ICBC Law

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.

Reasons for judgement were released today by the BC Supreme Court dealing with a fair range of damages for pain and suffering when an accident victim has a pre-existing condition which likely would have been progressive and painful without the accident.

In today’s case (Kaur v. Bhoey) the Plaintiff was injured in a 2005 BC Car Crash.  She was a passenger and her vehicle lost control and she struck a utility pole.  She was apparently concussed in this collision and was in and out of consciousness at the scene of the crash.

The Plaintiff had a pre-existing condition (osteoporosis with spinal compression fractures) which may have been progressive and led to chronic back pain even without the crash.

Mr. Justice Truscott found that the crash caused ‘soft tissue injuries‘ which caused a ‘kyphotic condition‘ otherwise known as a humpback.   The Court held that, despite the injury, there was “a significant risk that (the plaintiffs) osteoarthritis would have led to more back fractures and more pack pain and kyphosis”  He went on to award $50,000 in damages for the plaintiff’s pain and suffering.  In arriving at this figure Mr. Justice Truscott summarized the law and the key findings of fact as follows:

[5] The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[6] Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.

[7] However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage… Likewise, if 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, then this can be taken into account in reducing the overall award… This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position…

[137] I accept that the kyphotic condition the plaintiff suffers from was caused by her low back soft tissue injuries sustained in the motor vehicle accident, and not by her pre-existing spinal compression fractures. I accept Dr. Hershler’s opinion in this regard.

[138] I accept Dr. Hershler’s opinion that the two compression fractures the plaintiff had before the accident in her low back were insufficient to cause this kyphotic condition.

[139] Dr. Hershler was able to push the plaintiff’s back to make her stand erect and that is some evidence that the kyphotic condition is being caused by pain and not by the compression fractures in her spine.

[140] This is not to conclude, however, that the plaintiff did not already suffer from some back pain before the accident caused by the compression fractures in her low back, in turn caused by her osteoporosis. Dr. Panesar’s records, and his evidence, as well as Dr. Yorke’s reports, set out previous incidents of back pain.

[141] I do accept, however, that prior to this motor vehicle accident these incidents were being generally controlled by medication.

[142] Still, such a finding does not answer the issue raised in Athey as to whether the plaintiff would have suffered her present state of back pain and accompanying kyphotic condition in any event of the motor vehicle accident, or at least there was a measurable risk of that occurring absent the motor vehicle accident that must be taken into account in reducing the overall award.

[143] With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…

[149] Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.

(UPDATE:  The below decision was upheld by the BC Court of Appeal in Reasons for Judgement released on January 19, 2012)

Reasons for judgment were released today by the BC Supreme Court (JFC v. Ladolcetta) awarding a Plaintiff just over $500,000 in total damages as a result of a serious BC motor vehicle collision.

The Crash occurred in 2005 and was a near head-on collision for which the Defendant was found 100% at fault.  As a result of this crash the Plaintiff suffered various serious injuries including a compression fracture in the low back, a brain injury with post concussive problems and various cuts, bruises and soft tissue injuries.

The majority of the judgement dealt with the Plaintiff’s pre-existing psoriasis and psoriatic arthritis and the extent to which this was affected by the collision.

Mr. Justice Brown concluded that in addition to the above serious injuries the Plaintiff’s pre-existing conditions were made significantly worse by the car crash.   The Plaintiff’s non-pecuniary damages were assessed at $150,000 although this award was then reduced to $120,000 to account for the plaintiff’s ‘failure to mitigate’.

In summarizing the Plaintiff’s accident related injuries and their effect on his life Mr. Justice Brown found as follows:

[112] I find no sufficiently persuasive reason to doubt that the plaintiff sustained significant soft tissue neck, thoracic, lumber spine, right shoulder, ankle, right knee and other soft tissue injuries, as set out in paragraph 3 of these reasons, together with a compression fracture in the lumbar spine, and ongoing sequelae. The ultimate residual effect of these injuries absent the influence of the plaintiff’s psoriatic arthritis will have to wait on the full remediating effects of medication, unfortunately unknown to the date of trial. However, given the history and opinions in this case, I find that the evidence supports a finding that, more likely than not, he will continue to experience some residual symptoms that may be alleviated to a degree by further therapy….

In this case, a belief based on clinical experience that physical or psychological trauma can initiate or influence the course of both psoriasis and psoriatic arthritis, is one, based on the sufficiently weighty evidence heard in this case, widely held among dermatologists and rheumatologists in their respective fields…

[153] Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis…

I find the evidence, including the plaintiff’s, persuades that the plaintiff’s psoriasis and psoriatic arthritis worsened sufficiently soon after the accident…

[158] What is important here is that the evidence sufficiently establishes that the plaintiff was struggling when he returned to work in mid-February 2006 experiencing joint pain and limitation that he thought he needed to hide for the sake of job security. He saw some improvement in the summer, to be expected because of the sun’s benefits and the fact that he had most of June and July off work, presumably a time when he golfed and was in the sun more. As it is, I note that by early October 2006, he saw Dr. Hong, reporting a flare-up. I accept the plaintiff’s evidence that over-all he had experienced a change in the pattern of the disease from a slow gradual worsening over time between treatments to one of intense flares involving both skin and joints. The basic pattern and course of the disease had manifestly altered; I accept the plaintiff’s evidence that pre-accident he never had to abrade the skin for over two hours each day; that the plaques and other aspects of the disease had taken on an aggressive flaring pattern. This is not to overlook the fact that the worsening condition went largely untreated, which likely worsened his situation; but that points to questions of mitigation discussed below.

[159] Further, as also discussed below, I find that the evidence well establishes that accident-induced ongoing emotional trauma and persistent stress are the pre-dominant and most significant exacerbating factors of both the plaintiff’s psoriasis and psoriatic arthritis.

[160] I also reject the defence argument that the onset of psoriatic arthritis suffered by the plaintiff was too temporally removed from the accident to be related to it. There is sufficient accepted evidence to show that the plaintiff’s psoriatic arthritis flared within a few weeks of the accident and involved new areas and that to the date of trial he has not returned to his pre-accident level of functioning…

[216] It must be borne in mind that although the plaintiff in this case did suffer from a psoriatic arthritis condition pre-accident, it was very mild; and he was able to work in what were heavy labor intensive positions. Accepted evidence indicates that the plaintiff’s condition, both in relation to his psoriasis and psoriatic arthritis, were set upon a new and more aggressive course after the accident. This was not a short term exacerbation—which said, is not to over look the contribution that the plaintiff’s failure to seek or follow treatment advice played in his worsening condition psoriasis. Further, I find that the plaintiff suffered significant sequelae from his brain injury; and further, and very significantly, as earlier explained, that his other physiological and emotional accident-induced stressors amplified his symptoms, which gradually became worse over time. He has obviously suffered a serious depression and remains vulnerable in that regard. Moreover, he suffered significant soft tissue injuries, the ultimate prognosis for which is not certain. As Dr. Shahid explained, most people do make a good fairly uneventful recovery from compression fractures and are able to return to work; but a significant proportion of those people continue to suffer pain and disability and some of those are unable to return to labor intensive work.

[217] Further, the plaintiff has suffered a substantial loss of enjoyment of life, is now unable to participate in golf and other activities he enjoyed before the accident. With successful treatment, he may be able to return. As I view the evidence, his suffering, both physiological and physical, has been quite intense, albeit partly in relation to his failure to follow treatment recommendations.

[218]     Considering all of the evidence and the submissions of counsel, for non-pecuniary damages I award $150,000, and taking into account the plaintiff’s failure to mitigate before the date of trial, reduced to $120,000.

In addition to the above, today’s case contained an interesting discussion of causation when it comes to traumatic injury.  Often in ICBC Injury Claims different experts come to different conclusions as to the reasons for a Plaintiff’s disabilities.  In this case there was a debate whether many of the Plaintiff’s problems were due to a head injury, depression, chronic pain or perhaps other causes.  Mr. Justice Brown gave useful reasons holding that it is not necessary to pigeon-hole a Plaintiff’s injuries into specific categories to find that a compensable loss occurred.  Specifically he stated as follows:

I find the conclusion that most accords with the testimony and medical evidence that I have accepted is this: All of the plaintiff’s injuries and associated symptoms, including those from his mild concussive frontal lobe injury, his subclinical PTSD and its symptoms, the stress and anxiety he experienced related to pain from his soft tissue injuries, his incrementally worsening psoriasis and psoriatic arthritis, and his inability to work operated over time to produce a serious depression. These factors in varying degrees punctuated the plaintiff’s experiences from the time of the accident onwards, and produced the levels of psychological stress that produced the ongoing exacerbation of the plaintiff’s condition that plaintiff experts identified as the cause of the worsening of the plaintiff’s psoriasis and psoriatic arthritis. Given the extensive evidence heard, I find this consilient view of the evidence and medical opinions removes the need to reduce judicial findings to specific diagnostic categories; at the same time more accurately reflecting the actual subjective experiences of the plaintiff. These causative stressors were caused directly or indirectly by the accident, subject to consideration of mitigation arguments.

The above quote, particularly the bolded part, could prove persuasive in ICBC Injury Claims where experts agree that a Plaintiff suffers a deterioration in health and functioning following a colliison but cannot agree on the exact medical cause for the same.

Reasons for judgment were released Friday awarding a Plaintiff just over $69,000 in total damages for injuries and losses sustained as a result of a 2006 BC Car Crash.

In Friday’s case (Dermody v. Gassier) the Plaintiff was injured when his vehicle was rear-ended in South Surrey.  Fault was admitted leaving the court to deal with the sole issue of damages (value of the claim).

Mr. Justice Williams found that while the Plaintiff “embellished his description of the way things were before the accident” the Plaintiff nonetheless was injured and had a pre-existing condition worsened as a consequence of this collision.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000  Mr. Justice Williams summarized the Plaintiff’s injuries as follows:

[92] The plaintiff sustained soft tissue injuries in the motor vehicle accident.  Some of them were relatively transitory in nature; others were more serious and he says they have continued to impact him in a significant way.

[93] The bruising and such injury abated within a short period of time, that is, within two or three weeks.  The headaches continued, albeit on a diminished basis, for a period of time in the order of 12 months.  The neck pain was initially a serious problem but I conclude resolved substantially within 12 to 16 months.  The driving apprehension, again, resolved within a fairly short period of time and did not meaningfully impact in any long-term way upon the plaintiff.

[94] There is the matter of the sensation loss in the plaintiff’s feet.  None of the medical experts have been able to understand what causes that, and Dr. Sovio was quite sceptical of it.  Nevertheless, there appears to be no reason to find that it is not an actual condition; its onset was concurrent with the accident.  I, therefore, find that it is a consequence, albeit a relatively minor one, of the incident and that it is a continuing condition.

[95] The most serious and sustained injury was that to the plaintiff’s back.  I accept that it caused him significant pain and discomfort.  Based on the medical evidence, I accept as well that there will be some residual back pain going forward….

[103] To clarify, I find that, at the time of the motor vehicle accident, the plaintiff’s back condition was not asymptomatic.  He was having back pain with certain attendant limitations.  Whether that was from the incidents at the courier job, whether it was because of degenerative conditions, or whether it was some combination, I am not able to say.

[104] However, I am satisfied that his back was symptomatic at the time of the accident, and, in accordance with the crumbling skull principle, he is only entitled to recover damages that reflect the difference between his post-accident condition and his pre-accident condition….

I conclude that there were weaknesses in this plaintiff’s pre-accident condition that were not symptomatic at the time of the accident injury, but which would have the effect of making the plaintiff likely to experience greater consequences from the insult of the accident.  Injuries that result where such a situation is present are compensable…

[115] On the particular facts of the matter at hand, it is my conclusion that a fit and appropriate award of non-pecuniary damages in this case is $35,000.

In addition to the discussion addressing the award for non-pecuniary damages, this case contains a useful discussion of the “thin skull” and “crumbling skull” legal principles which is worth reviewing for anyone interested in how BC courts deal with pre-existing conditions and their interplay with traumatic injuries in BC tort claims.

Imagine being injured as a result of the carelessness of another in a BC Car Crash.  You advance an ICBC tort claim for compensation for your injuries and loss.   You are able to come to an agreement with ICBC with respect to the value of your injuries and losses but then ICBC wants to reduce the the pain and suffering settlement by 25% to account for a pre-existing medical condition that you have.  Is this fair?

The answer depends on the nature and severity of the pre-existing condition.  BC Courts generally categorize pre-existing conditions affected by traumatic injury in 2 ways: the ‘thin skull‘ category and the ‘crumbling skull‘ category.  In a thin skull situation a Plaintiff has a pre-existing condition that makes them susceptible to injury however the condition would not otherwise become symptomatic absent the trauma.  In thin skull situations the pre-existing condition does not reduce the value of the claim.  The thin skull principle is sometimes referred to as the ‘you take your victim as you find them‘ principle meaning it is no defence to an injury claim to say that a healthier victimn with no pre-existing condition would have suffered less injury.

This can be contrasted with the ‘crumbling skull’ situation where the Plaintiff has a pre-existing condition which is active or likely to become active even without the trauma.  In crumbling skull situations the value of the injuries and losses must be reduced to reflect the fact that a Plaintiff would have likely had some problems in any event.

Reasons for judgement (Gohringer v. Hernandez-Lazo) were released today by the BC Supreme Court explaining and applying these principles.

In today’s case the Plaintiff was injured when her car was struck head on by a street sweeper in April, 2005.  As a result of this significant BC Car Crash she suffered various injuries.  The Plaintiff did, however, have pre-existing back and neck injuries.  In valuing the Plaintiff’s pain and suffering at $75,000 Madam Justice Russell explained and applied the law of thin skull v. crumbling skull as follows:

Pre-existing condition and independent intervening event

[90]            It is trite law that the general purpose in assessing damages is to restore the plaintiff to their original, or pre-accident, position.  Through an award of damages a plaintiff is entitled to be restored to his or her original position, but they are not entitled to be placed in a better position:  Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32, 140 D.L.R. (4th) 235.   Generally speaking, this requires the court to determine the plaintiff’s original position and position subsequent to the negligent act, and award damages to reflect the difference:  Athey at para. 32; Barnes v. Richardson, 2008 BCSC 1349 at para. 84.  In situations where the plaintiff has a pre-existing condition the thin skull or crumbling skull rule must inform the court’s assessment of damages.  

[91]            In a thin skull situation, the plaintiff’s pre-existing condition has not manifested, or in other words is not active or symptomatic, prior to the event in question.  As the tortfeasor takes his or her victim as they find them, the tortfeasor is liable for all injuries even if the injuries are “unexpectedly severe owing to a pre-existing condition”, as a result of their actions:  Athey at para. 34. 

[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. 

[95]            In this case the defendant does not contest that the plaintiff suffered injuries as a result of the Accident.  The defendant does however contest the severity of those injuries and the impact that those subsequently had on the plaintiff’s physical and emotional health, as well as her employment situation. 

[96]            The plaintiff had pre-existing back and neck injuries and suffered a knee injury subsequent to the Accident.  At issue is the impact of such injuries on the plaintiff’s ability to continue her position as a skating instructor, or whether the injuries resulting from the Accident were responsible for causing her to change positions.

[97]            The pre-existing conditions and knee injury caused the plaintiff to miss a number of months of work when they occurred.  I accept the evidence contained in Dr. MacIntosh’s report (January 26, 2005) that the plaintiff’s pre-existing neck and back injuries would have materially impacted the plaintiff’s ability to continue working as a skating instructor, given the physical demands of that position.  Likewise, I find the knee injury would have further impacted her ability to continue that job into the future.  Prior to the Accident, the plaintiff had complained, of neck pain resulting from teaching four classes in one day.  Further, the plaintiff left her position at Sportsplex soon after she returned to work following her knee injury as she was not able to perform her duties to the same level as previously.

[98]            I accept however, that the injuries from the Accident also impacted the plaintiff at work.  The evidence indicated that a number of her duties at Sportsplex aggravated the injuries suffered in the Accident.  While the evidence did not demonstrate that those injuries alone caused the plaintiff’s departure from Sportsplex, the evidence did show that the plaintiff’s abilities to perform her job duties were adversely affected as a result.

[99]            I conclude there was a real and significant chance that the plaintiff’s pre-existing injuries and the injury suffered after the Accident would have shortened the plaintiff’s career as a skating instructor, regardless of the injuries from the Accident.  These injuries ultimately affect the plaintiff’s original position and must be taken into account in the assessment of damages.  The risk that these injuries would have reduced the plaintiff’s chosen career will be taken into account based on its relative likelihood in determining the overall assessment of damages:  McKelvie v. Ng, 2001 BCCA 341, 90 B.C.L.R. (3rd) 62 at para. 17.  Accordingly, non-pecuniary damages should be reduced by 10% to reflect such a risk. 

[100]        In assessing all of the relevant evidence, I conclude the injuries continue to adversely affect the plaintiff in a number of ways and award $75,000 for non-pecuniary damages.  I will deduct 10% as a contingency to reflect the plaintiff’s pre-existing condition and the effect of the subsequent knee injury.

Reasons for judgement were released today by the BC Supreme Court (Haines v. Shewaga) awarding a Plaintiff $34,000 in non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2005 car crash in Nanaimo, BC.

One of the issues in this case which frequently comes up in ICBC Injury Claims is that of pre-existing conditions.

The Plaintiff was 22 at the time of the crash.  He never had mid back pain in the years prior to the collision.   His back was injured in the collision and he continued to have symptoms in his backat the time of trial (some 3 years later).   After receiving medical treatment it was discovered that the Plaintiff had pre-existing (although asymptomatic) condition known as degenerative disc disease.  

The court found that the Plaintiff suffered various soft-tissue injuries in the crash, namely that:

[62]            I accept that the plaintiff sustained a mild to moderate whiplash type injury to the soft tissues of his neck, upper back (on the right side) and mid back, as well as a minor injury to his sternum area (likely from the seatbelt).  I find that the plaintiff had substantially recovered from all of these injuries by the time of trial, except for the injury to his mid back.  I accept that he still experiences pain in that area, after heavy and prolonged physical exertion.  Some aspects of the work that he does as a deck installer will continue to cause him some pain, from time to time.  But based on the whole of the evidence (and particularly on the plaintiff’s work record), I am not satisfied there is a substantial possibility that this pain will disable him from working. 

With respect to the Plaintiff’s pre-existing and but now symptomatic degenerative disc disease Mr. Justice Halfyard found as follows:

[69]            In my view, there is no significant conflict between Dr. Filbey and Dr. Warren on the subject under discussion.  Nor would I discount Dr. Warren’s evidence on the ground that he now works almost exclusively for ICBC.  I accept the opinions of both of these medical experts.  As a consequence, I find that the plaintiff’s complaint of mid-back pain following the accident is strongly corroborated by the medical findings and opinions.  There is no evidence whatever to suggest that the plaintiff had experienced pain in his mid-back before the accident, and he firmly denies this.  I infer from the evidence given by the doctors that pain in the thoracic spine area from whiplash-type injury is far less common than pain in the cervical and lumbar spine.  In the result, I am satisfied on the balance of probabilities that the motor vehicle accident caused the plaintiff’s latent pre-existing degenerative condition to become painful.

So how then, does a court value injuries when a pre-existing condition contributes to the duration of traumatic injury?

Here, Mr. Justice Halfyard reduced the Plaintiff’s award for pain and suffering by 15% to account for the chance that the Plaintiff’s degenerative disc disease would have become symptomatic at some point in time in the future even if the accident did not occur, thus the damages of $40,000 were reduced to $34,000.

On a different note, this claim is worth reviewing to see how BC Courts can deal with the issue of credibility in ICBC Injury Claims.  The credibility of the Plaintiff often plays a crucial role in ICBC Soft Tissue Injury Cases.  Here the ICBC Defence Lawyer challenged the credibility of the Plaintiff.   The court indeed concluded that the Plaintiff was ‘not a credible witness’ and paragraphs 37-60 are worth reviewing for anyone interested in a discussion about factors courts consider when weighing the credibility of a Plaintiff in an ICBC Injury Claim.