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