"A Relatively Small Change May Have Significant Practical Consquences"

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registy, addressing non-pecuniary damages for injuries imposed on a plaintiff with significant pre-existing difficulties.
In last week’s case (Campbell v. Van Den Broek) the Plaintiff was injured in a 2010 collision.  The Defendant admitted fault.  The court was presented with competing and “not reconcilable” medical opinions about the extent of the collision related injuries.  Ultimately the Court accepted the collision caused some new injuries and exacerbated long standing pre-existing problems.  In assessing non-pecuniary damages at$90,000 Mr. Justice McEwan recognized that “for a person with serious limitations a relatively small change may have significant practical consequences.“.  The Court provided the following reasons:
[106]     The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell’s departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff’s situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.
[107]     The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences…
[111]     I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff’s unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff’s complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff’s damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.

bc injury law, Campbell v. Van Den Broek, Mr. Justice McEwan, pre-existing injuries

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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