ICBC Law

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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

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘mechanical back pain’

$115,000 Non-Pecuniary Assessment for Chronic Disabling Mechanical Back Pain

August 29th, 2017

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

In the recent case (Carver v. Or) the Plaintiff was involved in a 2011 collision which the Defendants were found liable for.  The crash resulted in chronic and disabling mechanical back pain.  In assessing non-pecuniary damages at $115,000 Madam Justice Gray provided the following reasons:

[191]     I would summarize the significant factors regarding Mr. Carver as follows:

a)         Mr. Carver was 56 years old at the time of the Accident, and 62 years old at the time of the trial;

b)         The Accident caused Mr. Carver to suffer injury to the tissues of his spinal column which has resulted in chronic disabling mechanical lower back pain;

c)          Mr. Carver’s pain has disabled him from working in any capacity, has reduced his ability to care for himself, and has significantly reduced the quality of his life;

d)         Mr. Carver is completely disabled from working and his walking is impaired;

e)         Mr. Carver has suffered emotionally from the loss of his ability to work and care for himself and from chronic pain;

f)           Mr. Carver’s life has been impaired by his loss of function and the presence of pain;

g)         Mr. Carver’s injuries have impaired his ability to spend time with his daughters in activities like camping and fishing and watching them play sports, and diminished his pleasure in life because of the loss of such activities and other activities like gardening;

h)         Mr. Carver’s ability to walk, sit, stand, and twist have been reduced by the injuries he suffered in the Accident;

i)            Mr. Carver’s factors relating to loss of lifestyle are described above, but fortunately have not made it impossible for him to continue to live by himself; and

j)           Mr. Carver has been stoic. He tried for over a year to return to full-time work, and engaged extensively in physiotherapy, exercise therapy, and pool therapy.

[192]     If the Accident had not occurred, it is most likely that Mr. Carver would have simply suffered periodic waxing and waning of his lower back pain and radiation into his legs, without progression and without loss of the ability to walk, sit, and stand comfortably or the loss of the ability to work. There was a small risk that his pre-Accident condition might have worsened, but it would not likely have affected his function or resulted in significant pain until he was over 70 years old.

[193]     I have taken into account the fact that Mr. Carver suffered pneumonia, with a two month hospitalization in February through April 2015, which was not a result of the Accident.

[194]     If Mr. Carver had not suffered back pain prior to the Accident, an appropriate award would have been in the range of $130,000. Considering that there was a risk his pre-Accident condition might have worsened, a reduction of about 10% is appropriate. Mr. Carver is entitled to an award of $115,000 for his non-pecuniary damages resulting from the Accident.

 


$65,000 Non-Pecuniary Assessment for Partly Disabling Mechanical Neck and Back Pain

June 6th, 2017

Reasons for judgement were published today by the BC Supreme Court, New Westminster registry, assessing damages for partly disabling injuries sustained in a collision.

In today’s case (Riley v. Ritsco) the Plaintiff was involved in a 2011 collision.  The Defendant was found fully liable.  Following the collision the plaintiff suffered from chronic neck and back pain with associated symptoms and a poor prognosis for full recovery.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bowden provided the following reasons:

[42]         In summary, Dr. Adrian opined as follows:

1.     The mechanical neck, mid and lower back pain experienced by the plaintiff are consistent with suffering an injury to the spinal tissue and are causally related to the motor vehicle accident.

2.     The headaches experienced by the plaintiff are triggered by neck pain and related to his neck injury.

3.     The plaintiff’s left shoulder pain symptoms are causally related to the accident.

4.     The plaintiff’s left knee pain symptoms are causally related to the accident.

5.     While the plaintiff experiences psychological and cognitive symptoms, Dr. Adrian deferred to specialists in psychiatry to comment on the nature of those symptoms.

6.     As several years have passed since the accident, the prognosis for further recovery from the injuries suffered in the accident into the future is poor.

7.     The plaintiff will probably continue to experience difficulty performing activities that place physical forces onto his neck, back, left shoulder and left knee. He will probably continue to experience difficulty performing employment, recreational and household activities involving prolonged sitting, standing or walking, awkward spinal positioning, heavy or repetitive lifting, stooping, repetitive neck motion, repetitive reaching, climbing or jarring activities.

8.     The plaintiff’s physical limitations are unlikely to improve into the future and he is permanently partially disabled due to injuries suffered in the accident.

[43]         The plaintiff has undergone a variety of treatments for his injuries following the accident including 134 physiotherapy treatments, 64 massages, acupuncture and chiropractic treatments. This has given him some relief but the pain symptoms referred to by Dr. Adrian continue.

[57]         I accept Dr. Adrian’s description of the injuries suffered by the plaintiff as a result of the collision. It appears that the plaintiff has endured pain of different levels and at different times during the years following the accident. He was totally disabled from work for about 14 months and he will likely continue to experience some pain in the areas of his body where he was injured for the remainder of his life. He is described by Dr. Adrian as suffering a permanent partial disability as a result of the accident. His injuries have negatively affected his ability to work as a millwright as well as a number of his recreational activities…

[62]         While Dr. Adrian opines that the plaintiff would find certain functions at work to be difficult he did not say that the plaintiff was unemployable. There is also insufficient evidence, and none from an expert, to establish that the plaintiff suffered psychological damage from the accident. Indeed, Dr. Adrian defers to specialists such as a psychiatrist regarding the nature of the plaintiff’s psychological state.

[63]         Unlike Mr. Mandra, the plaintiff in the case at bar did not present evidence from an occupational therapist or a psychiatrist.

[64]         Considering the factors referred to in Stapley v. Hejslet and the particular circumstances of the plaintiff I have concluded that an award of $65,000 is appropriate for non-pecuniary damages.


$60,000 Non-Pecuniary Damage Assessment For Right Knee Cartilage Injury

April 20th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and back injury sustained in a collision.

In this week’s case (Buttar v. Brennan) the Plaintiff was injured in a 2008 collision.  He was employed as a framer.  He suffered from pre-existing back pain.  This condition was aggravated by the collision.  The Plaintiff also suffered a cartilage injury to his right knee causing patello femoral symptoms (knee pain).

These injuries, while not totally disabling, were expected to be ongoing and to compromise the Plaintiff in his vocation.  In assessing non-pecuniary damages at $60,000 Mr. Justice Abrioux provided the following reasons:

[34] I have found that the plaintiff was a hard-working individual.  I have also concluded he has made a greater recovery from his injuries than he may believe or say to be the case.  He is left, however, with an ongoing low back condition which affects his life from a functional perspective to a greater degree than was the case prior to the Accident.  He also has a minor yet permanent ongoing injury to his right knee which was entirely caused by the Accident…

[37] Taking into account the plaintiff’s original position and the measurable risk which I have found the plaintiff’s pre-Accident condition would have had on his life in any event, I award non-pecuniary damages of $60,000.


Bus Driver Liable For Injuries Caused by Hard Braking

March 2nd, 2012

As previously discussed, a collision is not necessary in order for a motorist to be responsible for personal injuries caused to others.  This was demonstrated again in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Prempeh v. Boisvert) the Plaintiff was a passenger on a bus operated by the Defendant.  The Defendant “vigorously and abruptly applied the brakes to avoid a collision with the two vehicles which had stopped ahead of him“.  This caused the plaintiff, who was standing holding a metal handle, to be thrown down the aisle.  The Plaintiff was injured in the process.

The Plaintiff alleged the driver was negligent in braking hard.  The Defendant disagreed arguing this action was necessary to avoid collision.  Ultimately Madam Justice Dardi found the driver fully liable for the incident for driving without due care an attention.  In assessing the driver at fault the Court provided the following reasons:

[22] Mr. Boisvert was required to brake hard to avoid hitting the two vehicles that had stopped on the roadway in front of the bus he was operating. The first of the vehicles had stopped to turn left on Hamilton Street. The second car stopped behind the left-turning vehicle without a collision and without accompanying honking or screeching of brakes. It can reasonably be inferred that this occurred within a time frame that should have permitted a reasonably prudent user of the road driving behind those vehicles an opportunity to react and brake without incident. The application of the brakes was not a reaction to an emergency or unexpected hazard.

[23] Moreover, Mr. Boisvert properly conceded that, regardless of an abrupt or unexpected stop of a vehicle ahead, in order to prevent accidents prudence mandates that at all times a bus driver drive defensively and maintain a safe cushion or certain distance from a vehicle travelling in front of the bus. This is precisely to be able to stop safely in the event of an unexpected manoeuvre by that vehicle.

[24] I cannot find with precision whether the sudden and hard application of the brakes occurred because Mr. Boisvert was travelling too rapidly, not maintaining a diligent look-out or because he failed to maintain a safe distance from the vehicle in front of him. However, in weighing all of the evidence I have concluded that Mr. Boisvert’s sudden and vigorous application of the brakes, in the context of all the circumstances in this case, establishes a prima facie case of negligence against Mr. Boisvert. It is not conduct attributable to a reasonably prudent bus driver.

[25] Having found a prima facie case of negligence the onus is upon the defendants to establish that Mr. Boisvert was not negligent or that the incident was attributable to some specific cause consistent with the absence of negligence on his part.

[26] I note that Mr. Boisvert’s assertion at his examination for discovery that he could have stopped smoothly but the bus brakes on the new trolley bus “grabbed” and caused a “hard stop” is no answer to this claim.

[27] Mr. Boisvert was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff cannot be expected to assume any risk associated with the operation of the vehicle which could not reasonably be anticipated by a passenger. The usual braking of a driver as he moves through traffic would not cause a passenger to be thrown to the floor so violently. Moreover it is well established on the authorities that the responsibility of a public carrier extends to ensuring that its modes of conveyance permit the bus to be operated in a safe and proper manner: Visanji at para. 32.

[28] I have considered all of the authorities provided by both parties. Though useful as providing guidance on the governing principles, each case turns on its own facts. I note that unlike the circumstances in Lalani v. Wilson, [1988] B.C.J. No. 2408 (Q.L.) (S.C.), upon which the defendant relies, the bus driver here was aware that the plaintiff had fallen – the possibility of injury was self-evident. Mr. Boisvert’s attention was drawn to such a possibility at the time of the incident and in compliance with the bus operator training manual he should have recorded all pertinent information regarding the incident. While the court in Lalani found it would have been unfair to shift the burden, this is not so in this case.

[29] On balance I am not satisfied that the defendants have shown that Mr. Boisvert conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit. In the result, I conclude that Mr. Boisvert, however fleetingly, breached the standard of care of a reasonably prudent bus driver. I find the defendants negligent.


$65,000 Non-Pecuniary Assessment For TFC Tear and Mechanical Back Pain

February 8th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a wrist and back injury sustained in a collision.

In last week’s case (Rutter v. Allen) the Plaintiff was involved in a 2006 collision.  The Defendants were found at fault for the rear-end crash which caused about $18,000 in damage to the Plaintiff’s vehicle.

The Plaintiff sustained a left wrist Triangular Fibrocartilage Tear (a tear to the cartilage at the base of the wrist joint) and soft tissue injuries to the low back.  The TFC tear required surgical correction.

The low back pain became chronic and continued to cause discomfort at the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Joyce provided the following reasons:

[26] Mr. Rutter alleges that he sustained an injury to his wrist as a result of the accident, specifically an “ulnar carpal impaction with a tear of the triangular fibrocartilage”. In January 2010, Dr. Perey, an orthopaedic surgeon, operated on Mr. Rutter’s wrist to shorten the ulnar bone, which largely resolved the problem with the wrist, although Mr. Rutter testified that he still had occasional sharp pains in his wrist…

[40] In my view, there is a body of evidence, which I accept that supports the opinions of the medical experts. The evidence as a whole supports a finding, on balance, that the accident was the underlying cause of the problem and that but for this accident, Mr. Rutter would not have developed the wrist problem that was eventually corrected by surgery…

[52] Mr. Rutter has an underlying spondylolisthesis, which is a condition in which the vertebrae are out of proper position, but this was largely asymptomatic prior to the motor vehicle accident.

[53] I find that Mr. Rutter’s suffers chronic back pain that was caused by the accident of December 15, 2006. I find further that it is unlikely that he will return to his pre-accident level of activity, although it is likely that he can achieve some improvement with regular exercise, including core muscle strength training…

[65] Mr. Rutter led a very active life before the accident and was involved in a number of sports, particularly golf and running. His injuries, particularly the back injury, have led to a significant change in lifestyle for Mr. Rutter. Since the accident, Mr. Rutter has had to reduce his sporting activities substantially. He is also curtailed somewhat in his day-to-day activities, including assisting with housework and household maintenance. He has difficulty sleeping and, at times, is more irritable than he was before the accident. Fortunately, Mr. Rutter has been able to maintain his full-time employment despite his symptoms. I am satisfied that Mr. Rutter finds his life today more frustrating and less enjoyable than previously. Mr. Rutter suffers chronic back pain that is likely to continue well into the future, although Dr. le Nobel is of the opinion that if Mr. Rutter engages in an exercise regime that is developed and maintained with the assistance of a physiotherapist and kinesiologist some improvement in his symptoms is probable…

[77] In my view, the chronic low back pain which Mr. Rutter experiences has a more significant impact on his life and the prognosis for significant improvement is not as good as was the case inMawji and Perez. In my view, the authorities cited by Mr. Rutter are more representative of an appropriate range of non-pecuniary damages considering the nature and effect of his injuries. I assess non-pecuniary damages at $65,000.00.


$75,000 Non Pecuniary Assessment for Chronic Low Back and Shoulder Soft Tissue Injuries

October 4th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder and low back injury caused by a motor vehicle collision.

In this week’s case (Juraski v. Beek) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a chronic shoulder injury which remained symptomatic at the time of trial.  Her prognosis for complete recovery was poor.  She also had mechanical back pain.  In assessing the Plaintiff’s non-pecuniary damages at $75,000 Madam Justice Humphries provided the following reasons:

[42] Dr. Regan, an orthopaedic surgeon, diagnosed myofascial pain in the plaintiff’s left trapezius and cervical spine, anterior left shoulder pain, and chronic left mechanical low back pain.  His report is dated November 26, 2010.

[43] He testified that Ms. Juraski has supraspinus tendonosis, a chronic condition of the shoulder tendon.  He said a tear was possible but upon seeing the MRI of March 31, 2011, agreed it did not support that suggestion.  He agreed with Dr. Nobel (see below) that pain block injections would allow more accurate diagnosis, but in view of the passage of time, he did not foresee the shoulder pain settling…

[77] The accident occurred 4 years ago.  I accept that the plaintiff now lives with chronic pain in her shoulder and lower back and will continue to do so, although exercise and strengthening may alleviate her symptoms to some degree, particularly in her back.  On a consideration of the medical evidence, including that of Dr. Leith, there is a difference of opinion about the mechanisms causing Ms. Juraski’s pain.  However, there is no question but that the chronic pain in her shoulder area and lower back are caused by the accident.

[78] The plaintiff is obviously a determined and energetic person who will do what is required to make ends meet.  However, I am satisfied the quality of her life has been altered by the pain she copes with daily.  She is unable to keep up the high standards of housework and household accomplishments she maintained before the accident.  To some extent, her ability to live her life as she did is affected by her unenviable work schedule – without that she would probably be able to devote more time to housework and her garden, but she would still have to cope with chronic pain as she did it.  Her symptoms are not incapacitating – she works hard and long hours- but her enjoyment of life is considerably curtailed.  She admitted on discovery that her sleep is back to normal.

[79] However, given the time that has passed, the doctors, while recommending strengthening exercises and other treatments, are guarded in their prognosis for improvement in pain and discomfort in the future, especially with her shoulder.  On the whole, while some improvement in symptoms might be forthcoming through exercise and core strengthening, the medical practitioners suggest she will have to learn to live with and manage chronic pain.

[80] The defendant did not argue that the plaintiff has failed to mitigate her damages.  She has followed the treatment recommendations offered to her, although her busy work schedule interferes with her ability to exercise and stretch.

[81] While there are some parallels between the facts here and those outlined in the cases cited to me, those submitted by the plaintiff tend to describe situations where there were other important effects from the accident in addition to chronic pain – for instance, depression, ongoing inability to sleep, post traumatic stress disorder, inability to work, significant reduction in energy, need for significant rehabilitation and counselling.  The cases cited by the defendant tend to deal with less severe or pre-existing symptoms, symptoms that resolved after a period of time or were improving, or symptoms localized to one area – either back or shoulder, but not both.

[82] It is clear that awards for non-pecuniary damages in cases of chronic pain vary fairly widely, and of course the symptoms and effects on each plaintiff’s life are individual.  Taking Ms. Juraski’s situation in the context of all of the cases referred to me, I conclude that an appropriate award for non-pecuniary damages is $75,000.


Mechanical Back Pain and Diminished Capacity For Stay at Home Parents Discussed

December 5th, 2010

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing non-pecuniary damages for mechanical back pain and further discussing awards for ‘diminished earning capacity‘ for stay at home parents who intend to return to the workforce.

In this week’s case (Bergman v. Standen) the Plaintiff was involved in a 2006 motor vehicle collision.  Fault for the crash was admitted by the other motorist.  The Plaintiff was 27 years old at the time of the crash and did not have “an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home-mother”.

The Plaintiff sustained injuries in the crash which included soft tissue damage and mechanical back pain.  Some of these symptoms were expected to be permanent although there was room for improvement with further therapy.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In arriving at this figure the Court provided the following reasons:

[63] To summarize, Ms. Bergman was a 27-year-old mother of two young children, who suffered a Grade II whiplash injury to her neck and upper back, which resolved after several months and left her with no recurrent symptoms. She also suffered contusions, bruises to her face and chest, and a sore wrist, which resolved without ongoing difficulties shortly after the accident. Finally, and most significantly, she suffered a mechanical injury to her lower back that, I am satisfied, caused her significant pain and discomfort in the four and a half years since the accident. I am not persuaded that the discomfort is as significant as Ms. Bergman describes it, but it is nevertheless significant. I am satisfied that her lower back will remain symptomatic indefinitely. If, however, she follows the advice of Dr. Travlos and others, and commits to a program of physical conditioning and determines to work through the limitations that her low back may present, rather than dwelling on them, the degree to which that injury will affect her life in the future will moderate. In light of this, I am satisfied that an appropriate award for non-pecuniary damages is $77,500. This amount includes $2,500 for past loss of housekeeping capacity for reasons I will explain below.

This case is also worth reviewing for the Court’s discussion of diminished earning capacity (future wage loss) awards for Plaintiffs who are out of the workforce at the time of their injuries.   As previously discussed there is nothing preventing such plaintiffs from being awarded damages for future wage loss given the right circumstances.  In assessing the Plaintiff’s loss at $65,000 Mr. Justice Barrow provided the following useful reasons:

[80] Ms. Bergman does not have an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home mother. I accept that Ms. Bergman planned to and will return to work when her youngest child reached school age. I accept that the sort of work she is destined to do will likely involve an emphasis on physical as opposed to mental exertion. There is a mill in Lavington that Ms. Bergman thought about applying to. She impresses me as the sort of person who would find work of that nature rewarding and challenging. It is with a view to those real and substantial possibilities that the question of her indefinite, albeit moderating disability, needs to be assessed….

[84] I recognize that Dr. Coghlan, in his September 21, 2009 report, concluded that he would “not restrict her activity level in terms of jobs on the basis of today’s findings”. I am not sure that the opinions of the physiatrists are in conflict. Whether they are or not, I am satisfied that Ms. Bergman has established an impairment of her capital asset, being her ability to earn an income in the future. Valuing that loss is necessarily an imprecise exercise. Lacking any better measure, I consider that an award equivalent to between one and two years of Ms. Bergman’s likely future annual income to be reasonable. I fix her loss of future earning capacity at $65,000.


$75,000 Non-Pecuniary Damages for Chronic "Mechanical" Spine Pain

June 8th, 2010

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fair compensation for chronic “mechanical” injuries.

In today’s case (Raun v. Suran) the Plaintiff was involved in a “violent” rear-end collision in 2005.  His vehicle was written off.  ICBC admitted fault on behalf of the rear motorist.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff asked for approximately $250,000 in total damages.  The Defendant argued that an award below $20,000 was more appropriate.

The Plaintiff’s claim was largely successful and he was awarded just over $170,000 for his injuries and losses. The Court found that the Plaintiff suffered a variety of injuries including mechanical spine pain of a chronic nature.  Dr. Chu provided the following useful and concise definition of “mechanical” spine pain:

My diagnostic impression is that he has ongoing mechanical pain in his neck and low back as well as right shoulder. Mechanical spinal pain refers to pain originating from specific mechanical structures that can be pain generators. There are various structures in the spine that can produce pain such as the facet joint, disc, ligaments, and bone. In Mr. Raun’s case it seems to be mostly facet joint pain in the lower neck and lower back.

Often times though, when there is deeper mechanical pain the muscles around the area tend to tense up to guard it and after a while that can lead to a chronic myofascial pain or regional muscle pain.

Mr. Justice Curtis accepted this evidence and went on to award the Plaintiff $75,000 for his non-pecuniary damages.  In arriving at this assessment the Court made the following findings:

[25] I find it to be proven that Mr. Raun suffered injury to his right shoulder, left knee, neck, middle and upper back caused by the July 12, 2005 collision.  The mid back and knee injuries cleared up in a month or two but Joel Raun has continued to suffer right shoulder, neck and lower back pain of a mechanical and soft tissue origin which have affected him up to the date of trial, almost five years later.  The prognosis for his right shoulder is good and he should in time and with continued exercise essentially recover from that injury but the prognosis for neck and low back pain is guarded.  He will continue to have pain in those areas for some unknown time into the future.  The shoulder, neck and back pain have significantly affected this young man.  Mr. Raun’s success in life and much of his enjoyment of it centered around athletic achievement.  From the summer he was 17 he has been prevented from pursuing his athletic interests with the competitiveness, rigour and youthful abandon that would have been open to him but for his injuries.  His neck and back in particular will continue to cause him pain and restrict his activities into the future.  On the other hand, Mr. Raun can perform normal functions and can still participate in sports. I  assess a fair and reasonable amount for his pain and suffering and loss of enjoyment of life at $75,000.


$35,000 Non-Pecuniary Damages for Chronic Low Back Pain With Poor Prognosis

April 4th, 2010

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $64,000 in total damages as a result of BC car crash.

In this week’s case (Elgood v. Ellison) the Plaintiff was injured in 2006 when he was struck by a vehicle in Langley, BC.  The Plaintiff was walking in a marked cross-walk with the right of way when the Defendant driver made a left hand turn and struck the Plaintiff.  Fault was admitted and the trial focused solely on the value of the Plaintiff’s claim.

The Plaintiff suffered minor injuries to his legs and neck which quickly and fully recovered.  His most serious symptom was low back pain which persisted from the time of the accident through trial.   The evidence accepted by the Court was that the Plaintiff had mechanical pain around the lumbar spine and that these symptoms may be an ongoing problem for the Plaintiff.

(highlighted portion of illustration depicts the lumbar spine)

In awarding the 65 year old Plaintiff $35,000 for his non-pecuniary damages Mr. Justice Bracken made the following notable findings:

[39]        Dr. Hirsch concluded that the plaintiff has made a full recovery with respect to his legs and that he had a relatively minor neck injury that has now essentially resolved.

[40]        The more difficult problem is the lower lumbar spine area and Dr. Hirsch said that this condition was likely caused by the accident.  He described it as likely mechanical in nature and that it is exacerbated by stress or loading on the back.  He believes that the plaintiff should continue his home-based exercise program and perhaps attend for structured appointments with a kinesiologist or physiotherapist.  He also thought that some exercise such as tai chi, yoga, pilates or water-based exercises would be helpful.

[41]        He concluded that the plaintiff’s restrictions were attributable to chronic low back pain that was caused by the accident and that the prognosis for complete recovery was guarded given the plaintiff’s age and the duration of the symptoms.

[42]        He did believe that the plaintiff should be capable of performing his domestic chores but that he may have to pace himself and that he will have ongoing problems with more strenuous activities such as lifting, snow shovelling or completing significant household repairs.  He did not foresee any need for future care or for any surgery.

[43]        In summary, it appears that the plaintiff’s leg and shoulder injuries resolved very quickly and his neck pain diminished gradually over time, to the point where it is now only occasional pain and of a non-debilitating nature.  He had some early headaches which have now become occasional.

[44]        The significant pain that the plaintiff suffers is chronic low back pain that Dr. Hirsch predicts will likely be with him for the foreseeable future.  No doubt the low back pain will prevent him from doing many jobs, particularly those that require long periods of sitting.  Given his age and background, it is most likely that sedentary jobs will most likely be what are available to him.  He has sharply reduced his recreation, although some of the intense recreational and physical activities engaged in by the plaintiff would likely diminish in intensity over time due to the normal aging process regardless of his injury.  He will likely still have the ability to engage in mild recreational activities. The plaintiff says that even mild recreation or physical activity is too painful for him.

[45]        As Dr. Hirsch pointed out at p. 6 of his January 20, 2009 report:

Three years have elapsed since Mr. Elgood suffered his low back injury in the subject motor vehicle accident.  Given the duration of his symptoms, the prognosis regarding complete resolution of his low back pain has to be viewed as guarded at this juncture.  Given the temporal profile to date, I would consider it more likely than not that Mr. Elgood will experience low back pain indefinitely.  Low back symptoms of sufficient intensity will probably limit his ability to perform tasks which biomechanically stress his low back…

[51] While the plaintiff has been able to carry on with work, he and his wife both said that he has only been able to do so by enduring a level of chronic pain.  Based on the opinion of Dr. Hirsch, which I accept, his condition is not likely to be alleviated over time.  Bearing in mind his age and the impact of his injuries on his personal life and work life since the accident, in my view, the range of damages is between that of the plaintiff and defendant and I assess general damages at $35,000.


$50,000 Non-Pecuniary Damages for "Mechanical Spine Pain"

September 15th, 2009

Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, awarding total damages of just over $95,000 as a result of a 2005 BC Car Crash.

In today’s case (Mar v. Young) the Plaintiff was rear-ended while in a vehicle on the Island Highway near Nanoose, BC.   Fault was not formally admitted.  Mr. Justice Bracken found the rear vehicle 100% liable for the collision.

A physiatrist who gave evidence on behalf of the Plaintiff explained that he suffered from mechanical spine pain as a result of the collision and this was different from a soft tissue injury because “mechanical spine pain originates in the tissues that are part of the spine itself and not the muscle or soft tissue that surround the spine.  These tissues lay quite deep under the skin and provide support for the spine itself.”

In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Bracken summarized the accident related injuries and their effect on the Plaintiff’s life as follows:

[37] On all of the evidence I conclude that the plaintiff suffered injuries to his thoracic and lumbar spine and that while his condition has improved he has not yet fully recovered.  The physical examinations conducted by Dr. Wahl and Dr. McKean indicate that the plaintiff has good range of motion of his neck and hips, but that he still has pain in his mid and lower back.  Both doctors testified that the plaintiff says that his pain and discomfort prevents him from carrying out his normal day-to-day activities of work and recreation, but the doctors disagree on his prognosis.  Dr. McKean considers it quite possible that the plaintiff will continue to experience some pain that will affect him for the foreseeable future.  Dr. Wahl is more optimistic and believes that there will at least be significant improvement and possibly full recovery.

[38] I find that the plaintiff still experiences pain 4 years post accident and it is likely that he will do so for some time to come.  It is clear from the evidence that he can carry out many of his normal activities, but not without some pain.  He has limited many of his activities somewhat and says that he is still prevented from participating in others.  There is no supportive objective medical evidence other than the disc bulge and early degeneration in the lumbar spine that Dr. Wahl considered to be within the normal range for the plaintiff’s age.  The plaintiff has been able to continue working, at times for long periods at a time, but he has experienced pain and discomfort and says that he must get up and move around and stretch at frequent intervals to ease his discomfort.  Former co-workers corroborate his evidence on his work related limits.  He purchased an expensive chair for use when he is working at his computer, but while it helps him, it does not completely eliminate pain and discomfort.

[39] The defendant noted that the plaintiff seemed to move easily and without obvious pain while he was in the courtroom.  I agree that the plaintiff seemed to have a reasonable range of flexibility when rotating from his hips and he could move his arms easily.  That does not seem inconsistent with the observations of both Dr. McKean and Dr. Wahl, but both note that the plaintiff continues to complain of pain in the mid to lower back.  The plaintiff testified that he still experiences some pain in that part of his back and his wife and friends corroborate his evidence.  There is no evidence before me to contradict that evidence.  No doubt the injuries have taken some time to resolve, but I accept that the plaintiff still has some pain and discomfort from the injuries caused by the accident.

[40] While each of the cases referred to above were cited as cases that had similar fact patterns, as it was stated in Tong v. Sidhu, above, no two cases are exactly alike and in the final result each case stands on its own facts.  In this case I find that the plaintiff’s injuries are more serious than the range suggested by the defendant.  The injuries have lasted with diminishing disability for 4 years and will likely continue to affect the plaintiff for a considerable period of time to at least some degree.

[41] The plaintiff has a sedentary job and to some extent that is an advantage as he is not likely to be exposed to the need for any hard physical labour in the course of his work.  However, he will likely spend the majority of his working life sitting at a desk working on a computer.  The impact of even mild pain or discomfort in his back will be a problem that will affect his concentration and ability to focus on his work.  He will have to take frequent short breaks from his work to compensate.  He will be at least somewhat limited in his recreational and home maintenance activities, although I accept Dr. Wahl’s view that the impact of his injuries will likely diminish over time as his condition improves and his disability lessens.

[42] On all of the evidence, it is my view that an award of $50,000 is appropriate for non-pecuniary damages.