In Hsu v. Choquette et al., the Plaintiff was injured in a rear end motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, loss of housekeeping capacity, cost of future, and special damages (out of pocket expenses). Liability was admitted by ICBC’S lawyer. The central issue for the Court to consider was whether or not the Plaintiff suffered from Thoracic Outlet Syndrome as a result of the accident. The Court ruled that she did, and awarded $87,500.00 for pain and suffering, with the accident occurring approximately 4 1/2 years before the trial.

 

[40] The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus.

 

[41] Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side.

 

[42] His opinion was that Ms. Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back. He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries.

 

[43] More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.”

 

[88] In this case Ms. Hsu’s injuries have affected her life in various ways, several of them quite serious. Most importantly, her ongoing pain, weakness and fatigue have restricted her ability to participate fully in many of the important family roles and recreational pursuits that she values.

In Minenko v. Minenko, the Plaintiff was a passenger in a car driven by her husband, and ended up suing her husband for damages resulting from a motor vehicle accident. Liability was admitted by ICBC’S lawyer. The Plaintiff’s main injury was mild but ongoing thoracic outlet syndrome, which was still present at the time of trial, approximately four and a half years after the accident. The Court would award the Plaintiff $80,000.00 for pain and suffering.

 

[40] The plaintiff says she also initially suffered from anxiety attacks in the night, but only occasionally does so now. Currently, she says she has headaches and constant dull pain in her right arm, as well as the right shoulder and right upper back area. Any physical activities cause her pain in her right arm and this increases over a busy day.

 

[78] The plaintiff submits she has been left with chronic pain in her neck, right shoulder girdle area, right arm and mid-back area, with daily headaches, sleeping difficulties and increased anxiety.

 

[79] She is not claiming that the injuries have rendered her as an invalid. She has been working and performing all her duties at work but it now takes her longer to complete them.

 

[80] She has returned to some of her activities that she engaged in before the accident, such as sailing, but presently foregoes her former activities of yoga, skiing and kayaking.

 

[81] There is no evidence her injuries can be alleviated through surgery but some of the pain may be ameliorated through the use of Botox.

In Bransford v Yilmazcan, the Plaintiff suffered from post-traumatic Thoracic Outlet Syndrome. By the time of the original trial, she had endured about four and a half years of pain, and had undergone surgery. She was ultimately awarded $225,000 for pain and suffering, after the Court of Appeal reduced the original trial amount.

 

[20]           In the present case, the award did exceed the rough upper limit and the view the jury took could be said to be one wholly disproportionate calling for some appellate intervention. If one were to compare this case to another jury award, in the case of Bob v. Bellerose, 2003 BCCA 371 (CanLII), 2003 BCCA 371, the ultimate award there ordered by this Court was $275,000, comprising $200,000 in general damages plus $75,000 in aggravated damages because of the intentional conduct of the defendant. That case in my view disclosed more serious injuries than the plaintiff suffered in the present case.

 

[21]           In a case relied upon by the appellants, Knauf, referred to supra, this Court recently altered a jury award from $235,000.00 to $135,000.00 because the Court viewed the award as wholly disproportionate in relation to other comparable awards. In that case, the plaintiff was less severely affected by her injuries than the present plaintiff.

 

[22]            It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.

 

In Cimino v Kwit, the Plaintiff suffered from traumatic Thoracic Outlet Syndrome for about three years by the time of trial, and was awarded $85,000 for pain and suffering in this regard, including pain in her right arm and hand that was related to the Thoracic Outlet Syndrome.

 

[42]           I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand.

 

[43]           The defendant’s submissions on quantum of non-pecuniary damage was based upon a finding that the plaintiff’s soft tissue injuries resolved completely within 6 months and that the plaintiff did not suffer thoracic outlet syndrome as a result of the accident. Since this does not concur with the finding of this court, I have considered the cases referred by the plaintiff.

 

[44]            In Stapley v. Hejslet, 2006 BCCA 34 (CanLII), 2006 BCCA 34, 263 D.L.R. (4th) 19, 221 B.C.A.C. 272, the plaintiff was diagnosed with thoracic outlet syndrome as a result of the accident and had surgery to relieve the pressure. This resulted in an eighty percent improvement in symptoms but left the plaintiff with residual complaints of pain in his mid-back, right side neck pain, a constant burning between the shoulder blades, stiff neck and back, and a constant headache. The plaintiff continued to take a great amount of pain medication. Significantly, he lost the enjoyment of life on his ranch with its employment, home and community. Without this latter factor, the court, having summarized comparative cases, concluded that the range of damage for this type of injury was $66,000 to $100,000. Mr. Stapley was awarded $175,000.

 

[45]           The plaintiff in Maillet v. Rosenau, 2006 BCSC 10 (CanLII), 2006 BCSC 10, had also suffered some degree of thoracic outlet syndrome, along with other injuries that were continuing. Powers J. reviewed many cases including Potrie v. Langdown, [1996] B.C.J. No. 318 (S.C.) in which the plaintiff received $140,000 for severe injuries including thoracic outlet syndrome which had changed her whole life and vocation. Mr. Maillet received damages of $110,000.

 

[46]           In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.

 

In Hooper v Nair, the Plaintiff suffered from Thoracic Outlet Syndrome for about six years by the time of trial, and was awarded $104,500 for pain and suffering.

 

[50]            There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages.  With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature.  She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future.  She has tried many different modalities of treatment with limited success.  There is some improvement but the pain is still present.  Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning.   She can hope for some improvement over time with a regular exercise programme.  But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.

 

[51]           The plaintiff’s lifestyle has been adversely affected in a number of ways.  She is determined to resume her jogging programme and to re-enter the Sun Run with her husband.  However, her early attempts to run resulted in a flare-up of neck and back pain.  Drs. Travlos and Salvian suggest that jogging may not be an activity she can do.  Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain.  Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.

[52]           Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain.  Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.

 

[53]           The plaintiff’s professional life was impacted by the Accident.  She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm.  Luckily, she is right hand dominant.  But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could.  She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed.  Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.