$85,000 Non-Pecuniary Assessment for Chronic but not Disabling Back Pain

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing back injury sustained in two motor vehicle collisions.

In today’s case (Sehra v. Randhawa) the Plaintiff was involved in two separate collisions that the defendants accepted fault for.  These resulted in ‘chronic daily back pain’ with a poor prognosis for full recovery thought the injureis were not disabling and the plaintiff could still undertake various physically challenging activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Douglas provided the following reasons:

[115]    I accept the plaintiff now has chronic daily back pain which is likely to persist indefinitely, despite treatment, and Dr. Giantomaso’s evidence that patient prognosis is generally worse following more than one motor vehicle accident. The plaintiff has undergone substantial passive treatments to date. He has continued to work full-time, except for one six-week absence following MVA #2, and for brief intervals between jobs. He has done so with no formal accommodations at work, although he has been assessed for an ergonomic work station at Core Living. His mild anxiety is now improved and does not preclude him from driving. His sporadic sadness does not impair his ability to work.

[116]    While I accept his life has changed and he is less active since the Accidents, the evidence indicates the plaintiff functions quite well. He is independent in all the usual activities of daily living, except for some housework, and is able to participate in most things, although not always to the same extent he once did. He travelled to Whistler in 2015 or 2016 and drove an ATV. He enjoyed white water rafting with friends in May 2017, approximately eight months after MVA #2. He participated in a treetop adventure and backwards bungee jumping activities organised by friends at his stag party. He sat, albeit with some difficulty, cross-legged on the ground for approximately three hours at his July 2017 wedding. He danced Gangnam style at his reception and rode a camel on his honeymoon. He made the two-day journey by air to India after the Accidents, enjoyed sightseeing activities while there, and admits he had fun on this trip. I conclude the plaintiff’s participation in these activities is consistent with Dr. Giantomaso’s description of the plaintiff’s symptoms as mild to moderate in severity.

[117]    The plaintiff completed the Grouse Grind in October 2019 although doing so was difficult and persuaded him he would not want to repeat the experience. While he was slow, he completed the Vancouver Sun Run in 2019. Although he does so with modifications, the plaintiff has participated in intense active rehabilitation classes since the Accidents.

[118]    The plaintiff’s wife, brother, and friend, Ms. Atwal variously described the plaintiff as fun, energetic, happy, motivated, and driven before the Accidents and as generally less active and engaged thereafter. Mrs. Sehra admitted she is sometimes frustrated by what she perceives to be the plaintiff’s overly cautious approach to driving since the Accidents, noting he could earn more money working in Vancouver but that he is uncomfortable with the long commute. Mr. and Mrs. Sehra both agreed his driving anxiety has improved.

[119]    The plaintiff and his brother both testified that they played basketball, went to the gym, and lifted weights together before the Accidents and that the plaintiff is now less physically active. However, the plaintiff is now in his thirties, married, and expecting his first child. He and his brother are both working full-time. In that context, I do not find it surprising that their relationship has evolved since they were young single students.

[120]    The plaintiff has now completed the academic and work experience portions of his CPA program and anticipates obtaining his professional designation this spring. He works full-time in a job he likes and to which he is well suited. He has an accommodating employer who has agreed to provide him with a personalised chair and a sit/stand desk. He takes obvious pride in his recent promotion to the position of Assistant Comptroller. He is happily married, eagerly awaiting the birth of his first child, and enjoys the support of a close-knit family and wide circle of good friends.

…

[124]    Recognising each case is unique and having regard to all the evidence, the relevant authorities, and the parties’ submissions, I assess the plaintiff’s non-pecuniary damages in the amount of $85,000.