Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.
In today’s case (Suc v. Skelton) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for. The crash caused a bulged disc in the Plaintiff’s low spine which contacted his nerve root at L5-S1. His prognosis for recovery was poor. The injury caused significant limitations in the types of activities the Plaintiff could participate in. In assessing non-pecuniary damages at $70,000 Madam Justice Baker provided the following reasons:
Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury sustained as a result of a collision.
In today’s case (Gee v. Bock) the Plaintiff was involved in a 2014 collision. The Defendant admitted fault. The crash aggravated and worsened pre-existing back pain to the point of the Plaintiff undergoing disc replacement surgery which proved unhelpful. He was left with chronic symptoms. In assessing non-pecuniary damages at $100,000 Madam Justice Marzari made the following findings:
Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for various injuries sustained in a collision including a L4-5 disc herniation with nerve root compression.
In today’s case (Rahemtulla v. Sutton) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for. The crash resulted in a variety of long lasting injuries including a low back disc herniation with nerve compression which required surgical intervention. In assessing non-pecuniary damages at $115,000 Mr. Justice Masuhara provided the following reasons:
Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a neck and back fracture caused by a vehicle collision.
In today’s case (Sommerville v. Munro) the Plaintiff was involved in a near head-on collision in 2015. The Defendant admitted fault. The crash caused a fracture to the Plaintiff’s neck at the C2 level and in his low back at the L4 vertebrae. The Plaintiff was left with chronic and limiting back pain following the crash.
ICBC argued he would have been saddled with similar problems even if the crash never happened. The Court found this position unpersuasive. In assessing non-pecuniary damages at $125,000 Mr. Justice Smith provided the following reasons:
 There is no question that the plaintiff suffered major trauma in the accident. The defendants do not dispute his evidence of symptoms and limitations, but say that he is overweight, in his sixties, and was previously engaged in back-breaking labour despite pre-existing back problems. They say there is at least a measurable risk that he would have suffered similar back pain even if the accident had never happened.
 The defendants rely on the opinion of Dr. Julio Padilla, a neurosurgeon, whose report says the accident disabled the plaintiff for at least six months, but the spinal fractures are stable and the ongoing pain is the result of the progressing, pre-existing degenerative condition.
 On cross-examination, Dr. Padilla agreed that, as a matter of logic, the accident likely contributed to the plaintiff’s current pain, but the degree of that contribution is impossible to quantify. He also agreed that it is impossible to predict when degenerative changes shown on an x-ray or CT scan will become symptomatic and it is reasonable to assume trauma will cause symptoms to appear sooner than they otherwise would.
 In closing argument, counsel for the defendants conceded that the accident “triggered” the onset of pain.
 Dr. Helper agrees there are multiple causes for the plaintiff’s current pain, but injuries caused by the accident are “a significant contributing factor” to the plaintiff’s back and leg pain. Although there was a previous history of some low back pain, he says the plaintiff would be unlikely to have his current symptoms but for the accident.
 Dr. Helper relies in part on the fact that the facet block injections provided some relief. That shows the lumbar facet joints are a significant source of the plaintiff’s pain, which is consistent with the spinal fracture he sustained in the accident. He said the degenerative or arthritic changes in the low back would not necessarily have caused pain to the facet joints in the absence of the accident.
 While Dr. Helper said that a degenerative spine can become painful with trauma, he agreed on cross-examination that such trauma could also come from activities like lifting or twisting.
 Based on the medical evidence, it is likely that the plaintiff’s current pain comes partly from areas of the spine injured in the accident and partly from areas that were already compromised. However, I also accept the plaintiff’s evidence that, in the years between his retirement and the accident, any back pain he had was not significant. It clearly did not limit his activities.
 The fact that severe back pain began so soon after the accident supports the inference, which the defendants concede, that the accident caused the pre-existing condition to become symptomatic. While the plaintiff was clearly at risk for increased back pain, there is no evidence that it was likely to develop either as quickly or to the same degree…
 I have considered the cases put forward by both parties and the general considerations referred to in Stapley and find an appropriate award of non-pecuniary damages in this case to be $150,000, less a 10% reduction for the pre-existing condition. The net award for non-pecuniary loss is therefore $135,000.
Reasons for judgement were release today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a motor vehicle collision.
In today’s case (Zwinge v. Neylan) the Plaintiff was invoked in a head on crash that the Defendant admitted responsibility for. The collision resulted in a chronic facet joint syndrome of the spine, various soft tissue injuries and chronic pain leading to psychological difficulties. This was imposed on pre-existing a substance abuse disorder. The prognosis for recovery was poor. In assessing non-pecuniary damages at $150,000 Mr. Justice Branch provided the following reasons:
 In this case, I would summarize the significant factors as follows:
1. The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.
2. The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.
3. The plaintiff’s pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.
4. The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.
5. The plaintiff’s anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.
6. While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard’s confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.
7. The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.
8. Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.
9. The plaintiff’s quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.
10. The plaintiff has been able to live independently and care for himself since the accident.
 Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.
In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013. The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion. The second aggravated some of her symptoms. By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain. In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:  I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….
 The plaintiff was virtually couch bound for a number of weeks after the First Accident.
 The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.
 The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…
 The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.
 Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.
Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for the permanent aggravation of a pre-existing injury.
In today’s case (Churath v. Cheema) the Plaintiff was involved in a 2011 rear end collision. Prior to this the Plaintiff suffered a disc injury to his spine which required surgical correction and was well on the way to recovery. The collision caused an aggravation of the injury the effects of which were likely permanent. In assessing non-pecuniary damages at $125,000 Mr. Justice Affleck provided the following reasons:
 I make the following findings of fact:
a) the plaintiff suffered a low back injury while playing volleyball in 2010, which caused a serious disc herniation. Prior to that event he had been symptom-free in his low back;
b) the plaintiff’s surgery following the volleyball incident was successful. He was making a steady recovery and in due course would have become largely if not entirely symptom-free but for the car accident;
c) the car accident caused the injuries and symptoms from the volleyball incident to recur. The plaintiff’s current disability is largely explained by the car accident injuries;
d) the injury from the volleyball incident and from the car accident is an indivisible injury and division is neither possible or appropriate: Athey at para. 25;
e) the plaintiff has continuing moderate pain and disability. He can walk adequately and drive a car although with some discomfort. His physical symptoms have diminished his employability, but he is capable of regular employment which makes only light demands on his physical capacities;
f) the plaintiff’s employment with Allegra was ending because of changing technology in the printing industry. The plaintiff is not capable of retraining for that industry. He has a limited education, limited English language skills and minimal computer literacy. The Allegra job would have ended within a maximum of five years from the time of the car accident, even if it had not happened. The plaintiff thereafter would have made a small income using the offset printer at his home if he had not had the car accident. He remains capable of earning a small income by that means; and
g) the car accident injuries are permanent, but when this litigation ends the plaintiff will become more active…
 The plaintiff was about 46 years old at the time of the car accident. The injuries were severe and led to surgery. He will not recover entirely. There inevitably has been emotional suffering and distress. The relationship with his family, perhaps particularly with his wife, has been impaired, but I do not consider that will be permanent.
 The plaintiff continues to have some disability. I have found that it is not as extensive as he wants this Court to believe. I am satisfied he can exercise reasonably vigorously; he can walk for extended periods of time; he can perform chores around his home, and he can lift heavier weights than the 20 pound bag of flour which he testified he could not lift.
 I assess non-pecuniary general damages at $125,000.
Reasons for judgement were released today by the BC Court of Appeal dismissing the appeal of an $85,000 non-pecuniary award for a chronic low back injury.
In today’s case (Villing v. Husseni) the Plaintiff was injured in 2010 in a collision caused by the Defendant. She suffered a low back injury diagnosed as Lumbar Facet Syndrome. In finding nothing wrong with the trial judge’s $85,000 assessment of non-pecuniary damages the BC Court of Appeal provided the following reasons:
 Both parties commissioned expert reports on the nature of Ms. Villing’s injuries. Dr. Pankaj Dhawan, a physiatrist, testified at trial for Ms. Villing. Dr. Robin Rickards, an orthopaedic surgeon, testified for the defendant, Ms. Husseni. Both experts diagnosed lumbar facet syndrome. A patient with lumbar facet syndrome will often have pain triggered by rotation, lateral flexion, and extension of the involved spinal segment. Ms. Villing experiences this type of chronic back pain.
 Dr. Rickards recommended that she try medial branch blocks and radio frequency facet rhizotomy. Medial branch blocks inject local anesthetic to temporarily freeze the nerve affecting the involved facet. A rhizotomy involves the insertion of needle-like electrodes into the bases of the nerves of the involved facet, and the application of heat to destroy the subject nerves. The rhizotomy would be performed if the medial branch blocks were successful. These procedures would be performed under a local anesthetic in an outpatient department. These procedures carry a high expectation of success, although success does not entail total and continuing relief.
 A medial branch block requires no time off work. A rhizotomy can be more uncomfortable and may result in increased back pain for 7‑10 days. Time off work or work modification may be required. In most cases, significant relief is experienced four to six weeks following treatment and the patient is expected to then return to full work duties and activities.
 The appellant referred the Court to five decisions in support of its position that the $85,000 award for non‑pecuniary damages should be reduced to $50,000–$60,000. Those cases were Engqvist v. Doyle, 2011 BCSC 1585 ($70,000 for a 70‑year-old plaintiff with similar injuries); Perry v. Ismail, 2012 BCSC 123 ($42,500 where there was delayed recovery for not following the advice of a physician); Burton v. Insurance Corporation of British Columbia, 2011 BCSC 653 ($35,000 for a moderate soft tissue injury, which after two-and-a-half years was expected to continue to improve); and Sandher v. Hogg, 2010 BCSC 1152 ($40,000 for continued pain of uncertain duration, which was reduced for failure to adhere to a recommended exercise regime).
 The respondent referred the Court to cases where young plaintiffs suffer chronic back pain, such as: Dickenson v. Passero, 2015 BCSC 908 ($100,000); Pett v. Pett, 2009 BCCA 232 ($85,000); Ruscheinski v. BiIn, 2011 BCSC 1263 ($85,000); Doho v. Melnikova, 2011 BCSC 703 ($80,000); Roberts v. Scribner, 2009 BCSC 1761 ($95,000); and Kirkham v. Richardson, 2014 BCSC 1068 ($120,000). The respondent also referred to Engqvist v. Doyle ($70,000) as a case involving a similar injury, albeit a much older plaintiff.
 An award of damages is a fact-finding exercise and attracts a deferential standard of review: Ostrikoff v. Oliveira, 2015 BCCA 351 at paras. 2–3. It is not for this Court to substitute its own opinion for that of the trial judge except where it can be said that the assessment is so inordinately high as to be wholly erroneous: Woelk v. Halvorson at 435–36. While the award in the present case may be a generous one, I am unable to conclude that it is so inordinately high as to be wholly erroneous. I would dismiss the second ground of appeal.
Adding to this site’s archived posts of ICBC back injury claims, reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic, partly disabling back injury.
In today’s case (Klein v. Sangha) the Plaintiff was injured in 2 collisions. Fault was admitted and the trial focused solely on the quantum of the Plaintiff’s claim. In finding the collisions resulted in a lumbar facet joint injury giving rise to chronic pain the Court provided the following reasons in assessing non-pecuniary damages at $90,000 –  It is clear on the medical evidence, particularly Dr. Rickards’ evidence, that Mr. Klein probably suffered Lumbar Facet Joint Syndrome as a result of the first accident and that, as a 39 year old male who had suffered “some” degenerative disc disease to his cervical back area, he was susceptible to such an injury…
 Considering the inexhaustive list of common factors influencing an award of non-pecuniary damages referred to above, I note the following factors are particularly applicable:
(a) The age of the plaintiff. Mr. Klein was in his late thirties at the time of the first accident in a well-established occupation which provided financial and personal satisfaction to him. But for the accident, Mr. Klein would have had many more years of job satisfaction.
(b) The nature of the injury. Mr. Klein’s injury, specifically to his spine, affects all aspects of life including work, play, sleep and everyday chores.
(c) The severity of pain. Mr. Klein’s pain has left him bed-ridden for prolonged periods of time, interfered with his graduated return to work and led to much pain and frustration over four years.
(d) The disability. Mr. Klein’s disability meant he could only return to work on a part-time basis before the second accident. He has only been able to undertake some of the tasks he was able to complete before the accident and only with resulting pain.
(h) Impairment of physical abilities. This is obvious from Mr. Klein’s evidence and Dr. Rickards’ report.
(i) Loss of lifestyle. Mr. Klein is no longer able to participate in sporting activities, except for a very short period of time. He cannot continue his chosen line of work which gave him great satisfaction in the past, i.e. working with his hands. He has suffered loss of sleep and cannot maintain a home without assistance. He now relies on friends for help whereas he was previously very independent. He has expressed considerable frustration in spite of his efforts to improve including physiotherapy, exercise, acupuncture and more. Nonetheless, he has been told to expand his efforts at establishing an exercise program.
(j) The plaintiff’s stoicism. Mr. Klein has exemplified stoicism by attempting to return to work, to establish and restore a construction business in a modified scenario from his pre-accident work and to continue to support his daughter who was suffering from depression while Mr. Klein was dealing with his injuries. Every aspect of his life has been affected by his injuries…
 Mr. Klein expressed considerable frustration at his inability to function at work and in all other aspects of his life. I found his evidence in this respect to be credible. He also thinks, quite reasonably, considering his experiences since the accident, that he will likely be affected by the injuries for a considerable time to come.
 I have also considered Dr. Rickards’ evidence about a rehabilitation program he proposed to Mr. Klein to minimize or possibly overcome the effect of his injuries. I have considered his injuries to date and the likelihood that he may never totally recover from them in the above assessment of non-pecuniary damages. Considering all of the evidence and authorities, I find an appropriate award of non-pecuniary damages to be $90,000.
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.
In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision. The Defendant admitted fault. The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman. In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:
 The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.
 Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.
 Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.
 Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…
 It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…
 The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.
 Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.
 Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.
 An appropriate award for non-pecuniary damages in this case is $110,000.
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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