$70,000 Awarded for Soft Tissue Injury to Shoulder Area & Loss of Two Teeth in ICBC Case

In the recently published case of Engqvist v. Doyle, 2011 BCSC 1585, Mr. Justice Rogers awarded a total of $70,000 in damages for pain, suffering and loss of enjoyment of life to a 74-year-old plaintiff injured in motor vehicle accidents occurring in August and December of 2007.  The plaintiff sustained soft tissue injuries to her shoulder area and two of her teeth were damaged and needed to be removed.
Physical Injuries Not “items on a grocery list”:
The plaintiff’s lawyer submitted that the plaintiff should be awarded $95,000 for her soft tissue injuries and an additional $10,000 for her dental injuries.  In his reasons, Justice Rogers explicitly rejected this approach to quantifying non-pecuniary damages:
[28]         The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.
[29]         I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.
[30]         I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.
Plaintiff’s Future Care Not Confined to Public Health Care:
An interesting aspect of this case is what the court had to say about whether the plaintiff could seek compensation for the cost of obtaining further treatment for her injuries privately, as opposed to through the public health care system.  The court’s answer was that in certain cases an award for private treatments was proper.
In her lawsuit the plaintiff sought the cost for having nerve blocks and rhizotomies (the surgical cutting of spinal nerve roots for the relief of pain) preformed in a private clinic.  On that point, Justice Rogers said the following:
[50]         The question in this case comes down to whether the plaintiff ought to mitigate her cost of future care by confining herself to the public health care system. That question can only be resolved by determining whether it is reasonable for the plaintiff to submit to the wait times and vagaries of the public health care system, thus increasing the length of time before she will know if a rhizotomy will reduce her pain. Private provision of medial blocks will considerably accelerate her coming to know whether a rhizotomy will likely help her.
[51]         Reasonable in this context must be measured by an objective standard. What is reasonable in a given case must take into account not only the wait times involved, but also the degree of the plaintiff’s pain while sitting out those wait times and the effect that that pain will have on the plaintiff’s enjoyment of life. A minor ache in one’s little finger would be unlikely to be sufficient to underwrite expensive privately funded health care while a case of surgically curable paraplegia probably would.
[52]         Accepting as I do the plaintiff’s evidence concerning the pain she has and its interference with her everyday life, I find that the plaintiff’s pain and its interference with her enjoyment of life is sufficient to merit acceleration of treatment via funding of private health care.
[54]         I find that the plaintiff is well-motivated to undergo treatment to alleviate the symptoms in the soft tissues over her right shoulder blade. I find that the plaintiff is also well-motivated to continue to live her life as normally as possible – that is to say: she is not inclined to be stymied by obstacles. The plaintiff’s personality is such that she prefers to do much as she normally does, such as going to Arizona for the winter months, rather than to gear her life to the vagaries of litigation or the health care system. The plaintiff is, for her part, entitled to make that choice. The court is, for its part, entitled to take that choice into account when it assesses the likelihood of the plaintiff actually undergoing privately funded medial nerve blocks and, if those tests reveal that a rhizotomy was warranted, a rhizotomy itself.

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