$125,000 Non-Pecuniary Assessment for Neck and Back Fractures
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:
[17] 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.
[18] 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.
[19] 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.
[20] In closing argument, counsel for the defendants conceded that the accident “triggered” the onset of pain.
[21] 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.
[22] 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.
[23] 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.
[24] 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.
[25] 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…
[34] 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.