Court Awards $50,000 For Pain and Suffering For Soft Tissue Injury
On February 21, 2007, the Plaintiff was riding in the front passenger seat of a vehicle driven by her friend, the Defendant. As the Defendant proceeded through an intersection, a van broadsided the driver’s side door of her vehicle. The impact was reasonably severe and caused significant damage to the left side of the Defendant’s vehicle. Although the Plaintiff was wearing her seatbelt, she claimed that the force of the collision caused the right side of her body to strike the interior of the Defendant’s vehicle.
The Plaintiff claimed that she injured her right shoulder, neck and mid back on the right side. She also experienced headaches following the accident. At the time of trial, the headaches, neck and back pain had substantially resolved. The Plaintiff claimed that her right shoulder, however, continued to cause discomfort. She stated that the shoulder pain persisted and meaningfully interfered with her comfort and her performance at work and in her personal pursuits.
As a result of her injuries, the Plaintiff claimed $65,000 in non-pecuniary damages, $200 in past loss of income from her part-time job, approximately $50,000 to $75,000 in loss of future earning capacity, $5,000 in cost of future care, and $2,365 in special damages.
Several medical specialists commented on the Plaintiff’s injuries. Aside from the headaches, back and neck discomfort, which eventually resolved after the accident, the court acknowledged the medical findings that the Plaintiff’s right shoulder pain may not resolve. A consistent theme in all the medical evidence was the need for the Plaintiff to engage in physical therapy. At paragraph 13 of its decision, the court noted that the plaintiff had not participated in consistent physical exercise, and had only engaged in two rounds of physiotherapy.
At paragraph 16, the court articulated a principle for assessing the plaintiff’s circumstances in the context of medical evidence:
The significance of these findings must of course be considered in light of the principle that it is the Court’s duty to examine the plaintiff’s circumstances, not in an absolute way, but rather in a relative sense. What is being assessed is the effect of the defendant’s responsibility for her situation – the difference between how she was prior to the injury and how she is now. In that vein, I note the evidence of the functional capacity evaluator who indicated that the plaintiff is a person of small stature: she is five feet tall and weighs approximately 120 pounds. As I understand the evaluator’s testimony, in the absence of the injury at bar and its effects, she is someone who would be expected to be capable of activity requiring medium-level strength.
In regard to non-pecuniary damages, the court held at paragraph 30 that:
In the present case, the headaches resolved quite quickly; the neck and back pain resolved, for the most part, within a reasonable time. The shoulder pain has, however, persisted and continues to cause discomfort. Although not certain, it seems reasonable to expect that this may not fully resolve. She may continue to experience that discomfort indefinitely. That is a relevant consideration.
Noting the shoulder pain interfered with the Plaintiff’s pursuits in softball, a sport in which she was especially gifted, as well as other pastimes, the court awarded the Plaintiff $50,000 in non-pecuniary damages.
In regard to past loss of income, the court accepted that the Plaintiff missed one week of part time work after the accident. It awarded $200 for her claimed loss.
The court concentrated on the Plaintiff’s loss of future earning capacity, noting the Plaintiff’s submission that she was possibly interested in becoming a licensed practical nurse (LPN). The court further noted the Plaintiff’s submission that the accident had rendered her less capable from earning income from all types of employment.
In analyzing the effect of the accident on the Plaintiff’s future employment prospects, the court held at paragraph 42 that:
The plaintiff has not proven that the injury has specifically affected her in a way that any particular occupation choice that would otherwise have been available has now been foreclosed.
Accordingly, the court awarded $35,000 in loss of future earning capacity.
In relation to cost of future care, the court recognized the Plaintiff’s claim for ongoing massage therapy and awarded $3,500 under this head of damages. It noted that, nonetheless, an appropriate routine of physical exercise would be appropriate based on the totality of evidence.
Under the head of special damages, the court held that the Plaintiff’s claim was reasonable and awarded $2,365 for physiotherapy and massage, medications, costs for attendances at medical and therapy appointments, and a fee paid for a season of softball in which she was unable to participate.
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