COURT CASES on AGGRAVATION of INJURIES

 

AGGRAVATION CAUSED by a NON-TORTIOUS ACT

 

In Kaleta v. MacDougall, the Plaintiff was injured in a motor vehicle accident after being forced into a centre median by the Defendant. Liability was not in dispute, however ICBC’S lawyer disputed the extend of the injuries sustained by the Plaintiff. The Plaintiff brought an ICBC claim for damages for pain and suffering, loss of income, and diminished earning capacity. Before the trial began, the Plaintiff, stiff suffering from shoulder symptoms arising from the car accident, aggravated his shoulder injury at work. ICBC’S lawyer argued for a reduction in damages, however the Court rejected this argument, commenting that:

 

[57] I accept the opinion of Dr. McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury.

 

[58] I recognize that Dr. McAnulty said in his evidence at trial that it was a new injury on top of the old injury but I am satisfied he did not mean it was a new unconnected injury. He clarified that further in his report and at trial.

 

[59] I also recognize that in his WorkSafe BC reports Dr. McAnulty said there were no other prior or other problems affecting the June 11, 2009 workplace injury, disability and recovery, but he was not asked at trial if this constituted a contradiction to his opinion that the June 11, 2009 shoulder injury is connected to the previous motor vehicle injury.

 

[60] Absent Dr. McAnulty being asked about this at trial I am not prepared to conclude it constitutes a contradiction that he would not be able to explain as consistent with his diagnosis, if he had been asked.

 

[61] As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361 (CanLII), 2010 BCCA 361).

In other words, it is no defence to argue that a subsequent non-tortious (meaning no wrongdoing by someone else) act that aggravates a tortious injury (an injury caused by someone else’s negligence) should lead to a reduction in damages attributable to the original tortious injury.

 

AGGRAVATION of PRE-EXISTING INJURIES

 

Many people have a misconception that if you already have pre-existing injuries, then you are not entitled to compensation should a motor vehicle accident cause pain to areas where you were already experiencing pain, however this is simply not the case. However, it must be remembered that the Defendant is not responsible for restoring the Plaintiff to a complete recovery, but rather only to the condition that the Plaintiff was in at the time of the car accident.

 

In Iwanik v Hayes, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for non-pecuniary damages, wage loss, future wage loss, and cost of future care. Prior to the accident, the Plaintiff suffered from fibromyalgia. Counsel for the Plaintiff argued that the motor vehicle accident in question exacerbated the Plaintiff’s condition, and caused ongoing neck pain, back pain, and knee pain. The Court awarded damages for a sustained and prolonged exacerbation of the Plaintiff’s fibromyalgia, commenting that:

 

[130] Before the accident, Ms. Iwanik was a dedicated worker. She had a long history of working more than full-time hours. She had a history of neck and back pain, fibromyalgia, and COPD. Hey fibromyalgia would flare up periodically, particularly in the period when her daughter was undergoing cancer treatment. She did not have any complaints of problems with her knees. She suffered enough pain in her neck and back that she underwent treatments relatively regularly from a chiropractor and massage therapist, but she did not take time off from work as a result of any of these complaints. She performed physically demanding work at 7-Eleven for long hours, took hour-long walks most days, gardened, and looked after herself and her home without difficulty.

 

[131] The defendant is only responsible for any increased aggravation of Ms. Iwanik’s pre-existing problems. That is because Ms. Iwanik is only entitled to an award of damages which will theoretically restore her to her pre-accident condition. She is not entitled to recover a sum which represents a complete recovery, because she was not a completely healthy person at the time of the accident.

 

[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.