I have a lot of pain, but I’ve pushed through it to more or less get back to my work and hobbies. Will I still be compensated? What if I can’t play baseball as well as I used to be able to, and I can’t work in quite the same job?
In the recent British Columbia Supreme Court case Brown v Mitchell (2017 BCSC 125), the court considered the non-pecuniary damages for a young woman who continued to suffer significant pain in her lower back after two car crashes a few years earlier.
The plaintiff was a young woman who had done everything she could to try to return to a normal life – she resumed playing competitive baseball, but used a ice-pack on her back to relieve her pain throughout the game. Surveillance evidence (presumably introduced by the defendant) actually helped convince Justice Ball of the plaintiff’s limitations – while the plaintiff was clearly someone who was “attempting to achieve the positive benefits of sporting activity,” it was “apparent from her movements or her lack of certain movements that the plaintiff was at best limited and struggling with certain athletic movements.”
She had continued at her work (after an initial number of months away) but had taken on a more junior receptionist role rather than the dental assistant work she had loved and had trained for (at some considerable expense). In her new role, she had to take on unhappy billing conversations with clients rather than the “helping people” role of a dental assistant, which was what had drawn her to the field in the first place. She had also suffered an injury to her eyes in the crash, and required specialized glasses to focus her vision on text on a computer screen. Her eye condition and her pain were both unlikely to ever improve. She was awarded $120,000.00 in general damages:
[43] At the end of the day the evidence generally supports the proposition that this plaintiff will not have a pain free future and that painful symptoms will persist.
[44] Mr. Pakulak testified that while the plaintiff had some abilities, she had demonstrated “functional limitations specific to prolonged repetitive below waist level work, intensive work sitting [i.e. with increased trunk flexion] and prolonged and repetitive overhead work”. That opinion would bring an end to a career as a certified dental assistant.
[45] On that basis, Mr. Trainor’s opinion that the plaintiff will require retraining is a more likely future for this plaintiff.
[46] The plaintiff has had to change her occupation from one she was highly successful at and had trained at some considerable expense to obtain. She remains with a significant debt which she will now have to pay off without the immediate expectation of an increased salary.
[…]
[48] Having reviewed the cases cited by counsel for both parties, I am satisfied beyond a balance of probabilities that the appropriate award of general damages in this case is $120,000.
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