Previous Similar But Recovered Injuries Are Not Indivisible

Interesting reasons for judgment were released this week by the BC Supreme Court, Campbell River Registry, addressing whether previous similar but recovered injuries are indivisible for the purpose of damage assessment.  In short the Court held that they are not.
In this week’s case (Lawson v. Kirk) the Plaintiff was injured in a 2010 collision.  The Defendant “ has admitted liability for the accident and -quite refreshingly – has admitted the plaintiff was injured in the accident.”.  The Plaintiff has similar injuries fro a previous collisins although these were recovered prior to the 2010 collision.  In finding such injuries divisible Mr. Justice Johnston provided the following reasons:
[45]         Ms. Lawson has agreed that the injuries she suffered in her 2007 accident were very similar to those suffered in this accident, and that her complaints in late 2009, arising out of the 2007 motor vehicle accident, were very similar to complaints she had in 2012 and 2013, following this accident. That raises the question of divisible or indivisible injuries.
[46]         I conclude that, for the purposes of causation, the injuries from the two accidents are divisible. Although Ms. Lawson had very similar complaints of discomfort arising from the same areas of the neck and back, I accept her evidence that her symptoms from the first accident had resolved by the time of the second accident. From the point of view of damage assessment, I find there was no measurable risk that the injuries caused in the first accident which would have resulted in ongoing losses in any event, so that pre-existing risk need not be taken into account in assessing the damages flowing from this defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.
[47]         I say that for these reasons:
·       Ms. Lawson was able to do all of the housework while she and Mr. Furnseth lived in Fort St. John from December 2009 to May 2010;
·       In that same period, Ms. Lawson drove the considerable distance between Fort St. John and Campbell River and back again two or three times with no difficulty;
·       When she returned to Campbell River in late May 2010, Ms. Lawson resumed her duties at the bakery, with no difficulty;
·       Ms. Lawson took up the second job at a fitness center in June 2010, again without difficulty;
·       Ms. Lawson participated in a soccer tournament on the Canada Day weekend in 2010 without difficulty.
[48]         I have accepted Ms. Lawson’s evidence that she was able to do the above activities without difficulty. I have discounted Mr. Furnseth’s evidence that, while the two were in Fort St. John, he and Ms. Lawson engaged in activities such as riding off-road vehicles because Ms. Lawson did not testify to those activities.
[49]         The view of the evidence most favourable to the defendant would be that Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who was perhaps more susceptible to injury as a result of the earlier accident, that is to say, in which Ms. Lawson’s damages should be assessed on the basis that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.

bc injury law, Indivisible Injuries, Lawson v. Kirk, Mr. Justice Johnston

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ERIK
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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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