$140,000 Non-Pecuniary Assessment For Permanent Low Back Nerve Injury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages for a permanent low back nerve injury with accompanying depression.
In today’s case (Bellaisac v. Mara) the Plaintiff, who was described by the Court as “an uncomplicated man who enjoys life’s simple pleasures, including those of hard physical labour” was injured in a 2009 rear end collision.  The crash caused L5-S1 Disc Injury which impacted and permanently injured the S1 nerve root.  In describing the injury and prognosis the Court accepted the following medical evidence –

[36]         Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

In assessing non-pecuniary damages at $140,000 Mr. Justice Funt provided the following reasons:

[71]         The Court will award the plaintiff $140,000 in non-pecuniary damages. In considering the various factors, the Court has placed particular weight on the plaintiff’s age, which favours an award larger than if he were much older. He will be living with chronic back pain and fluctuating chronic depression for the rest of his life.

[72]         In making the award, the Court considered the fact that Dr. Fisher, in his March 12, 2014 report, mentions the possibility of surgery. As noted, in his April 13, 2012 report Dr. Fuller states:

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

[73]         With Dr. Fuller’s opinion in mind the Court finds that the future possibility of lower back surgery is not a real and substantial possibility.

$100,000 Non-Pecuniary Assessment for Onset of Degenerative Disc Disease Pain

A common pattern following the trauma of a motor vehicle collision is the onset of symptoms in an otherwise asymptomatic degenerative spine.  Reasons for judgement were released this week by the BC Supreme Court, Courtenay Registry, dealing with such a fact pattern.
In today’s case (McCarthy v. Davies) the Plaintiff was involved in a 2010 collision caused by the Defendant’s negligence.  She sustained chronic pain in her neck and back which ultimately were diagnosed as originating from degenerative disc disease.  The collision caused the onset of symptoms.  The Court rejected the Defendant’s argument that the symptoms would have come on in any event and in assessing non-pecuniary damages at $100,000 Madam Justice Gerow provided the following reasons:
[65]         In my view, the evidence establishes the probable cause of Ms. McCarthy’s ongoing neck, upper back and lower back pain is that the injuries she sustained in the accident exacerbated her pre-existing asymptomatic degenerative disc disease. While there was a risk that the degenerative disc disease in her neck and back would become symptomatic at some point in the future, the evidence is that she did not have neck or back pain prior to the accident. As stated by Dr. Leete, there are approximately 10 to 15% of patients who suffer from long term intrusive symptoms as a result of the trauma to their spines from a motor vehicle accident.
[66]         Having reviewed the evidence I have concluded this is one of those cases, and the defendant is liable for Ms. McCarthy’s ongoing symptoms even though they may be more severe than expected due to her pre-existing condition. As stated by the experts, many individuals have degeneration in their spines without any symptoms. Accordingly I conclude Ms. McCarthy’s ongoing symptoms fall within the thin skull rule enunciated in Athey.
[67]         I find that but for the accident Ms. McCarthy would not be suffering from the chronic pain in her neck, shoulder and back with the associated mental distress…
[103]     Having considered the extent of the injuries, the fact that the symptoms have been ongoing four years with little improvement, the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $100,000.

$225,000 Non-Pecuniary Assessment for Chronic and Disabling Conversion Disorder

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling conversion disorder following a motor vehicle collision.
In this week’s case (Best v. Thomas) the Plaintiff was operating a motorcycle when he was rear-ended by a van.  The Plaintiff suffered a spine injury at C-5 which required surgical correction.  He went on to suffer from a variety of disabling ailments.  Ultimately the Court found these were due to a conversion disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $225,000 Madam Justice Duncan provided the following reasons:
[139]     I find on a balance of probabilities that the main cause of the plaintiff’s current condition, including the myoclonus, is conversion disorder. I come to this conclusion because of the relative rarity of propriospinal myoclonus and how it can be mistaken for psychiatric problems. The non-anatomical presentation was also persuasive. As early as Dr. Ho’s involvement, a strange kicking motion was noted, which was inconsistent with a neurological cause. Some of the plaintiff’s pain may well be as a result of the surgery on his C5/6 disc; however, the vast majority of his symptoms, in my view, are not organic or structural in cause.
[140]     Diagnosis of cause aside, what I glean from the experts is that nobody predicts anything close to a full recovery for the plaintiff. Dr. Hurwitz posited a 14% possibility of some recovery, though in light of the fact that the plaintiff has already been treated with a wide variety of anti-depressant drugs, this is a very optimistic prognosis. The other experts recommended various interventions in an effort to assist the plaintiff…
[161]     The plaintiff was almost 32 when the accident happened. The original injury was to his C5-6 disc. I find the following facts about the plaintiff’s condition have been established on a balance of probabilities.
[162]     Since the accident, the plaintiff has been in constant pain, notwithstanding an aggressive regime of pain treatment through medication and other therapies. He is disabled from competitive employment. While he can drive and walk, with some difficulty and with the assistance of a cane, he cannot engage in the activities he enjoyed before the accident. In terms of physical activity, he can do little more than walk very short distances and swim. He can no longer work at a job he enjoyed. His emotional suffering is extreme. He has given up hope of being a father and had a vasectomy as he would be unable to engage in play or chase a child. His enjoyment of sexual activity is significantly diminished as he has lost sensation in his penis during intercourse. His family and friends attest to the fact that he is not the same person as before the accident. He no longer laughs and jokes around. He is constantly fatigued. His family and two close friends remain engaged with him but his world has shrunk considerably from his pre-accident social activities and he has essentially lost a healthy, active, social lifestyle. He is not as mentally sharp as he was, whether by virtue of the injury or the associated medications he takes to manage his condition. None of the experts predicted anything remotely approaching a full recovery.
[163]     Taking into account all of the foregoing, as well as the range of cases provided by counsel, I award the plaintiff $225,000 in non-pecuniary damages.
 

$85,000 Non-Pecuniary Assessment For L3-4, L4-5 Disc Injuries

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages following a disc injury caused by a collision.
In this week’s case (Shipley v. Bye) the Plaintiff was involved in a 2010 rear end collision. The Defendant was found at fault.  The Plaintiff suffered multilevel disc issues following the crash which continued to pose some problems at the time of trial.  The Plaintiff worked at a warehouse and “was limited to unskilled or semi-skilled work“.  While he was able to eventually return to his occupation the injuries were expected to limit his ability to engage in heavy physical demands.  In assessing non-pecuniary damages at $85,000 Madam Justice Kloegman provided the following reasons:
[19]         In his report of September 17, 2013, Dr. Weiss concluded that:
1.     The motor vehicle accident produced an acute discogenic injury at the L4-5 level with possible L5 nerve root irritation. The plaintiff’s radicular symptoms had resolved and the disc prolapse had retracted.
2.     The current pain that the plaintiff was feeling was multi-factorial from a discogenic lesion at the L4-5 level, a pre-existing but a symptomatic dysplastic L3‑4 facet joint which had become inflamed from the accident, and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss could not say was caused by the accident.
[20]         Dr. Weiss also opined in his report of September 2013 that the plaintiff had lost the physical capacity and functionality to perform heavier forms of work related activity. He stated that it is also likely that the plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain, some of which was directly attributable to the accident. Dr. Weiss could not say that the accident had caused any acceleration in degenerative disc disease of the plaintiff’s lower back.
[21]         With the exception of the cause of the possible nerve root involvement at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept them as accurate. I find that an L4-5 discogenic injury and an aggravation of a previously asymptomatic congenital dysplastic L3-4 facet joint were caused by the motor vehicle accident. Any other injuries or pain complained of by the plaintiff during the material time have not been proved, on a balance of probabilities, to have been caused by the subject accident…
[25]         I have reviewed the authorities provided to me by both counsel, some of which were the same. The most factually similar cases are Esau v. Myles, 2010 BCSC 43; Roy v. Storvick, 2013 BCSC 1198; Peso v. Hollaway, 2012 BCSC 1763; and Jackson v. Jeffries, 2012 BCSC 814. It appears from these cases that the plaintiff’s damages are in the range of $70,000 to $100,000. In my view, the plaintiff here should be awarded the sum of $85,000 for non-pecuniary damages.
 

$70,000 Non-Pecuniary Assessment for Chronic Facet Joint Injury

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back injury.
In this week’s case (Bearpark v. Lakhanpal) the Plaintiff was injured in two collisions.  The Defendants accepted fault.  The Plaintiff suffered injury to his facet joints in the L4-S1 region.  This caused chronic pain and resulted in restrictions in the Plaintiff’s ability to do heavier work.  In assessing non-pecuniary damages at $70,000 Mr. Justice Greyell provided the following reasons:
[100]     I am satisfied the evidence presents a consistent and reliable picture of the plaintiff’s injuries, which he did his best to describe in his evidence. His evidence was generally consistent with the findings of his physicians that in the two motor vehicle accidents he sustained and suffers from chronic lower back pain which originates from injury to his facet joints in the L4 – S1 region, shoulder pain which flares up (and was likely aggravated in the bus accidents) and neck pain. His neck pain has now mostly resolved…
[103]      Mr. Bearpark has been left with significant ongoing chronic lower back pain which I find is the result of an injury to his lower back in the L-5-S-1 area. I find this injury to be a direct result of the two motor vehicle accidents. The injury to his lower back bothers him more when he engages in heavy labour and limits him in the job functions he can perform. He is able to tolerate it in the sedentary position he now occupies with accommodations provided to him by his employer.
[104]      I find the injuries to his right shoulder, hand, and knee have mostly resolved. I find that his left shoulder is now more susceptible to injury as a result of an impingement in that shoulder and along with his neck, bothers him, and will likely continue to limit his functional ability when he engages in heavy labour. I find that the ongoing intermittent problems in his neck and left shoulder were caused by the motor vehicle accidents. His left shoulder injury may well have been aggravated by the First Bus Accident. That is, as the defendants submit, not a matter to be considered in this action.
[105]     The plaintiff’s main ongoing and persistent complaint is of ongoing pain in his lower back or organic problems in his lower spine as described above.
[106]     I also find that he is likely still bothered by symptoms of depression and Post Traumatic Stress, including difficulty sleeping, anxiety, and flashbacks to the motor vehicle accidents. The depression likely has an effect on the amount of pain he feels. As described in the medical evidence, the two often go hand in hand…
[110]     Mr. Bearpark is a relatively young man who, at the time of both motor vehicle accidents, had not yet settled into a career path. He was active in both sporting and social activities, although somewhat reserved and shy. The accidents have left him with ongoing chronic back pain, which limits his performance of heavier work involving lifting, bending or twisting, and intermittent pain in his neck and left shoulder. He will likely be restricted to sedentary work in the future as a result of the injuries to his back and shoulder. His physicians have recommended that conditioning and exercises may help him although, as stated above, his prognosis is “guarded”.
[111]     Taking into account the principles outlined in Stapley and the authorities referred to by counsel, I am of the view an appropriate award for non-pecuniary loss in this case is $70,000.

$150,000 Non-Pecuniary Assessment For Spine Fusion Leading To Chronic Complications

Reasons for judgement were released this week demonstrating that not only is an at-fault motorist responsible for the injuries they cause but also for any complications that result in the course of the Plaintiff’s reasonable treatment of these.
In this week’s case (Cebula v. Smith) the Plaintiff was involved in a head on collision.  Despite denying fault the Court found there was “overwhelming and uncontradicted” evidence that the Defendant was to blame.  The crash caused multiple injuries including a fractured neck which required the removal of two discs and a fusion from C5-C7.  Following this surgery the Plaintiff experienced a bone infection in her hip and further experienced long term difficulty swallowing as a complication of the surgery.  In finding the Defendant at fault for all of these consequences and assessing non-pecuniary damages at $150,000 Mr. Justice Weatherill provided the following reasons:
[297]     On the basis of the evidence before me, I find that the plaintiff has established that the injuries she sustained to her neck, shoulders and upper back, right knee and right ankle, as well as her PTSD, sleep disturbances and anxiety were caused by the Accident.  I also find that the plaintiff’s swallowing difficulties, dizziness and voice problems were the result of her neck surgery that was itself necessitated by the Accident.  The infection in her hip at the site of her bone graft was also the result of her neck surgery.  Her headaches have been aggravated by the Accident.  It is more probable than not that these injuries and other conditions would not have occurred but for the Accident….
[301]     As a result of the Accident, the plaintiff’s life changed permanently and dramatically.  The various surgeries she underwent, the chronic pain and headaches, the long period of only partial recovery, the limitations on her mobility and her inability to continue in her teaching position has had a significant effect on both her physical and psychological wellbeing.  She has withdrawn from her social network and previous social activities.  She is short-tempered and not as much fun to be around.  Driving has become stressful and anxious for her.  It is worse when she is a passenger.  The dizziness and choking that began after her November 2007 neck surgery continue to this day.  She is unable to take care of her home and garden except for minor housekeeping tasks.
[302]     The plaintiff has become anxious and has lost confidence in her ability to be an effective teacher.  Teaching is no longer the joy that it was for her prior to the Accident.  Although psychological treatment and other encouragement enabled her to gradually return to work, she is only able to teach in the classroom one day per week.  That one day takes a toll on her such that she requires the remainder of the week to recuperate and prepare for the next work day.
[303]     The plaintiff was in obvious pain and discomfort while she was testifying.  It is clear to me that the Accident has caused her significant stress and anxiety and significantly affected her ability to function and cope with daily life, a marked change from her life prior to the Accident…

 [321]     Having considered the principles set out in Stapley and the cases relied upon by counsel, I find that an award of $150,000 for non-pecuniary damages is appropriate.

$130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision.  The Defendant admitted fault for the collision.  The crash caused a disc herniation which required a bilateral disectomy.  The Plaintiff was left with chronic pain accompanied with depressive symptoms.   In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
[41]         Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop.  Following the accident, he was a very different person.
[42]         There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
[43]         In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement.  He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
[44]         Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions.  She also opined that he has mechanical lower back pain.  She reported, “Unless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.”  She also concluded in her prognosis, “It is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor.  It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.”
[45]         Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff’s major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression.  Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
[77]         When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.

Physician's Evidence Rejeced for Lack of "An Open Mind" Regarding Collision Related Injury

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:
[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:
1.     He took what can only be described as a cursory history from Ms. Sekihara;
2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;
3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;
4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.     he was evasive at times in his oral testimony.
[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.
[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 
[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 
[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 
[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.

$100,000 Non-Pecuniary Assessment For Multi Level Disc Herniations

Adding to this site’s archives addressing non-pecuniary damages for spine injury cases, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In the recent case (Tabet v. Hatzis) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk.  He suffered a variety of injuries the most serious being multi level disc herniations in his low back which went on to cause chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Dickson provided the following reasons:
[47]         The defence does not challenge most of the expert evidence presented by Mr. Tabet regarding his accident-related injuries.  In summary, he has been diagnosed by Dr. Sahjpaul, a neurosurgeon, as suffering from low back pain; myofascial and discogenic neck pain; myofascial left leg symptoms, radicular and discogenic; and concussion, resolved.  Dr. Sahjpaul also diagnosed left arm symptoms, but the etiology of those symptoms is uncertain.  In addition, Mr. Tabet has been diagnosed by Dr. Chernick, a psychiatrist, as suffering from depression.  Other than the left arm symptoms, I accept that these conditions are causally connected with the accident.
[48]         According to Dr. Sahjpaul, a September, 2007 post-accident CT scan demonstrated a left L4-5 disc herniation and a broad based L5-S1 disc bulge.  Subsequent investigations demonstrated the L5-S1 disc bulge has also become herniated.  Unfortunately, Mr. Tabet’s prognosis for complete recovery from associated symptoms is not favourable.  While it is possible that his left leg symptoms will improve somewhat it is unlikely that his back pain and neck pain will improve substantially, even with surgery…
[76]         There is merit in both submissions made by counsel.  Mr. Tabet’s physical and emotional suffering is significant and his overall enjoyment of life has been seriously compromised.  Nevertheless, he has pushed himself hard and his work regimen reflects both a choice on his part and stoicism.  Taking into account all of the facts summarised above, I conclude that an award of $100,000 in non-pecuniary damages is appropriate in all of the circumstances of the case.

$75,000 Non-Pecuniary Assessment for Low Back Disc Protrusions With Chronic Symptoms

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury caused as a result of a motor vehicle collision.
In this week’s case (Roy v. Storvick) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault “just before the trial commenced“.  The Plaintiff, a 27 year old carpenter at the time of the crash, suffered various injuries the most serious of which involved disc injuries in his low back.  He was expected to have long term issues associated with these affecting his vocational abilities.  In assessing non-pecuniary damages at $75,000 Madam Justice Gropper made the following findings and provided the following reasons:
[50]         With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:
As a direct result of [this motor vehicle accident], this 30-year-old carpenter sustained myofascial injuries to his cervical spine and a severe injury to his lumbar region where both clinically and radiologically he has evidence of lower lumbar disc protrusions principally at the L3/L4 level where there was an associated annular tear and also at the L4/L5 level where there was a moderate midline focal disc protrusion.
[51]         Dr. Murray says that lumbar disc protrusions usually run a protracted course of recovery: a three year duration is not unusual. He expects that Mr. Roy will eventually become pain free.
[52]         In regard to Mr. Roy’s tear of the annulus fibrosus at the L3/L4 level, it can never heal as it does not have a blood supply. Dr. Murray considers that Mr. Roy will always be at risk for further episodes of lumbar disc protrusion pain. Dr. Murray continues:
… he will not be able to continue with his career as a carpenter and will need to be retrained for a less physically demanding alternate occupation. It may be difficult to find such an occupation for this man as he is very much “the sporting type”, who prior to the [motor vehicle accident] three years ago attended the gym six times a week and also played soccer twice a week….
[105]     At the time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work as a carpenter and participated regularly and enthusiastically in many sporting activities. While he is able to continue his employment, the remaining aspects of his physical activities have come to an end. In reconciling the prognosis of Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited opportunity to observe Mr. Roy. He was also apparently unclear on the degree to which Mr. Roy was engaging in exercise.
[106]     I further note that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a kinesiologist, who put him through testing and concluded that Mr. Roy’s functioning is compromised and that he will likely have increased rather than reduced pain.
[107]     I find that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy suffered a severe injury to his lumbar spine and a moderate to severe injury to his cervical spine is accurate. While Dr. Murray suggests that there may be some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing pain and discomfort….
[109]     Having reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary damages at $75,000.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer