More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

arthritis, degenerative changes, Dr. Leith, Eblaghie v. Lee, Mr. Justice Stewart, pre-existing asymptomatic conditions, pre-existing conditions, 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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