Court Awards $50,000 For Injury To Sacroiliac Joint

In Connolly v. Cowie, the Plaintiff was injured in a motor vehicle accident and consequently brought an ICBC claim for damages for pain and suffering, diminished earning capacity, and cost of future care. The accident was a rear-end collision, and liability was admitted by the Defendant. The Plaintiff suffered an injury to her left sacroiliac region for three years by the time of trial, with the pain continuing. The Court rejected ICBC’S lawyer’s argument that the Plaintiff had failed to mitigate her damages, and awarded the Plaintiff $50,000 for pain and suffering.

 

[40]         The defendants’ argument that Ms. Connolly failed to mitigate her loss because she did not take prescription medications is lacking in merit.  Ms. Connolly did try most of the medications prescribed to her.  However, she did not find relief from the medications.  She did not like the sensation she experienced when taking the drugs she tried.  She is the only one who can judge if a prescribed medication provides sufficient relief such that she should take it and put up with the side effects.  I am not prepared to second guess her assessment of the benefit that the medication provided to her.

 

[41]         In summary, I conclude that Ms. Connolly suffered a significant low back strain as a result of the accident.  The accident has caused injury to the myofascial tissues in her left sacroiliac region.  The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy.  She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform.  She is still able to do most household tasks, but it is likely she will continue to experience pain with activities.  It is unlikely that the pain symptoms will resolve.

 

[43]         Of the cases relied upon by the defendants, the two which are most similar to the present circumstances are Warren v. Ouellette (11 July 1994), Vancouver B924490 (S.C.); and Dutchak v. Fowler, 2010 BCSC 128.  In Dutchak, the plaintiff was awarded $45,000 for soft tissue injuries that lasted three and a half years post-accident.  At the time of the trial, the plaintiff was able to run 30 to 40 kilometres per week, but did so with pain.  She was able to manage the pain by taking a considerable amount of medication.  The Court awarded damages at the lower end of the range for cases involving chronic pain.

 

[44]         Warren is an older case and so of more limited use.  The plaintiff was awarded $40,000 for non-pecuniary damages.  However, the facts in that case as in Dutchak, have some similarity to the present circumstances.  The plaintiff was unable to compete in marathons and triathlons as he had done before the accident.  He still competed in duathalons.  Justice Williamson stated:

 

… Although he has had to give up marathons and triathalons, remarkably he continues to participate in duathalons (running for up to 3 kilometres, bicycling for up to 20 kilometres, and running again for up to 3 kilometres) using his mountain bike rather than a racing road bicycle. However impressive this may seem to the more sedentary among us, the plaintiff was clear in his testimony this reduced athletic activity means he does not gain the satisfaction which he did previously from participation in such events. I accept this is, to him, a significant loss.

 

[45]         Here, Ms. Connolly is unable to continue with long distance running.  She does not take medications like Ms. Dutchak, but has persisted with more restricted activities.  In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors.  Her inability to continue with that is a significant loss to her.  She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor.  She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people.  She is no longer able to do that and this is a significant loss.

 

[46]         In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future.  Considering all of the circumstances, I find that $50,000 is an appropriate award for non-pecuniary loss.

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