TYPES OF DAMAGES - For personal injuries - Non-pecuniary loss - Pain and suffering - Limits on recovery

Law360 Canada (March 29, 2023, 6:43 AM EDT) -- Appeal by the plaintiff Callow from a non-pecuniary damages award of $35,000 to compensate him for injuries sustained in a motor vehicle accident. He argued the damages awarded by the trial judge was inordinately low. The appellant’s vehicle was struck from behind by a vehicle owned by the respondent Hogan and driven by the respondent Wang. At the time of the accident, the appellant was 20 years old and in his third year of university. He was 27 at the time of trial. There was no dispute the accident caused moderate soft tissue injuries to the appellant’s neck, upper back, and shoulders which, despite treatment, remained symptomatic. There were no pre-existing issues with his neck, back, and shoulders. The trial judge found that the appellant continued to suffer from neck, shoulder and back pain. He was able to play recreational soccer, jog, and weightlift but had to monitor his physical exertion for pain. He often experienced some degree of upper back/shoulder discomfort after exercise or exertion. He sometimes had discomfort from prolonged sitting and working on a screen. As a gardening enthusiast, the appellant had to be careful with prolonged heavy work as well as with household chores. The trial judge found the likelihood of future material improvement to be poor, but not impossible. The appellant sought non-pecuniary damages of between $70,000 and $88,000. The respondents submitted the award should be between $30,000 and $40,000. The judge stated that the cases the appellant cited, while similar in terms of many of the Stapley factors, involved more pain and associated functioning difficulties than the appellant’s case. Applying the Stapley considerations to this case, the trial judge found that the appellant’s circumstances fell into the $30,000-40,000 range. He was therefore awarded $35,000....
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