Tag: pre-existing condition

$72,000 Non-Pecuniary Assessment for Chronic and Plateued Soft Tissue Injury

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury with a pre-existing complicating factor.
In the recent case (MacIntosh v. Davison) the Plaintiff was involved in a rear end collision in 2009.  He had injuries from previous collisions which were recovered.  He also underwent back surgery many years prior.  Although he had no symptoms related to this his back was at risk of suffering exacerbation of back injuries.  The Court assessed non-pecuniary damages at $90,000 but then reduced these by 20% to account for the plaintiff’s original position.  In reaching this conclusion Mr. Justice Davies provided the following reasons:
On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh’s “original” position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants’ negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his “original” and his “injured” condition…
1)    Mr. MacIntosh’s testimony and that of the medical and lay witnesses establishes that although injuries arising from the collision other than his low back injuries were largely resolved within one year, the low back injuries suffered in the collision have continued with only limited and sporadic abatement over time.
2)    I accept the opinions of Drs. Kates, Quirke and O’Connor that Mr. MacIntosh’s condition has now “plateaued” and will not likely deteriorate further, except for occasional flare-up of more intense and debilitating pain.
3)    However, the “plateau” which Mr. MacIntosh has reached renders him a far different person than the one he was prior to the collision.
4)    Mr. MacIntosh’s life in the four years since the collision has been dominated by the effects of the collision as he has followed all of the medical advice he has received to attempt to regain his health.
5)    While he has continued to golf regularly, his enjoyment of the game is much lessened. He also now golfs at significant rehabilitative cost and discomfort requiring much ongoing physical therapy.
6)    In that regard, while I note Dr. MacPherson’s opinion that the golfing exacerbates Mr. MacIntosh’s condition, I also note that his treating physicians have encouraged him to attempt to golf and undertake therapy as necessary to alleviate more acute symptomology related to it.
7)    I accept that to be a reasonable course of both advice and treatment because if Mr. MacIntosh had to restrict his golfing more than he has done, the result would be a larger award for non-pecuniary losses related to his ability to enjoy that which he previously enjoyed before the collision.
8)    The medical “plateau” at which Mr. MacIntosh now finds himself and which will likely endure for the balance of his active life also includes an inability to exercise as rigorously as he once did or hike with the enjoyment he once had. He is also far more irritable due to sleep deprivation caused by his injuries. That has an impact on his social life as he has become more reclusive than before.
9)    All of those aspects of his present life significantly negatively impact his overall enjoyment of life not only physically but also socially and emotionally. Coping with and trying to ameliorate the lasting effects of those injuries now are the focus of his daily life in place of the healthy and well-rounded physical, emotional and social life he previously enjoyed.
[91]         In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that arises from the defendants’ negligence, I award Mr. MacIntosh $72,000 to compensate him for his non-pecuniary losses.

Damages Must Flow From Aggravations of Pre-Existing Injuries

Reasons for judgement were released this week by the BC Court of Appeal confirming that judges must award damages when pre-existing conditions are aggravated in part due to a tortious cause.
In this week’s case (Sangha v. Chen) the Plaintiff was involved in a 2005 intersection crash.  Both the Plaintiff and Defendant were at fault for the incident.   The trial judge assessed damages on the basis that the Plaintiff sustained a two year soft tissue injury.  At the time of trial the Plaintiff had on-going chronic pain which was rooted in chronic depression which pre-dated the accident.  However, the Court found that the collision physical injuries “aggravated his previous depressed state” but did not assess damages for the on-going worsened depression finding that the Plaintiff “would have suffered his current symptoms in any event“.
In finding that this was in error and that damages needed to be assessed to reflect the collision caused aggravation of pre-existing depression the BC Court of Appeal provided the following reasons:
[26]        With respect, it does not appear to me to have been open to the judge to find, as she did in para. 110 that Mr. Sangha “would have suffered his current symptoms, in any event”, having found earlier in that same paragraph that “his physical injuries aggravated his previous depressed state”. Further, her conclusion that Mr. Sangha would have suffered his current symptoms appears to be inconsistent with her view expressed in para. 111 that “at most the injuries suffered in the accident aggravated the plaintiff’s mood symptoms”. Given that the “mood symptoms” are exactly those symptoms encompassed within the pre-existing condition of depressive illness, para. 111 appears to allow for attribution of at least a portion of Mr. Sangha’s current symptoms to the physical injuries sustained in the accident.
[27]        I recognize that one must not parse a trial judge’s reasons for judgment with too much exactitude, and so I have turned to the evidence relied upon by the trial judge, the medical report of Dr. Riar, in her determination that all of Mr. Sangha’s current malady derives from his pre-existing condition. Nowhere in that report does Dr. Riar entirely dissociate the current condition of Mr. Sangha from the accident, so as to support the judge’s conclusion that Mr. Sangha would have suffered his current symptoms, in any event. While Dr. Riar clearly considered that the preponderance of Mr. Sangha’s current symptoms derive from the pre-existing mental illness, Dr. Riar also said “I feel that the accident in question aggravated his mood symptoms, which in turn fed into his pains, and they have continued like that all along” and “The only thing the accident did was complicate his situation somewhat more”. Questioned about this, Dr. Riar affirmed this view of the reflection to at least a small degree, of the physical injuries in Mr. Sangha’s current malady:…
[29]        The correct approach to pre-existing conditions is discussed in Athey v. Leonati, [1996] 3 S.C.R. 458, under the rubric of “crumbling skull:
            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.
[30]        I also refer to Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R., 2005 SCC 58.:
[78]      It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …
[31]        I respectfully conclude that the judge erred in failing to reflect, in her damages award, her conclusion of fact that “the physical injuries aggravated his previous depressed state” and “the accident did cause at least some of” the psychological symptoms. To what extent the damages should have been adjusted to account for these conclusions I cannot say. That question is one particularly within the purview of a trial judge. Accordingly, in my view, the award of damages must be set aside and the issue of quantum of damages must be remitted to the Supreme Court of British Columbia for fresh assessment.

Non-Pecuniary Assessments With Pre-Existing "Chronic" Conditions

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault focusing the trial on an assessment of damages.  The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back.  He was also on a disability pension as a result of a chronic lung condition.
The collision caused soft tissue injuries which aggravated his pre-existing pain making his symptoms more “enduring in nature and markedly more severe“.    Mr. Justice Voith noted that this was a marked change in the Plaintiff’s pre-accident condition and assessed non-pecuniary damages at $100,000.  In doing so the Court provided the following reasons:

[35] The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.

[36] I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.

[37] There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.

[38] Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true…

[48] Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.

"The Vagaries of Analyzing and Predicting the Deterioration of the Human Spine"


The BC Court of Appeal released reasons for judgement yesterday addressing the difficulty of assessing damages for personal injuries to the spine when a pre-existing deteriorating condition is in play.
In yesterday’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.
Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.  The BC Court of Appeal held that this reduction was too drastic and reduced the global damages by 20% instead of 40%.  In doing so the Court provided the following reasons:
[1] The vagaries of analyzing and predicting the deterioration of the human spine as it ages are a source of difficulty not only for the medical profession but for anyone involved in resolving personal injury claims.  This appeal reflects that difficulty: it involves a plaintiff who at the age of 20 was diagnosed with a narrowing of the L5-S1 disc, then experienced a period of apparent recovery, and then suffered an injury in a motor vehicle accident in 2005 that was found to have been a “significant factor contributing to the herniation of [his] disc at L4-L5, and the development of … symptoms of severe and disabling lower back pain”.  No challenge is made to this finding of causation.  Rather, the plaintiff challenges the trial judge’s conclusion that there was a “very significant risk” he would have “gone on to suffer serious low back problems” in the absence of the injury in 2005, and that therefore, all the damages that would otherwise have been awarded against the defendants should be reduced by 40%…

[20] I agree that it was open to the judge to reduce those damages which were awarded in respect of future loss, to reflect the possibility that “ultimately”, Mr. Bouchard would in any event have experienced serious lumbar problems.  There was, however, no evidence to suggest that absent the 2005 accident, Mr. Bouchard would have experienced serious and symptomatic degeneration of the spine at the age of 31 (his age at the date of trial) or within a brief time thereafter.  Indeed, all the expert evidence suggested such deterioration occurs gradually, subject to specific incidents such as the one that occurred in October 2007.  Dr. Hepburn used the word “ultimately” and was not asked to elaborate.  Had he been asked, I expect he would have said that one cannot predict with certainty at what age disc degeneration would (or might) have become symptomatic and disabling to Mr. Bouchard, or even that it would necessarily have done so by a particular age.

[21] Similarly, the trial judge did not describe any time line over which he found there was a 40% chance Mr. Bouchard’s spine would have degenerated to its present state.  Obviously, the process could not be projected with exactitude, but the reduction of damages by 40% suggests a very steep upward line on a graph.  That line is contrary to the notion of gradual deterioration.  If there was a 40% chance Mr. Bouchard would have deteriorated to his present condition by, say, age 50, the chance between ages 31 and 50 would have been less than 40%.  This must as a matter of logic be reflected in the percentage by which the damages are reduced…

[23] I am also of the view that the trial judge erred in applying the 40% reduction to all heads of damage, including those that refer only to past loss and expenses.  Obviously, the damages given for past income loss and special damages would not be affected by the future contingency posited by the trial judge.  As for non-pecuniary damages, since the trial judge did not consider the contingency in his initial assessment of the award of $160,000, I am of the view that this court’s comments at para. 25 of York v. Johnston (1997) 37 B.C.L.R. (3d) 235 are not applicable.  There is authority for reducing damages under this head to reflect a pre-existing condition: see Zacharas v. Leys 2005 BCCA 560, at paras. 25-6.  I would therefore also reduce the award for non-pecuniary damages by 20% rather than 40%.

More ICBC Injury Claims Updates – The Kelowna Road Edition

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court.  Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.
4 cases worth noting were released today by the BC Supreme Court.  The first deals with the issue of fault and the others deal with damages (value of the the claims).
In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident.  She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.
The Plaintiff had a stop sign and was the ‘servient driver’.  The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so.    Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”
The court also found that the Defendant was speeding.  The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10th at between 83.5 and 86 km/h as he approached the Intersection.  He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street.  The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred.  I also find fault with Mr. Peck for failing to keep a proper look-out.  He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way.  That is why he did not see her pull into the Intersection when he was 62 to 65 metres away.  The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes.  To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him.  Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration.  The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres.  Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff.  This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.
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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.
In this case the Plaintiff was injured in a 2005 BC Car Crash.   In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:
88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages:   $45,000

Income Loss:  $8,771.97

Future Loss of Opportunity:  $30,000

Special Damages:  $12,045.96

Cost of Future Care:  $5,500

Loss of Houskeeeping Capacity:  $3,721

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The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“.   Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘.  Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do  to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms.  I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries.  I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi).  There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present.  Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found.  It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear.  However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal.  Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC.  Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision.  With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury.  She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling.  The Accident aggravated the existing condition of her spine.  The nature and extent of her symptoms changed.  The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004.  I accept Dr. Matishak’s opinion as the treating surgeon.  He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck.  He was cross-examined extensively on the issue.  He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident.  She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent.  She worked at physically demanding jobs without experiencing low back pain.  In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic.  She continued to experience pain from the date of the Accident onwards.  However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure.  Drs. Watt and Matishak were cross-examined on this issue.  Both maintained that this fact did not cause them to alter their opinions.  They both noted that there were symptoms of radiating leg pain shortly after the Accident.  Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case.  The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries.  I have found that the symptoms and back pain were caused by the Accident.  Those symptoms persisted and became chronic.  The conservative treatment attempted did not provide relief.  Consequently, Ms. Sanders chose surgery.  The fact that three surgeries were required was a direct result of the condition of her spine after the Accident.  In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.

ICBC, No-Fault Benefits and 'Sickness and Disease'

Interesting reasons for judgement were released today concerning traumatic injuries and pre-existing degenerative disc disease.
The Plaintiff was a building siding installer.  He had a pre-existing degenerative lumbar spine condition which was largely asymptomatic, that is it caused occasional pain but did not disable him from work.  He was injured in a BC car accident on November 22, 2005.  He became totally disabled from his work after this collision.  He applied to ICBC, and received, Part 7 wage loss benefits.
ICBC obtained a report from Dr. Dommisse in June 2006.  He stated that ‘(the Plaintiff’s) complaints have been caused by this motor vehicle accident in part.  His pre-existing condition is likely contributing to his ongoing symptoms….His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time.’
As a result of this opinion ICBC cut off the Plaintiff’s wage loss benefits on August 31, 2006.  ICBC did so because they took the position that the Plaintiff’s ongoing disability was ‘caused directly or indirectly by sickness or disease.’
Can ICBC do that?  The answer is yes.  Section 96 of the Insurance Vehicle Regulation places some limits on benefits ICBC has to pay their insured including those ‘whose injury was caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part’
The Plaintiff sued ICBC asking the court to reinstate the Plaintiff’s no-fault wage loss benefits.   In support of the Plaintiff’s case, Dr. Hirsch, a Physical Medicine and Rehabilitation Specialist, gave evidence that 

Based on today’s obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident

(the Plaintiff) reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries.  He reported that for the past four months he has not noticed any further symptomatic gains.  Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.

At present and in the foreseeable future, I do not foresee that (the Plaintiff) will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.

Mr. Justice Meiklem of the BC Supreme Court dismissed the Plaintiff’s claim finding as follows:

[29]            In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of (the Plaintiff’s) continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date.  While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.

[30]            Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.

If you are in a dispute with ICBC regarding the payment of no-fault wage loss benefits it is important to canvass decisions such as this one addressing the potential consequences of pre-existing conditions on your ICBC insurance claim.  Ensure that your physicians carefully canvass the relationship between any ‘sickness or disease’ and traumatic injury when applying for ICBC no fault benefits.

Damages of $216,430 Awarded for 2 rear-end collisions

In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.
The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.
The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.
A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.
This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.
After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.
Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work
In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.
In the end the court awarded damages as follows:

For the Accident of May 18, 2002:

Non-pecuniary damages

$30,000.00

Past income loss
(subject to deduction for Income tax)

$5,939.18.

For the Accident of May 5, 2005

Non-pecuniary damages

$52,500.00

Past income loss
(subject to deduction for Income tax)

$62,499.00

Loss of Future Earning Capacity

$45,500.00

Cost of Retraining

$2,730.00

Cost of Future Care

$15,300.00

Special Damages
(Not apportioned)

$1,926.39

BC Court of Appeal upholds $31,380 Award

In the appeal of an award for total damages of $31,380 for soft tissue injuries and psychiatric injuries, the BC Court of Appeal upheld the trial judgement and concluded that the trial judge did not err in his findings.
The Plaintiff unfortunately had experienced both a number of very significant stressors in her life. These came both before and after the October 2002 car accident that was at issue in the lawsuit.
The trial judge found that the 2002 accident “was very traumatic for (the Plaintiff). I accept that she was a very fragile person mentally before the motor vehicle accident. I accept that the motor vehicle accident increased her level of stress and anxiety that pre-existed the accident. I accept that she is in need of psychiatric counselling for this increased level of stress and anxiety caused by the motor vehicle accident. I also accept, however, that most of (the Plaintiff’s) physical complaints are not grounded in any physical injuries but are grounded in her somatoform pain disorder that preceded the motor vehicle accident.”
The trial judge ultimately concluded that the accident caused some “minor short terms soft tissue injury, but that the main injury that she had from the motor vehicle accident was to her mental state through the increase in her level of stress and anxiety requiring psychiatric counselling.
The Court of Appeal dismissed the appeal and made no changes to the trial judges awards which included $25,000 for pain and suffering.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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