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BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

Written by admin on . Posted in Civil Procedure. 54 Comments on BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.
In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm.  While on disability leave she was involved in a collision.  She sued for damages alleging the collision related injuries prevented her from returning to work.
The Plaintiff was represented by a lawyer from the firm that she worked at.  In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“.   The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis.  Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial.  The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:
[21]         The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.
[22]         After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.
[23]          In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows:
…The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.
[24]         There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.
[25]         I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.
[26]         The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.
[27]         I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.

"Mild" Concussion Leads to $5.9 Million Judgement

Written by admin on . Posted in ICBC Brain Injury Cases. 99 Comments on "Mild" Concussion Leads to $5.9 Million Judgement

I can put it no better myself than the beginning of the judgement which reads “Occasionally a seemingly innocuous event can have tragic consequences“.  This passage is taken from reasons for judgement released today by the BC Supreme Court, Vancouver Registry, dealing with such consequences after a seemingly minor collision.
In today’s case (Wallman v. John Doe) the Plaintiff was involved in a rear end collision in 2006.    It was by all accounts a modest collision however it caused a concussive injury.   The Plaintiff went on to suffer from profound post concussive symptoms.  He was a doctor and these symptoms disabled him from his own profession.  Due to this lost income earning ability the assessed damages were high.  In assessing non-pecuniary damages at $200,000 Mr. Justice Weatherill provided the following reasons:
[465]     Dr. Smith opined that post-concussion syndrome is not a valid medical diagnosis.  Drs. Teal and Prout opined that it is not only a valid, but also a generally recognized diagnosis.  I accept the opinions of Drs. Teal and Prout and reject those of Dr. Smith.
[466]     In my view the plaintiff has established beyond the balance of probabilities that the dramatic and sudden onset of symptoms of headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression and anxiety and problems with vision, concentration, multi-tasking and speech and communication, are the result of him having suffered a MTBI (concussion) caused by the Accident.
[467]     Moreover, I find that the plaintiff continues to suffer from post-concussion syndrome as a direct result of his Accident-related concussion…
[470]     Prior to the Accident, the plaintiff was a confident, decisive, energetic individual with an excellent memory and a penchant for detail.  He was able to identify a problem facing him, define the options available for resolving the problem and choose from among them.  He loved challenge and loathed routine. He felt he could accomplish anything he wanted to.   He was the hardest-working emergency room physician at WHCC.  He loved and was passionate about his work.  He thrived on the stimulation and the trauma of the emergency room.  He was happy with his life and enjoyed helping others.
[471]     At the time of the Accident, the plaintiff was at the height of his medical career.  He had a very good reputation as an emergency room physician and was well respected in the Whistler community.  His reputation was important to him and he was proud of his accomplishments.  He had no plans to retire.
[472]     There is no question that the plaintiff’s life has changed profoundly as a result of the Accident.  His ability to function in everyday life has been significantly impaired.  He has considerable cognitive challenges that will likely affect him for the rest of his life.  He has lost his overall confidence.  He struggles to make decisions and initiate activities.  He is inattentive and displays poor judgment.  He has withdrawn socially.  His thresholds for mental and physical activities are limited to approximately 2 hours and 30 minutes, respectively, beyond which he becomes symptomatic.  He is no longer able to practice as an emergency room physician, a job he was passionate about and proud of.  His ability to interact with and enjoy his children has been impaired.  The medical experts are of the opinion that his recovery has likely plateaued.
[473]     As a result of the Accident, the plaintiff’s ability to work in the job he loved has been taken from him.  He has lost his sense of purpose in life.  He no longer feels that he is a contributing and productive member of society. The realization that he will be unable to return to his profession and that his life as it was prior to the Accident is gone has been devastating to him.
[474]     He wanted to engrain in his children the values of hard work and reputation in the community.  It is devastating to him that he cannot show his children that he works hard.
[475]     He has difficulty identifying problems facing him and defining his options.  He cannot seem to understand the problem and make a decision.  He does not trust his own judgment either medically or as it relates to his real estate investments.  He has trouble making day-to-day life decisions.  Although the plaintiff realizes that he must learn to allow others to help him, he has a great deal of difficulty accepting that fate…
[484]     Having considered the principles set out in Stapley, the ordeal that the plaintiff has gone through, the impact the Accident has had on the plaintiff’s life including the loss of a vibrant medical career that was very important to him, as well as  the cases relied upon by counsel, I find that an award of $200,000 for non-pecuniary damages is appropriate.

Criminal Conviction Strips Defendant of Civil Liability Denial

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Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, confirming that it is an abuse of process to deny liability in a civil lawsuit for damages following a criminal conviction related to the same incident.
In today’s case (McCaffery v. Arguello) the parties were involved in a road rage incidence during which the Defendant “proceeded to intervene in the fight between Mr. McCaffery and Mr. Segundo by repeatedly striking Mr. Mccaffery with the baseball bat, causing him serious but non-life-threatening injuries to his head and wrist.”
The Defendant was criminally convicted of assault with a weapon and assault causing bodily harm.  The Plaintiff sued for damages and the Defendant denied liability.  In summarily finding the Defendant civilly liable Mr. Justice Sewell provided the following reasons:
[33]         Mr. Arguello’s counsel submits that as provocation may affect the quantum of damages It will still be necessary to hear viva voce evidence about the circumstances leading up to the assault at the assessment. That may be so. But the evidence will have no bearing on liability. I am also of the view that evidence restricted to the limited issue of provocation will not materially lengthen or complicate the assessment process.
[34]         I am also satisfied that I should grant judgment on liability notwithstanding the fact that this amounts to a severance of the issues of liability and assessment. Rule 9-7(2) permits a party to apply for judgment on an issue or generally. In my view this is an appropriate case to dispose of liability before assessing damages. Mr. Arguello clearly has no defence on the issue of liability. There is no reason to require him to re-litigate that issue.
[35]         Finally, I conclude that there is no merit in the argument that judgment cannot be granted in the absence of the defendant Mr. Segundo. I was not referred to any authority for the proposition that the plaintiff is not permitted to pursue judgment against one defendant in an assault case. If Mr. Arguello wishes to pursue a claim against Mr. Segundo for contribution, he is at liberty to do so. However I see no reason why that possibility should delay the plaintiff’s claim against him.
[36]         Accordingly I find that the plaintiff is entitled to judgment finding the defendant liable for his injuries, with damages to be assessed.

Examination For Discovery Continuations When Cases Removed From Fast Track

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Typically the BC Supreme Court rules allow examinations for discovery to last  up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours.  What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision.  She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests.  The matter then was removed from the fast track and a further discovery was sought.  The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons:
[20]         The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.
[21]         The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.
[22]         Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.
 

$55,000 Non-Pecuniary Assessment For Chronic Headaches Secondary To Neck Injury

Written by admin on . Posted in ICBC Headache Cases.

Adding to this site’s archived caselaw addressing damages for headaches, reasons for judgment were released this week by the BC Supreme Court, Prince George Registry, dealing with such an injury.
In this week’s case (Rutledge v. Jimmie) the Plaintiff was involved in a 2011 collision in Quesnel.  The Defendant was found fully at fault.  The Plaintiff suffered a neck injury which caused secondary headaches which continued at the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $55,000 Mr. Justice Tindale provided the following reasons:
100]     The plaintiff, based on the preponderance of evidence, has clearly established that the motor vehicle accident caused him to have chronic post- traumatic headaches related to a neck injury.
[101]     This injury has caused significant changes to his lifestyle, particularly to his passion for powerlifting. He has also had to modify his lifestyle with regard to recreational activities, activities at home and some of his activities at work. I am mindful that the plaintiff did not miss any employment as a result of this accident; however, I also accept that he is a stoic individual and persevered in his employment…
[103]     Dr. Robinson opined that despite the success of the Botox treatment, the plaintiff’s headaches may continue to linger for many years to come although at a lower frequency and severity than the plaintiff is experiencing now.
[104]     The majority of the cases relied on by the plaintiff have fact patterns which are far more serious than the case at bar. Likewise, the cases relied on by the third party do not appropriately address the significant lifestyle changes and pain suffered by the plaintiff.
[105]     In my view the appropriate award for non-pecuniary damages is $55,000.

Passenger Partly Liable for Collision After Grabbing Steering Wheel

Written by admin on . Posted in ICBC Liability (fault) Cases. 56 Comments on Passenger Partly Liable for Collision After Grabbing Steering Wheel

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing fault for a single vehicle collision involving a passenger who grabbed the steering wheel.
In last week’s case (Sikora v. Brown) both the motorist and her passenger were driving home from a nightclub.  Both had been drinking but neither was “seriously intoxicated“.  As they drove through an intersection the steering wheel was shaking and the driver invited the passenger to feel this.  He held on to the steering wheel and shortly thereafter the collision occurred.  In finding both the driver and passenger equally to blame Mr. Justice Verhoeven provided the following reasons:
[37]         In these difficult circumstances, where neither version of events is reliable and where there is essentially no independent corroborative evidence one way or another, I find as follows.  Ms. Sikora had been drinking some alcohol at the nightclub but was not seriously intoxicated.  Mr. Brown had been drinking as well, somewhat more than she had, but was a large man and was also not seriously intoxicated.  They left the nightclub together intending to go to Ms. Sikora’s home. Along the way they discussed going to a restaurant.  Whether they actually agreed to go to the restaurant is immaterial.  Ms. Sikora was driving at about 60 km/h as they drove through the intersection.  She was aware that the intersection caused her vehicle to shake, and that the steering of her vehicle was notably “loose” and prone to shaking.  Either before entering the intersection or in its midst, in the context of telling Mr. Brown about the new car she had ordered that very day, she commented about the condition of the intersection, complained that it should be repaired, and complained about the poor condition of her vehicle’s steering in common with Fords generally.  She did not slow down before entering the intersection.  She invited Mr. Brown to observe the shaking of the steering wheel, and to feel the steering wheel of the car for himself.  He held it for a few seconds then let go.  The combined effects of Mr. Brown’s holding of wheel, the condition of the road and vehicle, and Ms. Sikora’s manner of driving the vehicle caused her to lose control of the vehicle some seconds after Mr. Brown let go of the wheel.  The precise mechanics of this are impossible to sort out. She did not brake at any time.  The vehicle likely swerved left before veering to the right, and then left the roadway to the right side, before eventually coming to rest in the ditch upon impact.
[38]         I find that both parties were negligent and that they both contributed to causing the accident in equal measure.  Ms. Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects.  In somewhat precarious circumstances, she invited Mr. Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle.  She did not slow down when he held the steering wheel for several seconds.  She lost control of the vehicle after he let go of the wheel.
[39]         Mr. Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms. Sikora’s comments about the problems with her vehicle’s steering, that his actions could affect Ms. Sikora’s ability to control the vehicle.  I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise.  I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking.  He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle…
[45]         I find that Ms. Sikora and Mr. Brown are equally at fault for causing the accident.  As a result it is not strictly necessary to apply s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides that where the fault of two or more persons causes damage or loss to one or more of them, liability must be apportioned equally if having regard to all the circumstances of the case it is not possible to establish different degrees of fault.

"Textbook Example of Failure to Mitigate" Leads to Over $100,000 of Stripped Damages

Written by admin on . Posted in Cost of Future Care Cases, Uncategorized.

It pays to take reasonable efforts to get better.  Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.
In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future.  The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow.  The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments.  In reaching this conclusion Mr. Justice Kelleher provided the following reasons:
[55]         The facts of this case represent a textbook example of a failure to mitigate.  There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer.  Their recommendations are remarkably similar.  Mr. Maltese has chosen to ignore them…
[59]         I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.
[60]         Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. 
[61]         On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate…
[77]         In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program.  The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer.
[78]         But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages.  I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future.  After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning.  He has not done so.  I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

"Poor, Homeless and Sick" Plaintiffs Not Negligent For Accepting Ride in Box of Pick Up Truck

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances.  Reasons for judgment were released this week by the BC Supreme Court addressing this.
In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops.  Many of the workers were unrestrained in the box of the pick up truck.  The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.
The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck.   Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride.  In reaching this conclusion the Court provided the following reasons:
[282]     I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people….
[284]     I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions:
1)    Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals;
2)    Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness;
3)    Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay;
4)    The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks;
5)    On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold;
6)    The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated….
296]     Annie controlled the workers’ transportation and she called the shots.
[297]     The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.
[298]     By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.
[299]     These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in Iannone, Bissky, Massey and Fraser.
[300]     Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.

RCMP Liable for Fatal Collision in Course of Pursuit of Suicidal Motorist

Written by admin on . Posted in ICBC Liability (fault) Cases.

Update June 22, 2015 – The BC Court of Appeal ordered a new trial finding the trial court “erred in law in imposing a new or novel duty of care on police in advance of a pursuit without having conducted a full Anns/Cooper inquiry”
_______________________________________
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability for a fatal collision which occurred during a police pursuit.
In today’s case (Bergen v. Guliker) the Plaintiff vehicle was struck head on by the Defendant vehicle which was fleeig from police at the time of collision.  The court noted that “Prior to the Collision, it was known that Mr. Guliker was suicidal, had stated an intention to jump into traffic to kill himself, and was a flight risk. When the RCMP first approached Mr. Guliker, he was parked at a chicken farm on Bustin Road. On sighting the RCMP, Mr. Guliker fled north on Bustin Road at a high rate of speed.”.
The Court found that the RCMP were in part responsible for the tragic collision.  In reaching this conclusion Mr. Justice Savage provided the following reasons:
[249]     Once Mr. Guliker accelerated down Bustin Road, it was obvious to the RCMP officers that Mr. Guliker’s sighting of their vehicles precipitated his flight. A proper risk assessment at this point would have alerted the officers to the significant public safety risk of chasing a suicidal individual who is determined to evade apprehension down unfamiliar rural roads at high rates of speed.
[250]     Nevertheless, the officers commenced and continued a pursuit of Mr. Guliker up to the point of the Collision.
[251]     To summarize, in my opinion Constables Huff and Brand failed to conduct a proper risk assessment at two critical times: (1) before deciding to proceed down Bustin Road without a plan in place that recognised the likelihood of Mr. Guliker fleeing in his vehicle, and (2) after proceeding down Bustin Road toward Mr. Guliker’s location and seeing him accelerate away. A proper first risk assessment would have precipitated the development of a plan to address the likelihood of Mr. Guliker fleeing. A proper second risk assessment would have called off the chase and considered other options.
[252]     I find that Constables Huff and Brand did not act within the standard of a reasonable police officer, acting reasonably and within the statutory powers imposed upon them in the circumstances of this case. In the result, the RCMP officers breached their duty of care owed to the plaintiffs.
 

$72,000 Non-Pecuniary Assessment for Chronic and Plateued Soft Tissue Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury with a pre-existing complicating factor.
In the recent case (MacIntosh v. Davison) the Plaintiff was involved in a rear end collision in 2009.  He had injuries from previous collisions which were recovered.  He also underwent back surgery many years prior.  Although he had no symptoms related to this his back was at risk of suffering exacerbation of back injuries.  The Court assessed non-pecuniary damages at $90,000 but then reduced these by 20% to account for the plaintiff’s original position.  In reaching this conclusion Mr. Justice Davies provided the following reasons:
On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh’s “original” position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants’ negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his “original” and his “injured” condition…
1)    Mr. MacIntosh’s testimony and that of the medical and lay witnesses establishes that although injuries arising from the collision other than his low back injuries were largely resolved within one year, the low back injuries suffered in the collision have continued with only limited and sporadic abatement over time.
2)    I accept the opinions of Drs. Kates, Quirke and O’Connor that Mr. MacIntosh’s condition has now “plateaued” and will not likely deteriorate further, except for occasional flare-up of more intense and debilitating pain.
3)    However, the “plateau” which Mr. MacIntosh has reached renders him a far different person than the one he was prior to the collision.
4)    Mr. MacIntosh’s life in the four years since the collision has been dominated by the effects of the collision as he has followed all of the medical advice he has received to attempt to regain his health.
5)    While he has continued to golf regularly, his enjoyment of the game is much lessened. He also now golfs at significant rehabilitative cost and discomfort requiring much ongoing physical therapy.
6)    In that regard, while I note Dr. MacPherson’s opinion that the golfing exacerbates Mr. MacIntosh’s condition, I also note that his treating physicians have encouraged him to attempt to golf and undertake therapy as necessary to alleviate more acute symptomology related to it.
7)    I accept that to be a reasonable course of both advice and treatment because if Mr. MacIntosh had to restrict his golfing more than he has done, the result would be a larger award for non-pecuniary losses related to his ability to enjoy that which he previously enjoyed before the collision.
8)    The medical “plateau” at which Mr. MacIntosh now finds himself and which will likely endure for the balance of his active life also includes an inability to exercise as rigorously as he once did or hike with the enjoyment he once had. He is also far more irritable due to sleep deprivation caused by his injuries. That has an impact on his social life as he has become more reclusive than before.
9)    All of those aspects of his present life significantly negatively impact his overall enjoyment of life not only physically but also socially and emotionally. Coping with and trying to ameliorate the lasting effects of those injuries now are the focus of his daily life in place of the healthy and well-rounded physical, emotional and social life he previously enjoyed.
[91]         In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that arises from the defendants’ negligence, I award Mr. MacIntosh $72,000 to compensate him for his non-pecuniary losses.