In today’s case (Mir Tabatabaei v. Kular) the Plaintiff was involved in a 2010 collision caused by the Defendant. Fault was admitted. The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties. In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:
[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…
[71] The plaintiff is 53 years of age.
He experiences pain in his right shoulder when he exerts himself. He
experiences pain in his neck at night which disrupts his sleep. There is
no cure for either of these conditions. His shoulder may get worse and
require him to undergo surgery which in turn carries risks.
Notwithstanding the pain and discomfort, the plaintiff has continued to
work to the extent that he is able and to participate in his previous
leisure activities, such as biking and swimming, albeit it to a lesser
extent than before the accident. I agree with counsel for the plaintiff
that Wong is very similar in terms of the type of injury involved;
however, the plaintiff in that case had an additional injury to her
knee. Nonetheless, it is a helpful benchmark. In all the circumstances I
find an award of $75,000 for non-pecuniary damages is appropriate.
Source: http://bc-injury-law.com/blog/75000-nonpecuniary-assessment-chronic-shoulder-injury?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+IcbcLaw+%28ICBC+Law%29
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