Chronic Pain And mTBI Cases: Recent General Damages Awards

Author(s): Deanna S. Gilbert

April 3, 2024


INTRODUCTION

As a Plaintiff lawyer, it can be an uphill battle convincing the Defence that general damages in chronic pain or mild traumatic brain injury (“mTBI”)/concussion cases are worth six figures.  In this paper, I will briefly summarize cases from the last three years wherein general damages of at least $100,000 were awarded for these types of cases.

Interestingly, over 15 years ago, in the 2008 decision of Rizzi v. Marvos, the Ontario Court of Appeal stated: “A review of more recent Ontario trial decisions indicates awards of non-pecuniary damages for fibromyalgia or chronic pain (a comparable affliction) in a wider range of $55,000 to $120,000.”[1]  Using Rizzi as a rough guideline, one would expect that, with inflation, we would see these awards in the range of $77,500 to $169,000 “these days”.  In fact, as this paper will show, I found many cases in the last three years where general damages exceeded this range, suggesting greater acceptance and understanding that “invisible” injuries like chronic pain and concussions can nevertheless have devastating life consequences.

CAVEATS RE: SCOPE OF PAPER

Please note:

  • This paper only considers reported decisions from January 2021 to March 2024, which means that jury awards during this period may not have be considered.
  • Given the relative recency of the decisions, I have not calculated inflation.
  • This paper deals strictly with “purely” chronic pain and mTBI cases.  As such, the cases considered do not include cases wherein, for instance, a Plaintiff suffered from chronic pain after sustaining a fracture or wherein a Plaintiff was diagnosed with an objective or more serious brain injury.
  • While this paper only identifies cases in which general damages were assessed at no less than $100,000, and while I did not keep a specific tally, I believe it fair to say to that I included more cases than I excluded.   Put otherwise, at least in respect of the types of chronic pain/mTBI cases going to trial, there were not too many cases wherein general damages were awarded in the five figures as of late.
  • This paper does not address any other headings of damages.

CASE SUMMARIES

  • Taylor v. Zents, 2024 ONSC 166 (CanLII)[2]
    • A Plaintiff [age 47 at date of loss (“DOL”)] suffered a concussion, chronic pain, and psychological impairments as a result of a motor vehicle collision (“MVC”).  Post-MVC, he returned to work for two years until he realized he had to stop working due to his impairments.  He was approved for CPP disability benefits.  The credibility of the Plaintiff was a focal point at trial.  The Defence made him out to be an exaggerator and fabricator.  The judge awarded general damages of $250,000.
  • Moustakis v. Agbuya, 2023 ONSC 6012 (CanLII)[3]
    • A Plaintiff (age 29 at DOL) suffered from chronic pain and psychological impairment as a result of an MVC.  She had pre-existing psychological issues.  Prior to the MVC, she worked from home as a “mystery shopper”.  Following the MVC, she did not continue that work but eventually began an eBay business.  The jury awarded general damages of $100,000.  The subsequent threshold motion was dismissed.
  • Addy v. Goulet, 2023 ONSC 1265 (CanLII)[4]
    • A Plaintiff (age 30 at DOL) suffered a concussion and psychological impairment as a result of a bocce ball incident at restaurant.  Post-incident, the Plaintiff got married, gave birth, continued working in the same field, and returned to most her prior activities (running, snowboarding, riding motorcycles, playing volleyball, etc.); however, she had to pace herself and her productivity was reduced.  The judge awarded general damages of $115,000.
  • Graul v. Kansal, 2022 ONSC 1958 (CanLII)[5]
    • A Plaintiff (age 57 at trial) suffered am mTBI (a diagnosis which was highly contentious at trial), chronic pain, and psychological impairments as a result of MVC.  Post-MVC, the Plaintiff was able to continue to engage in household and handy person tasks, gardening and lawncare, going on holidays, and engaging in some athletic activities (e.g. long walks).  He was not, however, able to return to work.  The judge concluded that the Plaintiff passed the threshold and awarded general damages of $225,000.
  • Sanson v. Paterson, 2022 ONSC 2972 (CanLII)[6]
    • A Plaintiff (nearly age 65 at trial) suffered an mTBI and psychological impairment as a result of a bicycle-MVC.  She did not seek medical attention on the date of loss.  In fact, she rode her bicycle the ten-minute drive home and first sought treatment the week after the MVC.  The Plaintiff was a lawyer whose income had been declining pre-MVC.  She continued to work, at a reduced capacity, for about three years post-MVC then stopped.  The judge awarded general damages of $250,000.
  • Waller v. Brown, 2022 ONSC 3510 (CanLII)[7]
    • A Plaintiff (age 46 at DOL/52 at trial) suffered from chronic pain and psychological impairments as a result of MVC.  She was discharged from the hospital the same day.  She returned to work a few days post-loss and continued to work for a year, after which time she stopped working.  The Defence argued causation, including pre-existing issues (headache and right hip pain) and post-loss issues (several falls, alcohol use, and alleged prescription drug misuse).   The judge concluded that the Plaintiff passed the threshold and assessed general damages at $100,000.
  • Alison Braks v. Dundeal Canada (GP) Inc, 2022 ONSC 3978 (CanLII)[8]
    • A Plaintiff (age 35 at DOL/44 at trial) suffered a concussion, headaches, chronic pain, and psychological impairment following a slip and fall.  She did not go to hospital on the date of loss.  Although the Plaintiff switched jobs several years post-loss, she was able to continue to work full-time hours (at a different job).  The judge found the Plaintiff had a tendency to hyperbolize, but awarded general damages at $115,000.
  • Haji v. Infinity Health Centre, 2021 ONSC 5077 (CanLII)[9]
    • A Plaintiff (age 34 at trial) suffered concussion-like symptoms and pain in her neck, shoulder and back as a result of an electric shock incident.  Post-incident, the Plaintiff had returned to cycling 12 km/day, running a 10 km race, and travelling overseas.  She was observed engaging in activities on surveillance, but the Plaintiff explained she had “good days and bad days” and that she sometimes paid for her activity later with pain.  For a period of time between the date of loss and trial, the Plaintiff had been consistently working full-time hours as a physiotherapist (her pre-incident vocation).   The judge concluded that: 1) the Plaintiff had ongoing complaints as of trial; 2) By five years post-incident, the Plaintiff had improved to the point that she was able to function with very few restrictions; and 3) she stopped working the year of trial not due to her symptoms but to prepare for trial.  The judge awarded general damages of $100,000.
  • Solanki v. Reilly, 2021 ONSC 6694 (CanLII)[10]
    • A Plaintiff (age not indicated, but I am estimating 30’s-40’s as his 62-year-old mother was in vehicle) suffered from chronic pain and psychological impairment as a result of MVC.  The Plaintiff had chronic back pain prior to the MVC.  He returned to work three months post-loss but after around five years could no longer persist through the pain and went on disability.  The judge assessed general damages at $110,000.
  • Legree v. Origlieri, 2021 ONSC 7650 (CanLII)[11]
    • A Plaintiff (age not indicated but she had been in the vehicle with her children at the time of the loss, so I am estimating 30’s-40’s) suffered post-concussion syndrome, traumatic headaches, chronic pain syndrome, and “mild” psychological impairment as a result of MVC.  She obtained a part-time job post-MVC.  The judge determined that she passed the threshold and assessed general damages at $100,000.
  • Higashi v. Chiarot, 2021 ONSC 8201 (CanLII)[12]
    • A Plaintiff (age not indicated but I am estimating 40’s) suffered a mild TBI, chronic pain, and psychological dysfunction after an MVC.  The Defence attacked her credibility and argued that she was exaggerating.  The judge awarded $225,000.00.

CONCLUSION

The point to be taken from this paper is that while there will always be chronic pain and/or mTBI cases in which general damages are assessed at less than six figures, by no means should such an assessment be assumed.  Where the evidence establishes a meaningful change in the Plaintiff’s life, the absence of “objective injuries” (a favourite term used by Defence-retained medical experts) will not necessarily diminish the value of the Plaintiff’s general damages.


[1] 2008 ONCA 172 at para. 68 (CanLII).

[2] DOL Mar. 2015; decision released Jan. 2024.

[3] DOL Jan. 2016; threshold decision released Oct. 2023.

[4] DOL Sept. 2015; decision released Feb. 2023.

[5] DOL Dec. 2017; decision released April 2022.

[6] DOL Oct. 2012; decision released May 2022.

[7] DOL Oct. 2015; decision released June 2022.

[8] DOL May 2012; decision released July 2022.

[9] DOL Nov. 2013; decision released July 2021.

[10] DOL Dec. 2012; decision released Oct. 2021.

[11] DOL Aug. 2016; decision released Nov. 2021.

[12] DOL Sept. 2012; decision released Dec. 2021.

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