Tag: pre-existing injuries

"A Relatively Small Change May Have Significant Practical Consquences"

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registy, addressing non-pecuniary damages for injuries imposed on a plaintiff with significant pre-existing difficulties.
In last week’s case (Campbell v. Van Den Broek) the Plaintiff was injured in a 2010 collision.  The Defendant admitted fault.  The court was presented with competing and “not reconcilable” medical opinions about the extent of the collision related injuries.  Ultimately the Court accepted the collision caused some new injuries and exacerbated long standing pre-existing problems.  In assessing non-pecuniary damages at$90,000 Mr. Justice McEwan recognized that “for a person with serious limitations a relatively small change may have significant practical consequences.“.  The Court provided the following reasons:
[106]     The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell’s departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff’s situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.
[107]     The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences…
[111]     I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff’s unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff’s complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff’s damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.

$50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.
In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision.  She was 61 years old at the time.   Fault for the crash was admitted by the opposing motorist.  The trial focused on the quantum of damages (value of the claim).
Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition.  In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:





[132] As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

[133] As a result of the accident, Ms. Iwanik also suffered an injury to her left knee, which caused patellofemoral pain syndrome. It may have caused other problems in her knee, but the evidence at trial did not establish anything further. Although there is no record of Ms. Iwanik reporting the knee pain to treatment providers until August, 2008, I accept her evidence that she was initially more focussed on her other pain, and thought that the knee pain would resolve.

[134] I accept Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor compression fracture of her T12 vertebra, and that she suffered a minor head injury with a probable minor concussion which has resolved. However, both of those injuries resolved so quickly that they do not affect the assessment of damages in this case.

[135] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to work at a physically demanding job, and is not capable of working in a 7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which can accommodate her abilities. However, the job is not as well-paid as her work as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to engage in hour-long walks, or to carry heavy items such as laundry and groceries, or to garden for more than 20 minutes at a time in an elevated garden bed. She is no longer able to contribute to her family and community to the extent she previously did….






[142] In all the circumstances, an appropriate award is $50,000.

$60,000 Non-Pecuniary Damage Assessment for STI's Imposed on Pre-Existing Injuries

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.
In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.

$85,000 Non-Pecuniary Damages Assessment for Chronic Pain Syndrome

Adding to this site’s archives of chronic pain cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain syndrome.
In last week’s case (Perry v. Perry) the Plaintiff was involved in two motor vehicle collisions.  She suffered from pre-existing health problems including PTSD and chronic pain.  She was injured in both collisions and this aggravated her pre-existing difficulties and caused new ones.  Ultimately she was diagnosed with a Chronic Pain Syndrome with a poor prognosis.  In assessing her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Melnick made the following findings:

41] Ms. Perry is a person who had had a number of challenging health issues prior to the first accident. Those issues included PTSD, which related to her childhood abuse, and problems with her feet and legs. She sometimes suffered from depressive episodes and had a history of alcohol and heroin abuse. She had multiple areas of pain that she experienced at least as far back as 2003. I conclude that, prior to the first accident, she was a person of some fragility with respect to both her physical and emotional health, likely the seeds of which were sown by her tragic childhood and exacerbated by her alcohol and drug use.

[42] That said, Ms. Perry, in the few years prior to the accident, had made real progress by putting her addictions behind her and, to a certain extent at least, engaging in life through education, volunteer work and a small amount of employment. She was, however, what I would describe as a “thin-skull” case: more at risk for emotional and psychological trauma than a normal person without Ms. Perry’s medical history would be: Athey v. Leonati, [1996] 3 S.C.R. 458. See also: Hussack v. School District No. 33 (Chilliwack), 2009 BCSC 852 at para. 143; . Thus, while the average otherwise healthy individual involved in the same type of accidents that Ms. Perry experienced may have suffered similar physical injury, that person would not be at the same risk of suffering the same psychological damage as Ms. Perry.

[43] I am satisfied that Ms. Perry suffers from chronic pain, which is largely attributed to the first accident, and to a minor extent to the second accident. She was not without pain and physical problems before these accidents and the defendants are not responsible for the extent to which those symptoms were already symptomatic: Athey at para. 35…

[51] Ms. Perry has several health issues, a large portion of which are attributable to these two accidents. Taking into account, as I have, that some of her current health situation is attributable to her past medical problems, I asses her overall non-pecuniary damages at $85,000. The seriousness of Ms. Perry’s injuries and her guarded prognosis are more in line with the authorities suggested by counsel for Ms. Perry.

More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.
In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

More on ICBC Tort Claims and Pre-Existing Injuries

How is a claim for compensation affected if you suffer from pre-existing injuries and as a result of the fault of another have your injuries aggravated?  If your injuries would have deteriorated eventually without the intervening event your claim for damages can be adjusted accordingly.  This is sometimes referred to as the ‘crumbling skull’ principle and reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, applying this point of law.
In today’s case (Jopling v. Bradowich) the Plaintiff was injured in a 2004 BC Car Crash.  The Plaintiff’s accident related injuries included headaches, disturbed sleep, depression and chronic pain.  However, the Plaintiff suffered from pre-existing problems which were summarized by Mr. Justice Rice as follows: “ I am satisfied that the plaintiff suffered from pre-existing injuries to her lower back prior to the motor vehicle accident, and that there was a general degeneration of her spine, all of which were likely to lead her to the condition that she now experiences, although probably not as soon as it did because of the accident.”
The Court valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $75,000 but then reduced this award by 20% to ‘reflect the contingencies that her back and shoulder pain would have manifested regardless of the accident‘.
In reaching this conclusion Mr. Justice Rice made the following observations of the law of causation in BC personal injury claims:

29] The principal issue in this action is whether the plaintiff’s individual injuries were caused by the accident, or whether they were only aggravations of pre-existing injuries.

[30] Proof of causation is determined by the “but for” test: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 14; Hanke v. Resurfice, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 21). If I find that “but for” the defendant’s conduct the plaintiff would not have been injured, then the defendant is liable for all the damages flowing from those injuries.  If the conduct of the defendant is unrelated to the alleged loss, then the defendant is not liable.

[31] It is no answer to a plaintiff’s claim for damages that he or she would have suffered less injury or no injury at all had he or she been less susceptible.  If an individual has a pre-existing condition, the person who injures that individual must take him or her as found: Athey, at para. 34.

[32] However, if the plaintiff’s injuries would have manifested themselves on their own in the future regardless of the defendant’s conduct, the court must apply a contingency factor to address that possibility.  Such a contingency does not have to be proven to a certainty.  Rather, it should be given weight according to its relative likelihood: Athey, at para. 35.

Pain and Suffering for Plaintiffs With Pre Existing Injuries

How do courts value pain and suffering (non pecuniary damages) when a person with a severe pre-existing injury is injured in a subsequent event?  Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, (Monych v. Beacon Community Services Society) dealing with this issue.
In today’s case the Plaintiff was initially injured in a severe motor vehicle collision in 1992.  As a result of this he was rendered a quadriplegic.  Despite this he was able to lead ‘a relatively active life until November 2006.  He regularly left his home in his manual wheelchair and in his car for exercise, hobbies, entertainment and to visit friends and family.  Prior to the November 2006 accident, Mr. Monych could use a manual wheelchair, drive a car, dress himself, bend at the waist and pick up objects, repair his vehicles and regularly engage in sexual activity with his girlfriend.  Since the November 2006 accident Mr. Monych has been unable to do most of these things. ‘
In 2006, while in the care of the Defendant, the Plaintiff was injured while being transferred from his wheelchair.  The Plaingiff fell during this tranfer.  As a result of this fall the Plaintiff broke both his legs.  Madam Justice Gerow found that the Defendants were responsible for negligently assisting in the transfer of the Plaintiff.  
The Plaintiff’s injuries and their consequences were summarized as follows:
[41]            After reviewing the evidence, I am satisfied that as a result of the fall Mr. Monych suffered fractures to both his legs.  The evidence is that the fractures have not healed and the prognosis is that it is unlikely they will.  No surgical intervention is anticipated or recommended…
[47]            As a result of the leg fractures Mr. Monych’s legs were splinted, causing him a severe restriction of his ability to move around.  While his legs were splinted, he was bedridden and he developed the ischial ulcers.  As stated earlier, Dr. Clinton-Baker’s opinion is that the long hospital stay was a result of the bilateral leg fractures and the ischial ulcers that developed for the first time while in hospital.  I accept Dr. Clinton-Baker’s opinion that the ischial ulcers developed during the long hospital stay that was necessary because of the bilateral leg fractures…
[52]            After considering all of the evidence, I have concluded that but for the accident the injuries causing Mr. Monych’s long hospital stay have resulted in a deterioration of Mr. Monych’s condition to the point where he is restricted to his bed and his electric wheelchair.  If the accident had not occurred Mr. Monych would not have suffered the increased restrictions and limitations on his activities
In valuing the Plaintiff’s losses for general damages Madam Justice Gerow noted a very important principle when determining the value of pain and suffering and loss of enjoyment of life namely that “to rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life.”
In awarding $120,000 for the Plaintiff’s general damages the court engaged in the following analysis:

[61]            The evidence from Mr. Monych, the lay witnesses and his caregivers is that Mr. Monych can no longer use a manual wheelchair, do self-assisted transfers to the toilet or shower, do independent transfers, bend at the waist to pick something up, change his own catheter bag, dress himself or drive an automobile.  He has not been able to have a shower or use a toilet since the accident.  As well, he can no longer take part in many of the extracurricular activities he used to, including visiting friends, going to the park with his girlfriend and working on automobiles.  Prior to the accident of November 4, 2006, he was able to do all those things.

[62]            As well, the evidence establishes that Mr. Monych’s personal life has been impacted.  Prior to the accident, he had an intimate relationship with his girlfriend and that has not resumed since his return home from the hospital.  Although Mr. Monych says he would like to resume a sexual relationship, the movement of the bones in his legs deters his girlfriend. 

[63]            Mr. Monych and the defendants have provided me with a number of cases to assist in determining the appropriate award for pain and suffering.  Mr. Monych submits that an award for general damages of $160,000 is appropriate, and that the range is $70,000 to $160,000.  The defendants submit that their authorities support an award for general damages in the range of $30,000.  I have considered the authorities presented by the parties.  As in most cases, there are aspects of the decisions which are helpful, but they also have features which distinguish them from this case. 

[64]            The defendants rely on Ranta v. Vancouver Taxi Ltd. (9 July 1990), Vancouver B882210 (S.C.), as support for the argument that the appropriate amount for general damages is $30,000.  In that case, the plaintiff, who was a quadriplegic, sustained a broken leg due to the negligence of a taxi driver.  In my view, the case has little application to the case at bar.  Harvey J. found that the plaintiff had failed to establish that the defendants’ negligence caused his present and continuing disability.  The injuries that were attributable to the accident were much less severe than the injuries Mr. Monych has suffered and had no long lasting impact.

[65]            I agree with the comments in Boren v. Vancouver Resource Society for the Physically Disabled, 2002 BCSC 1134 at para. 60:

Counsel for the defendant submits the award for non-pecuniary damages should be limited to a consideration of the physical injury sustained October 11.  I disagree.  Rather, the circumstances here raise issues similar to those in Bracey (Public Trustee of) v. Jahnke, [1995] B.C.J. No. 1850 (S.C.), varied on other grounds (1997), 34 B.C.L.R. (3d) 191 (C.A.), in which Oliver J. observed at para. 27 that:

To rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life.

[66]            I am satisfied that Mr. Monych has suffered pain and suffering and loss of enjoyment of life as a result of the November 4, 2006 accident.  As stated above, the evidence establishes that as a result of the accident, Mr. Monych suffers ongoing disabilities that have caused a severe restriction to his independence and ability to pursue the activities he was involved in prior to the accident.  He has lost the independence of being able to transfer himself, his ability to exercise and go out independently in his manual wheelchair, his ability to drive vehicles, his sex life and much of his social life.

[67]            Having considered the authorities and the evidence concerning the effect of the injuries on Mr. Monych, and allowing for the probability that his activities would have become more restricted, and his independence more compromised over time due to his ongoing medical conditions, I am of the view that the appropriate award for non pecuniary damages is $120,000.

 

$40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.
The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.
Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.

ICBC, Aggravation of Prior Injuries and "Failure to Mitigate"

Reasons for judgement were released today by the BC Supreme Court awarding damages to a Plaintiff as a result of a 2003 rear-end accident.
In this case the court found that the Plaintiff ‘had significant problems with her neck and back prior to the 2003 collision…..that the collision markedly aggravated her pre-existing condition. Her level of functioning has gradually improved between the time of the collision and the time of the trial….(although) she continues to suffer greater pain and disability than she did before the collision.
In valuing the Plaintiff’s accident related pain and suffering at $50,000, the court made the following findings:
It is clear that Ms. Antoniali was suffering from a previous injury to her back and neck at the time of the November 2003 collision. I am satisfied that the November collision caused substantial new or aggravated injury to Ms. Antoniali’s lower and mid back. She has suffered substantial disability, pain and suffering for the approximately four and one-half years since the collision. She has not been able to engage in most of the recreational pursuits that she engaged in before the collision. Her enjoyment of her new role as a mother has been negatively impacted. However, not all of the pain and disability she suffered during this period was attributable to the November collision. In the absence of the new injury she suffered in that collision she would have been troubled by the likely continuation of her pre-collision back and neck difficulties. I am satisfied that an award of $50,000 for non-pecuniary general damages for her collision related injuries, both past and future, is appropriate to reflect her loss. I assign those damages approximately equally to the pre-trial and post-trial periods.
In addition to interesting comments made about the aggravation of pre-existing injuries, the court made some key findings regarding ‘failure to mitigate’.
When a person is injured in a BC car crash and makes and ICBC tort claim, that person has a duty to take reasonable steps to minimize their losses. This is called the ‘duty to mitigate’. In this case the court found that the Plaintiff did fail to mitigate her losses and reduced some of her damages by up to 50% as a result of this failure. The key finding fueling this decision was that the Plaintiff’s symptoms would have been lessened had she followed the recommended program of stretching and exercises recommended by her physician.
In discussing the law of failure to mitigate Mr. Justice Preston referenced some well known passages canvassing this area of the law – for your convenience I will reproduce these below:
From Graham v. Rogers

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.

From Humphrey v. Rancier Estate

Another issue in assessment of damages, both non-pecuniary and pecuniary, is the plaintiff’s alleged failure to mitigate. The plaintiff has followed all her medical advice with the exception of reducing her weight. She was grossly obese before the accident, weighing about 260 pounds; she is not quite five feet tall. She now weighs over 200 pounds and continues to be grossly obese. There is no doubt on the medical evidence and the evidence of the therapists that her disability and pain would be less if she lost a considerable amount of weight.

The question is whether the plaintiff has taken reasonable steps to minimize her loss. The court must assess whether this test has been met by looking at all the circumstances of the case. Here we have an obese lady before the accident – someone who had been obese all her adult life. Her brother and sister are both obese. She appears, as her counsel put it, to be a weak woman in the sense that she has not had very good success at controlling her smoking or her eating on a consistent basis in the past despite medical advice and despite her clear efforts. She has tried to lose weight and has succeeded to an extent, at least temporarily. She is still trying, she says.

Of equal importance to the principle that the plaintiff must act reasonably in minimizing her loss and her damages, is another principle, namely that the defendant takes his victim as he finds him or her. In the circumstances in this case, given the plaintiff’s pre-accident history of obesity, given her particular personality, given her honest efforts from time to time to lose weight and kept it off, I am not satisfied that it can be said that the plaintiff has acted unreasonably and has failed to mitigate her damages, with the result that her damages should be lessened because she has not lost weight.

From Sagave v. Townsend

A defendant who injures a plaintiff is not entitled to expect perfection from the injured person in pursuing rehabilitation. The plaintiff must be reasonable and sincere in her efforts to promote recovery. The plaintiff was less than perfect, and undoubtedly paid a price in pain and discomfort on occasion. I accept however the plaintiff met a reasonable standard of care concerning exercise with regard to her own rehabilitation.

The defendant has not met the onus of proof required for the plaintiff to be found to have contributed to her own damages. In the assessment of her non-pecuniary damages however I have taken account of the need for the plaintiff to follow an almost daily regime in the future and assumed she will benefit accordingly.

This case serves as a striking example that an unreasonable failure to follow medical advice can have a severe impact on an ICBC claim. Here the Plaintiff’s awards for post trial pain and suffering, post trial loss of earning capacity and post trial cost of medical care were reduced by 50%!

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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.

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