In Zhang v. Ghebreanenya, the Plaintiff was injured as a passenger in a taxi cab, and advanced an ICBC claim for damages for pain and suffering, loss of housekeeping capacity, out of pocket expenses, and the cost of future care. The Defendant denied liability, pleading inevitable accident, however the Court found the Defendant to be liable for the accident. The Plaintiff suffered from headaches and neck pain, however the Court found that such injuries had healed within 3-4 months of the accident. The Plaintiff’s main injuries were to his right arm and right shoulder, with symptoms persisting at the time of trial, approximately five years after the accident. Despite claims by ICBC’S lawyer to the contrary, the Court determined that the Plaintiff’s shoulder was asymptomatic before the accident. The Court would go on to award the Plaintiff $65,000.00 for pain and suffering.

 

[27] In his evidence at trial, however, Dr. Masri explained it this way. Because of the symptoms of pain caused by the effect of the accident on his pre-existing degenerative condition, Mr. Zhang’s shoulder became deconditioned and weak from lack of use. Normally, the remedy for this, once the pain subsides (as it largely has) is aggressive therapy to recondition the shoulder muscles. In Mr. Zhang’ case, however, aggressive reconditioning is not possible because of the lack of an intact rotator cuff (the degenerative process). But for the accident, he would not be in that same state of weakness. Because of his pre-existing degenerative condition, he is unable to remedy it.

 

[28] This explanation is consistent with the evidence of Dr. Kokan, and I accept it. I find that because of the accident, Mr. Zhang has been left with significant weakness and intermittent pain in his right shoulder. That a pre-existing degenerative condition contributed to this state of affairs does not interrupt the chain of causation between the accident and Mr. Zhang’s current condition: Athey v Leonati, [1996] 3 SCR 458.

 

[29] In assessing Mr. Zhang’s loss, however, I take into account that his original pre-accident condition included arthritis in the right elbow that limited the strength and range of motion in that joint. I also take into account what I consider to be a real and substantial possibility that the pre-existing rotator cuff tear would have led to symptoms of shoulder weakness and discomfort in the future in any event, albeit to a lesser extent than he now faces.

 

[30] With respect to the impact of his injuries, I observe that Mr. Zhang had retired from TCM long before this accident. The evidence of his daughter and granddaughter did not support the contention that he has been frustrated in attempting to pass on the family skill set. The evidence does indicate that he stopped driving his youngest granddaughter to school and lessons after the accident, but this coincided with his eldest granddaughter obtaining a motor vehicle. Nevertheless, I am satisfied on the whole of the evidence that the significant ongoing weakness in Mr. Zhang’s right shoulder and arm has had an impact on his ability to drive. I also find that he has been impaired in his ability to prepare food (particularly to chop vegetables), to perform at least some aspects of household cleaning, and to lift heavy objects. Socially, he goes out much less than he used to before the accident.

In Mir Tabatabaei v. Kular, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, past loss of earning capacity, loss of future earning capacity, out of pocket expenses, and the cost of future care. The Plaintiff alleged injuries to his neck and shoulder. Liability was admitted. Both the orthopedic surgeon for the Plaintiff and the Defendant diagnosed the Plaintiff as suffering from rotator cuff syndrome. An issue for the Court to consider was whether or not the Plaintiff failed to mitigate his damages by refusing to undergo shoulder surgery. The Plaintiff was still symptomatic by the time of trial, which was over four years since the accident. The Court ruled that the Plaintiff’s decision to forgo surgery was a reasonable one, and awarded $75,000.00 in non-pecuniary damages.

 

[66] It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

 

[67] Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one.

In Proctor-McLeod v. Clarke, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for pain and suffering, income loss, diminished earning capacity, loss of housekeeping capacity, out of pocket expenses, and cost of future care. The Plaintiff suffered a variety injuries, including to her neck and back, with the most serious injury being a left shoulder injury which was still symptomatic for approximately 4 1/2 years after the accident up to the time of trial. The Court awarded the Plaintiff $60,000.00 for pain and suffering.

 

[68] I accept Dr. Hawkins’ opinion that further treatments might result in a resolution of her shoulder symptoms and that her soft tissues have improved significantly. The plaintiff has been suffering from the after effects of the calcium deposits and friction in the coracoacromial arch in her shoulder. The plaintiff’s continued pain from flare ups would not have happened but for the accident. Although she made a good recovery from her other injuries, there is persisting pain developing intermittently in her neck and radiating to her left arm. This causes her pain levels to rise from a daily level of three out ten to six or seven out of ten. These estimates are of limited use; however they do give a subjective measure of the plaintiff’s perception of her condition during flare ups of symptoms.

[69] I conclude that the plaintiff’s symptoms will likely resolve over time.

 

In Jorgensen v. Coonce, the Plaintiff was injured as a passenger in a car accident, and brought an ICBC claim for pain and suffering, diminished earning capacity, and cost of future care. There was no dispute as to liability. The Plaintiff suffered from chronic pain in his shoulder, which continued to trial some three and a half years after the accident, and which was also expected to continue into the future. A complicating factor that the Court had to grapple with was the fact that the Plaintiff had been in another accident three years prior to the accident in question. The Plaintiff argued that he had completely recovered, however not surprisingly ICBC’S lawyer argued otherwise. The Court would go on to award the Plaintiff $60,000 in pain and suffering.

 

[90]         In short, I conclude that the plaintiff suffers from chronic pain from a soft tissue injury in the area of his right shoulder sustained in the May 2009 accident. This injury is not related to the physical or functional deficits that the plaintiff continued to experience as a result of the April 2006 accident for which, as I have noted, the present defendant is not liable.

 

[91]         The May 2009 injury has impacted the quality of the plaintiff’s life in material measure. He has been unable to pursue his sporting and recreational activities. Worse still, his relationship with his children has suffered because of his physical limitations. He has also been affected, not only in his enjoyment of work, but in his capacity to perform his work adequately, and on all of the evidence I consider it possible that this reduced capacity played a role in his dismissal from long-term, secure, well-paying employment in the paving business.

 

[106]     Having due regard to the often cited factors articulated in Stapley v. Hejslet, 2006 BCCA 34 at paragraph 46 and the observations of the Supreme Court of Canada in the Lindal v. Lindal, [1981] 2 SCR 629 at p. 637, and employing a discount in light of my findings respecting the plaintiffs pre-existing injury or condition for which the present defendant is not responsible, I have decided that an appropriate award for general damages in this case is $60,000.

In Antonishak v. Piebenga, the Plaintiff suffered injuries, most notably a shoulder injury, and more specifically a right shoulder rotator cuff tendinopathy, which led to shoulder instability. By the time of trial, the Plaintiff had endured the injury for over four and a half years, and his prognosis was described as guarded. The Court would award $60,000 for pain and suffering.

 

[7]           At trial, Mr. Antonishak projected as an energetic, ambitious, and engaging person. He is certainly not a malingerer nor a layabout. He has plans for a future in the restaurant/hospitality industry as an entrepreneurial owner. When not working, he also likes to engage in active recreational sport pursuits and extensive international travel. He has a natural curiosity about foreign cultures and environments. He enjoys his present occupation as a fine dining server, but encounters pain and fatigue if he overworks his right arm and shoulder. He has curtailed some, but not all of his active recreational activities for fear of aggravating his weakened right shoulder and arm.

 

[8]           For the foreseeable future, Dr. Monteleone has suggested cautious monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening program. If his present condition eventually becomes intolerable relative to his future career and lifestyle, then stabilizing shoulder surgery may need to be done. This would involve major surgery with potential six-month recovery time thereafter. In the meantime, the plaintiff lives with a weakened right-hand grip and chronic troubling pain and fatigue if he overtaxes himself in above-shoulder or extensive reaching or pulling activities.

In Lim v. Anderson, the Plaintiff was involved in a motor vehicle accident, and suffered impingement syndrome in her shoulder as a result of a rotator cuff injury. By the time of trial, she had endured four years of the injury, and still had some ongoing pain. The Court awarded $55,000 for pain and suffering.

 

[7]             There was a difference of opinion between Dr. Christian and the plaintiff’s treating orthopaedic surgeon, Dr. Yu, as to the cause of the plaintiff’s ongoing shoulder pain. Dr. Yu attributes it to calcific tendonitis caused by the soft tissue injuries. In his view, with the injury there was bruising and swelling or hemorrhage into the rotator cuff giving rise to pain or an abduction and impingement syndrome. In this condition the tendon is pinched between the under surface of the acromion and the humeral head, resulting in pain on movement.

 

[8]             In contrast, Dr. Christian views the plaintiff’s shoulder pain as stemming from residual soft tissue injuries.

 

[9]             While it is not really necessary to choose between the opinions on causation, given the agreement on ongoing residual pain in the shoulder, I prefer Dr. Yu’s diagnosis. That preference does not in any way reflect a lack of confidence in the skill of Dr. Christian. It rests, rather, on the more extensive investigations conducted by Dr. Yu, who treated the plaintiff over two years and saw her on seven occasions.

 

[10]         I accept his finding that the plaintiff’s response to an injection into the subacromial space of her right shoulder, (temporary relief from pain), confirmed his diagnosis.

 

[38]         The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.

 

[39]         There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.

 

In Garcha v. Duenas, the Plaintiff received $70,000 in pain and suffering for different injuries, the most serious of which was tendonitis in his shoulders. He had endured four years of pain by the time of trial, and the pain was expected to continue.

 

[53]              Dr. Parhar holds the opinion that since the accident the plaintiff has been suffering the ongoing effects of a shoulder tendonitis, that is an inflammation of the shoulder tendons, resulting from the acute trauma suffered at the time of the motor vehicle accident.  I note here that on cross examination, Dr. Tarazi also opined that the right shoulder complaints were likely related to the injuries suffered in the motor vehicle accident.  Even if the injury was related to repetitive movements, he believed that this was due to the fact that due to his injuries, the plaintiff was likely posturally over- compensating in some way, thus giving rise to the shoulder complaints.  In the absence of the motor vehicle injuries, he doubted the shoulder complaints would have arisen.

 

[75]           The plaintiff’s position is that he is now permanently partially disabled and accordingly, has suffered a substantial loss in his income earning capacity.  While he has been able to return to work full-time, he submits it is only as a result of his employer’s continuing accommodation of his physical restrictions that he has been able to do so. 

 

[76]           The defence insists that post-accident the plaintiff has returned to his regular fulltime duties and that any restrictions have been the result of his hernia injury and are not related to the accident.  The defendant submits the plaintiff was able to return to full duties, including performing overtime work after the accident, for a period of 1.5 years after the accident.  At that point he suffered the hernia injury at work, which injury took him out of the workforce for almost another 1.5 years.  The defence says that after returning from this work related injury, he was on restricted duties, not as a result of the accident injuries, but strictly as a result of the hernia injuries.  He never returned to full duties from that injury before he was off again for another unrelated injury.  The defence says that the plaintiff has not demonstrated a real and substantial possibility that he will not be able to return to full hours and full duties again as it pertains to the accident injuries. 

 

[77]           As I have noted earlier, I completely reject the submission that the plaintiff did in fact return to his regular work duties after the accident.  Based on the evidence of the plaintiff, Mr. Ranu and Dr. Parhar, I am satisfied that for most of the time since the accident, the plaintiff has only managed to do his work by virtue of his charge hand’s permitting him to do a restricted range of work, limiting himself to the vertical machine alone.  On one occasion when the plaintiff did exert himself and lift an item weighing over 23 lbs, he suffered the resulting inguinal hernia. 

 

[78]            In the end result, I am satisfied the plaintiff has proven that he is now permanently partially disabled.  Adopting the opinion of Dr. Parhar, I am satisfied that given the activation of his osteoarthritis, his condition will likely worsen over time.

In De Gaye v Bhullar, the Plaintiff suffered from various injuries, the most notable of which was subacromial impingement of his shoulder, and was awarded $70,000 for pain and suffering for a nearly five year injury by time of the trial, but which was expected to improve.

 

[90]           Although there are some minor inconsistencies in the evidence likely due to fading memories, it is apparent that Mr. De Gaye’s recreational activities and his ability to carry out his job have been significantly affected due to the injuries caused by the accident. All of the injuries have improved over time and, as a result, Mr. De Gaye has been able to resume most of his pre-accident recreational activities. However, it is clear that this has been a long and arduous struggle for Mr. De Gaye. He has experienced the pain of severe headaches, neck pain and stiffness, lower back pain and consequential sleep disruption. Mr. De Gaye also experienced emotional sadness and stress due to a loss of physical capacity and an inability to be socially active. He gained weight after struggling for years to lose weight and achieve a high level of physical fitness. Lastly, to relieve the pain symptoms in his left shoulder Mr. De Gaye must undergo arthroscopic surgery and a three month recovery period.

 

[92]           While it is apparent that Mr. De Gaye’s loss of enjoyment of life, physical pain, and emotional suffering has continued for over five years since the accident, it is undeniable that the symptoms have drastically improved since March 2005. The back and neck pain reoccur infrequently with extended use or exercise. The primary injury remains the shoulder impingement; however, there is an 80% chance that arthroscopic surgery will relieve the pain symptoms even with repetitive use. The migraine headaches remain problematic but controllable with prescription medication.

 

[93]           The cases cited by the parties are helpful because they show the range of possible damages for pain and suffering; however, each case must be decided on its own particular facts. In light of the length of time Mr. De Gaye has suffered from his injuries, the serious nature of those injuries and their significant impact on his recreational and work life, balanced against the improvements he has had over time and the high probability of successful surgery for his left shoulder, I find that an award of $70, 000 is appropriate in all the circumstances.