Tag: aggravation of pre-existing injuries

$70,000 Non-Pecuniary Assessment for "Permanent Worsening" of a Chronic Pain Condition

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for the worsening of a pre-existing chronic pain condition.
In the recent case (Deol v. Sheikh) the Plaintiff was involved in a 2012 rear-end collision that the Defendant was found responsible for.  Prior to this the Plaintiff was involved in a 2006 collision which left her with chronic pain symptoms.  The Court found the latter collision permanently worsened these symptoms and assessed non-pecuniary damages at $70,000.  In reaching this assessment Madam Justice Griffin provided the following reasons:

[154]     Here, the Plaintiff suffered from soft tissue injuries and chronic pain as a result of the 2006 Accident; she also suffered from soft tissue injuries and an exacerbation of chronic pain symptoms after the 2012 Accident.

[155]     I find that the analysis in Schnurr is most applicable to Ms. Deol’s position. There is an abundance of evidence establishing that the Plaintiff had developed a chronic pain condition as a result of the 2006 Accident and that six years later it was continuing but relatively stable with the possibility of flare-ups just before the 2012 Accident. We therefore know the original position she would have been in, had the 2012 Accident not occurred.

[156]     It is important to note that the 2012 Accident did not tip the scales from one condition to another. It was not the cumulative effect of the 2012 Accident and the 2006 Accident that caused Ms. Deol to develop a chronic pain condition. Rather, she had this serious condition before the 2012 Accident.

[157]     The language in Ashcroft refers to the negligence of both the settling defendant and the respondent tortfeasor as being “necessary causes” of the injury. Again, the 2012 Accident did not cause the chronic pain condition. That condition pre-existed and was going to continue regardless of the 2012 Accident.

[158]     The evidence in this case makes it possible to consider the position that Ms. Deol was in before the 2012 Accident, and to compare her post-2012 Accident to that position, and to assess damages based on a change in her position.

[159]     I find that Ms. Deol’s injuries sustained in the 2012 Accident are divisible from the injuries sustained in the 2006 Accident.

[160]     I have found that the 2012 Accident caused a permanent worsening of Ms. Deol’s chronic pain condition, increasing her sensitivity to pain. Initially this increased pain was more significant in the approximately two years following the 2012 Accident before she was able to return to work in March 2014. It has since become more manageable but I find she has a greater propensity to suffer symptoms of her chronic pain condition in the future, as compared to the position she would have been in absent the 2012 Accident.

[161]     The Plaintiff is entitled to damages to compensate her for the injuries sustained in the 2012 Accident, to try to put her in the place she would have been in but for the 2012 Accident, but not to put her in a better place than she would have been had the 2012 Accident not occurred…

[211]     I found none of the authorities particularly helpful on the facts, where here, the Plaintiff is young, she suffered a serious loss of enjoyment of life for two years, and will likely suffer some loss of enjoyment of life in the future, incremental to the loss of enjoyment that would otherwise be caused by her chronic pain condition. I find an appropriate award of non-pecuniary damages to be $70,000.

$35,000 Non-Pecuniary Damages for "Temporary Aggravation of Pre-Existing Conditions"

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Regisry, assessing damages for the temporary aggravation of a pre-existing condition following a vehicle collision.
In the recent case (Vintila v. Kirkwood) the Plaintiff “suffered from long-term and disabling chronic pain and depression” although she was enjoying improvement in this condition for 16 months until she was involved in a 2011 rear-end collision caused by the Defendant.  The collision aggravated her pre-existing injuries and set back the progress she enjoyed in the months prior to the collision.
In assessing non-pecuniary damages at $35,000 Mr. Justice Bernard provided the following reasons:
42]         I am in agreement with the foregoing submission. At the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her completely disabled from work and eligible for CPP disability benefits since 2005, and for similar private insurance benefits since 2002. While Ms. Vintila enjoyed some improvement in the management of her chronic pain in the MonaVie period, there is no evidence or suggestion that her underlying chronic and debilitating conditions had resolved. Ms. Vintila became slightly more physically active and inclined to attempt some physical activities previously eschewed; she was, nevertheless, always in the shadow of her chronic and disabling conditions, wary of flare-ups, and unable to cease collecting of disability benefits. ..
[46]         In light of the foregoing, I find that Ms. Vintila is a crumbling skull plaintiff. The evidence that Ms. Vintila’s pre-existing conditions were manifest and disabling at the time of the accident is convincing; moreover, the evidence is clear that her conditions were severe, chronic, long-term, and disabling from work. A relatively short pre-accident period of improvement in her pain symptoms is, in all the circumstances, insufficient to categorize Ms. Vintila as a “thin-skulled” plaintiff…

[53]         In the case at bar, the defendants’ negligence brought Ms. Vintila’s temporary improvement in her chronic pain symptomology to an abrupt and disheartening end. Ms. Vintila suffered from pre-existing chronic, long-term, deteriorating conditions that had almost completely disabled her in the past and were destined to do so in the future; nonetheless, at the time of accident she was experiencing a period of some relief from very debilitating pain. This window of respite was closed by the accident, and the evidence suggests that it is most unlikely to be re-opened. The pain from the aggravation of Ms. Vintila’s pre-existing conditions caused her to return to taking narcotic medications and to cease activities that improved both her physical and mental well-being and her overall enjoyment of life.

[54]          Given Ms. Vintila’s age, physicality, history, and rather grim long-term prognoses, I am satisfied that it was most unlikely that the aforementioned window would have been open for very long. In one sense, this accentuates the degree of loss to Ms. Vintila. The relief she lost was precious because it was most unlikely to endure for many years. In another sense, however, it necessarily limits the award for non-pecuniary losses.

[55]         Having regard for the factors in Stapley v.Hejslet, supra, the defendant’s negligence temporarily aggravated Ms. Vintila’s pre-existing conditions, increased her pain levels, and marked the end of Ms. Vintila’s relief from depression and the enjoyment she found in some social interaction, in performing simple household tasks, in interactions with her sons, and in making gift baskets. Ms. Vintila lost a sense of optimism she had for her future.

[56]         Of the two cases cited by ICBC, I am satisfied that Johal is much more similar to the case at bar. While each case and plaintiff is unique, Johal offers useful guidance in the assessment of a fitting award for Ms. Vintila’s non-pecuniary losses, which I assess at $35,000.

$50,000 Non-Pecuniary Assessment for Aggravation of "Active Back and Neck Pain"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Dhaliwal v. Pillay) the Plaintiff was involved in two collisions, the first in 2010, the second in 2011.  The Defendants admitted fault for both crashes.  Prior to the collisions the plaintiff fell off a ladder and injured his neck and back and had ongoing symptoms from this injury.  The Court found the collisions aggravated these pre-existing injuries.  In assessing non-pecuniary damages at $50,000 Mr. Justice Truscott provided the following reasons:

[223]     I am completely satisfied from the medical evidence that Mr. Dhaliwal hurt his back and neck in the 2008 ladder fall and it caused him significant continuing pain right up to and including to the time of the first motor vehicle accident.

[224]     It is my conclusion the two motor vehicle accidents only aggravated or exacerbated his existing active back and neck pain that preceded the first accident.

[225]     The applicable law has been set out by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458 where Mr. Justice Major, writing for the Court, said this at p. 473:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. 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: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. 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: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. 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.

[226]     Mr. Dhaliwal has pre-existing active back and neck pain which was due to degenerative changes in his spine and injury from the ladder fall, as well as arthritis in his hands and knees, and with Mr. Dhaliwal having only aggravated his back and neck pain in the two motor vehicle accidents and sustained headaches and right groin pain and right ankle pain, I consider an appropriate award for pain and suffering to be $50,000.

$45,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Soft Tissue Injuries

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries.
In yesterday’s case (Pichugina v. Matula) the Plaintiff was involved in a T-bone type collision in 2010.  The Defendant admitted fault.  The Plaintiff had pre-existing symptoms in her neck, shoulder and back.  The collision aggravated these and her increased symptoms continued to the time of trial and were expected to linger on for several more years.  In assessing non-pecuniary damages at $45,000 Mr. Justice Cohen provided the following reasons:
[56]         On the totality of the evidence before me, I find that, as a result of the accident, the plaintiff sustained aggravation to her already symptomatic neck, right shoulder, and low back and sustained aggravation to her pre-existing headaches.  In my opinion, there is no evidence to support a conclusion that the accident caused the minimal winging of the plaintiff’s right scapula.  Although the plaintiff returned to work full-time by the end of two months following the accident, and experienced much improvement in her condition by the spring of 2011, she cannot take advantage of a flexible work schedule, and, while she remains physically active, some activities are no longer comfortable for her.
[57]         According to Dr. Vorobeychik, the plaintiff’s symptoms have improved, but she still experiences migraine headaches and problems with her right shoulder, neck, and back when she is active or upon exertion.  The overall medical evidence, and that of the plaintiff, is that there has been gradual improvement in her condition post-accident, and she appears to be handling her headaches better.  According to Dr. Robinson, the plaintiff will probably continue to have gradual improvement over the next three to five years, but she remains at risk for persisting neck and right shoulder pain, which would act as an aggravator to her migraine predisposition.
[58]         Upon my consideration of the whole of the evidence, the parties’ submissions, and the authorities relied upon by them, I find that a fair and reasonable award to the plaintiff for general damages is $45,000.
 

$35,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing "Significant" Muskuloskeletal Issues

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Johal v. Conron) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  At the time of the accident the plaintiff had significant pre-existing issues including bilateral rotator cuff tendinitis, complex regional pain syndrome and underlying degenerative arthritis.  The collision caused soft tissue injuries which aggravated these conditions.  In assessing non-pecuniary damages at $35,000 Madam Justice Donegan provided the following reasons:
[79]         In his July 26, 2011 report, Dr. Wade opined:
The global clinical picture of Mrs. Surinder Johal is complex. It would be my opinion that she had significant musculoskeletal complaints prior to a motor vehicle accident of June 10, 2009. As a result of the accident of June 10, 2009 she had an aggravation of neck and back complaints likely because of a mild soft tissue injury of the cervical and lumbar spine. Over time she has had persistent and increasing problems in a number of areas.

It is unclear to me whether her right shoulder pathology [tear] is any way directly related to the motor vehicle accident of June 10, 2009; however her global pre-existing musculoskeletal complaints have been aggravated by the soft tissue injury of the cervical and lumbar spine as a result of the accident of June 10, 2009.
[80]         Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:
In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.
[81]         He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.
[82]         Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant’s negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body…
[92]         I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life. In the unique circumstances of this case, I find that the appropriate award for non-pecuniary damages is $35,000.00.

$60,000 Non-Pecuniary Assessment For Chronic Pain At Pre-Existing Surgical Site

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.
In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision.  The Defendant admitted fault.  Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh.  He was left with a level of nerve damage at the surgical site.  Following the collision this pain was aggravated.  The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor.  In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons:
[3]             The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation.
[4]             Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life…
[22]         There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment.
[23]         The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own…
[49]         In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.

Relationship Breakup Following Collision "Too Remote To Create Liability"


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, finding that a claim for damages for a break-up of a relationship following a collision is too remote for liability.
In last week’s case (Shinkaruk v. Crouch) the Plaintiff was involved in a 2006 collision.  He was found 20% at fault for the crash with the Defendant shouldering 80% of the blame.  The Plaintiff had “a significant history of low back pain” and this pre-existing injury was aggravated by the collision.  He was awarded damages for this aggravation.
During the period of aggravation the Plaintiff experienced difficulties with his partner and eventually she asked the Plaintiff to leave.  The Court found that this event was too remote to attract damages and in doing so Madam Justice Saunders provided the following reasons:

[59] It was apparent from Ms. Wahlwroth’s description of their interaction with each other, during the period in which Mr. Shinkaruk was convalescing from the accident, that their disagreements were largely a function of the two of them having very different visions of their roles and responsibilities within their relationship. It may be that these differences did not become manifest when the two of them had different working schedules. But with Mr. Shinkaruk at home in the evenings, she testified that she found it difficult to have him there without him making any contributions to the housework, making meals, cleaning up dishes, and doing other tasks which she felt he was physically capable of. She contrasted his lack of contribution with efforts made by husbands of friends of hers, when the couples had dinner together. Their differences were compounded by their poor communication skills, and they became trapped in a cycle of angry arguments, sniping and a lack of mutual respect. This climaxed during the December 2006 family vacation, when they spent little time in each other’s company, and had heated arguments when they did. She did not want her 13 year-old son exposed to that kind of behaviour, and that was a key consideration in her asking Mr. Shinkaruk to leave. These communication problems are issues which, she testified, they have both done a lot of work on recently and now that they are seeing each other again, there is a greater deal of emotional maturity being exhibited by both of them.

[60] It appears from the evidence that the most that could be said is that the motor vehicle accident contributed to the breakup in that it created a living situation, with Mr. Shinkaruk at home convalescing, in which fundamental and deep-seated issues between this couple became manifest. To the extent that Mr. Shinkaruk may have suffered emotionally or psychologically due to their breakup in December 2006, the defendant’s negligence is too remote to create liability.

$20,000 Non-Pecuniary Damages for "Minor Exacerbation of Pre-Existing Symptoms"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries caused by a so-called Low Velocity Impact.
In today’s case (Pearlman v. Phelps Leasing Ltd.) the Plaintiff, a 77 year old retired lawyer, was involved in a 2007 collision.  He had pre-existing injuries from a 2004 collision and the Court found that these were exacerbated for a short while following the 2007 crash.  The Court expressed serious concern about the Plaintiff’s credibility with the following observation:
[3] The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. Amongst his many inconsistencies and exaggerations, the most shocking was that the testimony of his injuries in the trial before me was nearly identical to the testimony he gave at the 2008 trial, in which he blamed the 2004 Accident for all the problems he was experiencing in 2008.
Despite this the Court found that the Plaintiff did suffer injury in the 2007 crash.  In assessing non-pecuniary damages at $20,000 Madam Justice Kloegman provided the following comments:
[44] After having reviewed all of the exhibited medical records and reports, and after considering all of the viva voce testimony, it seems fair to conclude, on a balance of probabilities, that it is more likely than not that the plaintiff experienced from the 2007 Accident an exacerbation of his pre-existing symptoms. However, it appears to have been minor and not long in duration. The plaintiff developed no new symptoms. He was back doing physical labour within a few days, and his complaints from that time to the present would likely have continued, regardless of the 2007 Accident. His pre-existing condition was well described by Dr. Baird and Dr. Keyes and there was no reliable, positive evidence to indicate that he developed some further injury of a permanent nature as a result of the 2007 Accident. It is telling, indeed, that the plaintiff’s statement of claim with respect to the 2004 Accident is almost identical to his statement of claim respecting the 2007 Accident…
[47] The case law indicates that a reasonable award of non-pecuniary damages for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is interesting to note that in both these other cases, the plaintiff was found to be lacking credibility and the Court was obliged to rely on the medical evidence to determine the cause of the plaintiff’s claims of injury. I find myself in a similar position, and on the evidence before me, I award the plaintiff $20,000 in total damages arising from the 2007 Accident.

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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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