I’ve worked hard to get back to the lifestyle I had before my crash but I’m still suffering. Will the courts be able to see the affects of the crash even though I’ve worked so hard to minimize them?
In the recently released judgement O’Brien v. Cemovec (2016 BCSC 1881) the plaintiff, 19 at the time of the accident and 23 at trial, was injured when his vehicle was T-boned. The injuries to his neck, shoulders, knees, wrists, and mid-back were resolved within a few months of the crash. At the time of trial he was still suffering from chronic low back pain and intermittent left leg numbness. His low back pain was the type to worsen as the day went on and he would sometimes have to struggle to complete his shifts as a full time crane operator for CN rail. While he had worked some overtime shifts since the crash, he had also had to turn some down depending on how he was feeling on those days. He was able to complete chores around the house but it took him longer than it had pre-crash. He did his best to continue with the recreational activities he enjoyed pre-crash but those too, had been altered by his injuries. At the time of trial, there was little objective evidence of ongoing symptoms as is often the case with soft tissue injuries. The plaintiff was not on any prescription pain killers and his treatment consisted of home stretching exercises and strengthening exercises at his gym.
Justice Pearlman considered the evidence and testimony of the plaintiff and witnesses when considering what to award this stoic young man for non-pecuniary damages:
[92] I bear in mind that where, as here, there is little or no objective evidence of continuing injury and the plaintiff’s complaints have persisted beyond the usual period for recovery, the court must exercise care in assessing damages: Price v. Kostryba, (1982), 70 B.C.L.R. 397 at 399 (S.C.). The court must assess the plaintiff’s claim in light of all the surrounding circumstances, including the medical evidence: Buttar v. Brennan, 2012 BCSC 351 at para. 24.
[93] Here, the plaintiff has been consistent in reporting his symptoms and the progress of this recovery to each of the medical experts, and in his testimony at trial. Mr. O’Brien readily acknowledged that he had recovered from the soft tissue injuries to his mid-back, shoulders, neck, legs, knees and wrists within two months of the accident. I find that at trial the plaintiff did his best to provide an unembellished, matter-of- fact account of his injuries as he recalled them, and as they persist. Drs. Adrian and Horlick both agreed that the plaintiff’s history, his description of the accident, their findings on physical examination and the results of the medical imaging are consistent with the plaintiff having sustained injuries, whether described as mechanical or myofascial, to the tissues of his lower back. I am satisfied that Mr. O’Brien experiences the chronic low back pain he described in his testimony.
[94] Since October 2012, Mr. O’Brien has completed all of his regular full-time shifts, occasionally with accommodations from his current employer or assistance from fellow employees. However, as a result of his low back pain, he tires as the day progresses, experiences pain and discomfort, and sometimes struggles to complete his shifts. Mr. O’Brien no longer derives the same enjoyment from his work as he did before the accident. He is a stoic who does his best to get on with and complete the work assigned to him.
[95] I also take note of the fact that the plaintiff, while frequently turning down overtime, has worked 14 overtime shifts since August 1, 2015. The fact that the plaintiff has worked some overtime is consistent with the evidence that his symptoms fluctuate and that some work days are better than others.
[96] I attach little weight to the fact that Mr. O’Brien has not used prescription painkillers, anti-inflammatories or muscle relaxants since a month or so after they were last prescribed in late July 2012. Mr. O’Brien prefers to limit his use of prescription medications. Since the summer of 2012, he has used over-the-counter Advil and Tylenol to assist in managing flares in his low back pain. He copes with considerable discomfort in the workplace and does his best to fulfil the requirements of a physically demanding job.
[97] The plaintiff has experienced frustration with his failure to make a full recovery from his injuries. His frustration at times leads him to withdraw into himself, and to limit his social contacts.
[98] The plaintiff, at age 23, will probably continue to experience his persistent low back ache, intermittent numbness in his left leg, and flares of low back pain of varying intensity indefinitely, and with no significant improvement. Fortunately, he is unlikely to suffer any progressive deterioration of his low back injury.
[99] Mr. O’Brien is able to perform all housekeeping tasks, when asked. However, chores such as mowing the lawn or cleaning his bathroom cause some discomfort and take longer than before the accident. When Mr. O’Brien and Ms. Allison have their own home, the plaintiff’s responsibilities for housekeeping and home maintenance will increase. He will experience discomfort and occasional pain in performing tasks that require prolonged bending or stooping.
[100] Mr. O’Brien continues to take part in a range of recreational activities but participates in some at a lower level of intensity, and with less frequency than before the accident. The plaintiff and Ms. Allison walk their dogs together and attend yoga classes. Mr. O’Brien goes on lighter hikes but is unable, as a result of his persistent back pain, to join his friends on overnight treks. Since the accident, he had played baseball and football occasionally. While he is able to throw a ball, batting aggravates his back pain. The plaintiff performs home-based stretching exercises four times a week and attends a gym where he works on both cardio exercises and core strengthening to alleviate his back pain. He has attempted horseback riding, a favourite activity of Ms. Allison, but finds it aggravates his back pain. On a recent trip to Ireland, he was able to ride a horse, at a walk, for 90 minutes, with considerable discomfort. He has modified or reduced some activities in order to minimize his lower back pain. When he and Ms. Allison watch television or a movie together, he will shift his sitting positions, and after 30 minutes or so will stand up and stretch in order to relieve discomfort from prolonged sitting.
[101] As a result of the defendant’s negligence, the plaintiff has suffered some diminution in his enjoyment of life.
[102] The plaintiff’s mother corroborated his evidence that he is frustrated by his persistent symptoms of low back pain, and his lack of progress toward recovery.
[103] While Mr. O’Brien’s still socializes with his friends, he does so less frequently than before the accident. His mood declines when his pain flares.
[104] Ms. Allison corroborated the plaintiff’s evidence that his symptoms vary, and that he has some bad days when he experiences significant pain. On those occasions, the plaintiff becomes more reserved and withdrawn. However, both the plaintiff and Ms. Allison confirmed that they have a committed relationship.
[105] The plaintiff continues to enjoy a close relationship with his family and with Ms. Allison. His injuries have not resulted in any significant impairment of his family and emotional relationships.
[106] Taking into account the plaintiff’s particular circumstances, all of the Stapley factors, including the probability that Mr. O’Brien, at age 23, will continue to experience persistent low back discomfort and intermittent flares of pain indefinitely, and after considering all of the authorities cited by counsel, I assess damages for the plaintiff’s pain and suffering and loss of enjoyment of life in the amount of $70,000.
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