$42,500 Non-Pecuniary Damages for Aggravation of SI Joint Injury

Adding to this site’s archives for non-pecuniary damages for sacroiliac joint injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an injury with pre-existing contribution.
In last week’s case (Fuchser v. Wilson) the Plaintiff was involved in a 2008 collision.  Fault was admitted.   The Plaintiff suffered from various pre-existing injuries including sacroiliac joint pain.  The collision aggravated the Plaintiff’s pre-existing injuries and also caused some new injuries.  The injuries made meaningful recovery in the first year following the collision but continued to bother her at the time of trial.  Madam Justice Russell valued the the Plaintiff’s non-pecuniary damages at $50,000 then reduced this award by 15% to reflect the Plaintiff’s pre-existing condition.  In arriving at this figure the Court provided the following reasons:

[129]   Ms. Fuchser’s medical records show continuing issues with her sacroiliac joint and upper and lower back over several years. In fact, if Dr. Hershler had indeed reviewed the plaintiff’s medical records, he would have found that she had suffered from both upper and lower back pain and on-going pain in her right sacroiliac joint and right upper back as recently as three days before the accident. She reported these issues on a visit to her osteopath on December 4, 2008.

[130]   It is simply not accurate to say that Ms. Fuchser’s symptoms essentially began following the accident. It may be accurate to say that they became worse, based on her reports, but certainly she had suffered from the same or similar symptoms on and off over several years…

[169]   It is my view that the plaintiff in this case suffered from pre-existing conditions, namely scoliosis, pelvic malalignment and sacroiliac joint pain, all associated, which were active and unpredictable. In addition, she suffered right sided pain in her upper back, which was part of her overall condition, but was exacerbated by stress.

[170]   The accident of December 7, 2008 caused an exacerbation of her conditions and she suffered from increased pain which in turn affected the ways in which the pre-existing conditions manifested themselves. She again suffered sleeplessness as she had when her sacroiliac pain had been acute in the past. Her right upper back became stiff and painful, similar to how she had reacted to stress and lower back pain in the past. The headaches were a new manifestation, but no doubt related to the cervical strain she suffered in the accident.

[171]   There can be no doubt that she lived with increased pain over a period of about a year before she began to show improvement…

[173]   I find that there was a measurable risk that the degenerative changes would have become symptomatic without the accident. Dr. Klein agreed that the earlier low back problems she had had came on without any precipitating cause and that the scoliosis and disc protrusion could have explained those problems. He also agreed that tightness in the muscles (as in her right upper back) can be caused by stress…

[193]   I have carefully considered the cases on damages set out in both the plaintiff’s and the defendants’ brief of authorities. I award $50,000 in non-pecuniary damages to be subject to deduction for the pre-existing condition.