$110,000 Non-Pecuniary Assessment for L2 Fracture With Persistent Symptoms

Reasons for judgement were published today by the BC Supreme Court, Kamloops Registry, assessing damages for chronic injuries suffered in a vehicle collision.

In today’s case (Kennedy v. Cumming) the Plaintiff was involved in a 2015 collision.  His was struck by the Defendant’s vehicle while operating his motorcycle.  The crash resulted in a fracture to the Plaintiff’s low spine and the onset of symptoms in pre-existing but asymptomatic degeneration.  The symptoms persisted to the time of trial and were partly disabling.  In assessing non-pecuniary damages at $110,000 Madam Justice Burke provided the following reasons:

[42]         The medical evidence establishes that Mr. Kennedy suffered a compression fracture of his L2 vertebrae with approximately 25% loss of disc height in that vertebra. I find that Mr. Kennedy’s continued low back pain is due to both the compression fracture and the degenerative changes in the low back. These latter changes, however, only became symptomatic after the accident and, I find, were triggered by the accident. Based on the medical evidence, in particular as noted by Dr. Omahen, I also find that the thigh numbness was caused by the accident…

[47]         In this case, Mr. Kennedy’s pain and suffering includes chronic aching low back pain, which fluctuates in severity from 0.25/10 to 7/10 on the Functional Pain Scale, depending on his activity levels. While 0.25 is non-disabling pain, 7 is severely disabling pain. Mr. Kennedy reported 0.25-0.5 on the pain scale in various tests during his assessment with occupational therapist Kirsten Ali but described this as a “good day” in terms of his pain.

[48]         At present, Mr. Kennedy is able to cook his meals and do dishes and laundry. Vacuuming, however, is an issue and he has to take breaks. The same applies to mowing the lawn. What once took him 45 minutes now takes approximately 1.5-2 hours. He cannot ride or keep horses anymore and cannot lift bales of hay.

[49]         With respect to his present employment, Mr. Kennedy said his employer is very accommodating. Mr. Kennedy described being unable to do much of the heavy lifting. He is unable to move more than one machine a day without help. Heavy lifting at work can make the pain “pretty extreme” at night, requiring him to take long hot showers, Advil, and occasionally oxycodone. He referred more than once to the good crew that helps him out at work. It is clear, however, that he finds it difficult to accept help, especially because he was one of the stronger individuals prior to his accident.

[50]         Mr. Blaine Foley, a co-worker and friend of Mr. Kennedy, confirmed Mr. Kennedy’s limitations. Mr. Foley is a low-bed truck driver at Brentwood and has known Mr. Kennedy for 20 years. Mr. Foley described the heavy-duty equipment that he hauls for Brentwood (such as bulldozers, tractors and other equipment weighing between 70,000 to 120,000 lbs). Part of his duties include breaking down this machinery for transport and then putting it back together at the site. He confirmed that at Brentwood, he often works 14-16 hour workdays doing 12-hour drives.

[51]         Mr. Foley said that since the accident, Mr. Kennedy has struggled with heavy lifting and climbing up and down the machines. Mr. Foley described Mr. Kennedy as someone who finds it difficult to ask for help, despite being in obvious pain. Mr. Foley also said prior to the accident, Mr. Kennedy was an avid mountain snowmobiler. Mr. Foley said he and others could not keep up with Mr. Kennedy. Mountain snowmobiling, however, requires physical strength and since the accident, Mr. Kennedy has been unable to participate in a significant way.

[52]         Mr. Brian Rowse, a friend of Mr. Kennedy, also testified to the changes he observed in Mr. Kennedy. Prior to the accident, the two regularly hunted and fished. Hunting required packing and dragging out of the animal (sometimes a 500 lb. animal), and Mr. Kennedy had no trouble with these physical aspects. This has significantly changed since the accident. Hunting is now more “road hunting” with a truck. Mr. Kennedy cannot physically pack or drag an animal anymore. In addition, he is not able to undertake the long hours of standing required when fishing.

[53]         Mr. Kennedy described his inability to undertake these and other outdoor recreational activities to Ms. Ali, the registered occupational therapist, as a “great loss”. It is very clear from the evidence that this has affected his sense of identity and quality of life.

[54]         The plaintiff also argued that an award for non-pecuniary damages in this case should take into account Mr. Kennedy’s loss of homemaking capacity. The Court of Appeal in Kim v. Lin, 2018 BCCA 77 (also cited in Wiles) discussed the interdependent nature of non-pecuniary and pecuniary compensation for loss of homemaking capacity:

[30]      Professors Cassels and Adjin-Tetty in Remedies: The Law of Damages, 3d ed (Toronto: Irwin Law Inc., 2014) at 187–188, draw a distinction between cases of pecuniary and non-pecuniary loss on the basis of whether a plaintiff has actually lost the capacity to perform housework:

Where the plaintiff continues to perform the tasks but with difficulty, requires more time to complete the tasks, or manages to get by without doing or intending to do these tasks, the loss may be compensated for as part of nonpecuniary damages for pain and suffering and loss of amenity. …

[55]         Mr. Kennedy is a stoic individual who has tried to cope with the ongoing impact of his injuries. He is, however, unable to do what he once did.

[56]         Taking into account, as per Stapley, the particular circumstances of the plaintiff (including his age, injuries, prognosis, and the fundamental changes in his ability to carry out recreational activities), I agree the accident contributed significantly to his loss of identity and quality of life. I am of the view that the appropriate award for non-pecuniary damages is $110,000.

bc injury law, Kennedy v. Cumming, L2 Fracture, Madam Justice Burke, onset of symptoms in pre-existing condition

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ERIK
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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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