Most people hurt in a car accident who suffer soft tissue injuries – often known as “whiplash” – get better within a few months. But about 10% never recover. They go on to develop chronic pain and other complaints that continue indefinitely.

The big question is figuring out how much compensation a person in this position should receive. That can be a tough call.

Mrs. Joyce S. is a good example. She was hit from the side by a driver who went through a red light at a downtown Vancouver intersection. She suffered a variety of aches and pains, including pain in her jaw, neck, lower back and buttocks, plus shaking and numbness – complaints that normally would be expected to go away within a few months.

Unfortunately, they didn’t. She became depressed and anxious, and for a short time, she was addicted to medication. She also became forgetful and found it hard to concentrate and multi-task. Her problems significantly affected her ability to work as an employment counselor (she ended up quitting) and to enjoy life as before.

Liability wasn’t an issue here – the driver who went through the red light was clearly at fault. But as the judge said in her recent court case, Mrs. S and ICBC were “at opposite ends of the spectrum in terms of what injuries were caused by the accident and what compensation is legally justified.”
ICBC offered to settle for less than $200,000. Mrs. S claimed more than a million dollars. The judge ended up awarding $811,000 – a fairly high award by Canadian standards. Of this, $570,000 was for her loss of future earning capacity.

The judge concluded that Mrs. S was one of the 10% of people who don’t recover from soft tissue injuries, adding that she “will likely suffer chronic pain indefinitely and she will continue to experience cognitive and functional difficulties that will affect her life generally and her ability to work at a job of her choosing.”

What helped Mrs. S with her claim was the evidence presented in her favour.

ICBC had argued that much of her coping difficulties after the accident were caused by family stress, not the accident. They claimed her previous history showed she had trouble coping with stress, and they questioned if she would have been able to cope with full-time permanent employment even if she hadn’t been injured.

But the judge said there was “overwhelming evidence that she excelled at her job before the accident.” Two of her bosses described her abilities in glowing terms. A long-time customer also testified and spoke very highly of her abilities.

The judge reckoned that if the accident hadn’t happened, Mrs. S would have done well at her job, continuing to work full-time and advancing to a managerial position.

Many credible doctors – a medical pain specialist, psychologists specializing in pain and neuropsychology, a psychiatrist and a physical medicine specialist – also testified on her behalf. The judge accepted their evidence that Mrs. S suffered chronic pain caused by the accident plus cognitive and psychological difficulties that were related to the pain (not family stress).

The bad news is that even something as minor as soft tissue injuries can sometimes have significant lasting effects. But perhaps it’s some consolation knowing that financial and other losses may be compensated in appropriate cases.

Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.