In Bellaisac v. Mara, the Plaintiff was injured in a car accident when he was rear ended, and consequently brought an ICBC claim for damages for pain and suffering, wage loss, diminished earning capacity, out of pocket expenses, and the cost of future care. ICBC’S lawyer admitted liability and that the injuries were caused by the accident, but challenged the severity of the injuries. The Plaintiff’s primary injury was a low back injury to the L5 – S1 joint, which caused him ongoing difficulties at the time of trial, approximately five years after the accident. The pain in his back was expected to be permanent. The Court awarded $140,000 in non-pecuniary damages, as well as a very substantial award for diminished earning capacity.

 

[30] The plaintiff’s most predominant injury is to his lower back. The plaintiff has difficulty sitting, walking, standing and lifting. His condition has worsened since the collision. He has pain down his legs, especially his left leg, and also experiences numbness, tingling and cramping.

 

[31] As a result of his pain, the plaintiff has sleeping difficulties and has developed depression and chronic pain syndrome.

 

[32] The plaintiff is not a malingerer. He has worked hard to get better. He has diligently followed the recommended exercises designed to alleviate his pain. Ms. L. Craig, who was qualified at trial to provide expert evidence as a functional capacity evaluator, testified that the plaintiff gave “full effort”. Ms. T. Berry, an occupational therapist, found the plaintiff knowledgeable with the exercises he performed at home (some of the exercises the plaintiff obtained from the internet).

 

[33] The plaintiff has been prescribed many drugs in an effort to address his physical pain and his depression. He has received injections to his lower back area in order to address his lower back pain (with, at best, only temporary relief).

 

[34] The plaintiff is resolute. He has worked part time as a demolition worker since the accident, but with difficulty, and often is forced to leave work or work shorter hours because of his pain. At trial, he was on employment insurance (medical leave).

 

[36] Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

 

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22^nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

In Shipley v. Bye, the Plaintiff was injured a rear end motor vehicle collision four year before the time of trial, and brought an ICBC claim for non-pecuniary damages, loss of income, diminished earning capacity, out of pocket expenses, and the cost of future care. The Plaintiff maintained that he suffered a permanent back injury, one which severely impacted his quality of life, and one which prevented him from returning to his pre-accident recreational activities. He further testified that he was unable to secure his journeyman’s ticket as a mechanic. The Court would award $85,000.00 for non-pecuniary damages for an injury to the Plaintiff‘s L5 disc, and for an aggravation of a pre-existing injury to his L3 disc.

 

[19] In his report of September 17, 2013, Dr. Weiss concluded that:

1. The motor vehicle accident produced an acute discogenic injury at the L4-5 level with possible L5 nerve root irritation. The plaintiff’s radicular symptoms had resolved and the disc prolapse had retracted.

2. The current pain that the plaintiff was feeling was multi-factorial from a discogenic lesion at the L4-5 level, a pre-existing but a symptomatic dysplastic L3‑4 facet joint which had become inflamed from the accident, and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss could not say was caused by the accident.

[20] Dr. Weiss also opined in his report of September 2013 that the plaintiff had lost the physical capacity and functionality to perform heavier forms of work related activity. He stated that it is also likely that the plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain, some of which was directly attributable to the accident. Dr. Weiss could not say that the accident had caused any acceleration in degenerative disc disease of the plaintiff’s lower back.

[21] With the exception of the cause of the possible nerve root involvement at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept them as accurate. I find that an L4-5 discogenic injury and an aggravation of a previously asymptomatic congenital dysplastic L3-4 facet joint were caused by the motor vehicle accident. Any other injuries or pain complained of by the plaintiff during the material time have not been proved, on a balance of probabilities, to have been caused by the subject accident.

In Roy v. Storvick, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for pain and suffering and various other heads of damages, such as income loss, loss of future earning capacity, and cost of future care. The most serious of the Plaintiff‘s injuries were lower back disc protrusions, which were still symptomatic at the time of trial, approximately 3 1/2 years post accident. The Court awarded the Plaintiff $75,000.00 for pain and suffering, noting that :

 

[50] With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:

As a direct result of [this motor vehicle accident], this 30-year-old carpenter sustained myofascial injuries to his cervical spine and a severe injury to his lumbar region where both clinically and radiologically he has evidence of lower lumbar disc protrusions principally at the L3/L4 level where there was an associated annular tear and also at the L4/L5 level where there was a moderate midline focal disc protrusion.

[51] Dr. Murray says that lumbar disc protrusions usually run a protracted course of recovery: a three year duration is not unusual. He expects that Mr. Roy will eventually become pain free.

 

[105] At the time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work as a carpenter and participated regularly and enthusiastically in many sporting activities. While he is able to continue his employment, the remaining aspects of his physical activities have come to an end. In reconciling the prognosis of Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited opportunity to observe Mr. Roy. He was also apparently unclear on the degree to which Mr. Roy was engaging in exercise.

[106] I further note that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a kinesiologist, who put him through testing and concluded that Mr. Roy’s functioning is compromised and that he will likely have increased rather than reduced pain.

[107] I find that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy suffered a severe injury to his lumbar spine and a moderate to severe injury to his cervical spine is accurate. While Dr. Murray suggests that there may be some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing pain and discomfort.

 

In Tabet v. Hatzis, the Plaintiff was injured as a pedestrian in a marked crosswalk when he was struck by a vehicle. The Plaintiff subsequently brought an ICBC claim for many heads of damages, including pain and suffering, loss of future earning capacity, and the cost of future care. The Plaintiff suffered many injuries, the most serious of which were several lower back disc protrusions. By the time of trial, the Plaintiff had suffered from chronic pain for over five years, and the pain was expected to continue. Back surgery was likely. The Court awarded $100,000 for pain and suffering, and loss of enjoyment of life.

 

[48]         According to Dr. Sahjpaul, a September, 2007 post-accident CT scan demonstrated a left L4-5 disc herniation and a broad based L5-S1 disc bulge.  Subsequent investigations demonstrated the L5-S1 disc bulge has also become herniated.  Unfortunately, Mr. Tabet’s prognosis for complete recovery from associated symptoms is not favourable.  While it is possible that his left leg symptoms will improve somewhat it is unlikely that his back pain and neck pain will improve substantially, even with surgery.

 

[73]         In support of his submission Mr. Tabet’s counsel emphasizes his pre-accident good mental and physical health and the change brought on in both by his injuries.  Although he has been stoic and continued to work hard, he now suffers chronic pain, disturbed sleep and mood disturbance that compromise his enjoyment of life.  He experiences persistent daily low back pain with radiating leg pain and neck pain, as a result of which he takes large amounts of narcotic analgesics.  In consequence, he is tired, irritable and often unable to interact well with his wife and children and help around the house.  He also faces the dreaded, and now seemingly inevitable, prospect of back surgery.

 

In Peso v. Holloway, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages. The Plaintiff had minor, pre-existing back pain, however this did not interfere with the ability to enjoy his life. As a result of the accident, the Plaintiff required surgery in the form of a discectomy, which occurred approximately one year after the accident. The Court ruled that the Plaintiff had suffered chronic pain up to this point, and that his future recreational activities would be curtailed. Future surgery was also very likely. The Court awarded $100,000 for pain and suffering.

 

[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.

 

In Peers v. Bodkin Leasing Corporation, the Plaintiff was injured in a motor vehicle accident when he was involved in a rear end collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages, such as diminished earning capacity, and the cost of future care. Liability was admitted by the Defendant. The Plaintiff suffered an annular tear, which prevented him from continuing to work in his own profession, and which had a profound effect on his life. By the time of trial, he had suffered from the injury for three years, with the pain ongoing. The Court awarded him $85,000 for pain and suffering.

 

[45]        Dr. Kokan was of the view that the shocks experienced by Mr. Peers this past spring indicated an annular tear as a result of the accident that may be progressing into a herniated disk.  That could lead to neurological changes including numbness to his lower extremities and even weakness with loss of bowel and bladder control.  Mr. Peers would likely need surgery which could reduce but not necessarily eliminate the pain.

 

[53]        I am satisfied that Mr. Peers made a determined effort not to let the pain interfere with the work he loved, but it eventually proved too much for him, and he was force to quit.  It may be that the shocks should be further investigated, and that Mr. Peers should not be as frightened of the potential for disk herniation as Dr. Kokan suggests.  Nevertheless, I accept that pain from the accident was the eventual cause of Mr. Peers’ inability to continue to work as a boom boat operator and at physical jobs in general.

 

[59]        Mr. Peers must cope with a life that is very different from the one he led previously, and at the age of 53, he is unlikely to return to the activities he loved, even at a reduced level.  He has lost the ability to rely on his great strength and agility, which sustained his confidence and self-esteem, and although he can still participate in some activities, he is simply not the person he was.  He has tried, since the accident, to stay in the working world which defined him, and to remain active and replace the sports he loved and excelled at with others that he could at least participate in.  Since he quit work in March of this year when his symptoms became too much to handle and moved to Powell River, he describes a life which is reclusive and lonely.

 

[60]        However, the future is not, in my view, completely bleak.  While testifying, Mr. Peers displayed stoicism and a sense of humour, underneath his evident uncertainty about the turn his life has taken.  Having only recently quit work, he is obviously still coming to terms with the need to find a different lifestyle to fulfil himself.  He has a number of concerned friends and family members who worry about him and want to assist him in improving his life and increasing his social contacts.  He has moved away from his long time home in the Gibsons/Roberts Creek area, but now lives near his son and grandchild.  This should provide him with opportunities to join in community activities if he will avail himself of them.

 

 

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.

In Ng v. Sarkaria, the Plaintiff was injured in a motor vehicle accident when struck by a vehicle that turned left in front of him. The Defendant admitted liability. The Plaintiff brought an ICBC for damages for pain and suffering, as well as other heads of damages, such as income loss, diminished earning capacity, and cost of future care. The Plaintiff suffered neck pain and knee pain, which had resolved, however he had a large focal disc protrusion at L4-L5, and he had required a partial discectomy. The trial occurred 4 1/2 years after the accident, and the Plaintiff was awarded $95,000 for pain and suffering. He did not suffer from chronic pain.

 

[40]           He did not describe his current limitations in terms of pain.  Rather, he says that he is reluctant to push himself because he does not want to trigger a relapse.  He experienced a recurrence of significant pain in August 2011, as a result of which he took two weeks off of work.  He says that he tries to limit the amount of lifting he does, including the lifting of his young daughter, in order to avoid initiating another bout of limiting pain.  He is very cautious about his activities.

 

[41]            His lifestyle has changed significantly as a result of his injuries.  Previously he did not have to be cautious.  Now, he limits his activities in all aspects of his life; his work, his leisure and his activities with his young family.  He is, however, able to carry out most of the activities he was formerly able to do.  The limitation he has suffered is that he cannot do as much as he was able to do in the past.  He does not take on the yard work he used to do alone but looks to friends and family for assistance.  He does not play the occasional game of basketball that he used to play.  He does maintain a light weightlifting and exercise routine which he finds helpful.  He actively participates in activities with his young daughter.

 

[43]             In summary, Mr. Ng has been left with a limitation in the amount of activities he can do.  He has also suffered some restriction in the nature of the activities he can do because he is focused on staying healthy.  He is determined to continue his work as a TFR.  He is not disabled by pain and there is no suggestion that he suffers from chronic pain.  Rather, he has episodic pain when he overexerts himself…

 

[46]            I have found the decisions referred to by the plaintiff to be helpful to my decision.  Of course, each assessment depends on the unique facts of the case.  Here, Mr. Ng’s injury was significant; however, he has had a very positive result from the surgery.  He continues to be able to do all of the activities of his job.  His income has increased to a level greater than it was before the accident.  He must be careful to avoid excessive stress on his back and must carefully balance his work and home life.  However, when I compare his situation to that of the plaintiffs in the cases he relies upon, he is in a better position because he does not experience ongoing chronic pain and is able to continue to carry out most of the activities he could before the accident.  However, I must also take into account the possibility that he will not be able to continue to perform at his current level as a result of the injuries suffered in the accident.  There is a possibility that his pain and restriction of activities will increase in the future.

In Doho v Melnikova, the Plaintiff was injured in two motor vehicle accidents.  The key issues were the Plaintiff’s loss of opportunity to earn past income, and diminished earning capacity.  ICBC’S lawyer claimed the Plaintiff failed to mitigate, and that the injuries sustained by the Plaintiff were not as serious as what the Plaintiff claimed. The Plaintiff was awarded $80,000 for a lumbar disc injury that he had suffered from for four and a half years by the time of the trial, and which condition was permanent. The Court commented that :

 

[38]               The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.

 

[39]               I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.

 

 [40]           The second accident caused Mr. Doho to suffer a significant increase in his pain. The acute phase of that increase lasted about two days, and was resolved within a week. After that, Mr.Doho’s pain and limitation of function returned to its pre-second-accident level. I assess his non-pecuniary damages arising out of the March 2009 accident at $5,000.

In Keenan v Fletcher, the Plaintiff was involved in four motor vehicle accidents, and brought ICBC claims for all four, which were consolidated and heard at the same trial. The Court did not award any damages for the first two accidents, and apportioned the award for pain and suffering between the third and fourth accidents. The Plaintiff was awarded $60,000 for a sacroiliac joint injury that she had endured for three and a half years prior to trial. The amount was reduced to $48,000 after factoring in other issues.

 

[117]      To summarize, I am not satisfied that Ms. Keenan suffered any injuries resulting from MVA #1 or MVA #2. The nature of the accidents, the force of the collisions and Ms. Keenan’s ability to carry on with her work on those days without any difficulty, convinces me that she suffered no injuries from these accidents.

 

[118]      The situation is different with respect to MVA #3 and MVA #4. I accept Ms. Keenan’s description of the pain and discomfort she experienced after each of these two accidents. Her description of her symptoms was, to a great degree, corroborated by the evidence of Mr. Dorish, Susan Keenan and Detective Constable Machesney

 

[119]      The injuries to Ms. Keenan’s neck and shoulder have resolved themselves to a considerable degree. To a lesser extent, the injury to Ms. Keenan’s lower back has also improved. I find that the improvement in Ms. Keenan’s physical condition is directly attributable to her intense drive and will to get better. I also find that it was though this sheer determination that Ms. Keenan has been able to manage and limit the impact of these injuries on her life.

 

[120]       Given the passage of time since the injuries developed and the fact that Ms. Keenan continues to experience low level pain and discomfort in her back on a reasonably regular basis and the occasional episode of intense pain, I am persuaded the injury to Ms. Keenan’s back is the key and principal injury that has resulted from MVA #3 and MVA #4. As I have noted, Ms. Keenan is a determined person and I have no doubt that her strength of character has been and will continue to be one of the reasons why she manages so well in spite of the discomfort she experiences in her back.

 

[121]       In my opinion, the evidence supports the conclusion that Ms. Keenan will most likely experience the occasional severe flare-up of her back pain which will likely have a negative impact upon her ability to perform her police duties, including voluntary overtime….