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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Archive for the ‘ICBC Spine Injury Cases’ Category

$150,000 Non-Pecuniary Assessment for Chronic Facet Joint Syndrome

October 19th, 2017

Reasons for judgement were release today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a motor vehicle collision.

In today’s case (Zwinge v. Neylan) the Plaintiff was invoked in a head on crash that the Defendant admitted responsibility for.  The collision resulted in a chronic facet joint syndrome of the spine, various soft tissue injuries and chronic pain leading to psychological difficulties.  This was imposed on pre-existing a substance abuse disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $150,000 Mr. Justice Branch provided the following reasons:

[68]         In this case, I would summarize the significant factors as follows:

1.     The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.

2.     The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.

3.     The plaintiff’s pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.

4.     The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.

5.     The plaintiff’s anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.

6.     While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard’s confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.

7.     The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.

8.     Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.

9.     The plaintiff’s quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.

10. The plaintiff has been able to live independently and care for himself since the accident.

[71]         Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000.


$85,000 Non-Pecuniary Assessment for L1 Fracture and Concussion

May 31st, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.

In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013.  The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion.  The second aggravated some of her symptoms.  By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain.  In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:

[183]     I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….

[185]     The plaintiff was virtually couch bound for a number of weeks after the First Accident.

[186]     The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.

[187]     The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…

[190]     The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.

[191]     Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.


$125,000 Non-Pecuniary Assessment for Permanent Aggravation of Previous Disc Injury

December 9th, 2016

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for the permanent aggravation of a pre-existing injury.

In today’s case (Churath v. Cheema) the Plaintiff was involved in a 2011 rear end collision.  Prior to this the Plaintiff suffered a disc injury to his spine which required surgical correction and was well on the way to recovery.  The collision caused an aggravation of the injury the effects of which were likely permanent.  In assessing non-pecuniary damages at $125,000 Mr. Justice Affleck provided the following reasons:

[63]         I make the following findings of fact:

a)    the plaintiff suffered a low back injury while playing volleyball in 2010, which caused a serious disc herniation. Prior to that event he had been symptom-free in his low back;

b)    the plaintiff’s surgery following the volleyball incident was successful. He was making a steady recovery and in due course would have become largely if not entirely symptom-free but for the car accident;

c)     the car accident caused the injuries and symptoms from the volleyball incident to recur. The plaintiff’s current disability is largely explained by the car accident injuries;

d)    the injury from the volleyball incident and from the car accident is an indivisible injury and division is neither possible or appropriate: Athey at para. 25;

e)    the plaintiff has continuing moderate pain and disability. He can walk adequately and drive a car although with some discomfort. His physical symptoms have diminished his employability, but he is capable of regular employment which makes only light demands on his physical capacities;

f)      the plaintiff’s employment with Allegra was ending because of changing technology in the printing industry. The plaintiff is not capable of retraining for that industry. He has a limited education, limited English language skills and minimal computer literacy. The Allegra job would have ended within a maximum of five years from the time of the car accident, even if it had not happened. The plaintiff thereafter would have made a small income using the offset printer at his home if he had not had the car accident. He remains capable of earning a small income by that means; and

g)    the car accident injuries are permanent, but when this litigation ends the plaintiff will become more active…

[71]         The plaintiff was about 46 years old at the time of the car accident. The injuries were severe and led to surgery. He will not recover entirely. There inevitably has been emotional suffering and distress. The relationship with his family, perhaps particularly with his wife, has been impaired, but I do not consider that will be permanent.

[72]         The plaintiff continues to have some disability. I have found that it is not as extensive as he wants this Court to believe. I am satisfied he can exercise reasonably vigorously; he can walk for extended periods of time; he can perform chores around his home, and he can lift heavier weights than the 20 pound bag of flour which he testified he could not lift.

[73]         I assess non-pecuniary general damages at $125,000.


$85,000 Lumbar Facet Syndrome Non Pecuniary Award Survives Appeal

October 31st, 2016

Reasons for judgement were released today by the BC Court of Appeal dismissing the appeal of an $85,000 non-pecuniary award for a chronic low back injury.

In today’s case (Villing v. Husseni) the Plaintiff was injured in 2010 in a collision caused by the Defendant.  She suffered a low back injury diagnosed as Lumbar Facet Syndrome.  In finding nothing wrong with the trial judge’s $85,000 assessment of non-pecuniary damages the BC Court of Appeal provided the following reasons:

[9]             Both parties commissioned expert reports on the nature of Ms. Villing’s injuries.  Dr. Pankaj Dhawan, a physiatrist, testified at trial for Ms. Villing.  Dr. Robin Rickards, an orthopaedic surgeon, testified for the defendant, Ms. Husseni.  Both experts diagnosed lumbar facet syndrome.  A patient with lumbar facet syndrome will often have pain triggered by rotation, lateral flexion, and extension of the involved spinal segment.  Ms. Villing experiences this type of chronic back pain.

[10]         Dr. Rickards recommended that she try medial branch blocks and radio frequency facet rhizotomy.  Medial branch blocks inject local anesthetic to temporarily freeze the nerve affecting the involved facet.  A rhizotomy involves the insertion of needle-like electrodes into the bases of the nerves of the involved facet, and the application of heat to destroy the subject nerves.  The rhizotomy would be performed if the medial branch blocks were successful.  These procedures would be performed under a local anesthetic in an outpatient department.  These procedures carry a high expectation of success, although success does not entail total and continuing relief.

[11]         A medial branch block requires no time off work.  A rhizotomy can be more uncomfortable and may result in increased back pain for 7‑10 days.  Time off work or work modification may be required.  In most cases, significant relief is experienced four to six weeks following treatment and the patient is expected to then return to full work duties and activities.

[40]         The appellant referred the Court to five decisions in support of its position that the $85,000 award for non‑pecuniary damages should be reduced to $50,000–$60,000.  Those cases were Engqvist v. Doyle, 2011 BCSC 1585 ($70,000 for a 70‑year-old plaintiff with similar injuries); Perry v. Ismail, 2012 BCSC 123 ($42,500 where there was delayed recovery for not following the advice of a physician); Burton v. Insurance Corporation of British Columbia, 2011 BCSC 653 ($35,000 for a moderate soft tissue injury, which after two-and-a-half years was expected to continue to improve); and Sandher v. Hogg, 2010 BCSC 1152 ($40,000 for continued pain of uncertain duration, which was reduced for failure to adhere to a recommended exercise regime).

[41]         The respondent referred the Court to cases where young plaintiffs suffer chronic back pain, such as: Dickenson v. Passero, 2015 BCSC 908 ($100,000); Pett v. Pett, 2009 BCCA 232 ($85,000); Ruscheinski v. BiIn, 2011 BCSC 1263 ($85,000); Doho v. Melnikova, 2011 BCSC 703 ($80,000); Roberts v. Scribner, 2009 BCSC 1761 ($95,000); and Kirkham v. Richardson, 2014 BCSC 1068 ($120,000).  The respondent also referred to Engqvist v. Doyle ($70,000) as a case involving a similar injury, albeit a much older plaintiff.

[42]         An award of damages is a fact-finding exercise and attracts a deferential standard of review:  Ostrikoff v. Oliveira, 2015 BCCA 351 at paras. 2–3.  It is not for this Court to substitute its own opinion for that of the trial judge except where it can be said that the assessment is so inordinately high as to be wholly erroneous: Woelk v. Halvorson at 435–36.  While the award in the present case may be a generous one, I am unable to conclude that it is so inordinately high as to be wholly erroneous.  I would dismiss the second ground of appeal.


$90,000 Non-Pecuniary Assessment for Lumbar Facet Joint Syndrome

October 12th, 2016

Adding to this site’s archived posts of ICBC back injury claims, reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic, partly disabling back injury.

In today’s case (Klein v. Sangha) the Plaintiff was injured in 2 collisions.  Fault was admitted and the trial focused solely on the quantum of the Plaintiff’s claim.  In finding the collisions resulted in a lumbar facet joint injury giving rise to chronic pain the Court provided the following reasons in assessing non-pecuniary damages at $90,000 –

[51]         It is clear on the medical evidence, particularly Dr. Rickards’ evidence, that Mr. Klein probably suffered Lumbar Facet Joint Syndrome as a result of the first accident and that, as a 39 year old male who had suffered “some” degenerative disc disease to his cervical back area, he was susceptible to such an injury…

[57]         Considering the inexhaustive list of common factors influencing an award of non-pecuniary damages referred to above, I note the following factors are particularly applicable:

(a)      The age of the plaintiff. Mr. Klein was in his late thirties at the time of the first accident in a well-established occupation which provided financial and personal satisfaction to him. But for the accident, Mr. Klein would have had many more years of job satisfaction.

(b)      The nature of the injury. Mr. Klein’s injury, specifically to his spine, affects all aspects of life including work, play, sleep and everyday chores.

(c)      The severity of pain. Mr. Klein’s pain has left him bed-ridden for prolonged periods of time, interfered with his graduated return to work and led to much pain and frustration over four years.

(d)      The disability. Mr. Klein’s disability meant he could only return to work on a part-time basis before the second accident. He has only been able to undertake some of the tasks he was able to complete before the accident and only with resulting pain.

(h)      Impairment of physical abilities. This is obvious from Mr. Klein’s evidence and Dr. Rickards’ report.

(i)       Loss of lifestyle. Mr. Klein is no longer able to participate in sporting activities, except for a very short period of time. He cannot continue his chosen line of work which gave him great satisfaction in the past, i.e. working with his hands. He has suffered loss of sleep and cannot maintain a home without assistance. He now relies on friends for help whereas he was previously very independent. He has expressed considerable frustration in spite of his efforts to improve including physiotherapy, exercise, acupuncture and more. Nonetheless, he has been told to expand his efforts at establishing an exercise program.

(j)       The plaintiff’s stoicism. Mr. Klein has exemplified stoicism by attempting to return to work, to establish and restore a construction business  in a modified scenario from his pre-accident work and to continue to support his daughter who was suffering from depression while Mr. Klein was dealing with his injuries. Every aspect of his life has been affected by his injuries…

[62]         Mr. Klein expressed considerable frustration at his inability to function at work and in all other aspects of his life. I found his evidence in this respect to be credible. He also thinks, quite reasonably, considering his experiences since the accident, that he will likely be affected by the injuries for a considerable time to come.

[63]         I have also considered Dr. Rickards’ evidence about a rehabilitation program he proposed to Mr. Klein to minimize or possibly overcome the effect of his injuries. I have considered his injuries to date and the likelihood that he may never totally recover from them in the above assessment of non-pecuniary damages. Considering all of the evidence and authorities, I find an appropriate award of non-pecuniary damages to be $90,000.


$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation

January 21st, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.

In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision.  The Defendant admitted fault.  The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman.  In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:

[30]         The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.

[31]         Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.

[32]         Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.

[33]         Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…

[35]         It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…

[44]         The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.

[45]         Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.

[46]         Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.

[47]         An appropriate award for non-pecuniary damages in this case is $110,000.


$140,000 Non-Pecuniary Assessment For Permanent Low Back Nerve Injury

July 20th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages for a permanent low back nerve injury with accompanying depression.

In today’s case (Bellaisac v. Mara) the Plaintiff, who was described by the Court as “an uncomplicated man who enjoys life’s simple pleasures, including those of hard physical labour” was injured in a 2009 rear end collision.  The crash caused L5-S1 Disc Injury which impacted and permanently injured the S1 nerve root.  In describing the injury and prognosis the Court accepted the following medical evidence –

[36]         Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

In assessing non-pecuniary damages at $140,000 Mr. Justice Funt provided the following reasons:

[71]         The Court will award the plaintiff $140,000 in non-pecuniary damages. In considering the various factors, the Court has placed particular weight on the plaintiff’s age, which favours an award larger than if he were much older. He will be living with chronic back pain and fluctuating chronic depression for the rest of his life.

[72]         In making the award, the Court considered the fact that Dr. Fisher, in his March 12, 2014 report, mentions the possibility of surgery. As noted, in his April 13, 2012 report Dr. Fuller states:

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

[73]         With Dr. Fuller’s opinion in mind the Court finds that the future possibility of lower back surgery is not a real and substantial possibility.


$100,000 Non-Pecuniary Assessment for Onset of Degenerative Disc Disease Pain

August 12th, 2014

A common pattern following the trauma of a motor vehicle collision is the onset of symptoms in an otherwise asymptomatic degenerative spine.  Reasons for judgement were released this week by the BC Supreme Court, Courtenay Registry, dealing with such a fact pattern.

In today’s case (McCarthy v. Davies) the Plaintiff was involved in a 2010 collision caused by the Defendant’s negligence.  She sustained chronic pain in her neck and back which ultimately were diagnosed as originating from degenerative disc disease.  The collision caused the onset of symptoms.  The Court rejected the Defendant’s argument that the symptoms would have come on in any event and in assessing non-pecuniary damages at $100,000 Madam Justice Gerow provided the following reasons:

[65]         In my view, the evidence establishes the probable cause of Ms. McCarthy’s ongoing neck, upper back and lower back pain is that the injuries she sustained in the accident exacerbated her pre-existing asymptomatic degenerative disc disease. While there was a risk that the degenerative disc disease in her neck and back would become symptomatic at some point in the future, the evidence is that she did not have neck or back pain prior to the accident. As stated by Dr. Leete, there are approximately 10 to 15% of patients who suffer from long term intrusive symptoms as a result of the trauma to their spines from a motor vehicle accident.

[66]         Having reviewed the evidence I have concluded this is one of those cases, and the defendant is liable for Ms. McCarthy’s ongoing symptoms even though they may be more severe than expected due to her pre-existing condition. As stated by the experts, many individuals have degeneration in their spines without any symptoms. Accordingly I conclude Ms. McCarthy’s ongoing symptoms fall within the thin skull rule enunciated in Athey.

[67]         I find that but for the accident Ms. McCarthy would not be suffering from the chronic pain in her neck, shoulder and back with the associated mental distress…

[103]     Having considered the extent of the injuries, the fact that the symptoms have been ongoing four years with little improvement, the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $100,000.


$225,000 Non-Pecuniary Assessment for Chronic and Disabling Conversion Disorder

June 12th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling conversion disorder following a motor vehicle collision.

In this week’s case (Best v. Thomas) the Plaintiff was operating a motorcycle when he was rear-ended by a van.  The Plaintiff suffered a spine injury at C-5 which required surgical correction.  He went on to suffer from a variety of disabling ailments.  Ultimately the Court found these were due to a conversion disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $225,000 Madam Justice Duncan provided the following reasons:

[139]     I find on a balance of probabilities that the main cause of the plaintiff’s current condition, including the myoclonus, is conversion disorder. I come to this conclusion because of the relative rarity of propriospinal myoclonus and how it can be mistaken for psychiatric problems. The non-anatomical presentation was also persuasive. As early as Dr. Ho’s involvement, a strange kicking motion was noted, which was inconsistent with a neurological cause. Some of the plaintiff’s pain may well be as a result of the surgery on his C5/6 disc; however, the vast majority of his symptoms, in my view, are not organic or structural in cause.

[140]     Diagnosis of cause aside, what I glean from the experts is that nobody predicts anything close to a full recovery for the plaintiff. Dr. Hurwitz posited a 14% possibility of some recovery, though in light of the fact that the plaintiff has already been treated with a wide variety of anti-depressant drugs, this is a very optimistic prognosis. The other experts recommended various interventions in an effort to assist the plaintiff…

[161]     The plaintiff was almost 32 when the accident happened. The original injury was to his C5-6 disc. I find the following facts about the plaintiff’s condition have been established on a balance of probabilities.

[162]     Since the accident, the plaintiff has been in constant pain, notwithstanding an aggressive regime of pain treatment through medication and other therapies. He is disabled from competitive employment. While he can drive and walk, with some difficulty and with the assistance of a cane, he cannot engage in the activities he enjoyed before the accident. In terms of physical activity, he can do little more than walk very short distances and swim. He can no longer work at a job he enjoyed. His emotional suffering is extreme. He has given up hope of being a father and had a vasectomy as he would be unable to engage in play or chase a child. His enjoyment of sexual activity is significantly diminished as he has lost sensation in his penis during intercourse. His family and friends attest to the fact that he is not the same person as before the accident. He no longer laughs and jokes around. He is constantly fatigued. His family and two close friends remain engaged with him but his world has shrunk considerably from his pre-accident social activities and he has essentially lost a healthy, active, social lifestyle. He is not as mentally sharp as he was, whether by virtue of the injury or the associated medications he takes to manage his condition. None of the experts predicted anything remotely approaching a full recovery.

[163]     Taking into account all of the foregoing, as well as the range of cases provided by counsel, I award the plaintiff $225,000 in non-pecuniary damages.

 


$85,000 Non-Pecuniary Assessment For L3-4, L4-5 Disc Injuries

February 12th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages following a disc injury caused by a collision.

In this week’s case (Shipley v. Bye) the Plaintiff was involved in a 2010 rear end collision. The Defendant was found at fault.  The Plaintiff suffered multilevel disc issues following the crash which continued to pose some problems at the time of trial.  The Plaintiff worked at a warehouse and “was limited to unskilled or semi-skilled work“.  While he was able to eventually return to his occupation the injuries were expected to limit his ability to engage in heavy physical demands.  In assessing non-pecuniary damages at $85,000 Madam Justice Kloegman provided the following reasons:

[19]         In his report of September 17, 2013, Dr. Weiss concluded that:

1.     The motor vehicle accident produced an acute discogenic injury at the L4-5 level with possible L5 nerve root irritation. The plaintiff’s radicular symptoms had resolved and the disc prolapse had retracted.

2.     The current pain that the plaintiff was feeling was multi-factorial from a discogenic lesion at the L4-5 level, a pre-existing but a symptomatic dysplastic L3‑4 facet joint which had become inflamed from the accident, and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss could not say was caused by the accident.

[20]         Dr. Weiss also opined in his report of September 2013 that the plaintiff had lost the physical capacity and functionality to perform heavier forms of work related activity. He stated that it is also likely that the plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain, some of which was directly attributable to the accident. Dr. Weiss could not say that the accident had caused any acceleration in degenerative disc disease of the plaintiff’s lower back.

[21]         With the exception of the cause of the possible nerve root involvement at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept them as accurate. I find that an L4-5 discogenic injury and an aggravation of a previously asymptomatic congenital dysplastic L3-4 facet joint were caused by the motor vehicle accident. Any other injuries or pain complained of by the plaintiff during the material time have not been proved, on a balance of probabilities, to have been caused by the subject accident…

[25]         I have reviewed the authorities provided to me by both counsel, some of which were the same. The most factually similar cases are Esau v. Myles, 2010 BCSC 43; Roy v. Storvick, 2013 BCSC 1198; Peso v. Hollaway, 2012 BCSC 1763; and Jackson v. Jeffries, 2012 BCSC 814. It appears from these cases that the plaintiff’s damages are in the range of $70,000 to $100,000. In my view, the plaintiff here should be awarded the sum of $85,000 for non-pecuniary damages.