In Kam v. Van Keith, the Plaintiff was injured in a very hard rear end impact. Liability was admitted by ICBC’S lawyer. The Plaintiff alleged that she suffered pain in her neck, back, and shoulders, and that the pain was chronic. In addition, the Plaintiff alleged to have suffered from depression, sleep disturbance, and fatigue. The Plaintiff was very active athletically and socially before the accident, however all this changed after the accident, including her family life. The Court heard what a profound impact the accident had on the Plaintiff. Dr. Apel, the physiatrist that testified on behalf of the Plaintiff, concluded that the Plaintiff suffered from chronic regional myofascial pain syndrome, which was not challenged by any of the other experts. The Court was impressed with the Plaintiff’s efforts at mitigation, concluding that she had tried everything possible, but that it was unlikely that she would experience any significant improvemenet in her chronic pain. The trial occurred approximately four years after the accident, with the Court awarding the Plaintiff $125,000.00 for pain and suffering for her chronic regional myofascial pain syndrome.

 

[3]            Prior to the accident, the plaintiff was a committed athlete. She was active in many sports, played an average of two games of soccer a week, plus two practices. She and her husband would go hiking in the wilderness, she rollerbladed on the seawall, she played golf periodically, went swimming, skiing, did pole-dancing, and was described by her husband as being driven, enthusiastic, gung-ho, a practical joker with a large group of friends, and a close family.

 

[4]            Her mother and sister-in-law gave evidence and substantiated the plaintiff’s gregarious personality and physical fitness. She and her mother also took a trip to Scotland, and on another occasion to Nova Scotia. They would also go shopping together.

 

[5]            After the accident, the plaintiff’s life changed profoundly. She has gained approximately 30 pounds, now suffers from low self-esteem, is concerned about her body image, experiences anxiety when driving, car trips are now more difficult as she now has to stop periodically even when going from Kelowna to Kamloops to visit with her stepchildren.

 

[26]        The plaintiff is still relatively young, being born in November 1975. The nature of her injuries are significant and they have subsisted at least in the lower back for four years. The plaintiff has suffered emotionally and her life has been impaired. It has also adversely affected her family, her marital relationship and her social relationships. She is incapable of doing practically all the sporting activities that was a vital and vibrant part of her personality and her relationship with her husband, her family and friends. Although she only took three days off work purely because she is stoic is not a reason to generally penalize the plaintiff.

In Sebaa v. Ricci, the Plaintiff was involved in a violent, head-on motor vehicle collision, resulting in serious physical and psychological injuries. The Plaintiff advanced an ICBC claim for numerous heads of damages, including pain and suffering, loss of income, loss of housekeeping capacity, diminished earning capacity, and the cost of future care. Most notably, the Plaintiff’s physical injuries included shoulder pain, upper back pain, knee pain, foot pain, a fractured hand, and headaches. Psychologically, the Plaintiff suffered from low mood and post-traumatic stress disorder (PTSD), especially a fear of driving. ICBC’S lawyer attempted to argue that the Plaintiff failed to mitigate her damages by not following a doctor’s recommended course of treatment with Cymbalta, however the Court rejected ICBC’S lawyer argument in this regard.

 

The Court would eventually award the Plaintiff $180,000.00 for non-pecuniary damages, also known as the pain and suffering component of the ICBC claim. This is a rather large award, considering that the trial was a little over four years after the accident, however the Court took note of the pessimistic prognoses, and that it was unlikely that the Plaintiff would ever recover.

 

[125]     There is no doubt the motor vehicle accident significantly impacted almost all dimensions of the plaintiff’s life: Stapley v. Hejslet, 2006 BCCA 34 (CanLII). The impact was violent; the experience a frightening one for the plaintiff; and her initial injuries intensely felt and functionally limiting.

 

[126]     I find the plaintiff has developed a chronic pain disorder with both psychological and physical workings. The plaintiff’s descriptions of her physical symptoms, functional limitations, and of her psychological response, including PTSD, depression and anxiety, and their effects on her activities of daily living are credible. Clinical examinations do not pinpoint any clear physiological remnant of the original injuries that are producing her pain. The plaintiff’s condition accords well with the psychiatric and physiatrist diagnoses and the diagnostic criteria for a pain disorder as stated in the DSM-IV-TR.

 

[127]     In overview, the plaintiff, now 38, 33 at the time of the accident, characterizes her life as one of constant daily pain and seriously debilitating anxiety and depression, which have not abated since the accident. She points to fluctuating but always presents daily pain in her neck, left shoulder, left hand, right knee and right foot; to excruciating headache, and pain-disturbed sleep. She grants she has good days and bad days, but finds pain always present. She has become socially isolated. Sometimes, she spends several days in pain. She identified her depression as a major contributing factor in the decision she and her husband made to leave Canada. The accident suspended the plans she and her husband had for having a family through IVF.

 

 

In Camilleri v. Bergen, the Plaintiff was injured when she was rear ended by a vehicle which had been rear ended by another vehicle. The Plaintiff brought an ICBC Claim naming two Defendants, however the action was later discontinued against the driver of the car immediately behind her. The Plaintiff alleged a plethora of injuries, including neck pain, headaches, back pain, and shoulder pain. At the time of trial, a little over three years after the accident, the Court awarded the Plaintiff $90,000.00 for pain and suffering, finding that, based on the medical evidence, the Plaintiff suffered from chronic myofascial pain, and that she was unlikely to recover.

 

[74] As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms …

 

[75] Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.

 

[76] Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money …

 

[78] She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy …

In Kirkham v. Richardson, the Plaintiff was an elite cyclist and triathlete. She was involved in a motor vehicle collision, and subsequently pursued an ICBC claim for non-pecuniary damages, loss of past earning capacity, loss of future earning capacity, out of pocket expenses, and cost of future care. The Plaintiff alleged she suffered from soft tissue injuries to her neck, back, and shoulders, which continued to affect her by the time of trial, which was over three years after the accident. In addition to the effect that her injuries had on her ability to compete as an athlete, the Plaintiff’s completion of her PHD was delayed for one year. Based on the medical evidence, the Court found that the Plaintiff suffered from myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome. The Court awarded the Plaintiff $120,000.00 for pain and suffering.

 

[184] The injuries Ms. Kirkham suffered in the car accident have had a very significant impact on all aspects of her life. Based on Ms. Kirkham’s evidence and the evidence of her treating practitioners, I find that the pain in her neck and upper back areas was initially very intense, affecting her virtually every day, that it then improved by about 50% by late April 2011, and then plateaued with more modest peaks and valleys until the fall of 2012, when she gave up her high level training. While not pursuing her studies, Ms. Kirkham was able, particularly in 2012, to return to an intense level of training, but could not sustain it once she returned to school in the fall of 2012. The pain continues to be exacerbated by activities that require prolonged static postures, such as computer work and bike racing.

 

[185] Since giving up her high level training in the fall of 2012, Ms. Kirkham’s pain has become manageable as long as she restricts her computer work to a normal workweek. She suffers flare-ups of pain when she has to do more. She also continues to have pain if working away from her office workstation, engaging in lifting, and when running.

 

[187] Ms. Kirkham’s injuries have affected her personal relationships with her husband and her friends, as she can no longer engage in many of the physical activities they choose to engage in. Her social life is entirely different than it was before the accident.

 

[188] The injuries also interfered with Ms. Kirkham’s studies. She had to put her education on hold for a year …

 

[189] The biggest impact on Ms. Kirkham’s life has been the loss of her ability to compete as an elite athlete …

In McLeod v. Goodman, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, loss of past earning capacity, loss of future earning capacity, special damages (out of pocket expenses), and the cost of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff suffered from a plethora of injuries, including her neck, back, shoulders, leg, and jaw. She also required back surgery. She continued to suffer at the time of trial, approximately five and a half years after the accident. The Court awarded the Plaintiff $130,000 for pain and suffering for her chronic pain.

 

[70] As a result of her constant pain involving these various parts of her body, her life is severely, negatively impacted. She has developed chronic pain syndrome. As indicated, she is unable to perform tasks at home and in her yard. She is unable to work outside the home. She is unable to participate in activities with her husband, affecting their intimacy. She has no energy. She is isolated. Her inactivity, loss of energy and isolation has led to substantial weight gain. Her sleep has been affected. She is often tearful and sad.

 

[71] Despite all of this, Mrs. McLeod, in particularly moving testimony, described that she has not given up hope of improvement. She described herself as “not a quitter” and still seeks to do whatever is necessary to improve her quality of life. I believe her.

 

[126] In summary, I am satisfied Mrs. McLeod has established that the following injuries were caused by the defendants’ negligence:

 

1) Musculoligamentous strain to the cervical spine;

2) Chronic headaches;

3) Shoulder pain;

4) Musculoligamentous strain to the lumbar spine and lumbar radiculopathy causing pain to her lower back, hips, groin and right leg, resulting in surgical intervention;

5) Partial loss of bladder sensation and functionality;

6) Widespread chronic pain syndrome; and

7) Emotional pain in the form of low mood and feelings of low self-worth.

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.

 

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 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 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 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.