In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for. In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries. In rejecting these opinions Madam Justice Warren provided the following critical comments:
[140] In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.
In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:
[159] Mr. Sirak is a middle aged man. He
was 45 years old when the accident occurred and is now 55 years old.
Prior to the accident, he was healthy, energetic and physically active.
It is apparent from the lay witnesses, who testified on his behalf, that
he was a cheerful, happy, outgoing person who enjoyed life and had many
friends. His family was important to him and he enjoyed spending time
with them. He enjoyed participating in a wide range of recreational
activities. He worked long hours in a physically-demanding career, and
had earned the respect of those in the construction industry in the
Squamish and Whistler area.
[160] For the past ten years, Mr. Sirak has
suffered from severe, disabling, and progressively worsening pain and
neurological symptoms. These symptoms have very significantly affected
all aspects of his life. Even if he undergoes surgery, he is unlikely to
experience any substantial improvement. His condition is most likely
permanent. He faces many years of ongoing pain and compromised
lifestyle. His personality has been affected. He has gained weight. His
sleep has been affected. His appearance has changed. He has become
sloppy and unkempt. He can no longer participate in most of the
recreational activities he previously enjoyed. He cannot play with his
grandchildren in the physical, rambunctious way that was his
pre-accident nature. This, in particular, has caused emotional
suffering. He has become quiet and socially withdrawn. He now spends
most of his time alone.
[161] It has become increasingly difficult
for Mr. Sirak to continue to work as a painter or in any physical job.
He has suffered financial consequences as a result, which will be
addressed in the next section of this judgment, but this has affected
his enjoyment of life in other ways as well. First, he has had to force
himself to continue to work on a part-time basis so that he is able to
support himself and his son, but this has further compromised his health
and exacerbated his pain. Second, he has had to live with the prospect
that his injuries will eventually preclude him from working in any
physical job. Given his limited formal education, and now limited
functionality, his options for more sedentary work are few. It is
apparent, from a consideration of the whole of his evidence, that this
reality, together with his poor prognosis, has weighed heavily on him,
and has had an adverse effect on his overall emotional well-being…
[167] Awards of damages in other cases
provide a guideline only. Ultimately, each case turns on its own facts.
Having considered the extent of Mr. Sirak’s injuries, and all of the
cases presented by counsel, I am of the view that an award of $160,000
for non-pecuniary damages is appropriate in this case.
Source: http://bc-injury-law.com/blog/court-rejects-perplexing-defence-doctor-evidence-minimizing-plaintiff-disability?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+IcbcLaw+%28ICBC+Law%29
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