
 I have concluded that as a result of the accident, Mr. MacKenzie has suffered pain and loss of enjoyment of life, and he will continue to do so for an indefinite period of time.
 Mr. MacKenzie struck me as a very stoic and determined individual. Despite the ongoing pain he tried to continue to work as a chef, a position he was passionate about and aspired to continue in for as long as possible, perhaps even establishing his own restaurant. He also tried to remain physically active but found it difficult to do so given the attendant pain associated with the activities he previously enjoyed, including motorcycling, snowboarding and, until recently, golfing. His return to playing golf is a recent development, but due to the nature of his injuries and ongoing chronic pain symptoms Mr. MacKenzie has had to alter his style of play and is still not able to play to the same intensity and level he did prior to the accident. He has suffered, and will continue to suffer, some diminishment in his lifestyle.
 The evidence from the plaintiff’s friends and family, coupled with his own evidence, establishes Mr. MacKenzie enjoyed excellent health and was involved in the physically active and demanding position of Head Chef working in a busy restaurant for up to 16 hour shifts prior to the accident. Mr. MacKenzie also engaged in demanding outdoor sports activities such as snowboarding, mountain biking and rollerblading and engaged in extended periods of riding his motorcycle.
 Taking into account all of these circumstances, the referenced authorities and the nature of Mr. MacKenzie’s injuries, the relatively enduring nature of the injuries as manifested through ongoing symptoms of chronic pain that has developed into chronic myofascial pain syndrome which prohibits him from returning to the profession he has been passionate about since he was a young boy, the pain he has suffered and may continue to experience in the future, as well as the fact he suffered a diminishment in his lifestyle, I conclude a fair and reasonable award for non-pecuniary damages is $100,000.
In Jackson v Mongrain, the Plaintiff had endured five years of chronic, soft tissue pain by the time of trial, and was awarded $75,000 for pain and suffering.
 The plaintiff has endured pain and suffering thus far for call it 57 months. His pain is chronic and I find in all likelihood will be with him to the grave. Dr. Mamacos added that once an individual’s back is injured the chances of what he called “back issues” in the future increase. The plaintiff swims and walks regularly. He exercises. He has had physiotherapy, taken over-the-counter drugs and had massage treatments. Because of the nature of the work the plaintiff did before the motor vehicle accident the fact that the level of his pain and discomfort – looked at in isolation – is not great did not mean he did not suffer a loss or diminishment of the capacity to earn income (see supra). But the fact remains that I would describe his pain and suffering as not intense but more of the nagging variety, i.e., always with him but at a very reduced level and causing real and substantial discomfort only when at work or outside of work he does something which is actually too much for him or when at the end of a workday the cumulative effect of his day’s activities and the state of his neck and back sets in. I find that very bad “flare-ups” occur three or four times a year. He uses over-the-counter drugs (amongst other non-prescription drugs) to assist him, as necessary. I accept that his chronic pain and suffering interferes to an extent with his activities when he is not at work. He limits himself to walking and swimming whereas before the motor vehicle accident he played basketball, rode a mountain bike, played racquetball and went camping and hiking. The evidence of the plaintiff, his mother and of the plaintiff’s friend Gordon Papp satisfies me that because of his problems with his neck and back, the plaintiff does less around the house that he and Gordon Papp co-own than would otherwise be the case.
RESOLVED SOFT TISSUE PAIN
In Thomson v Hunt, the Plaintiff endured three months of acute soft tissue injuries, and had effectively recovered with ten months. The Court awarded $20,000 for pain and suffering.
 I must exercise caution when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery period: Price v. Kostryba 1982 CanLII 36 (BC SC), (1982), 70 B.C.L.R. 397,  B.C.J. No. 1518 (QL) (S.C.), at paras. 6-7 of QL. However, a plaintiff’s own evidence, where it is consistent with the surrounding circumstances, may be sufficient to ground a finding of an existence of injuries beyond the normal or usual recovery period: Maslen v. Rubenstein 1993 CanLII 2465 (BC CA), (1993), 83 B.C.L.R. (2d) 131,  B.C.J. No. 1813 (QL) (C.A.), at para. 16 of QL; Leo (Litigation Guardian of) v. Leo, 2005 BCSC 1300 (CanLII), 2005 BCSC 1300,  B.C.J. No. 2115 (QL), at paras. 26-27 of BCSC.
 First, because Mr. Thomson’s lifestyle before the collision was rather inactive, an award in this case will not need to reflect any loss of an ability to engage in vigorous physical activity during the acute stages of the injuries sustained.
 The factual issue to be resolved here is the gap between the symptoms described by Dr. Fyfe in her report and those described by Mr. Thomson. Dr. Fyfe’s report is silent on the pain he describes to his left arm and shoulder and between his shoulder blades that persisted up to the time of the cancer diagnosis. Further, as of December 2008 when the report was written, Dr. Fyfe found Mr. Thomson to be “essentially symptom-free”, although he was not working due to the onset of his cancer and therefore was not engaged in any strenuous physical activities. In the absence of objective medical support, counsel for Mr. Hunt submits that I should be cautious about giving any weight to the continuing symptoms that were described by Mr. Thomson.
 Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.
In De Leon v Harold, the Plaintiff suffered soft tissue injuries, however had made a meaningful recovery within six months. The Court awarded $12,000 in damages for pain and suffering.
 In this case, I am satisfied on the balance of probabilities that the plaintiff’s injury was caused by the accident. The plaintiff presented in evidence as forthright and credible and was not prone to exaggerate the nature of the accident or her injuries. Immediately after the accident she thought that she was fine but she began to experience back pain within a few hours by 7:00 p.m. that evening and attributed the pain to the accident. I am satisfied that the temporal link is sufficient to draw that conclusion. She reported the accident to her doctor the next day and saw her doctor as soon as she was able to, within five days of the accident. She was active in her own treatment plan by initiating chiropractic treatment even before she saw her doctor, and she continued to pursue chiropractic and massage therapy as recommended by her doctor as part of her recovery. It is clear to me from the evidence that the plaintiff’s own medical knowledge as a registered nurse assisted her in being proactive about her own treatment, minimizing the recovery period for the injury. Although she was encouraged to take one to two weeks off work, the plaintiff took four days off work which she felt she needed. The plaintiff was stoic and practical in her approach to the resolution of her injury.
 I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as the result of the accident. I am satisfied that the injuries were substantially resolved within two months of the accident as the result of the plaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completely resolved within six months…