20 Sep Pre-Existing Low Back Condition

In the case of Sommerville v. Munro, 2018 BCSC 457, the accident occurred when the Defendant’s truck lost control and hit the Plaintiff almost head on.  The major issue in assessing damages was whether a pre-existing lower back condition caused at least some of the Plaintiff’s current physical problems.

The Plaintiff was a 66-year old retired RCMP corporal. He retired at the age of 55 after 35 years on the force. He said he experienced low back pain while he was working, but that pain ended after he retired and he no longer had to wear a heavy gun belt.

The Plaintiff testified that in the weeks following the accident he had extreme neck pain, along with headaches and numbness in his right leg. Within two months he began to experience increasing low back pain.

A CT scan showed a fracture at the C2 level in his neck and a compression fracture of the L4 vertebrae, along with degenerative changes throughout the lumbar spine. The fractures had not been diagnosed on the day of the accident, but there was no dispute that the accident caused them. The degenerative changes were pre-existing.

The Plaintiff’s neck healed, but with restricted ability to turn his head to the left. It also left him with a slight deformity in which his head permanently tilted to the left. Physiotherapy to the neck was effective for relief of headaches. While the Plaintiff continued to have neck pain, he said it was hardly noticeable compared to the ongoing low back pain.

Prior to the accident, the Plaintiff was an avid walker and he would walk five kilometres at least three times a week. He also enjoyed river fishing, which included wading into rivers and walking on slippery stones. He was no longer able to do that and would not even be comfortable getting into a small boat. He was not able to play the racquet sports he formerly enjoyed. He was still able to play pool, although it was difficult to bend down and he had to sit and rest between shots.

A major activity for the Plaintiff after his retirement and before the accident was construction and renovation work at his home and the homes of friends. This included patio construction, flooring, tiling, drywalling and stonework. He was no longer able to do any of that kind of work, or even normal home maintenance or gardening.

Friends described personality changes after the accident, saying the Plaintiff had become short-tempered, irritable, and highly critical of others.

The Defendants did not dispute his evidence of symptoms and limitations, but said that he was overweight, in his sixties, and was previously engaged in back-breaking labour despite pre-existing back problems. They argued that there was at least a measurable risk that he would have suffered similar back pain even if the accident had never happened.

The Court noted that there was no question that the Plaintiff suffered major trauma in the accident.  Based on the medical evidence, it was likely that the Plaintiff’s current pain came partly from areas of the spine injured in the accident and partly from areas that were already compromised. The Court accepted 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.

The fact that severe back pain began so soon after the accident supported the inference, which the Defendants conceded, that the accident caused the pre-existing condition to become symptomatic. While the Plaintiff was clearly at risk for increased back pain, there was no evidence that it was likely to develop either as quickly or to the same degree.

While the existence of that risk did not diminish the causal link between the accident and the Plaintiff’s injury, the Court had to consider it in the assessment of damages. The Court found that any back pain the Plaintiff may have eventually experienced in the absence of the accident was very unlikely to become as severe or have the same functional impact as the pain he now had. While some contingency deduction was required, this was assessed at a modest 10%.

The Court agreed that the effects of the Plaintiff’s injuries had been truly life changing. They had devastated his active retirement lifestyle and left him incapable of the activities he most enjoyed. Although there were some prospects for improvement in his severe pain, those prospects were uncertain and he was unlikely to ever be permanently free of pain. His injuries led to a change in his personality, with negative effects on his marriage and friendships.

The Court found that an appropriate award of non-pecuniary damages in this case was $150,000, less a 10% reduction for the pre-existing condition. The net award for non-pecuniary loss was therefore $135,000.