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“Pain and Suffering” Compensation when Minimal Interference with Life

I still have ongoing symptoms, but they are interfering only minimally with my life.  What level of compensation for “pain and suffering” is fair?

In the case of Gordon v. Ahn (2016 BCSC 765) the 19 year old plaintiff was injured in a 2009 crash. She suffered pain in her back, had issues with her joints making crackling noise, and pain if she stood too long. By the time of the 2015 trial, some of her symptoms had improved but Ms. Gordon still had what she described as some bad and good days. Complicating matters, she had suffered some new injuries to her back while participating in recreational activities. Justice Bowden awarded her  $50,000 in “pain and suffering” compensation giving the following reasons for judgement:

[81]         In April 2011, Dr. Badii was of the opinion that the plaintiff might experience some degree of lower back pain for a long period of time in spite of treatment. I note that Dr. Badii was not aware of the plaintiff’s clinical course of recovery after 2011. When he saw the plaintiff on April 14, 2011, he reported that there were no inflammatory causes of back pain and found no abnormal activity in the lumbar spine to explain her back pain. He said that once the plaintiff’s depression was ruled out the prognosis for back pain would improve. He said that it was important to look at the activities of the plaintiff at work or recreationally to determine if her functioning was good. The evidence is that the plaintiff has been working successfully and engaging in active recreation since 2011 which I consider to be indicative of good function.

[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally.

[83]         Any continuing symptoms experienced by the plaintiff may well be as a result of her recreational activities which led her to see Dr. Fyfe on July 22, 2013 after she had flipped over in a jet ski and suffered injuries to her ribs and then on January 30, 2014 after she had fallen while snowboarding and hurt her back.

[107]     In Lees v. Compton, 2013 BCSC 1015, the 20 year old female plaintiff suffered injuries resulting in pain in her head, neck, shoulders and back. Her lower back pain resolved within 12 months but continued between her shoulder blades, mid-back and upper back along with related headaches. She was likely going to be left with her symptoms for the long term and the trial judge found that her pain and suffering would continue into the foreseeable future. She was no longer able to ski or snowboard but it appears that she was able to participate in a 5 or 10 km run. She was awarded $45,000 in non-pecuniary damages.

[108]     Non-pecuniary damages of $50,000 were awarded to a 17 year old female plaintiff in Rezaei v. Piedade, 2012 BCSC 1782. She suffered pain in her shoulders, arm, neck, back, ankle and both wrists. Some of the pain resolved in about 6 months but the prognosis was that she would suffer residual difficulty with her neck and back, would need long term assistance with headaches and anxiety and would unlikely return to her pre-accident status.

[109]     In Leong v. Besic, 2015 BCSC 2256, the plaintiff was a 19 year old female who had just completed her first year of university at the time of the accident. As in the case at bar, the plaintiff had an active life, and after the accident was able to participate in some recreational activities. She continued to suffer from neck, back pain and headaches but the trial judge considered that the pain and symptoms were mild. She was awarded $40,000 in non-pecuniary damages.

[110]     As in Leong v. Besic, I have concluded that the plaintiff’s pain and suffering caused by the accident has minimally interfered with her life and any continuing symptoms will more likely be at the lower end of the spectrum of pain than the upper end.

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.

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