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Compensating Subjective Pain

Car Accident Lawyer Surrey

Car accidents often result in obvious physical injuries – for example, broken limbs caused by the sudden impact. The law is clear that you can recover damages from the person at fault, including compensation for pain and suffering.
But occasionally an accident can result in more subtle, less obvious injuries. These cases are often more difficult (and sometimes impossible) to verify objectively. Even though medical examinations may not pinpoint a physical cause, you may still experience ongoing pain, sometimes long after the accident and after the normal recovery period has gone by.
Can you still recover damages for your pain, suffering and loss of enjoyment of life when your pain is subjective only? Yes.

Take the recent case of a fit and active 23-year-old Surrey woman, whose car was rear-ended in an accident in September, 2006. The only minor damage to her car was to the rear bumper. While she was somewhat in shock and felt “a little sore,” she was able to exchange insurance information with the other driver and drive herself home. The next day, she visited a walk-in medical clinic and was given a prescription for shoulder and upper back pain.
Over the next four years, she experienced and reported persistent pain in her shoulder and mid/lower back on the left side, which radiated to her left hip. For the first year after the accident, she went for 13 physiotherapy treatments. However, most of the medical examinations and tests – including a CAT-scan, MRI and X-rays – couldn’t find any direct link to a physical injury causing her pain.
Her doctors determined she had suffered soft tissue injuries in the accident. Although the normal recovery period for those tissues to heal had passed, she continued to find it uncomfortable to sit for long periods of time, couldn’t play hockey or volleyball anymore (though she could swim and do yoga), and was more irritable due to her ongoing discomfort. Although she could and probably would improve over time by following a structured exercise program, she would never be able to regain her pre-accident level of fitness.
The BC Supreme Court rejected the defence argument that she was exaggerating her symptoms or pain. The court found her to be a credible witness, whose testimony was consistent with the reports of her physicians and the evidence of other witnesses.
“The absence of objective physical findings is not determinative of whether [she] continues to suffer from chronic pain,” said the judge. “Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of [her] soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms.”
The court also rejected the defence argument that the severity of her reported injuries was inconsistent with the minor damage to her car. The negligible vehicle damage was only one factor to be considered, said the court; the extent of her injuries was to be assessed on the evidence as a whole.
After considering all the testimony, the court concluded that she was entitled to compensation. She was awarded $40,000 for her pain and suffering, plus another $22,000 for lost future earnings and care.
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.

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