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

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.

bc injury law, degenerative disc disease, Madam Justice Gerow, McCarthy v. Davies, onset of symptoms in pre-existing condition

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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