$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.