In this car accident injury case, a 28-year-old dental assistant, injured her neck, left shoulder, and mid‑back developing myofascial pain syndrome and thoracic outlet syndrome, TOS.
Of particular interest was the award of $135,000 for pain and suffering and the $60,000 in-trust award for the increase in household chores for the spouse husband.(MacLeod v. Whittemore, 2018 BCSC 1082).
The car accident occurred when defendant’s vehicle turned left colliding with the front bumper of the claimants vehicle causing considerable damage to both vehicles. Liability was admitted by the defendant.
Thoracic Outlet Syndrome
The judge found that the claimant did display symptoms of thoracic outlet syndrome, at least some of the time. For prognosis and treatments vascular surgeon Dr. Salvian said that exercise will exacerbate her symptoms to the point of failure.
The judge factored in a positive contingency for the possibility that she will improve and the recognition that the odds are not in her favour. The claimant had not achieved her maximum level of recovery yet and there were numerous other therapies to try with chance of improvement. However the judge found there was only a 30% possibility her symptoms would ever improve.
In awarding $135,000 for pain and suffering the judge had this to say,
 I agree with the plaintiff’s submission that she has gone from a healthy, robust, active member of society with a bright future in the workforce to a person whose main job is managing her symptoms; her pain is near constant and only varies by degrees and areas of involvement. She faces real challenges caring for a newborn baby. Her recreational life has become all but non‑existent. Her social life has been affected. The relationship with her husband has been affected. Some of the plaintiff’s reduced activities would have come about in any event due to her marriage and starting a family.
The claimant’s spouse had to do a lot more housework than he would have but for the car accident. Claims for housekeeping tasks performed by other family members exists even if the services have been replaced gratuitous by family members. The husband testified that he spends an hour a day cleaning after working a 12‑hour shift.
The claimant sought $84,098.09 and the defendant said that $20,698.49 was more reasonable. The judge ordered $60,000. Although the judge accepted the replacement cost may be $5,125 per year, there will be some years when the claimant has a nanny and cleaning services which will reduce the need for this additional claim. The judge also factored in some positive contingencies for the possibility that the claimant will be able to gradually increase her light housekeeping capacity.
The total award can be summarized as follows:
Pain and Suffering: $135,000
Past Wage Loss: $163,236
Loss of Earning Capacity:$625,000
Child Care: $80,000
Cost of Therapy: $40,000
Botox Therapy: $8,000
Progressive Goal Attainment Program: $1,800
Housekeeping Costs: $20,000
Housekeeping Capacity – In Trust Claim: $60,000
Out of Pocket Expenses: $20,963
The claimant also requested leave to make submissions on an income tax gross-up and management fee as well as costs.