$80,000 Non-Pecuniary Assessment for Chronic and Permanent Low Back Injury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury sustained in a collision.
In today’s case (Gunson v. Sekhon) the Plaintiff was involved in a 2010 collision caused by the Defendant.  The plaintiff suffered a chronic and permanent low back injury.  The lingering symptoms caused some difficulties for the Plaintiff at work but did not outright disable him.  In assessing non-pecuniary damages at $80,000 Mr. Justice Grauer provided the following reasons:

[12]         It is not contested that Mr. Gunson suffered soft tissue injuries to his neck and back with symptoms including dizziness, headache and sleep loss, most of which problems were resolved within a year of the accident.  On his physician’s advice, Mr. Gunson took 28 days off work and underwent a course of physiotherapy.  I accept that he also suffered an exacerbation of pre‑existing situational depression related to his marital and financial difficulties. 

[13]         What did not resolve and is unlikely ever to resolve is injury to Mr. Gunson’s lower back, which I find has become chronic in the form of ongoing intermittent lower back pain and was caused by the accident.  An MRI taken at the request of Dr. Hershler demonstrated “mild changes consistent with facet joint arthropathy and ligamentum flavum hypertrophy at L3/4 and L5‑S1”, as well as shallow posterior disc bulge with a “minimal central canal encroachment but…mild encroachment on the left L4 nerve root”.  I am satisfied that these changes are part of the lower back injury caused by the accident.

[14]         Dr. Waiz recommended physiotherapy and approved a course of chiropractic treatment, while Dr. Hershler recommended a supervised one‑on‑one active exercise program to assist with further pain management. 

[15]         Apart from the first course of physiotherapy immediately following the accident, which was helpful, Mr. Gunson has not pursued these recommended treatments.  The defence does not, however, allege a failure to mitigate.  Rather, it points to this as indicative of Mr. Gunson’s ability to work without the need of such therapy.

[16]         What is the result of this chronic lower back injury?  Mr. Gunson concedes that he did not do housework before the accident, but he did do yard work and does less now.  He advances no claim for loss of housekeeping capacity.  As his counsel submitted, his real focus in life has been his work. 

[17]         Mr. Gunson continued to work full‑time, but testified that he has had to adjust how he has carried out his job, which is clearly a physically‑demanding one, delegating more of the heavy physical work to junior crew members and resting as required.  I will have more to say about this in relation to his claim for loss of income earning capacity.  At this point, I observe that, notwithstanding the injury he has clearly suffered, he has maintained full‑time employment for over five years, has taken no time off as a result of the injury beyond the first 28 days, has not found it necessary to undergo physical therapy or take pain medication, and was able to change employers twice, by choice, without any impediment arising from his physical condition.

[18]         Mr. Gunson also testified that his injury interferes with his ability to play with his growing children, particularly his three‑year‑old, so that he is unable to be as close to them as he would like.  If his back discomfort is aggravated by his work, it interrupts his sleep.  He has not been able to engage in activities such as snowmobiling and golf, and finds that long rides on his Harley cause a flare‑up of the lower back pain. 

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[27]         In all of the circumstances of this case, I conclude that an appropriate award would be $80,000.