Neck, Low Back and Knee Soft Tissue Injuries Discussed
Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.
In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued. All three trials were heard together. His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed. This left the court to deal with the Plaintiff’s motor vehicle accident claims.
The first motor vehicle collision happened in 2003. The Plaintiff was 15 at the time. He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk. The issue of fault was admitted. The Plaintiff suffered a knee injury and eventually had arthroscopic surgery. Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury. In arriving at this figure the Court highlighted the following facts:
86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident. He suffered discomfort and a restriction in his activities. In the first three weeks after the Second Accident, Evan missed six full days of school. He found it difficult to crouch or kneel and felt that the knee was unstable. He was not able to carry out his part-time job as a football referee. He used crutches for a month or two and then used a cane. He found it difficult to use the crutches because this caused additional pain in his right wrist. His parents rented a wheelchair for him to use at home. He was unable to take part in part-time work over the Christmas holidays…
[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee. The structural injury was mild. If there was damage to the ACL, it was not significant and healed quickly. As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury. All of the doctors accept that there was a severe strain to the right knee. The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.
[101] The experts also agree that Evan should have been symptom free sometime after June 2006. However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms. The question that remains is whether Evan falls within that small subset. If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau. This question raises the issue of Evan’s credibility….
I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents. There are simply too many inconsistencies in his case to accept his assertions at face value…
[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident. There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident. I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints. I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status. In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort. Specifically, I find that the symptoms persisted for four or five years…
[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.
The second accident was a rear-end car crash. Fault was admitted. The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury. In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:
[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine. In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered. While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill. Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant. By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…
[135] Given my findings, the cases referred to by the plaintiff are of little assistance. In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur. Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation. In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.
In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility. In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role. Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence. Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“. This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.