A recently reported case, involving a 13-year old girl that was injured in a motor vehicle collision, illustrates why it is important to be consistent in following your doctor's advice with respect to physiotherapy, active rehabilitation, and your own self-directed exercises. This is especially important where the vehicle damage is minimal, and ICBC alleges that the collision was so minor that no injury could have resulted from the forces of impact.
At trial, approximately seven years after the collision, in what was described as a low velocity collision, the Plaintiff was seeking $15,000 to $25,000 in pain and suffering damages while the Defendant submitted that $3,500 to $7,000 was the appropriate range. Mr. Justice Ball held:
[27] There is in this case a pattern beginning at the time of the accident of stiffness and pain in Ms. Lessey’s low back which initially included some dizziness or nausea. The dizziness or nausea resolved within days of the accident. In this case, Ms. Lessey consistently reported stiffness and pain with some improvement initially but regretfully experienced a low level of pain and stiffness persisting over a period of years becoming intermittent in 2011. Clearly Ms. Lessey is not a malingerer. She has worked with exercise and vigorous activity encouraged by her physiotherapist and two doctors but has been unable to get complete resolution of the back pain caused by the accident. I am satisfied that from the evidence which I accept in this case, there is a convincing body of evidence which overcomes the improbability that pain will continue in the absence of objective findings well beyond a “normal recovery period.” In this case, Ms. Lessey suffered an injury which despite the best efforts of all involved did not heal within a “normal recovery period”.
[28] Ms. Lessey described her experiences with pain and stiffness following the accident in clear and simple language. The evidence was consistent she had no back pain symptoms prior to the accident. I find she did not embellish nor exaggerate her description of the lower back pain which she experienced. It would have been difficult for her as a participant in team sports to ask coaches to remove her from games and no doubt an embarrassing experience with other players. That said, she was a model of mitigation; she took no time off work and substantially continued an active exercise program including yoga activities and strenuous effort to reduce the pain which she experienced in her lower back and to rehabilitate herself. I find her to be a credible reporter and historian of her injury.
[29] I found her to be a credible witness whose evidence was significantly tested in a persistent cross-examination but was no less credible in the result. Her evidence of back pain was also supported by evidence of her mother, who participated in exercise programs with Ms. Lessey. This was a case where the quantity of medical-legal reporting was less than some other cases but, as I noted above, I found Dr. McKenzie to be a particularly helpful reporter of the circumstances and diagnosis in this case. In this circumstance, his single well-considered report was helpful.
The Court awarded $16,500.00 in non-pecuniary damages.
