Tag: TMJ

$120,000 Non-Pecuniary Assessment for TMJ and Trigeminal Neuralgia

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic jaw injury suffered in a vehicle collision.

In the recent case (Tomas v. Sticha) the Plaintiff was injured in a 2006 collision that the Defendant accepted fault for.  The crash led a variety of soft tissue injuries along with TMJ syndrome and trigeminal neuralgia.  The symptoms persisted to the time of trial.  In assessing non-pecuniary damages at $120,000 Mr. Justice Tammen provided the following reasons:

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$50,000 Non-Pecuniary Assessment for Chronic Jaw Injury

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic jaw injury sustained in a collision.

In today’s case (Zamora v. Lapointe) the Plaintiff was injured in a 2014 rear end collision.  Liability was admitted by the Defendant.  The crash resulted in various soft tissue injuries along with a temporomandibular joint injury.  His back, neck and jaw symptoms continued to the time of trial and were not expected to fully recover.  In assessing non-pecuniary damages at $50,000 Madam Justice Duncan provided the following reasons:

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$100,000 Non-Pecuniary Damage Assessment For Bilateral Thoracic Outlet Syndrome


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for bilateral thoracic outlet syndrome and other chronic soft tissue injuries.
In yesterday’s case (Olson v. Ironside) the Plaintiff was involved in a ‘signigicant collision’ in 2008.  ICBC admitted fault on behalf of the Defendant. The Court heard competing evidence with respect to the extent of the Plaintiff’s injuries and ultimately sided with the Plaintiff’s experts noting ICBC’s expert failed “to consider significant material facts“.
The 19 year old Plaintiff suffered multiple injuries, the most serious of which was bilateral thoracic outlet syndrome.  These were expected to cause a permanent partial disability limiting the Plaintiff for the balance of her working years.  In assessing non-pecuniary damages at $100,000 Mr. Justice Josephson provided the following reasons for judgement:

[60] The plaintiff has proved that, but for the accident, she would have continued her healthy, active and outgoing life style. I accept the plaintiff’s submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission; and

9.       permanent right temporomandibular joint dysfunction.

[61] The accident had a dramatic effect on all aspects of this young plaintiff’s life because of the symptoms listed in the previous paragraph. She has learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62] Of the several case authorities cited by the plaintiff to assist the Court in determining non-pecuniary damages in the case at bar, the most helpful are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010 BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335;Prince-Wright v. Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211.  The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63] After reviewing the authorities cited to me and considering the impact of the proven injuries on the plaintiff’s daily life, I award the plaintiff $100,000 for non-pecuniary damages, which I consider to be a mid-range award for the circumstances of this case.

$60,000 Non-Pecuniary Assessment for Medial Meniscal Tear and TMJ Injury


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic knee and jaw injury sustained in a motor vehicle collision.
In this yesterday’s case (Daitol v. Chan) the Plaintiff was involved in a “serious” collision when the defendant dozed off and crashed into the Plaintiff’s vehicle.  Fault was admitted by the Defendant at the start of trial.
The Plaintiff suffered various injuries, the most serious of which was a meniscal tear in her left knee.  The Plaintiff’s family doctor summarized the following collision related injuries which the Court accepted:

[35] It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol during the motor vehicle accident were:

· New-onset neck-, mid-and-upper back, lower back, right shoulder and right hip area pain: soft tissue (muscular and connective tissue).  Pain in this area is largely resolved with some intermittent neck and back pain.

· Bilateral TMJ (jaw) pain, right side more than left.

· Pre-patellar bursitis of the left knee due to direct trauma to the knee.  This explained the initial swelling of the left knee patellar area, which resolved after a few months.

· Left knee PFS (patellofemoral syndrome) which is a condition of direct damage to the kneecap cartilage, causing pain with squatting, deep knee bending and climbing stairs.

· Left knee medial meniscus tear. This is consistent with the mechanism of injury of the MVA (direct knee impact), supported by direct pain upon palpation of the joint line, the MRI findings and the longstanding duration of symptoms.  This is still symptomatic today.

In assessing non-pecuniary damages at $60,000 Madam Justice Griffin provided the following reasons:

[53] In considering all of the medical evidence, and Ms. Daitol’s testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol is likely to have long-term continuing TMJ problems and left knee pain problems, as well as some right knee problems well into the future, and that these injuries were caused by the accident. ..

[67] I find as a fact that Ms. Daitol’s greatest discomfort in the years since the accident, and likely in the future, and greatest interference with her enjoyment of life, is due and will continue to be due to the pain in her left knee.  She continuously is required to use a left knee brace.  For a lengthy period of time, she was on crutches.  She limits her physical movements and hence her recreational activities due to the limits of her left knee as she does not want to set herself back…

[69] I find that she has suffered severe restrictions in walking and will continue to do so in the future and likely for the rest of her life.  I conclude that there is no readily apparent alternative exercise for Ms. Daitol at this stage of her life, other than walking.  As a 36 year old woman, the permanent impairment of her ability to walk any measurable distance or for any measureable period of time, without suffering extreme pain, is a significant loss.  While she still will have plenty of enjoyment in life, she will frequently suffer pain, both in her recreational pursuits and at work when she is required to move around to retrieve files or do other light tasks. ..

[74] In this case, I find it very significant that the one physical activity Ms. Daitol used to enjoy, walking, has essentially been lost to her.  While she can still walk somewhat, it is clear that she is no longer going to enjoy it, it is going to very limited in duration, and she is always going to fear and suffer the aftermath of increased pain.  Walking is essential to most of daily life, and is not a luxury that if lost, will not be missed.  For someone who has never had a natural inclination to pursue a range of physical activities, this is an even more significant loss as she is unlikely to have the natural athletic ability that will allow her to generate some other replacement activity.  While I find that the range suggested by the plaintiff may be high in these circumstances, I find the range suggested by the defendant to be far too low.

[75] I find that an appropriate award for general damages in the circumstances of this case, taking into account the left knee damage, the fact that it is causing some problems with the right knee, and the ongoing TMJ complaints, all caused by the accident, is $60,000.

Non-Pecuniary Damages Update – the Kelowna Road Edition


I’m writing today’s non-pecuniary damages case update in Kelowna, BC where I’m finishing up some work on a handful of ICBC claims.
Reasons for judgement were released earlier this week by the BC Supreme Court awarding non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for headaches and chronic pain following soft tissue and TMJ injuries.
In this week’s case (Ho v. Dosanjh), the Plaintiff was injured in a 2006 BC motor vehicle collision.   It was a rear-end crash and the Plaintiff’s vehicle sustained over $7,000 in damage.   The Plaintiff’s injuries continued to cause him problems by the time of trial (nearly 4 years after the collision).  Mr. Justice Silverman awarded the Plaintiff $75,000 for his non-pecuniary loss and in reaching this figure the Court noted the following about the extent and severity of the Plaintiff’s injuries:

[21]         As a result of the subject MVA, the plaintiff suffered pain in his neck, upper back, shoulder, jaw, numbness down the left arm, headaches, and insomnia.  He was on a variety of medications for a period of time and was unable to work.

[22]         The most serious and ongoing consequences of the MVA are the TMJ and the headaches, which leave him in constant pain.

[23]         Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw, teeth, and  related areas, and that he suffers from headaches as a result of the MVA.

[24]         He testified that these areas of concern had not improved significantly in the four years since the MVA and further recovery was unlikely; that the plaintiff will suffer long-term symptoms that impact on all aspects of his functioning; and that he should avoid any activities that involve jumping or jarring.  Dr. Mehta recommended conservative care, including continuation of various treatments which were already ongoing, such as physiotherapy and massage.

[25]         Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s capacity for recreational pursuits has been compromised and that this will continue for the foreseeable future.  He testified that, given the amount of time that has passed since the MVA, there is unlikely to be any further improvement.

[26]         Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ pain and that, in his opinion, “they will remain a long term issue.”  He noted that the plaintiff had a pre-existing degenerative condition, which made him more susceptible to injury from the MVA.

[27]         Dr. Gilbart provided an independent medical report and was called as a witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s pre-existing degenerative condition in his neck.  He opined that the “prognosis for significant further improvement in his symptoms at this point is guarded.”  He noted that the plaintiff was asymptomatic prior to the MVA and was functioning at a very high level in all aspects of his life.  Dr. Gilbart also noted that, despite the post-MVA pain complained of by the plaintiff, he still appeared to be functioning at a very high level.  Finally, he opined that, given the pre-existing condition of the plaintiff as well as his prior history, he likely would have had flare-ups in the future even if the MVA had not occurred.

[28]          With respect to the jaw pain and headaches, Dr. Gilbart deferred to the expertise of Dr. Mehta.

[29]         Presently, the plaintiff has not returned to most of his pre-MVA athletic activities.  He no longer is involved in volleyball, softball, aggressive hiking, or skiing.  He does still rollerblade, although not as aggressively as before, and he has recently begun to swim with the encouragement of his girlfriend, who is a physiotherapist’s assistant.

[30]         Various friends testified that the plaintiff’s personality has changed.  He is moody, irritable, withdrawn, quiet, rarely socializes, and not as pleasant to spend time with as he used to be.  It was clear to me, when watching the plaintiff in the gallery of the courtroom that he was distressed when he heard this testimony.  He subsequently testified that he had not actually heard these witnesses say this before…

76]         I am satisfied that the plaintiff has suffered neck, back, jaw, and shoulder pain, and that he continues to suffer on a daily basis, particularly from TMJ and headaches.

[77]         I am satisfied that it has affected his recreational and athletic activities, which were an important part of his life.

[78]         I am satisfied that there is unlikely to be much further improvement.

[79]         I am also satisfied that, while he is suffering pain, he is nevertheless able to function in a reasonably normal way.  He certainly appeared to be reasonably comfortable when giving evidence.  He also continued to work full-time after a period of months during which he was unable to work, although I accept that work is much less physically comfortable for him than it used to be.

[80]         While I accept the evidence that he might have suffered another flare-up even in the absence of the MVA, I am satisfied that the MVA was, and is, the primary cause of his current difficulties.

[81]         With respect to ongoing treatments for the rest of his life, I am satisfied that, while these might provide him with some periodic temporary relief, they are not likely to result in any improvement.  Consequently, what the plaintiff might perceive as the “need” for such ongoing treatments, will be reflected as an aspect of the non-pecuniary award.

[82]         In all the circumstances, I award $75,000 for non-pecuniary damages.

$135,000 Non-Pecuniary Damages for Multiple Crush Syndrome, TOS and TMJ Injury

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry that are worth reviewing for anyone involved in an ICBC Claim for damages for accident related Thoracic Outlet Syndrome.
In today’s case (Sauer v. Scales) liability was denied but Mr. Justice Cohen found the defendant 100% at fault for the collision.  In valuing the Plaintiff’s non-pecuniary damages at $135,000 Mr. Justice Cohen found as follows with respect to the severity of the accident related injuries:
I find that the plaintiff’s medical experts not only established the plaintiff’s diagnosis that he suffered from thoracic outlet syndrome, but also that of a multiple crush syndrome… he sustained a serious TMJ injury as a result of the accident, and that he should undertake dental reconstruction to treat this disorder…

[256] In the result, I find, on the whole of the evidence, that the plaintiff has proven to the requisite standard that as a result of the accident he sustained moderate to severe injuries to his eyes, teeth, jaw, neck and back.  I accept Dr. Fry’s opinion, confirmed by the other experts for the plaintiff who opined on this issue, that as a result of the accident the plaintiff has significant musculoskeletal and neurological symptoms with respect to his left arm and that the diagnosis is one of multiple crush syndrome, where he has evidence of cervical spine compression, of neurogenic thoracic outlet syndrome, of cubital tunnel syndrome and of carpal tunnel syndrome.

[257] I also find that the injuries he sustained in the accident and the requirement to take therapy and medication on a continuing basis since the accident to treat those injuries has had a significant impact on the quality of the plaintiff’s life, including sleeping, eating and physical fitness, as well as upon his social and personal relationships.

[258] I am mindful of the evidence that since the accident the plaintiff has experienced varying degrees of improvement in his overall symptoms; that to some limited extent he has been able to return to physical pursuits such as tennis, jogging and skiing; that he has been able to travel on family vacations; and, that during the time he was involved with the affairs of Global Synfrac he frequently commuted to Calgary to attend Board meetings.  I am also mindful of the evidence that his prognosis remains poor with regard to his TMJ disorder and thoracic outlet syndrome, and there remains the possibility of him having to undergo further surgical procedures to address these conditions.  Moreover, he will have to continue taking therapy and medications to treat his ongoing symptoms.

[259] Taking all of the above factors into account, I find that $135,000 is a fair and reasonable sum to award the plaintiff for general damages.

Paragraphs 233-236 of this case will be of particular interest to anyone who has undergone an ‘independent medical exam‘ with Dr. A.I Munro.   Dr. Munro has conducted many of these exams on behalf of ICBC and often disagrees with the diagnosis of Thoracic Outlet Syndrome.  Mr. Justice Cohen held that “no weight should be given to the opinions of Dr. Munro on this issue (the Plaintiff’s Thoracic Outlet Syndrome)”.  In reaching this conclusion extensive portions of Dr. Munro’s cross examination were reproduced which I set out below:

[234] In the report of Dr. A.I. Munro, a specialist in thoracic and cardiac surgery, dated March 9, 2006, he concluded that as a result of the accident the plaintiff sustained a mild soft tissue injury of the neck and that he did not have thoracic outlet syndrome.  He also concluded that the plaintiff had a left ulnar entrapment syndrome which was causing his disability, and that the bilateral carpal tunnel syndrome had recovered, stating that, “only one hand was on the steering wheel so it cannot be due to the MVA.”  He also said that the plaintiff’s disability is associated with numbness and weakness caused by a left ulnar entrapment syndrome plus cervical nerve root pains.  However, despite his experience as a thoracic surgeon, Dr. Munro testified that he may have done one thoracic outlet syndrome surgery between the years 1994 to 2001.  He said that he may have done one at St. Paul’s Hospital, but he was not sure, and otherwise a previous one would have been done at UBC Hospital.  He also testified:

Q         — at VGH?  Mm-hm.  And what type of surgeries were you performing over that period from ’68 to 1990, if I have the years roughly correct.

A          General thoracic surgery and cardiac surgery, both closed and open heart surgery.

Q         Okay.  And of the — I take it there were other surgeons who performed a similar practice to yours?

A          I suppose all the surgeons had slight variations in their practices.

Q         Mm-hm.  Were any of these surgeons –

A          Some of them were purely thoracic, some of them were purely cardiac, and some were mixed.

Q         Okay.  Were any of the ones that were purely thoracic involved with thoracic outlet syndrome and surgeries on that condition?

A          Early on, no.  Probably I saw most of them until probably Dr. Fry, Dr. Nelems came on staff, and they saw most of the thoracic outlet surgery after that.

Q         And when would that be?

A          I’m not sure of the actual dates.

Q         Was it shortly after –

A          Probably in the — my guess would be the early ’80s, —

Q         And prior to 2001 when you were at VGH after Dr. Fry and the other physician you mentioned began to specialize, those cases would be — TOS cases would be sent to them for –

A          Yes.

Q         — assessment at surgery; correct?

A          Yes.

Q         Yeah.

A          The second aspect is looking at a specific five-year period and analyzing what cases I had seen during that five-year period.

Q         And what five-year period is this?

A          That was 2002, 3, 4, 5 and 6.

Q         Mm-hm.  Mm-hm.  And — and that — that is where you were giving me these approximate numbers?

A          Correct.

Q         Okay.  So during that period, there were somewhere between 25 to 30 per cent that were involving non-severe neck injuries that — where — that could have been, in your opinion, thoracic outlet syndrome issues?

A          No.  There was a fair percentage of people who had such bizarre symptoms and signs that you couldn’t fit them into any logical medical diagnosis, —

Q         Mm-hm.

A          — often associated with psychiatric disease.

Q         Mm-hm.  But other specialists had assessed them as thoracic outlet syndromes?

A          Yes.

Q         Mm-hm.

A          These were all people who had been sent to me to consider this diagnosis.

Q         Mm-hm.  Now, going back to my question in terms of your — oh, maybe I’ll finish.  In that five-year period, I take it, Doctor, there were people who you did concur with the other physician that the diagnosis was thoracic –

A          In that particular –

Q         — outlet syndrome?

A          — five-year period, no.  In the previous five years, yes.

Q         Okay.  And how many occasions was that, do you recall?

A          In the previous five years, —

Q         Mm-hm.

A          — I think it was two, but I cannot tell you for sure.

Q         Two of approximately 30 per year?  Thirty reports a year?

A          Probably at that time I was seeing less than 30 per year.

Q         Mm-hm.

A          I do not have the exact figures –

Q         Sure.

A          — for that previous –

Q         Okay.

A          — five-year period.

Q         So — but in the last 10 years it would be reports in the order of several hundred reports, and of those several hundred reports you concurred with the other specialists on two occasions that you can recall?

A          Yes.

$45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

Reasons for judgement were released today (Romanchych v. Vallianatos) by the BC Supreme Court, Vancouver Registry, awarding just over $132,000 in total damages to a Plaintiff injured in a 2006 BC Motor Vehicle Collision.  
The collision was a rear-ender on the Alex Fraser Bridge in Delta, BC.  The crash was forceful enough to write off the 24 year old Plaintiff’s vehicle.
Madam Justice MacKenzie of the BC Supreme Court summarized the Plaintiff’s injuries as follows:  
I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms improved over time, they have not resolved.   She currently suffers chronic neck and shoulder pain. She can manage her pain  level if she avoids aggravating her injuries by limiting her activities. The plaintiff is  also vulnerable to future episodes of jaw pain. I find in favour of the plaintiff’s  submission, except for small adjustments to the quantum of damages claimed. 
In awarding $45,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court engaged in the following analysis:
Conclusion on Non-Pecuniary Damages 
[71] On the whole, the expert opinions support a strong inference that the plaintiff’s injuries are chronic and that they will continue to affect her permanently. Given that she must limit her activities to minimize and manage her pain, the  evidence shows that it is probable that her pain and resulting limitations will continue  indefinitely. 
[72] I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms have improved over time, they have not resolved.   
[73] I also find that the jaw symptoms which arose in August 2007 were indeed caused by the accident of July 4, 2006. I also observe that the jaw symptoms experienced in December 2006 may have been related to the accident as well.    
[74] Both counsel rely on the non exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at paras. 45-46. The award for general damages, will of course, vary according to the specific circumstances of the individual case, but the factors include:   
(a) age of the plaintiff;  
(b) nature of the injury;   
(c) severity and duration of pain;   
(d) disability;    
(e) emotional suffering; and   
(f) loss or impairment of life;    
(g) impairment of family, marital and social relationships;   
(h) impairment of physical and mental abilities;   
(i) loss of lifestyle; and   
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking,   penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).   
[75] The defendant relies upon the following cases as being reasonably analogous to this case and as supporting an award in the range of $15,000 to $22,500 for general damages: Kain v. Kirkman, 2006 BCSC 1770; Nickerson v. Allen Estate, 2006 BCSC 562; Aulakh v. Poirier, 2006 BCSC 2027, and my own decision in Moore v. Cabral, 2006 BCSC 920. However, those cases are all distinguishable from this case.   
[76] The plaintiff relies upon the following cases as supporting an award of $50,000 for general damages in this case: Henri v. Seo, 2009 BCSC 76; Chin v. McCabe, 2006 BCSC 1589; and Pavlovic v. Shields, 2009 BCSC 345. In my view, these cases are reasonably similar to this case and reflect analogous general damages.    
[77] Therefore, an appropriate award of non-pecuniary damages in this case is $45,000
One of the points of interest in this case was the courts comments on Dr. Goldstein. an oral medicine specialist, who ICBC often retains in jaw injury cases.  His evidence was rejected over the Plaintiff’s treating oral medicine specialist Dr. Gardner.  
Specifically, in finding bias in doctor Goldstein’s evidence, Madam Justice MacKenzie commented as follows:
[66] Dr. Goldstein’s bias in favour of the defendant’s case became evident during cross-examination. His attempt under cross-examination to distance himself from the meaning of the phrase emphasized in the above quote damaged his reliability as a witness. 
[67] I also view Dr. Goldstein’s opinion with scepticism because he was not forthright in his report about the fact that flexion extension injury from motor vehicle accident trauma could cause jaw symptoms. Under cross-examination, counsel for the plaintiff put one of Dr. Goldstein’s own articles to him in which he noted the close correlation between TMD and motor vehicle accident trauma. 

$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.

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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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