ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘aggravating pre-existing injuries’

$75,000 Non-Pecuniary Assessment for Aggravation of Chronic, Disabling Pre-Existing Condition

June 14th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a collision which aggravated long-standing pre-existing health complications.

In today’s case (Cheema v. Khan) the Plaintiff was disabled since 2003 due to arthritis and depression.  She was involved in a 2012 collision that the Defendants admitted fault for.  The collision aggravated her pre-existing issues.  In assessing non-pecuniary damages at $75,000 Chief Justice Hinkson provided the following reasons:

[103]     There is no question that Ms. Cheema was unemployable after 2003. She had been on long-term disability from employment as a linen worker since 2004 due to rheumatoid arthritis and major depressive disorder. She was diagnosed with rheumatoid arthritis in the 1990s. The pain was in her neck initially, followed by bilateral hand pain since 2000. Her rheumatoid arthritis affected her hands, wrists, feet, ankles and shoulders. In the month preceding the Collision, the plaintiff had a flare up of her rheumatoid arthritis. Since 2000, the plaintiff had also suffered from longstanding, severe and chronic major depressive disorder, chronic anxiety and panic attacks leading up to the Collision.

[104]     I am unable to accept the plaintiff’s submission that her condition prior to the Collision was stable. She suffered from severe rheumatoid arthritis, Morton’s neuromas and a severe major depressive disorder prior to the Collision, and these conditions compromised her ability to ambulate, cook, clean and perform other household activities. I am satisfied that the plaintiff’s severe rheumatoid arthritis and severe depression waxed and waned prior to the Collision, but overall were worsening, and would have continued to worsen even if she had not been involved in the Collision.

[105]     I find, however, that the Collision caused an aggravation of her pre-Collision neck, back and shoulder pain and headaches, and likely had a negative effect on the symptoms arising from her rheumatoid arthritis.

[106]     I conclude that the plaintiff’s neck, back and shoulder pain and headaches were worsened by the Collision and that without the accident she would not have suffered from those difficulties as much as she has for the four years that have followed the Collision.

[107]     I accept the evidence of Dr. Shuckett that stress has a negative effect on someone suffering from rheumatoid arthritis, and has had such an effect on the plaintiff and accelerated the progress of her disease.

[108]     I am also persuaded that the Collision had a negative effect on the plaintiff’s psychiatric state that has resulted in a downward spiralling effect causing the plaintiff to brood about her physical condition and limit her activities, in turn worsening her depression, in turn compromising her participation in certain activities and so on…

[133]     I assess the plaintiff’s non-pecuniary damages at $75,000.


$75,000 Non-Pecuniary Assessment for Chronic Aggravation of Pre-Existing Neck Symptoms

November 20th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic aggravation of a pre-existing neck injury.

In today’s case (McCartney v. McArthur) the Plaintiff was involved in a 2010 rear end collision.  The Defendant admitted fault for the crash.  The 62 year old Plaintiff had a 20 year history of occasional neck complaints.  The collision aggravated these and led to chronic symptoms which impacted the Plaintiff’s functioning.  In assessing non-pecuniary damages at $75,000 Mr. Justice Bowden provided the following reasons:

69]         I am satisfied that the defendant’s negligence, which has been admitted, contributed to the injuries complained of by the plaintiff. While the plaintiff’s pre-existing condition resulted in symptoms in his neck area that had some similarity to those he experienced after the accident, the degree of pain experienced by him clearly increased after the accident and, I find, became chronic in nature. In particular, Dr. Gittens testified that the plaintiff’s pre-existing condition, involving some degenerative changes in his spine, was aggravated by the accident. He said that his pain, which he described as neuropathic, occurs after the underlying trauma has resolved and is extremely difficult to resolve. He said it may be a permanent condition. In my view the evidence establishes that the symptoms suffered by the plaintiff after the accident were different and worse than before the accident. His neck condition was significantly aggravated by the accident…

[76]         I have concluded that the plaintiff suffered aggravation to his neck pain as a result of the accident and his pain has become chronic in nature. For the first time, the pain that the plaintiff suffers imposes some functional limitations on him.

[77]         The evidence also establishes that the plaintiff went from an outgoing pleasant person to someone who was easily irritated by other people. This has interfered with his ability to work effectively as a cabinet salesman.

[78]         I am satisfied that the accident has negatively affected the quality and enjoyment of the plaintiff’s life and that may continue indefinitely. He will likely continue to suffer pain, together with the associated deleterious effects on his enjoyment of life.

[79]         After considering the relevant case law referred to by counsel and keeping in mind that the award in each case is very dependent upon the unique facts of the case, I award the plaintiff $75,000 in non-pecuniary damages.


The "Crumbling Skull" Doctrine: BC Injury Claims and Pre-Existing Degenerative Conditions

April 10th, 2010

When a Plaintiff suffers injuries by the fault of another but the evidence establishes that the person would have likely suffered the same symptoms of pain because of a pre-existing condition the Plaintiff’s award of damages can be reduced to reflect this reality.  This principle of personal injury law is known as the “crumbling skull” doctrine.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, dealing with this area of law.

In this week’s case (Booth v. Gartner) the Plaintiff was injured in a 2007 BC car crash.  The Defendant struck the Plaintiff’s vehicle when he entered an intersection against a red light.  ICBC admitted fault on behalf of the Defendant but disputed the extent of the accident related injuries.

At trial Mr. Justice Cole found that the accident caused a variety of injuries.  One of the most significant was low back pain which continued to the time of trial.  The Plaintiff did not have back pain before the car crash however she had severe pre-existing (although asymptomatic) facet arthritis in her low back.  The accident caused this condition to become painful.  The Court was persuaded that this condition had a likelihood of developing pain in the future even without the accident.  As a result of this finding the Court reduced the Plaintiff’s non-pecuniary damages by 25%.  In reaching this result Mr. Justice Cole reasoned as follows:

[23] I accept Dr. Vallentyne’s opinion that the degeneration in her lower back is severe at two levels and it is likely she would have been troubled by lower back pain and stiffness at some time in the future, absent Accident #2. However, I am also satisfied that although the degeneration is pre-existing, there was symptomatic acceleration of the facet arthritis as a result of Accident #2…

[26] The CT scan of September 20, 2008, according to Dr. Vallentyne, “showed severe bilateral degeneration of the facet joints at the L4-5-S1 levels in addition to a minor 3 mm L4-5 degenerative anterolisthesis”.

[27] According to Dr. Vallentyne, degenerative changes take years to develop and he found it was probable that the plaintiff had degenerative changes of her lower lumbar facet joints prior to the 2007 motor vehicle accident. He concluded that “[g]iven that the degeneration is severe at two levels, it is likely that Ms. Booth would have been troubled by low back pain and stiffness at sometime in the future absent the 2007 MVA.”

[28] I am satisfied that there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, and I must take that into account in reducing the overall award.

[29] The principle to be applied is found in Zaruk v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43 [Zaruk]. There the plaintiff had suffered a soft-tissue injury but some of her symptoms by the time of trial were consistent with degenerative changes. The Court was not satisfied that the general condition would have become symptomatic between the date of the accident and the date of trial, but concluded at para. 40, that there was a measurable risk that it would have become symptomatic in the future:

[40]   However, application of the crumbling skull doctrine may not result in the same reduction for past losses as future losses. Past losses must be assessed on the basis of a balance of probabilities. “Once the burden of proof is met, causation must be accepted as a certainty,” [Athey v. Leonati, [1996] 3 S.C.R. 458] ¶ 30). But for the assessment of future losses, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation,” (Athey ¶ 27)

[30] The Court then reduced non-pecuniary damages by 15% and future care damages by 20%.

[31] Because the plaintiff’s degenerative condition was described by Dr. Vallentyne as “severe bilateral degeneration”, I am of the view that a large deduction is appropriate in this case and I find an appropriate deduction for non-pecuniary damages is 25% and for future care damages, 30%.

As I previously wrote,  a great discussion of this area of the law was also provided in a recent case (Gohringer v. Hernandez-Lazo) where Madam Justice Russell summarized the law as follows:

[92] In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”: Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35.

[93] In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff.  An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured.  The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96.  Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32.  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94] I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages: A. (T.W.N.) at paras. 36-37; Barnes at para. 90.