What Are Chronic Pain and Mild Traumatic Brain Injuries Worth in a Non-Jury Setting?

It is not unusual or uncommon for plaintiffs who are suffering from soft-tissue injuries resulting in chronic pain and a mild traumatic brain injury (“TBI”), to have all subjective complaints. These types of injuries do not reveal themselves through imaging, unlike a broken bone. 

The lack of objective evidence available to substantiate such complaints results in a plaintiff’s credibility often being a paramount consideration in determining what compensation a plaintiff may be entitled to.

An award for general damages depends on the experience of each individual, both in terms of physical and psychological suffering. An amount for general damages should restore a plaintiff to the position they would have enjoyed but for the accident, to the extent that money can do so. 

Proven Results in cases involving chronic pain, mild TBI, and psychological impairment

The focus of this article is on general damages only in cases involving a combination of chronic pain, a mild TBI, and psychological impairment. 

Reported court decisions serve as a guide for the range of general damages in cases involving these types of injuries. Using a sample of more recent cases, damages for pain and suffering (not adjusted for inflation) were awarded as follows:

Taylor v. Zents, 2024 ONSC 166 $250,000

Meade v. Hussein 2023 ONSC 1000              $200,000

Graul v. Kansal 2022 ONSC 1958 $225,000

Sanson v. Paterson, 2022 ONSC 2972           $250,000

Higashi v. Chiarot 2021 ONSC 8201             $225,000

These cases are discussed below.

Taylor v. Zents, 2024 ONSC 166

Paul Taylor (“Taylor”) was involved in a rear-end motor vehicle accident in March 2015. He was at a full stop when struck by a vehicle travelling at 80 km/hour. The impact resulted in his vehicle being propelled forward a considerable distance and rolling over. Despite the seriousness of the accident, he did not attend to the hospital on the accident date. 

Taylor was 47 at the time of the accident. He was married and helped raise his wife’s children. He was an engaged member of his family, always planning trips and activities. He shared the household responsibilities with his wife. 

Taylor was physically active before the accident. He was an avid cycler and would also play hockey, swim, run, and go fishing. He rode a motorcycle and dirt bike.

Before the accident, Taylor enjoyed a long career in the film and television industry. He was self-employed. His main job was to keep the camera focused during a shot. His job required long hours, attention to detail, and was physically demanding.  

In the accident, Taylor claimed to have sustained a TBI, chronic dizziness, and adjustment disorder. 

Taylor was able to return to work for about two years after the accident, although he made many costly errors, some of which put colleagues around him at risk of injury. Taylor attributes these mistakes to his accident-related impairments. He never returned to work after this two-year period. 

After the accident, Taylor tried to do things that he previously enjoyed such as cycling and dirt biking but this would trigger a worsening of his symptoms.  

At the time of trial, he mostly spent his days laying around the house, was quick to anger, felt less “on the ball”, and preferred not to socialize.  However, he was able to be the main caregiver of his ailing father to ensure that his father was not placed in a retirement home.

At trial, the focal point was Taylor’s credibility. The defence made him out to be a liar and mastermind who pulled the wool over various treating physicians’ eyes.  The defence pointed to inconsistencies and exaggerations in symptoms reported to doctors. 

Justice Casullo awarded Taylor general damages of $250,000. When factoring in all damages claimed by Tylor, he was awarded over $1,000,000.  This was a judge alone trial.  

Meade v. Hussein 2023 ONSC 1000

Melanie Meade (“Meade”) was injured in a rear-end motor vehicle accident in May 2014. 

Meade claimed to have suffered mainly a TBI, post-concussion syndrome, soft-tissue bodily injuries resulting in chronic pain, and psychological injuries. 

Mead’s work history included mainly sporadic small business ventures with periods of unemployment. About a year before the accident, she had started up her own business, which made minimal earnings leading up to the accident. 

After the accident, she continued to work but eventually had to wind down her business, which she reported was due to her accident-related impairments. She also made various other failed attempts to return to other positions of employment. 

Causation was seriously disputed at trial. The defence pointed to other factors to explain Mead’s condition. For example, they highlighted Mead’s pre-existing impairments with psychological overlap, a non-accident-related diagnosis of severe sleep apnea, and other life events that would result in psychological upset.

Justice Bale awarded Mead general damages of $200,000. When factoring in all heads of damages claimed, Mead was awarded over $1,500,000.  This was a judge alone trial.  

Graul v Kansal 2022 ONSC 1958

In December 2017, Jonathan Graul (“Graul”) was involved in a serious head-on motor vehicle collision. He was 53 at the time of the accident, married, and had three adult sons. 

Before the accident, Graul enjoyed fishing, boating, sports, and engaged in various handyman tasks around his home.

He was in his 19th year of employment with the City of Guelph in the electrician field. He had a supervisory role at the time of the accident. His job was split 50/50 between desk and physical work. 

Graul was in excellent health and physically fit before the accident. In the past, he had sustained head traumas from other incidents but not to the level of seriousness that interrupted his work, daily activities, required ongoing treatment or resulted in a lawsuit.

As a result of the accident, Graul claimed to have suffered mainly a TBI, post-concussion syndrome, soft-tissue bodily injuries resulting in chronic pain, debilitating headaches, and psychiatric impairment.

After the accident, Graul reported that he was unable to drive, engage in sports, participate in family events to the extent he would have liked, was emotional and would lose his temper, would confuse easily, had difficulties with concentration, and would lose his balance. 

Graul also reported that he was also unable to participate in outside maintenance and handyman tasks to the extent that he did before the accident. He was able to go on a vacation soon after the accident but reported that he slept most of the time. 

Multiple rounds of surveillance was obtained by the defendants which showed Graul repeatedly carrying out yardwork for extended periods, carrying out handyman tasks such as constructing a back-step, refinishing a table, and other small jobs around his home. He was also shown carrying out vehicle repairs on his own, preparing to go to a cottage, and being in a vehicle for extended periods. 

The surveillance was heavily relied on at trial by the defendants to weaken Graul’s credibility. 

However, Justice Lemon stated that Graul did not say he was bedridden. What Graul did say is that he tries to do what he can but cannot do much, specifically in comparison to his pre-accident activity level. Justice Lemon stated that the surveillance did not affect Graul’s credibility. 

Justice Lemon awarded Graul general damages of $225,000. When factoring in all damages claimed, Graul was awarded over $2,300,000.   This was a judge alone trial.  

Sanson v. Paterson, 2022 ONSC 2972

Geraldine Sanson (“Sanson”) was on her bicycle when struck by a vehicle in October 2012. The impact resulted in Sanson being tossed off her bike. She rode her bike home after the accident. 

Sanson was about 55 years old at the time of the accident. She had practiced law for about 22 years when the accident occurred. She resumed operating her own practice, with a focus on human rights, for about 5 years before the accident.  She was passionate about her work and her clients. 

Sanson was in good health before the accident. She regularly exercised and had an active lifestyle. She ran her first 10k marathon in the spring before the accident occurred. 

In the accident, Sanson claimed to have suffered a TBI, chronic migraines, and psychological injuries. 

After the accident, Sanson returned to work immediately and continued to practice law for approximately another 3 years before stopping work completely.  Her billable hours before versus after the accident were comparable for about two years after the accident. 

The position of the defence was that Sanson had significantly exaggerated her injuries and that she overstated those injuries as a face-saving way out of a failing career. They pointed to her income in the years leading up to the accident which showed a downhill trajectory.

The defence also highlighted the extent of Sanson’s activity post-accident, which does not reflect an individual who is restricted in her activity. For example, Sanson was shown on surveillance attending concerts, musicals, and movies with no visible difficulty. She also vacationed soon after the accident. 

Basically, the defence made Sanson out to be an individual who is pursuing a damages award to continue her lifestyle without having to put in any hard work. 

Justice Black found Sanson to be credible. He pointed to Sanson’s explanation that many treatment providers had consistently encouraged her to try to work, socialize, and attempt her pre-accident recreational activities. 

Sanson reasoned that she never said that she could not do those activities. Her evidence was that when she tried to engage in her pre-accident lifestyle or work, it was harder, would take more preparation, was not done as well, and would be taxing on her to the point of causing severe symptoms.  

Justice Black awarded Sanson $250,000 in general damages. When factoring in all damages claimed, Sanson was awarded about $1,400,000.  This was a judge alone trial.  

Higashi v. Chiarot 2021 ONSC 8201

Melonie Higashi (“Higashi”) was a passenger in a vehicle when t-boned by another vehicle on the passenger side in September 2012. While her age was not specified, the evidence suggests that she was in her 40’s at the time of trial in 2021. 

Higashi was raised in a house of Japanese culture and pride. She was university educated, having obtained two bachelor degrees. She was described by her family and friends as being friendly, intelligent, driven, artistic, talented and caring, before the accident occurred. 

Before the accident, Higashi was in good health other than having some migraines, insomnia, and issues with her menstrual cycle, and becoming pregnant. None of these issues impacted her ability to go about her usual daily activities.  

Higashi started her own business, Higashi Design, in 2007, which continued to operate at the time of the accident. 

As a result of the accident, Higashi claimed to have suffered mainly a TBI, post-concussion syndrome, soft-tissue bodily injuries resulting in chronic pain and fibromyalgia, and psychological injuries.

Justice Smith outlined how the evidence demonstrated that after the accident, Higashi was sad and no longer enjoyed life as she used to. She was easily fatigued and suffered from chronic pain. Symptoms that affected her enjoyment of life and ability to carry on her normal day to day activities included headaches, balance issues, noise and lights sensitivity, word finding slower thought process, and short-term memory problems.

Despite the above-mentioned difficulties, Higashi was able to return to her business for about 5 years and eventually achieve her highest earning year. She was also able to resume some sporting activities (tennis and running). She had travelled, could shop, clean, and make some meals.

She had planned and became pregnant (but miscarried). She was able to coach trampoline and moved into a new condominium. However, the evidence supported that it was not always easy for Higashi and she needed some assistance with some of the activities. 

Justice Smith awarded Higashi general damages of $225,000. When factoring in all damages claimed, Higashi was awarded over $1,100,000.  This was a judge alone trial.  

Call Preszler Injury Lawyers for help with your Personal Injury claim

Chronic pain, TBIs, and psychological injuries are often viewed as “invisible injuries” which are subjective in nature. These types of injuries can have devastating consequences for an accident victim. 

The subjective nature of these injuries often results in the credibility of a plaintiff being a focal point in litigation which is why insurance companies love to serve jury notices as opposed to having a judge alone trial. 

In almost every chronic pain or invisible impairment case, the defence will ensure that they employ surveillance. While surveillance may only capture a moment in time and often does not depict the full story, it can also be persuasive in undermining a plaintiff’s credibility, especially in front of a jury. 

To counteract the anticipated credibility arguments which are often raised in litigation, specifically when chronic pain and TBIs are involved, a plaintiff engaging in treatment and consistently reporting symptoms to health professionals is a key factor considered when assessing damages for pain and suffering. 

Preszler Injury Lawyers can help guide an accident victim through the litigation process to ensure the best possible outcome.