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General Damages for a Tough Teacher

Will I still compensated for my injuries if I can still play sports and work full time?  It hurts, but I’m not a quitter and I still like to have fun.  Will the court still know I’m hurt?

In the case Kodelja v Johal (2017 BCSC 164), the court considered the quantum of general damages for a 40 year old teacher injured in a car crash.  At the time of trial, she continued to suffer from mild to moderate pain in her neck, shoulder, and back, along with dull headaches on a daily basis. She continued to use some passive therapies (chiropractic care and massage therapy) to manage her symptoms, and took the odd advil.

While the pain had certainly had a detrimental impact on her life, she had largely been able to get herself back on track.  She had continued to work on a full-time basis, although her job as an elementary school teacher allowed her to switch positions as required and she had built-in breaks throughout the day.  She had also been able to continue on with most of her recreational activities, including camping, international holidays, and sailing (including one 30-hour race).  She did have some pain during those pastimes, but on a larger scale her enjoyment was not impacted.  She had quit both running and swimming, as the particular nature of those two activities aggravated her pain enough to outweigh any pleasure derived.  She had also been able to maintain an active social life and was able to carry on the normal activities of daily life, including chores around the house and grocery shopping.

After considering the positions of the plaintiff and the defendant, Justice Masuhara awarded the plaintiff $80,000.00 in general damages:

[98]         The plaintiff submits that fair and reasonable compensation for damages for pain and suffering is $85,000–$100,000 based on the cases handed up.  These cases all include the presence of thoracic outlet syndrome:  Gillam v. Wiebe, 2013 BCSC 565; Danielson v. Johnson, 2013 BCSC 1261; and Hsu v. Choquette, 2015 BCSC 1123.  In Hsu the plaintiff had neck and shoulder injuries causing neck and shoulder pain and headaches.  She also had thoracic outlet syndrome.

[99]         The defendant submits that the plaintiff suffered a mild to moderate soft-tissue injury to her neck, upper back, and shoulders, together with headaches and a temporary exacerbation of her pre-existing right hip/pelvis injury.  The defendant contends that if the plaintiff has thoracic outlet syndrome, that the symptoms occur infrequently and are non-disabling if and when they do occur. 

[100]     The defendant submits that the range of non-pecuniary damages is $50,000–$60,000 if the plaintiff either does not have thoracic outlet syndrome or alternately such thoracic outlet syndrome was not caused by the Accident.  If the plaintiff, however, does have thoracic outlet syndrome caused by the Accident, the defendant contends the range of non-pecuniary damages is $60,000–$75,000 because the thoracic outlet syndrome is mild, occurs infrequently and is non-disabling.  The defendant submits that those cases involving thoracic outlet syndrome with non-pecuniary damage awards exceeding $75,000 involve plaintiffs with more serious symptoms of thoracic outlet syndrome and/or the addition of psychiatric or other injuries that are not present in the instant matter.

[101]     The cases handed up by the defendant in support of his position are:  Rutledge v. Jimmie, 2014 BCSC 41; Espinoza v. Espinoza, 2015 BCSC 762; Mowat v. Orza, 2003 BCSC 373; and Kovac v. Moscone, 2012 BCSC 845.  

[102]     The ranges the parties rely on are not too far apart.  The assessment in this case, while guided by other cases, is tailored to the specifics of the present case.  My review of the cases handed up and my findings lead me to assess damages under this head at $80,000. 

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