ICBC Law

BC Injury Law and ICBC Claims Blog

$54,000 Non-Pecuniary Damages for Onset of Pain in Pre-Existing Wrist Arthritis

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff $54,000 in damages for a wrist injury.

In today’s case (Zigawe v. Rance) the Plaintiff was involved in a 2006 rear end car crash.  The issue of fault was admitted by ICBC leaving the court to decide the value of the Plaintiff’s injuries.

The Plaintiff suffered various soft tissue injuries which largely resolved by trial.  The main focus of the trial was the Plaintiff’s wrist injury.  The evidence established that the Plaintiff had pre-existing arthritis in her wrist but this was asymptomatic.  The crash caused this pre-existing condition to become painful.  The court valued the Plaintiff’s non-pecuniary damages at $60,000 then reduced this award by 10% for the contingency that the pain may have come on even without the car crash.

In coming to the above valuation Madam Justice MacKenzie reasoned as follows:

[107]     I find the plaintiff experienced neck pain for over three years, but it is almost resolved.  The headaches appeared to be associated with the neck pain and have resolved.

[108]     I also accept the plaintiff’s evidence that the plaintiff’s shoulder pain had mainly resolved six months post-accident but she had some pain in her left shoulder in May 2009, which is now resolved…

[110]     On the whole of the evidence, and in particular that of Dr. Shuckett who agreed the plaintiff’s current overall condition was “not inconsistent with” rheumatoid arthritis, I find it likely that the accident exacerbated pre-existing, but asymptomatic tenosynovitis related to rheumatoid arthritis in the plaintiff’s left wrist.  While it is an atypical presentation in that the condition is not mirrored in the right wrist, this finding makes the most sense.  It is proven on the balance of probabilities.

[111]     I do not accept the defendant’s submission that the rheumatoid arthritis in the left wrist arose independently of the accident.  In my view such a conclusion is not consistent with its temporal connection to the accident, and Dr. Shuckett’s evidence that the inflammation that accompanies this sub-acute condition can take weeks or months to develop…

[114]     Thus, on the totality of the evidence, the accident at least exacerbated the pre-existing tenosynovitis related to rheumatoid arthritis in the left wrist, given its history.

[115]     The swelling and significant, long standing pain has not improved since the accident.

[116]     Thus, I find the accident activated the plaintiff’s pre-existing condition in a wrist that was asymptomatic for some years before the accident.  The left wrist may indeed have remained asymptomatic of tenosynovitis related to rheumatoid arthritis for many years had the accident not intervened.  It may have not manifested into rheumatoid arthritis, given Dr. Shuckett’s evidence as to the nature of that condition.

[117]     The neck injury was caused by the accident and its recovery was probably prolonged as a result of her pre-existing but asymptomatic osteoarthritis.

[118]     The asymptomatic left wrist condition was triggered by the accident, resulting in significant pain and swelling that still has not resolved more than three years post-accident.  Hopefully, the scheduled injection of what is likely cortisone will greatly improve the wrist, but that is unknown, and the plaintiff may require surgery on that wrist.  But for the accident, the pre-existing asymptomatic condition in the left wrist may never have manifested…

[122]     In this case, I agree with the plaintiff that only a modest deduction is appropriate to account for the plaintiff’s pre-existing left wrist tenosynovitis related to rheumatoid arthritis.  It was asymptomatic before the accident.  It might never have resulted in symptoms but for the accident.  However, there remains a measurable risk that it would have detrimentally affected the plaintiff in the future given the plaintiff’s left wrist problem in 2001 as seen by Dr. Hollands.  He thought it might represent early onset of rheumatoid arthritis although I realize the signs and symptoms presented differently in the post-accident wrist tenosynovitis.

[123]     Therefore, in my view, a discount of 10 percent from non-pecuniary damages appropriately reflects the contingency of the condition developing in the future…

[126] In my view, having considered all the evidence and all the cases, non-pecuniary damages of $60,000 discounted by 10 percent, or $6,000, which amounts to $54,000 is appropriate in all the circumstances.

This case is also worth reviewing for the Court’s discussion of credibility.

The Court found that the Plaintiff was a “vague historian” and had a “poor memory“.  The Court also found that the Plaintiff “exaggerated the degree to which she could not use her left wrist.“.  The Plaintiff told her doctor that the wrist was “useless” and this was contradicted by video surveillance evidence obtained by ICBC.   This evidence seemed to negatively impact some of the plaintiff’s claims and the judgement is worth reviewing in full to see how the Plaintiff’s credibility was scrutinized at trial.

Be Sociable, Share!

Tags: , , , , , , , ,