Man sustains moderate soft-tissue injury to neck, upper back, shoulders
The range for non-pecuniary damages should be $50,000 to $60,000 for someone in their 20s who suffered moderate soft-tissue injuries, who stayed symptomatic for years, and who had a poor likelihood for future improvement, a recent ruling said.
In September 2014, a vehicle owned or driven by the respondents struck the appellant’s vehicle from behind. The accident caused moderate soft-tissue injuries to the appellant’s neck, upper back, and shoulders.
At trial, the respondents admitted liability. The appellant argued that someone in his circumstances was entitled to damages in the range of $70,000 to $88,000 for the injuries caused by a motor vehicle accident.
In June 2021, the B.C. Supreme Court held that the appellant’s circumstances fell into the $30,000 to $40,000 range based on the factors in Stapley v. Hejslet, 2006 BCCA 34. The trial judge decided to award the appellant non-pecuniary damages of $35,000.
The judge’s decision made the following findings:
- Sports and exercise were always a part of the appellant’s life
- He continued to suffer from neck, shoulder, and back pain after the accident
- He had occasional headaches and likely had driving anxiety, but these were not material problems for him
- He infrequently used heat, ice, and painkillers to address pain
- He dedicated effort to getting better
- Based on his age, fitness, and dedication, he had a real and substantial possibility of improvement, though it was unlikely
- His likelihood for future material improvement was possible but poor
On appeal, the appellant argued that the amount of damages awarded was inordinately low. He cited Lambert v Dong, 2021 BCSC 249, which reflected the lower end of the range that he wanted, namely $60,000 to $75,000. The respondents disagreed. The proper range was $30,000 to $40,000, they said.
Award of damages increased
In Callow v. Van Hoek-Patterson, 2023 BCCA 92, the B.C. Court of Appeal allowed the appeal and determined that the appropriate award of non-pecuniary damages was $55,000.
The appellate court described the appellant’s situation as follows. He was in his 20s when the accident injured him. He received treatment, and his condition improved. He could participate in previous activities as long as he exercised caution and monitored physical exertion for pain. However, his likelihood of future improvement was poor. His injuries stayed symptomatic. He still had some pain flare-ups.
For a person in this situation, the award of $35,000 for non-pecuniary damages was inordinately low, the appellate court concluded. Instead, the appropriate range was $50,000 to $60,000, the court said. The mid-point of that range – $55,000 – was fair to both parties, the court added.
In reaching this conclusion, the appellate court considered the decisions of Lumley v. Balilo, 2013 BCSC 1052 and Christoffersen v. Howarth, 2013 BCSC 144. More recent decisions had more persuasive value in deciding the proper range, the court said.
Finally, the appellate court commented that the parties’ counsel failed to provide the trial judge with the most relevant, up-to-date, and helpful authorities. Instead, the lawyers took “highball” and “lowball” approaches, the court said.
