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$50,000 Awarded for Exacerbation of Pre-Existing Sacroiliac and Upper Back Pain in ICBC Injury Case

In the recently published case of Fuschser v. Wilson, 2012 BCSC 176, Madam Justice Russell awarded $50,000 in non-pecuniary damages (pain & suffering) after a five day trial to a plaintiff injured in a motor vehicle accident in December 2008.  Liability for the accident was admitted by the Defendant.


Neck, Right Shoulder, Chest, Back, and Jaw Pain in ICBC Injury Case 


The Plaintiff claimed for damages arising from injuries to her neck, right shoulder, chest, upper and lower back, jaw and continuing pain.  The court found that the plaintiff suffered from pre-existing conditions including scoliosis, pelvic misalignment and sacroiliac pain and right-sided pain in her upper back.  The court found that there was a measurable risk that the plaintiff’s degenerative changes would have become symptomatic without the accident and discounted her non-pecuniary damages by 15% as a result.


The court said the following regarding the effects of the accident on the plaintiff’s condition:


[170]   The accident of December 7, 2008 caused an exacerbation of her conditions and she suffered from increased pain which in turn affected the ways in which the pre-existing conditions manifested themselves. She again suffered sleeplessness as she had when her sacroiliac pain had been acute in the past. Her right upper back became stiff and painful, similar to how she had reacted to stress and lower back pain in the past. The headaches were a new manifestation, but no doubt related to the cervical strain she suffered in the accident.
[171]   There can be no doubt that she lived with increased pain over a period of about a year before she began to show improvement.


[172]   Based on a review of the plaintiff’s history with Dr. Klein and Dr. Blaney, the osteopath, I cannot say that her pre-existing condition was so quiescent as to be asymptomatic when she was a passenger in Mr. Wilson’s car struck by Ms. Vanselow’s car in December 2008.
With respect to non-pecuniary damages, Justice Russell said the following:


[179]   The assessment of non-pecuniary damages must be informed by the plaintiff’s personal experience dealing with her injuries and their consequences.
[184]   I find that the plaintiff’s injuries from the accident would have begun to resolve by approximately one year from the date of the accident. In support of this conclusion, I point to her infrequent attendances on Dr. Klein, her need for only two prescriptions from him, her infrequent treatments after December 2008 and the general lack of objective evidence other than the appearance of a muscle “knot” on her neck, to support the debilitation allegedly caused by the accident. In contrast to her irregular attendances on Dr. Klein for her accident-related symptoms, she saw him regularly for other matters during the same period and used Ativan and Immovane previously for anxiety and sleeplessness.
[193]   I have carefully considered the cases on damages set out in both the plaintiff’s and the defendants’ brief of authorities. I award $50,000 in non-pecuniary damages to be subject to deduction for the pre-existing condition.


Loss of Housekeeping Capacity in ICBC Injury Case:


The court awarded the plaintiff $5,000 to assist her with yard work.  In making this award Justice Russell said the following:


[210]   As I noted, she can no longer garden or mow the lawn and has to rely on her family or hire a teenager to do her lawn. There was no evidence of the cost of hiring someone to mow the lawn.


[211]   I find that the plaintiff has some need for assistance with the outside maintenance of her garden and should receive some compensation for this service.


[212]   I have included an amount of $1,000 a year for five years to assist in outside care of the house and garden. However, I have included it in the award for non-pecuniary damages. There will be no separate award for loss of housekeeping capacity.

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