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How Do B.C. Courts Assess Damages for Chronic Pain Victims?


Not all car accident injuries heal with time. Many B.C. residents find themselves dealing with chronic pain for years following an accident. Chronic pain is technically defined as pain that continues for more than six to 12 months after the initial injury. In many cases, the pain never goes away, although it can be managed through specialized medical care.

Quantifying damages for chronic pain in a personal injury claim is often a complex task. Insurance companies frequently attempt to cast doubt on the victim’s credibility. They will insist that since most people recover from car accidents that the victim must be exaggerating symptoms in order to gain favour with the court.

Moreira v. Crichton: Defence Claims Trial, Not Accident, the Real Source of Victim’s Pain

Here is a recent example of how B.C. courts tend to assess chronic pain cases. This lawsuit arose from an October 2013 auto accident. The plaintiff is a woman in her 40s.

Liability for the accident was not in dispute. The defendant admitted rear-ending the plaintiff, who had yielded to a pedestrian at a crosswalk. There was also no dispute as to the nature of the plaintiff’s injuries–basically, she sustained soft-tissue damage to her neck and back.

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What was in dispute was the extent and effect of the chronic pain produced by these soft-tissue injuries. This required Justice D. Allen Betton of the British Columbia Supreme Court to make a detailed inquiry into the plaintiff’s medical and employment history following the accident.

Arguments: Chronic Pain or Lack of Focus?

The plaintiff’s main argument was that her chronic pain impacted “all facets of her life,” and in particular “significantly compromised” her prospects for career advancement. Among other damages, she therefore asked the Court for $1.4 million to compensate her for “future loss of income.”

The defence, in contrast, acknowledged the plaintiff’s chronic pain but argued it did not affect her ability to work or continue her career successfully. At trial, defence counsel suggested the plaintiff had “developed an unfortunate focus on this litigation, and pushed herself to even higher levels of complaint.”

The defence maintained the “medical evidence” in the case did not support any award of damages for loss of future income, as the plaintiff could “re-focus” on her job once the lawsuit ended.

Court: The Problem is Pain

Justice Betton largely came down on the side of the plaintiff. He noted that the “experience of pain is very subjective” and that even with expert medical testimony, it was a challenge for any court to “understand and assess the severity of that pain.” Ultimately, even the doctors must rely on their own assessment of the plaintiff’s credibility regarding her symptoms.

The judge did not agree with defence counsel that the plaintiff overstated her pain due to her focus on the trial. Put another way, it did not reflect “poorly on her credibility,” but rather demonstrated “the impact the injuries can have if the effectiveness of her distractions, or management of activity is diminished.”

On the whole, Justice Betton said he found the plaintiff’s testimony “credible.” With respect to the plaintiff’s loss of potential income, the judge said there was a “real and substantial possibility that [the plaintiff] will not be able to advance” with her present employer in the same manner she would have absent her chronic pain.

Indeed, it was not entirely clear that the plaintiff could “maintain her current position” because while her current manager had made accommodations for her medical condition–such as letting her work from home when her pain level increases–future management may not be as willing to do so. Given her condition, the judge said the plaintiff “will almost certainly be less marketable” to another prospective employer if she loses her current job.

Justice Betton therefore concluded the “most appropriate course” for the plaintiff was to stay at her present job for as long as possible.

Plaintiff’s Damage Award

The judge then assessed damages based on the “element of uncertainty” for the plaintiff’s future career prospects. Ultimately, the judge settled on a $500,000 award for “loss of earning capacity,” which he said “appropriately reflects the risk that the plaintiff may lose her current position, as well as the real possibility that she will not or that she may even advance” to a higher management role within her company.

The Court awarded more than $300,000 in additional damages to cover other losses sustained by the plaintiff. This included $130,000 for non-pecuniary damages–a reflection of the plaintiff’s overall pain and suffering and diminished “social relationships” after the accident. Justice Betton noted this amount was consistent with what other B.C. judges awarded in similar cases.

Other categories of damages included $10,000 for the plaintiff’s loss of housekeeping capacity, an amount previously conceded by the defence; $30,000 for past loss of income; and approximately $117,000 for the cost of the plaintiff’s future care. This final amount includes the cost of medication, therapy, vocational counselling, and housekeeping and yard maintenance.

Altogether, the Court awarded the plaintiff $804,914.48 in damages arising from the accident and the defendant’s negligence.

How can a Vancouver Chronic Pain Lawyer Help You Following an Accident?

It is important to remember that every personal injury case is unique. There is no one-size-fits-all formula for deciding how much a person’s chronic pain is worth in monetary terms. As the case above illustrates, courts can look at certain tangible items, such as a loss of income, but in the end much of a judge’s decision comes down to an assessment of the victim’s overall credibility.

Of course, you should never lie about the extent of your pain, especially in court. But you also should not minimize your actual suffering. Many people downplay their pain, even when speaking with their own doctor privately, because they don’t like to complain or “appear weak.” Such self-deception is not beneficial and can lead to problems down the line if you do need to pursue a personal injury claim against a negligent driver.

If you have any questions or concerns about such issues following a motor vehicle accident, you should contact a Vancouver chronic pain lawyer. Contact Preszler Injury Lawyers to schedule a free, confidential consultation with a member of our team today.

Source:

CanLII.org

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