17 Aug BC Supreme Court Awards $90,000 For Chronic Pain

The case of Swieczko v. Nehme, 2016 BCSC 399, involves a 31 year old male Plaintiff who was significantly injured in a severe collision that occurred on October 29, 2011. The Plaintiff had begun a left turn at an intersection when his vehicle was struck by the Defendant who had entered the intersection while her light was red. The Defendant was held 100% liable for the collision.

The Plaintiff sustained significant soft tissue injuries as a result of the collision and had no pre-existing symptomology. Evidence from the Plaintiff’s orthopedic surgeon was that the Plaintiff’s injuries at the time of trial were chronic and permanent and his prognosis was poor. Reasons provided by Madam Justice Koenigsberg are as follows:

[39]         It is not contested that Mr. Swieczko was significantly injured in this severe collision.  His spouse was even more significantly injured which, in relation to increasing Mr. Swieczko’s housekeeping and parenting tasks, is a factor that is relevant to consider.

[40]         Mr. Swieczko suffered significant soft tissue injuries as a result of the accident.  The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities.  His prognosis is poor.  Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.

[41]         Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline.  She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.

[42]         Mr. Swieczko was 27 years old at the time of the Accident.  He is now 31.  He has been engaged in the video game industry for close to nine years.  He began as a “quality assurance” tester.  This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public.  It requires concentration and repetitive tasks.  It was described as being a form of detective work.  The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days.  This career is generally somewhat insecure, as most of the employment is on contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]         Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job.  Mr. Swieczko is obviously a talented, hard-working, ambitious young man.  He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted.  However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days.  Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.

[44]         Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now.  While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident.  The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter.  However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child.  Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain.  This in turn has required more pain medication and led to frustration.

The severity and chronicity of pain along with the Plaintiff’s stoicism lead to an award of $90,000 for non-pecuniary damages.

If you or someone you know has been injured in a motor vehicle collision, please contact Victoria Lawyers, Sitka Law Group for a free consultation. We are located on Shelbourne Street near the border of Saanich, Oak Bay and Victoria.