Non-Pecuniary Damages for Disc Herniation and PTSD Discussed, Dr. Davis Criticized

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $340,000 in total damages as a result of injuries and loss from a BC car crash.
In today’s case (Smusz v. Wolf Chevrolet Ltd.) the Plaintiff was involved in a Highway crash near Kamloops BC in 2006.  Fault was admitted by the offending motorist.  The trial dealt with the value of the plaintiff’s claim.  She suffered various injuries including a disc herniation/protrusion in her neck.  In valuing the Plaintiff’s non-pecuniary damages at $100,000 Madam Justice Russell highlighted the following facts:

[87] The plaintiff was 43 years old at the time of this accident.  She suffered injuries which, although not requiring more than a brief visit to the hospital, were nonetheless significant.  The medical evidence was mostly consistent:  her physical injuries include moderate right paracentral disc herniation at C3-4 on the right side and moderate paracentral disc protrusion at C6-7 on the left causing irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which result in chronic left-sided neck, arm and low back pain, dizziness and headaches.  She suffered from PTSD, now substantially resolved, but still suffers from insomnia, occasional nightmares, depression and chronic pain some three years after the accident.

[88] The chronic pain caused by the injuries received in the accident has resulted in depression, no doubt complicated by her difficult financial situation, but the plaintiff was happy and energetic before the accident notwithstanding the fact that she had very little money.

[89] She was able to work in a job which did not require great skill and which did not pay well but in which she could have continued for the indefinite future.  It gave her some income and gave her the sense of participating in her family’s finances.

[90] The evidence of her friends and family support the substantial change she has undergone as a result of the accident.  From a positive, lively person who enjoyed participating in her community, she has become somewhat reclusive and quiet and it appears she may even lose her romantic relationship because her physical limitations interfere with the activities she used to enjoy with her boyfriend.

[91] While she had suffered brief episodes of depression in the past, I am satisfied they were reactive depressions and were fully resolved at the time of the accident.  I have no doubt that because she has suffered depression in the past, she was vulnerable to depression, but she is the thin-skulled plaintiff here rather than a crumbling skull plaintiff.  However, I find that the depression which followed the accident and her chronic pain means that she is at risk of developing an even more severe depression in the future.

[92] Immediately following the accident, the plaintiff also had chest bruising and abrasions which resolved quickly.  Her knee injury troubled her for about six months but is now resolved.

[93] There is a possibility she will require surgery in the future to address the herniation at C6-7 since the conservative treatment measures employed so far have not provided the plaintiff with any relief.  She has resisted this surgery because, even if it is successful, she will be left with continuing neck pain so resort to surgery would only be a desperate measure if she begins to suffer nerve damage which follows from the herniation or if her chronic pain worsens.

[94] The plaintiff’s anxiety is worsened by the possibility she will need surgery in the future.

[95] The plaintiff is also less able to perform her household work than she was and has received assistance from her children.  When she does do her housework, she does it more slowly and with some pain.  This is a substantial change from the enthusiastic homemaker she was before the accident.

[96] I have considered the plaintiff’s loss of housekeeping capacity and the help she has been given and will continue to receive from her children under this head of damages and would assess the loss at $10,000.

[97] Considering the factors listed above, and upon reviewing the case law provided by both counsel, I find that an appropriate award of non-pecuniary damages is $100,000.00, including the loss of housekeeping capacity.

Another noteworthy aspect of this case was the Court’s discussion of one of the defence experts.  Dr. Davis is a psychiatrist who prepared an expert report for the Defendant.  His opinion differed from the Plaintiff’s experts with respect to her accident related injuries.  He was cross-examined in open court and ultimately his evidence was not accepted.  In reaching this decision Madam Justice Russell made the following critical comments:

[81] Dr. Davis’ report differed substantially from those of all other experts.  It is his opinion that none of the plaintiff’s current emotional difficulties stems from the motor vehicle accident.  He is firmly of the view that her depression is solely attributable to her financial problems, her lack of a supporting husband and her limited skills in English.

[82] To support his position, Dr. Davis pointed to the two reactive depressions which had affected the plaintiff before the accident as establishing an “ongoing depression” and therefore her current symptoms were not causally related to the motor vehicle accident of October 2006.

[83] I note that when he wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of appointments with the plaintiff one week following the accident which recorded the occurrence of nightmares and acute anxiety.  Dr. Davis stated that these symptoms were important but appeared to minimize them by indicating they would only be a problem caused by the accident in the first six months or so, at the same time as her soft tissue injuries should have been resolving.

[84] I have reviewed Dr. Davis’ testimony and find it to be argumentative, unyielding and seriously at odds with what I view to be the preponderance of other and more credible medical evidence.  I do not accept his findings.