$72,500 Non Pecuniary Damages for Longstanding Back Injury With Some Room For Improvement

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing soft tissue injury with some room for improvement.

In today’s case (Lluncor v. Anderson) the Plaintiff was involved in a 2014 rear-end collision that the Defendant accepted fault for.  The crash resulted in a soft tissue injury to the Plaintiff’s back which lingered to the time of trial.  Despite the longstanding nature of the injury the Court found there was prospect for further improvement.  In assessing non pecuniary damages at $72,500 Mr. Justice Armstrong provided the following reasons:

[103]     Overall, I accept that the plaintiff suffered a low back injury at the time of the accident and symptoms from that injury have continued to impact his life on a day-to-day basis. Although the doctors examining the plaintiff are not agreed on the actual diagnosis, I find that plaintiff suffered a soft tissue injury to his low back that was likely superimposed on a pre-existing degenerative condition.

[104]     I do not accept that the plaintiff’s continuing neck complaints or shoulder complaints stem from the car accident injuries although I accept he suffered some injury and symptoms to those areas at the time of the collision.

[105]     Although there is some question concerning the prognosis, the plaintiff relied on the evidence of Dr. Rickards including his view that with weight loss and muscle toning, his symptoms will likely improve and more significant interventions will not be necessary to resolve his complaints. On this basis, I do not accept that his long term prognosis is as guarded as described by Dr. Jaworski or unlikely to resolve as described by Dr. Zayonc.

[114]     I have concluded that the plaintiff’s injuries in this accident have continued to impact him on a regular but intermittent pattern.

[115]     At the time of the accident, the plaintiff and his wife had one child; he engaged in some activity with his child notwithstanding his extended work schedule. He would take his two-year-old child swimming from time to time when he was at home. His wife was a homemaker and the primary caregiver.

[116]     I accept the plaintiff’s description of the impact of his symptoms on various aspects of his life. He sleeps with a pillow between his legs and the duration of his sleep is interrupted. His wife massages his back to relieve discomfort. His ability to walk has been reduced from three to four hours per event to 45 minutes. He is able and continues to swim but with less vigour than before the accident. He does much less hiking and cannot carry his children on his back during family outings. He has tried cycling but discomfort prevents him from longer cycling trips. Before the accident he did 40% of the chores in the house; he is now performing less than 1% of those chores. He had a particular interest in doing dishes by hand rather than using the machine and his injuries prevent him from dishwashing by hand. Finally, in his current residence he had the existing lawn replaced with an artificial surface requiring no upkeep.

[117]      While there is some uncertainty concerning the diagnosis and prognosis, I am satisfied that the plaintiff’s low back injury and the symptoms radiating from that region have continued to cause him noticeable discomfort pain and interference in his day-to-day life. His ability to engage in activities with his children, with his wife, and to maintain his share of the household chores has been compromised. I also accept that the plaintiff has be emotionally downcast as a result of his injuries; he may not be clinically depressed but his wife spoke clearly about his changed personality since 2014…

[128]     Overall, taking into account some shortcomings in the reliability of the plaintiff’s evidence, his reactions to his symptoms and my overall view of the evidence, I make an award of non-pecuniary damages at a level that includes consideration for the plaintiff’s impaired housekeeping capacity. In the result, I award the plaintiff $72,500 under this head of damage.

bc injury law, Lluncor v. Anderson, Mr. Justice Armstrong

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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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