This whiplash injury claimant was injured at a deli in Langley, British Columbia and claims damages for pain and suffering; Past loss of earning capacity; Loss of future earning capacity; Cost of future care; and Special damages She was a customer standing in the store when a vehicle crashed into it. The claimant was pushed into the wall of the deli, breaking the drywall. Fault was admitted (Starchuk v. Hannig,2016 BCSC 1655).
The primary issue in this case was the nature and extent of the claimant’s injuries and the damages owed for them. After a two week trial the judge found the claimant had suffered whiplash soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. The Supreme Court Judge also accepted that the claimant:
1. will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;
2. would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and
3. has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her.
Compensation for pain and suffering, or non-pecuniary damages, is awarded to compensate claimants for the loss of enjoyment of life they experience and will experience as a result of injuries. The effects of this car accident on the claimant were significant and more than whiplash and included somatic symptom disorder which is a new term for a somatoform disorder. Her injuries caused chronic pain, drastically altered her lifestyle for the worse, and prevented her from participating in an industry and business she spent a year before the car accident developing.
The judge considered the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in awarding $135,000 for pain and suffering.
The total award was over $400,000 and is summarized as follows:
Pain and Suffering $135,000.00
Past Loss of Earning Capacity $50,000.00
Future Loss of Earning Capacity $150,000.00
Future Care Cost
Pain Management $5,000.00
Personal Trainer/Physiotherapist $1,700.00
Post-Traumatic Stress Disorder
Specific Therapy $10,000.00
Ergonomic Assessment and Support $700.00
Adaptive Aides & Equipment $1,222.00
Psychiatric Medication $500.00
Out of Pocket Expenses $8,418.70