Plaintiff Awarded $80,000 or Soft Tissue Injuries to Neck and Shoulder

soft tissue injuries can have last impacts in the courts

The case of FENNELL V. HIEBERT, 2010 BCSC 824 was released on June 11, 2010, and deals with injuries sustained by a plaintiff on January 30, 1998, when she was ten years old.

The plaintiff’s family was driving in a van together when they were rear-ended, causing their vehicle to careen into a roadside ditch. While the Court found that the plaintiff suffered mild to moderate soft tissue injuries to the neck and right shoulder, her symptoms only fully manifested once she became old enough to participate in strenuous physical activities, such as helping her father by lifting hay bales. Based on the combination of the injuries’ “permanence” and the mitigating fact that they would become apparent in only select situations of physical exertion, the Court awarded $45,000 in non-pecuniary damages.

While the plaintiff’s symptoms were ongoing and prevented her from engaging in strenuous physical activity such as carrying rocks, the Court found that the plaintiff was otherwise able to function normally. In particular, the Court discounted a cost of future care assessment which ignored the fact that the plaintiff was actually performing the vast majority of physical activities without the aid of medication or assistive devices. The Court held that evidence of what the plaintiff was capable of doing outweighed the evidence describing various expenses that would purportedly make certain tasks easier. The Court did award $15,000 under the cost of future care heading to provide the plaintiff with access to a gym and trainer.

The Court took notice of the fact that despite her “grit”, the plaintiff’s slight build suggested that she would not be expected to accomplish tasks associated with “lumberjacks”, and that therefore her ongoing injuries would not greatly interfere with any likely occupational tasks. However, the fact that the plaintiff had decided on a career in agrology, a field which involves the occasional lifting of heavy items such as rocks and field equipment, was sufficient to ground an award for loss of future earning capacity in the amount of $25,000. The Court arrived at this conclusion by referring to the requirement established in PERREN V. LALARI, 2010 BCCA 140 that there be “a real and substantial possibility of a future event leading to an income loss”. In this case, the fact that there was a “real and substantial possibility” of the plaintiff being required to lift heavy objects in her clearly defined career path was enough to allow for the loss of earning capacity award to be made.

In summary, the following damages were awarded:

Non-Pecuniary: $45,000

Cost of Future Care: $15,000

Loss of Future Earning Capacity: $25,000

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