In a case that can be characterized as “the straw the broke the camel’s back”, a Plaintiff was awarded over $90,000 soft-tissue injuries and a L5-S1 disc herniation which were caused (at least in part) as a result of a 2003 car accident.
The Plaintiff was a 47 year old with a long history of back injuries. She had pre-exsting low back pain, neck pain and a bilateral facet-joint arthropathy.
She was involved in a fairly serious car accident in 2003. Her vehicle sustained damage which took close to $5,000 to repair.
At trial both a neurosurgeon and an physiatrist testified on behalf of the Plaintiff. The neurosurgeon’s opinion was that “(the Plaintiff’s) disk herniation was caused by small tears to the annular fibres surrounding the disc which eventually ruptured due to the ongoing stresses from day to day living” and that “(since the car accident) was the last major trauma before (the Plaintiff) experienced the disc herniation, it was a significant contributor to the problem.” The Plaintiff’s physiatrist largely shared this opinion.
ICBC lawyers defending claims often retain orthopaedic surgeons who disagree with treating physicians. This common insurance defence step was followed in this case as the defence lawyers retained an orthopaedic surgeon who testified there was “no objective evidence of ongoing injury to explain the Plaintiff’s ongoing pain“.
The Defence also showed video surveillance of the Plaintiff doing various activities including getting in and out of her car on many occasions with minimal difficulty. I have previously blogged about surveillance evidence and ICBC claims and don’t intend to re-visit this subject at length but will point out that this is a common tactic ICBC lawyers take when defending injury claims and Justice Fenton, at paragraph 10 and 11 of the judgement canvasses the position that many ICBC lawyers take at trial when they have surveillance evidence which shows a Plaintiff potentially overstating injuries.
After hearing all the medical evidence the court accepted the opinions of the Plaintiff’s physiatrist and neurologist and stated that “(the Plaintiff’s) earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find the defendant’s negligence was the only cause of the Plaintiff’s problems after February 13, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries”
The court assessed the Plaintiff’s damages as follows:
1. Pain and Suffering: $65,000
2. Special Damages (out of pocket expenses): $3,118
3. Past Wage Loss: $88,000
4. Cost of Future Care: $5,000
Justice Fenlon then reduced the total award by 40% to account for the risk that the Plaintiff’s pre-existing condition in her spine and her psychological fragility would have detrimentally affected her in the future, regardless of the car accident.
Justice Fenlon did a great job in canvassing the applicable law in determining whether the car accident caused the Plaintiff injury. This case is worth reading to get insight into the factors courts consider when addressing pre-existing injuries that were aggravated by a car accident, and further to see the “thin-skull” legal principle in action which is well canvassed at paragraphs 42-44 of the judgement.