Although each case will need to be considered on its own facts to determine an appropriate range of damages, a recent decision in Sdrakas v. Dawe-Cook, 2017 BCSC analyzes the issue of causation and whether the Plaintiff sustained a right shoulder injury, and more specifically a rotator cuff tear, as a result of the motor vehicle collision dated Oct 2, 2013.
An analysis was based on consistent testimony that reveals that a rotator cuff tear would result in immediate onset of pain symptoms.
The position taken by the defence in this claim is that some or all of the tears pre-dated the collision. This was based on the evidence provided by a defence orthopaedic surgeon who concluded that although the Plaintiff presented with a chronic rotator cuff tear, some or all of the tears “might” have been pre-existing due to the following observations:
- The Plaintiffs age (64 at the time of the collision);
- An x-ray taken 5 months post collision which identified sclerosis in the shoulder which had been present for years;
- the delayed symptoms stemming from the rotator cuff tear;
- shoulder complaints were not made until 6 months prior to the collision; and
- motor vehicle collisions were typically not the cause of rotator cuff tears.
Further evidence presented by the Plaintiff and defence concluded that there was in fact a rotator cuff tear. The issue was whether the cause of such injury was the motor vehicle collision of Oct. 2, 2013.
The evidence was reviewed to determine the pattern of complaints made by the Plaintiff, which is always a helpful exercise – and a chronology of the reported symptoms can assist in this regard.
Were the complaints made post collision or were the complaints reported much later that the date of the subject motor vehicle collision?
The evidence was clear that the Plaintiff reported symptoms of shoulder pain, initially on October 4, 2013 (2 days after the collision), including pain to the right neck and back.
The Court concluded that the Plaintiff had sustained a rotator cuff tear, and that the Plaintiff met the burden of proving that said injury was caused by the negligence of the Defendant.
The Plaintiff relied on the following cases that offered a range of damages between $90,000 to $160,000:
- Mattice v. Kirby, 2014 BCSC 657 $90,000
- Power v. White, 2010 BCSC 1084 $135,000
- Cornish v. Khunkhun, 2015 BCSC 52 $160,000
- Pistruga v. Garcia, 2014 BCSC 1795 $110,000
The Defendant relied on the following cases that offered a range of damages between $55,000 – to $65,000:
- Zhang v. Ghebreanenya, 2015 BCSC 938 $65,000
- Yip v. Saran, 2014 BCSC 1283 $55,000 plus $10,000 for loss of housekeeping capacity
- Buckle v. Raworth, 2015 BCSC 989 $65,000
Conclusion
The Plaintiff in this case was deemed to be a credible witness. The Court awarded non-pecuniary damages in the sum of $110,000 which included an amount for loss of housekeeping.
[75] I have considered each of the authorities. To my mind, the fact that I have found the rotator cuff injury to have been caused by the negligence of the defendants is a factor which militates in favour of an award of damages under this head which is notably in excess of that which the defendants propose.
[76] At the same time, given the circumstances of this case, I am unable to find that the extent of the injuries and the corresponding award of damages is in the higher range sought by the plaintiff.
[77] It is trite to observe that the facts of each case will be unique. In the matter at hand, it is my view that an appropriate award of damages under this head, and also taking into account that there has been some diminishment of homemaking capacity, is $110,000.
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