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Tag: MS

More on Pain and Suffering Awards for Plaintiff's with Pre-Existing Disabilities

Earlier this week I posted about pain and suffering awards in BC for Plaintiff’s with pre-existing severe injuries, today, further reasons for judgment were released by the BC Supreme Court, Vancouver Registry, dealing with this topic. In today’s case (Winkelmans v. Stoffels) the Plaintiff was injured in a rear end car crash in Richmond BC on January 29, 2000.  The Defendants admitted fault for the accident.  
Shortly after the accident the Plaintiff was diagnosed with Multiple Sclerosis.  The Plaintiff did not claim that her MS was caused by the car crash at trial.   The Plaintiff’s MS caused troubling symptoms including “hearing loss, vision problems, fatigue, vertigo, balance difficulties, headaches, problems with memory, speech coordination, weakness, dizziness and stiffness.”. 
The main focus of this trial was whether the Plaintiff had any ongoing symptoms from her car crash by the time of trial or whether her ongoing symptoms were related to other causes such as the MS.  The court found that the Plaintiff indeed was injured in the car crash and continued to suffer from injuries by the time of trial.  In valuing the Plaintiff’s pain and suffering at $60,000 Mr. Justice Curtis made the following comments about her MVA related injuries imposed on her symptoms of MS:

[32]            Having MS has made it difficult for Ms. Winkelmans to recover from her car accident injuries as is recorded in the medical reports.  There are times when she cannot exercise and stretch as she should because of her MS symptoms.  The defendant, through negligence, having injured someone who cannot recover as quickly or as fully as a normal person remains in law on the “thin skull” principle liable to pay compensation for the problems caused by the accident injury, even although they are greater because the plaintiff’s recovery is impaired by her health.  The consequences of the accident injuries to Ms. Winkelmans are, because of her MS, more severe than they would be to a person not burdened with her health issues.  On the other hand, the defendants are not liable to compensate her for what she would have experienced from her previous neck and back problems or for what her MS would have brought on without the intervention of the car accident.

[33]            In summary, I accept that Ms. Winkelmans’ neck and back, including her lumbar spine suffered injury caused by the January 2000 collision and that she suffers a degree of continuing headaches, neck pain and back pain to the present time because of her injuries.  While the extent to which her accident injuries has contributed to her overall condition has not prevented her from working or doing her normal activities, it has introduced continuing pain into her life which will continue in the future – which is particularly difficult for a person who already suffers from MS.  On this basis, I assess Ms. Winkelmans’ claim for general damages for pain and suffering and loss of the amenities of life at $60,000.

MS and Trauma – Difficult to Legally Link

Two recent BC Court decisions illustrate the difficulty in proving a legal link between MS and trauma on a balance of probabilities.
In a unanimous decision of the British Columbia Court of Appeal pronounced February 20, 2008, the court dismissed the appeal of a Plaintiff’s claim in which the trial judge found that she did not sustain brain injuries in 2 motor vehicle accidents.
The trial judge found that “Ms Roeske has received a diagnosis of probable multiple sclerosis. She has multiple sclerosis of a remitting/relapsing type. All of her neurological signs, including her cognitive deficits, can be explained by multiple sclerosis. The later improvements in her test results in the areas that Dr. Amell found deficient due to brain injury suggest that her remitting/relapsing multiple sclerosis caused those deficits. There is no evidence that traumatic brain injuries can be relapsing/remitting in nature
On appeal, the court found no errors in the trial judgement and concluded that “The judge merely was relating the test result evidence to the diagnosis of probable multiple sclerosis. He concluded in that context the test results did not support a traumatic brain injury. The judge did not conclude Ms. Roeske’s condition was attributable to multiple sclerosis. He concluded she did not establish on the balance of probabilities that her condition was caused by the accidents
In an other interesting decision considering the potential link between trauma and MS, Mr. Justice Cullen disposed of an alleged connection by way of summary trial.
Mr. Justice Cullen was specifically asked “Does the Evidence Prove on a Balance of Probabilities that there is a Causal Relationship between Trauma, including Mild Head Trauma or Whiplash, and the Onset or Exacerbation of MS Symptoms?
Competing medical evidence was called making this a difficult issue to resolve. Mr. Justice Cullen thoroughly reviewed much of the leading scientific evidence with respect to this topic making this decision must-reading for anyone advancing a claim connectin MS and trauma.
In the end, Mr. Justice Cullen dismissed the Plaintiff’s claim concluding that “the question before me of whether trauma, including mild head trauma or whiplash injury, can cause the exacerbation of MS symptoms, was the precise question before the court in Dingley supra. As did the Lord President and the House of Lords in that case, I conclude that the plaintiff has not proved on a balance of probabilities that such a causal connection exists.”
The judgement went on to state that “In finding that the evidence falls short of establishing a causal link on a balance of probabilities, I also rely on the fact that a substantial majority of the relevant scientific community has rejected the notion of a causal connection based on developments in understanding the pathogenesis of the disease, epidemiological studies, reanalysis of previous studies said to support the link, and a weakening of the biological plausibility of the theory through studies such as the Werring Study and the Filippi Study. In the result, I have an advantage over the court in Dingley, supra, in knowing what the future held for the issue in the scientific community in the years following that judgment.”