General Damages for Soft Tissue Injuries

General damages for soft tissue injuries cover damage to muscle, ligament, tendon and fascia rather than to bone. Nothing shows on an x ray, which is why these claims are fought harder than almost any other. The award depends on how long the symptoms lasted and on whether the injury left a lasting impairment. This chapter states how courts approach that question.

Soft Tissue Injuries Are Proved Without Imaging

A normal x ray does not mean nothing happened. Courts have accepted for decades that muscle and ligament injury is diagnosed clinically, through examination findings, range of motion measurements, muscle spasm found on examination and a consistent history recorded over time. Consistency is what persuades. A claimant who reported neck and shoulder pain to the emergency department, to the family doctor a week later, to a physiotherapist a month after that and to an employer on a return to work form presents a record a defence expert cannot easily dismiss. Gaps in treatment are the most common reason these awards come in low.

A claimant who stopped physiotherapy because it was not helping should have that reason recorded at the time, because a chart that simply stops looks to a judge like a recovery.

The Minor Injury Caps in Three Atlantic Provinces

New Brunswick, Nova Scotia and Prince Edward Island each limit general damages for defined minor injuries arising from motor vehicle collisions, and Newfoundland and Labrador does not. The definitions are set by regulation and turn on whether the injury resolves and whether it causes a serious impairment of an important bodily function. Which side bears the burden and how the definition is applied are questions decided case by case, so the current regulation and the recent decisions both have to be checked instead of assumed. Provincial statutes and regulations are published by each legislature, including the Nova Scotia Legislature.

General Damages for Soft Tissue Injuries That Do Not Resolve

The claims that leave the cap behind are the ones where pain persists past the expected recovery window and becomes a chronic condition. At that point the comparison cases change entirely, because the claimant is no longer being compensated for a bad year. Related chronic presentations are covered in the fibromyalgia chapter and the chronic headaches chapter, both of which begin the same way for many claimants.

What Moves the Award in Practice

Duration comes first, followed by the effect on work and on the activities the claimant used to do. Age matters, because a young claimant with a permanent impairment carries it longer. Objective findings such as measured loss of movement help, and so does evidence from someone other than the claimant. A supervisor who watched the claimant struggle with lifting, or a coach who saw a player stop turning out, gives the judge a second source for the same loss. The firm builds those records from the first month on its car accident files. The guide’s opening chapter explains how the series is organised.