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$90,000 Non-Pecuniary Assessment for Neck Injury Requiring Surgical Fusion

Written by admin on . Posted in ICBC Spine Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a neck injury requiring surgical intervention.
In this week’s case (Gormick v. Amenta) the Plaintiff, a “young, athletic police officer” was injured in a 2008 collision.  Liability was admitted by the Defendant.  The Plaintiff suffered a neck injury which required disc removal and fusion at the C5-C6 level.  The Plaintiff had pre-existing issues to her neck and the Court found that there was a 10% chance surgery would be required even absent the collision.  The Plaintiff was left with some residual symptoms but the Court found her residual earning capacity was not impacted.  In assessing non-pecuniary damages at $90,000 Mr. Justice Sigurdson provided the following reasons:
[71]         In sum, the plaintiff had some neck pain and restricted motion prior to the accident that did not impair her work or ability to enjoy life to any measurable degree.  Because of her underlying condition, which was largely asymptomatic, she suffered injuries in the accident that were extremely painful and required surgery.  The surgery, though successful, has resulted in stiffness and restricted motion that appear to have affected the strength of her throwing arm and her ability to lift.  Although surgery was not a likely option for her pre-existing condition, now that she has had it she is at 25% risk of suffering adjacent segment disc disease within 10-15 years.
[72]         In all the circumstances, I assess general damages at $90,000.  In doing so, I also take into consideration the pain and suffering that she will suffer in the future as a result of her injuries that were caused by the accident. …
116]     The plaintiff is a very capable police officer.  She has done well in her career and I expect, given the evidence of Sergeant Arruda, that she will continue to do well.  She has had two children and has maintained an active busy life.  I recognize that she appears to have some symptoms that persist, but to the extent they were caused by the motor vehicle accident, I have included that in my assessment of general damages.  I expect that her patrol work may make her uncomfortable due to stiffness or lack of range of motion, but I am not satisfied that the plaintiff has demonstrated that the injuries in the accident have given rise to a real and substantial possibility of a loss of income or capacity in the future, and as such, I make no award under this head. 

Non-Disclosed Medical Report Leads to Adverse Inference in Cervical Radiculopathy Injury Claim

Written by admin on . Posted in ICBC Spine Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, commenting on “the failure of the defence” to produce a medical report they agreed to exchange in the course of an injury lawsuit.
In this week’s case (Chekoy Sr. v. Hall) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant   The Plaintiff suffered a cervical radiculopathy as a result of the crash and had non-pecuniary damages assessed at $75,000.  In the course of the lawsuit the Plaintiff agreed to attend an independent medical exam requested by the Defendant in exchange for a copy of the resulting report.  The report was never produced.  In reaching his assessment of the evidence and this development Mr. Justice Masuhara provided the following comments:
[67]         Though the plaintiff attended an independent medical examination requested by the defence.  The defence did not adduce any medical evidence challenging the plaintiff’s medical evidence.  Mr. Gertsoyg produced a letter which stated that his client would attend an independent medical exam requested by the defence in exchange for a copy of the resulting report.  Ms. Tonge wrote back agreeing to do so.  For some reason, a copy was not provided to Mr. Gertsoyg.  During the course of the trial, Ms. Tonge was requested by Mr. Gertsoyg to produce the report.  Ms. Tonge refused and when asked by Mr. Gertsoyg in court to provide the report she stated that she did not have with her.  She did not offer to get and provide it. ..
[85]         In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff.  The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard.  The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory.  While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.
[86]         On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff’s pre-existing degenerative disk disease, subsequent treatments, or other events.

Court Turns to Wikipedia To Address Claimed Damages for Rolfing

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released this week with the BC Supreme Court citing Wikipedia when assessing damages following a motor vehicle collision.
In this week’s case (Parker v. Davies) the Plaintiff was injured in a 2009 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff sustained a disc protrusion in her back and was expected to have long term symptoms as a result of this.  The Court assessed non-pecuniary damages of $90,000.
In addition to this the Plaintiff claimed fairly substantial damages for future care costs including over $24,000 for rolfing.  Mr. Justice Meiklem rejected this claim finding there was no medical evidence to justify the expense.  Prior to doing so the Court took the interesting move of referencing Wikipedia and provided the following reasons:
[40]         I had never heard of Rolfing before this trial and there was no authoritative evidence presented about what Rolfing is, much less any medical evidence that it is medically necessary in Ms. Parker’s case. I note that Ms. Henry adopted Ms. Parker’s description of Rolfing as a form of deep tissue work. Ms. Parker credits it as the most beneficial treatment that she has undergone in relieving the pain that radiates to her leg. Ms. Henry suggested that consideration be given to funding the treatment based on her understanding that it helped Ms. Parker, but would defer to a physician as to the medical benefits.
[41]         My curiosity led me to Wikipedia.org, where the following description appears:
Rolfing is a therapy system created by the Rolf Institute of Structural Integration (also referred to as “RISI”), founded by Ida Pauline Rolf in 1971.The Institute states that Rolfing is a “holistic system of soft tissue manipulation and movement education that organize(s) the whole body in gravity”. Manipulation of the muscle fasciae is believed to yield therapeutic benefits, including that clients stand straighter, gain height and move better, through the correction of soft tissue fixations or dystonia. A review found that evidence for clinical effectiveness and hypothesized mechanisms of Rolfing is severely limited by small sample sizes and absence of control arms, and that further research is needed, though controlled trials found that a single Rolfing session significantly decreases standing pelvic tilt angle, and that Rolfing caused a lasting decrease in state anxiety when compared to the control group. Only practitioners certified by RISI can use the title “Rolfer,” or practice “Rolfing,” due to service mark ownership. The Guild for Structural Integration is the other certifying body, whose graduates use the title “Practitioners of the Rolf Method of Structural Integration.”
[42]         In researching previous decisions of this court, I found two cases where Rolfing treatments were funded as part of special damages awarded, without medical evidence of medical necessity: Price v. Abdul, unreported, Vancouver Registry No B922911, BCSC, January 12, 1994; Schubert v. Knorr, 2008 BCSC 939, and one case, Cryderman v. Giesbrecht and Giesbrecht, 2006 BCSC 798, where the court acknowledged Rolfing costs as part of future care costs on the basis that, although not prescribed by her doctors, the plaintiff said the treatment gave her relief and the court found that the amount ($140 annually out of total annual care costs of $1,060) did not seem excessive.
[43]         The plaintiff in Cryderman sought a total future care costs award of $10,000, but was awarded $4,000, so the amount of the award notionally attributable to future Rolfing treatments would be approximately $550. Of course, assessing future care costs is not a precise accounting exercise, and perhaps the court felt that the very modest cost claimed obviated the need for evidence of medical necessity in that case. However, by comparison, Ms. Parker’s claim is for an award that would include $24,934 as the present value of annual Rolfing costs in the amount of $1,020 for the rest of her life expectancy. In my view, this is not a case where the court should deviate from the established principle that the appropriate award for the cost of future care is an objective one based on medical evidence. Accordingly, I will not consider potential future Rolfing costs in my assessment.
While it is easy to understand the desire to inform oneself by referencing on-line material, the same privilege clearly does not extend to a Jury as evidenced by this 2009 development where the BC Supreme Court discharged a juror for satiating his curiosity by referencing Wikipedia in the course of a trial.

$95,000 Non-Pecuniary Assessment For Chronic L4/5 Disc Herniation With Liklihood of Surgery

Written by admin on . Posted in ICBC Spine Injury Cases.

Adding to this site’s archived cases addressing non-pecuniary damages for spine injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a low back disc injury.
In this week’s case (Muhammedi v. Ogloff) the Plaintiff was involved in a 2009 rear-end collision.  Liability was admitted.  The Plaintiff suffered various soft tissue injuries and also an L4/5 lateral disc herniation.

This injury remained symptomatic at the time of trial and there was a greater than 50% chance that the injury would eventually require surgical intervention.  In assessing non-pecuniary damages at $95,000 the Court provided the following reasons:
[88]         Dr. Kokan was of the opinion that, from the accident, she had right side L4/5 far lateral disc herniation and persistent cervical myofascial pain.  He concluded:  “The motor vehicle [accident] as described, in my opinion, is most responsible for the onset of symptoms.”  While this aspect of his report was not clarified, it was clear from his testimony that the cause of her injuries was the car accident.
[89]         He felt her prognosis to be uncertain, and stated as follows:
Generally, I expect at least the current level of symptoms.  Far lateral disc herniations are typically more problematic with respect to symptoms.  Usually they can produce significant nerve root compromise given that they are located lateral to the foramen and pedicles, thereby there is less room for the exiting nerve root, thereby physical compression and symptoms are common.
I would expect usually that Mrs. Muhammedi would have at least the current level of symptoms in her back and that she would experience aggravations brought on in proportion to future activities.  Heavier activities would go on to produce potentially more troubling symptoms.
In the event that she should have ongoing and disabling neurological symptoms, she would probably have to consider surgical treatment.  The orthopaedic literature varies with respect to the need for surgery.  The possibility that she could require surgical treatment in the future is probably greater than 50%.  I say this because of her relatively young age and the associated presence of this type of disc protrusion…
[117]     The physicians all agree, and there is no issue in this regard, that the plaintiff sustained a far lateral disc protrusion.  All similarly agreed that the cause of the disc protrusion was the accident….
[157]     I find that it is clear from the expert reports tendered and the plaintiff’s evidence that she continues to sustain ongoing problems from this accident.  I find that this brings this case beyond the nature of the type of injuries in the cases cited by the defendants. It is more severe, more akin to the plaintiffs’ injuries in the cases cited by the plaintiff.
[158]     In all the circumstances, I award Ms. Muhammedi $95,000 for her non-pecuniary damages.  This recognizes the ongoing difficulties that she has and the possibility, which was deemed by the physicians, indeed by Dr. Kokan to be greater than 50%, that the plaintiff will require surgery at some time in the future.

$115,000 nonpecuniary assessment for fractured femur and chronic pain disorder

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement released recently by the BC Supreme Court, Vancouver Registry, assessing damages for various injuries sustained in a motorcycle accident.
In the recent case (Taylor v. Depew) the plaintiff was riding a motorbike which was involved in a head-on collision with a dune buggy on a narrow road near Campbell River BC.  Fault was disputed with the court ultimately finding that both motorists were to blame.  Liability was split with the plaintiff shouldering 30% of the fault and the defendant 70%.
The plaintiff suffered various injuries the most serious of which was a fractured femur.  This resulted in ligamentous laxity in his knee.   In addition to this the plaintiff suffered disc herniation’s in his low back and ultimately went on to develop chronic pain syndrome.
In assessing nonpecuniary damages at hundred and $115,000 Madam Justice Fenlon provided the following reasons for judgement:
57]         After the accident, Mr. Taylor’s life changed dramatically. In the days immediately following the accident, he underwent surgery to install a rod and pins to stabilize his femur; he remained in hospital for one week. Two further surgeries on his left leg were required: in October 2001 to remove the proximal locking screw; and in March 2003 to remove the remaining hardware in his leg. The recovery from all three surgeries was long and painful, lasting a number of weeks.
[58]          Mr. Taylor required assistance with day-to-day tasks such as cooking, cleaning and bathing during these recovery periods. After the first surgery he had the help of a homecare nurse, and then his friends Sarah Zimmer and Jamie Gonzalez assisted him. The two women helped him again after the second and third surgeries. The surgeries have left Mr. Taylor with marked permanent scarring on his left hip and knee.
[59]         Before the accident, Mr. Taylor had enrolled in an environmental engineering degree program to commence in September 2001. He tried to carry on with his plan to return to school but the pain killers he was taking made it difficult for him to concentrate and his general physical condition and inability to drive made it hard to attend classes. Depression set in and ultimately Mr. Taylor abandoned the environmental engineering program.
[60]         Mr. Taylor has had difficulty dealing with the changes to his life caused by the accident. For a few months he turned to street drugs and alcohol. He became depressed and uses anti-depressants like Effexor to help relieve the symptoms of depression.
[61]         Although Mr. Taylor has seen some improvement in the state of his injuries over time, he still experiences pain on a daily basis. When he sits, stands, or walks for long periods he suffers from pain and numbness in his left leg…
[72]         Awards of damages in other cases provide a guideline only. I must apply the factors listed in Stapley to Mr. Taylor’s particular case. I conclude that an award of $115,000 is an appropriate sum for non-pecuniary damages…

$100,000 Non-Pecuniary Assessment For Disc Injury Requiring Discectomy

Written by admin on . Posted in ICBC Spine Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury caused as a result of a motor vehicle collision.
In the recent case (Peso v. Holloway) the 26 year old Plaintiff was involved in a 2007 collision where the Defendant backed into his vehicle.  The Plaintiff suffered from pre-existing “mild, non-disabling” low back pain.  Following the collision the plaintiff experienced significant low back pain ultimately requiring surgical intervention by way of a discectomy.  The Plaintiff remained symptomatic and the Plaintiff faced ‘significant risk of additional surgery‘.  The Court found the aggravation of the pre-existing condition was caused by the collision.  In assessing non-pecuniary damages at $100,000 Mr. Justice Wong provided the following reasons:
[70]         Regardless of Mr. Peso’s pre-existing condition, he was able to enjoy his life before the collision. He was able to perform ordinary household tasks, cook, and socialize with his friends and family. He had a long history of competing in competitive and recreational sports and was very active on the weekend trip to Osoyoos immediately before the collision. In addition to working at a physical job, he participated in renovation and building projects for his brother, putting in an estimated average of 12 hours a week.
[71]         According to Dr. Street, in the absence of the collision Mr. Peso would have likely continued to experience mild, non-disabling symptoms in his low back. As a result of the collision, Mr. Peso required surgery and faces a significant risk of additional surgery at some point in the future. He is limited in his capacity to perform some aspects of his work. His left leg is weaker than the right and his capacity to lift is diminished. Mr. Peso, a gifted athlete before the collision, is unlikely to return to anything close to his pre-collision level of activity.
[72]         Non-pecuniary damages ought to be assessed in the context of a young man who has sustained a permanent, life changing injury. It was clear from Mr. Peso’s testimony that he has not let his injuries stop him. He has persevered with school and actively hid his symptoms from his employer. He has tried all of his former activities but he has only been able to tolerate some successfully. It is clear that despite Mr. Peso’s determination he has real fears about his future. He worries about recurrence of pain and he worries he will be expected to perform tasks that he cannot do.
[73]         Mr. Peso suffered chronic pain disability and loss of recreational amenities for over a year until his December 2008 surgery. His scope of future recreational enjoyment will continue to be curtailed.
[74]         I fix pain and suffering with loss of amenities, past and future, at $100,000.

$60,000 Non-Pecuniary Assessment for "Not Serious" Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized. 63 Comments on $60,000 Non-Pecuniary Assessment for "Not Serious" Lingering Soft Tissue Injuries

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for longstanding, but not disabling, soft tissue injuries.
In this week’s case (Samson v. Aubin) the Plaintiff was injured in a 2007 collision.  The Defendant admitted liability for the T-bone intersection crash.  The Plaintiff suffered soft tissue injuries to his neck, back, knee and ankle which were characterised as long-standing but “not serious” by his physician.   After an initial period of disability the injuries improved but plateaued without full resolution.  They were expected to flare with physical activities such as prolonged standing and heavier lifting.  In assessing non-pecuniary damages at $60,000 Mr. Justice Gaul provided the following reasons:
[44] According to Mr. Samson he continues to suffer pain and discomfort in his right knee, right ankle and especially his lower back on account of the Accident. As a result, he has been forced to reduce his efforts at work and has had to retain and pay others to complete the renovation work on his home. He has also had to reduce his recreational activities, including those he engages in with his son…

[47] While I found Mr. Samson to be a poor historian of events, I do not find that he has inflated the magnitude of his injuries in an effort to obtain a greater award of non-pecuniary damages. The evidence of Mr. Samson’s father, Gerald, coupled with that of Mr. Gray, Mr. Manson and the medical evidence, satisfies me that the injuries Mr. Samson suffered as a result of the Accident and the consequential pain, discomfort and loss of enjoyment of life from those injuries, are more severe than those found in the cases cited by the defence.

[48] I find Mr. Samson will likely continue to have some pain and discomfort in his lower back, right knee and right ankle for the foreseeable future. However, I also find that Mr. Samson has not actively pursued his rehabilitation to the degree expected of him. Since the fall of 2007, Mr. Samson has not participated in any exercise program designed to address his injuries, notwithstanding the advice and recommendations he received from the various healthcare professionals who had treated him following his accident.

[49] In my view, having considered all of the evidence, a fair and reasonable award of general damages for Mr. Samson’s pain and suffering and loss of enjoyment of life is $60,000.

$100,000 Non-Pecuniary Assessment for C6-C7 Disc Herniation Requiring Surgery

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized.

Following a fairly unique collision involving a downed utility pole, reasons for judgement were published last week by the BC Supreme Court, Kamloops Registry, assessing damages for a C5-C6 disc injury requiring surgical intervention.

In last week’s case (Baxter v. Morrison) the Defendant tractor trailer operator struck overhead power lines with his vehicle causing the power pole attached to the wires to break into pieces falling on the plaintiff’s vehicle causing a severe neck injury.
Although fault was disputed Mr. Justice Ehrcke found the defendant fully liable for the incident.  The plaintiff’s neck injury required surgery which largely, but not entirely, improved his symptoms leaving the plaintiff with some permanent symptoms.  In assessing non-pecuniary damages at $100,000 the Court provided the following reasons:

[55] Here, the plaintiff, who was 47 at the time of the accident and who enjoyed an active lifestyle both at home and at work, suffered injuries to his neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain was caused by a disc herniation resulting from the accident. He performed an operation on his neck to remove the disc, and this relieved about 70% of the pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter has a “mild degree of permanent disability as a result of his ongoing neck pain.” This discomfort continues to affect Mr. Baxter both at home and at work.

[56] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Taking account of all of the factors mentioned in Stapley v. Hejslet, I would assess general damages in this case at $100,000.

"The Vagaries of Analyzing and Predicting the Deterioration of the Human Spine"

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The BC Court of Appeal released reasons for judgement yesterday addressing the difficulty of assessing damages for personal injuries to the spine when a pre-existing deteriorating condition is in play.
In yesterday’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.
Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.  The BC Court of Appeal held that this reduction was too drastic and reduced the global damages by 20% instead of 40%.  In doing so the Court provided the following reasons:
[1] The vagaries of analyzing and predicting the deterioration of the human spine as it ages are a source of difficulty not only for the medical profession but for anyone involved in resolving personal injury claims.  This appeal reflects that difficulty: it involves a plaintiff who at the age of 20 was diagnosed with a narrowing of the L5-S1 disc, then experienced a period of apparent recovery, and then suffered an injury in a motor vehicle accident in 2005 that was found to have been a “significant factor contributing to the herniation of [his] disc at L4-L5, and the development of … symptoms of severe and disabling lower back pain”.  No challenge is made to this finding of causation.  Rather, the plaintiff challenges the trial judge’s conclusion that there was a “very significant risk” he would have “gone on to suffer serious low back problems” in the absence of the injury in 2005, and that therefore, all the damages that would otherwise have been awarded against the defendants should be reduced by 40%…

[20] I agree that it was open to the judge to reduce those damages which were awarded in respect of future loss, to reflect the possibility that “ultimately”, Mr. Bouchard would in any event have experienced serious lumbar problems.  There was, however, no evidence to suggest that absent the 2005 accident, Mr. Bouchard would have experienced serious and symptomatic degeneration of the spine at the age of 31 (his age at the date of trial) or within a brief time thereafter.  Indeed, all the expert evidence suggested such deterioration occurs gradually, subject to specific incidents such as the one that occurred in October 2007.  Dr. Hepburn used the word “ultimately” and was not asked to elaborate.  Had he been asked, I expect he would have said that one cannot predict with certainty at what age disc degeneration would (or might) have become symptomatic and disabling to Mr. Bouchard, or even that it would necessarily have done so by a particular age.

[21] Similarly, the trial judge did not describe any time line over which he found there was a 40% chance Mr. Bouchard’s spine would have degenerated to its present state.  Obviously, the process could not be projected with exactitude, but the reduction of damages by 40% suggests a very steep upward line on a graph.  That line is contrary to the notion of gradual deterioration.  If there was a 40% chance Mr. Bouchard would have deteriorated to his present condition by, say, age 50, the chance between ages 31 and 50 would have been less than 40%.  This must as a matter of logic be reflected in the percentage by which the damages are reduced…

[23] I am also of the view that the trial judge erred in applying the 40% reduction to all heads of damage, including those that refer only to past loss and expenses.  Obviously, the damages given for past income loss and special damages would not be affected by the future contingency posited by the trial judge.  As for non-pecuniary damages, since the trial judge did not consider the contingency in his initial assessment of the award of $160,000, I am of the view that this court’s comments at para. 25 of York v. Johnston (1997) 37 B.C.L.R. (3d) 235 are not applicable.  There is authority for reducing damages under this head to reflect a pre-existing condition: see Zacharas v. Leys 2005 BCCA 560, at paras. 25-6.  I would therefore also reduce the award for non-pecuniary damages by 20% rather than 40%.

$45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases, Uncategorized. 52 Comments on $45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for injuries sustained in a collision.
In this week’s case (Coutakis v. Lean) the Plaintiff was involved in a rear-end collision in 2008.   The crash was of ‘considerable force‘.  While there was competing evidence as to the exact speed of impact the Court made the following common sense observation “The precise speed does not matter.  What does matter is that there is no evidence that the force of the collision, given the defendant’s estimated speed, would have been insufficient to cause the injuries complained of“.
The collision caused low back soft tissue injuries in addition to a C-7 disc herniation with nerve root impingement causing pain and weakness in the Plaintiff’s arm.

The Plaintiff was a retired maintenance engineer but made spare money in his retirement painting houses.  The injuries disabled him from this work.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[47]In summary, Mr. Coutakis was an active and relatively healthy person prior to the motor vehicle accident, with no significant low back pain other than the occasional flare-ups which we are all subject to, and with every reason to expect a healthy and active retirement.  His plan to keep working at painting was reasonable, and there is a significant probability to be attached to his thought of continuing to work, health permitting, approximately to age 75.  His current complaints disable him from pursuing his employment as a painter.  I find that his current complaints were materially contributed to by the accident.  There is no basis, on the evidence, for concluding that any pre-existing degenerative changes in his cervical or lumbar spines – the cervical herniation, and the lumbar disc bulging – would have become symptomatic but for the accident, and certainly not to the present level of dysfunction and disability.

[48]There is some reason to hope for some modest resolution of Mr. Coutakis’ complaints with continuing conservative treatment.  However, the only expert witness to express any significant degree of optimism is his family physician, Dr. Cox.  Dr. Cox is not a specialist and I am not inclined to give his optimism a great deal of weight.  He did not have the benefit of Dr. Rothwell’s report, when he examined Mr. Coutakis in September 2010.

[49]I regard the possibility of Mr. Coutakis making any really significant recovery to the level of having a pain-free life, as small.  Even if he were to recover to the level where he might be physically able to resume work, the question at that point would be whether he would be inclined to do so, given his age; with all that he has been through, at that point it would be entirely reasonable for Mr. Coutakis to retire fully and enjoy what is left of his healthy retirement years…

[52]I assess non-pecuniary damages at $45,000.