In Gormick v. Amenta, the Plaintiff was a young police officer that was injured in a motor vehicle accident. Liability was admitted by ICBC’S lawyer. The Plaintiff brought an ICBC claim for non-pecuniary damages, income loss, loss of banked sick time, and diminished earning capacity. The Plaintiff‘s main injury was to her neck, which required surgical fusion at the C5-C6 level. The Court ruled that, given the Plaintiff‘s pre-existing condition, there was a 10% chance that she would have required surgery even if the motor vehicle accident had never occurred. The Court awarded the Plaintiff $90,000 for the pain and suffering component for an injury that had lasted for approximately four and a half years prior to the time of trial. The Plaintiff was also expected to endure some residual symptoms.

 

[70] The surgery was successful. There was no medical evidence to the contrary. However the plaintiff complains about problems that persist. I find that the plaintiff does have restricted range of motion and neck stiffness following the surgery. The difficult question is whether the plaintiff suffers more than that …… I think that the whole of the medical evidence establishes that apart from some ongoing restriction of motion and stiffness, the plaintiff only has modest ongoing discomfort and some weakness in the strength of her arm.

[71] In sum, the plaintiff had some neck pain and restricted motion prior to the accident that did not impair her work or ability to enjoy life to any measurable degree. Because of her underlying condition, which was largely asymptomatic, she suffered injuries in the accident that were extremely painful and required surgery. The surgery, though successful, has resulted in stiffness and restricted motion that appear to have affected the strength of her throwing arm and her ability to lift. Although surgery was not a likely option for her pre-existing condition, now that she has had it she is at 25% risk of suffering adjacent segment disc disease within 10-15 years.

[72] In all the circumstances, I assess general damages at $90,000. In doing so, I also take into consideration the pain and suffering that she will suffer in the future as a result of her injuries that were caused by the accident.

 

In Lorenz v Gosling, the Plaintiff suffered from a C3-4 disc injury for three years before trial.  She also suffered from chronic, neuropathic pain, and was awarded $80,000 for pain and suffering.

 

[30]               Dr. Berkman’s opinion was that Mrs. Lorenz was suffering from persistent pain and weakness in her arms, and neck pain, resulting from the accident.  He says that she suffered a “significant injury to her spinal cord at the C3-4 level, with consequential development of neuropathic pain in her neck and upper limbs.”

 

[31]               Dr. Berkman defined “neuropathic” as meaning a change in the perception of pain, and change in the processing of pain by the patient. In his opinion the pain had become “ingrained in her nervous system”.

 

[39]           Both doctors have indicated that the prognosis for improvement is “guarded”.

 

[40]           As noted, Dr. Leete states, “The prognosis for her having a complete resolution of her discomfort must be guarded”.  He further states, “She may have ongoing pain on a long term basis”.   Thus she has a risk of suffering permanent pain and discomfort with associated limitation of function.  The degree of risk is unstated.  However Dr. Leete says that she can continue to do her work as a deli manager and can continue to do her household day to day activities, albeit with assistance for heavier tasks. There is no indication in his opinion that her accident injuries would worsen or cause additional interference with her activities or lifestyle.

 

[41]           Dr. Berkman’s opinion is also guarded, and generally negative, but unclear as to any longer term prognosis.  He continues to treat Mrs. Lorenz, thus he continues to hope for improvement, or at least some improvement, in her condition.  Further treatment options remain.  For example, Mrs Lorenz has not yet undertaken to any significant degree the pain education, psychological support or occupational therapy that Dr. Berkman has recommended.

 

[42]           On the medical evidence, therefore, I am left with a substantial lack of clarity as to whether the complaints of Mrs. Lorenz are essentially permanent.  Nonetheless, I am obliged to make findings on the evidence as it is.  I conclude that there is a substantial risk that she will not experience a significant improvement in her present symptoms and complaints.  I am unable to find that this is a probable outcome.

 

[43]           There is no question in this case that her complaints arise from the motor vehicle accident.

 

In Lamont v Stead, the Plaintiff was awarded $60,000 for pain and suffering for a zygapophyseal joint (facet joint) injury. It was effectively a three year injury up to the date of trial, with ongoing pain as well.

 

[28]           The plaintiff testified in a forthright manner about the pain she has suffered since the December 9, 2006 collision and the consequences it has wrought upon her life, particularly as they relate to her leisure pursuits and home life. By all accounts the plaintiff was a very fit, active, energetic, and hard-working woman prior to the collision. After the collision, she pushed through the pain, took physiotherapy, and returned to work as soon as she could manage it. With some accommodation by her employer and modifications to her duties, the plaintiff successfully resumed full-time employment.

 

[29]           The plaintiff has not, unfortunately, achieved similar success in resuming her pre-accident activities in her life outside the workplace. Working full-time with chronic pain now exhausts her. I accept as true her testimony that by the day’s end she has little energy for household chores, parental duties, sports, and leisure. I am also satisfied that her neck pain precludes her from engaging in most of the sports and leisure activities which she once enjoyed either with her family or alone. It also significantly limits her ability to carry out some household tasks and parental responsibilities.

 

[30]              The evidence establishes that the plaintiff’s prospects for any significant improvement in her neck pain are poor. As a consequence, she faces a considerably altered future; particularly as it relates to her life outside the workplace. Her chronic pain deprives her of much of the enjoyment she found in being physically active, in attending to her family, and in participating in family activities.

 

[34]           In relation to other aspects of Ms. Lamont’s pre-collision health, I am not persuaded that the evidence establishes anything which might reasonably account for the chronic neck pain from which she now suffers. The medical evidence shows that the plaintiff has some degenerative disc disease typical for women of her age. Prior to the collision, the plaintiff enjoyed a very physically-active lifestyle and was mostly asymptomatic. Transitory strains, aches, and pains are common among persons who engage in rigorous and physically-demanding activities. When Ms. Lamont did suffer from symptoms which were apparently attributed to DDD (in October 2004 and May 2006), they were not the same as those of which she now complains; moreover, she quickly responded to physiotherapy and experienced full recovery. The plaintiff’s post-accident experience has been markedly different, notwithstanding physiotherapy and every reasonable effort to recover and resume her pre-accident lifestyle.

 

[35]             In summary, I am satisfied that the plaintiff’s pain is chronic, partially disabling, and likely permanent. Similarly, I am satisfied that the evidence establishes that the plaintiff’s neck pain was caused by the defendant’s negligence, in the sense that it directly caused or materially contributed to it. There is a substantial connection between the plaintiff’s chronic neck pain and the collision, and the plaintiff has shown, on a balance of probabilities, that but for the negligence of the defendant, she would not have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…