What is the value of pain and suffering caused by chronic migraine headaches? What if the injured party is young, fit, and athletic before he/she sustains the injury?
In last week’s case of MacDonald v. Joseph (2015 BCSC 1461) the plaintiff was a 29 year old passenger of a vehicle in a head on collision. He sustained numerous soft tissue injuries, which disabled him completely from working for 10 months. He returned to full time work 18 months after the crash. Prior to the crash he had been an “extremely fit, active, hardworking and dedicated father and husband with a strong worth ethic and history of community service”. At trial 4.5 years post-crash, Madame Justice Dillon assessed the value of his pain and suffering as $90,000.00, providing the following reasons:
[21] The plaintiff had substantially recovered from the accident after 18 months but he continued to suffer and continues to suffer accident caused symptoms related to migraine headaches, lower back pain and occasional neck pain. The headaches suffered as a result of the accident are of a different nature and consistency than any headaches before the accident which dated back to 2009 and were not medically treated. The treatment for chronic headache related to head and neck trauma is difficult and often unhelpful, according to Dr. Robinson who considered that the plaintiff was not a candidate for preventative medications. He expected the plaintiff to have recurring headaches for the next three to five years with a definite risk for persisting headaches indefinitely. These would not be expected to be a “substantial impediment” in continuing with the plaintiff’s janitorial career.
[22] Decisions in similar cases presented by counsel suggest a range for the non-pecuniary damages suffered by the plaintiff from $55,000 to $100,000. In my view, the plaintiff here suffers headaches more frequently at present than the plaintiff in Sandhu v. Gabri, 2014 BCSC 2283. The nature of his job doing heavy physical work places him in a more precarious position at work than the plaintiff in Rutledge v. Jimmie, 2014 BCSC 41. The plaintiff was off work for a considerably longer period than the plaintiff in Wepryk v. Juraschka, 2012 BCSC 974. At the same time, the plaintiff is not in constant pain as was the plaintiff in Smith v. Fremlin, 2013 BCSC 800 and has not developed psychological or pain disorders as a result of the accident as the plaintiff did in Roth v. Hes, 2015 BCSC 161. Nonetheless, the plaintiff’s prognosis of persisting debilitative headaches into the future with unresolved low back and neck pain more than four years after the accident place him at the higher end of the range. Non-pecuniary damages are awarded in the amount of $90,000.
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