18 Apr Pre-Existing Conditions
How does the Court assess personal injury damages when a plaintiff suffered from pre-existing conditions prior to a motor vehicle collision? A recent case, Matharu v. Gill, 2016 BCSC 624, provides an example.
The plaintiff had been diagnosed with inflammatory polyarthritis, osteoporosis, anemia and anxiety disorder prior to the motor vehicle collision. After the motor vehicle accident, the Plaintiff alleged that she suffered ongoing neck, shoulder and back soft tissue injuries as a result of the accident. ICBC argued that the Plaintiff’s ongoing symptoms were caused by her pre-existing conditions.
In considering the evidence, the Court noted that the Plaintiff was a reliable witness. The court accepted her evidence about the nature of her injuries, her progress and how the symptom’s affected her daily life. Her family doctor was also an important witness. He had treated her for many years prior to the collision and the Court accepted his evidence. In his opinion, the pre-existing conditions made her more likely to experience delayed healing and increased her recovery time. Her doctor also expected her pre-existing conditions would increase her chance of re-exacerbation with less major triggers and that she may experience higher pain levels. She was also at a greater risk of developing a chronic pain syndrome. The Defendant medical expert’s opinion did not conflict with the family doctor’s opinion.
In summary, the Court accepted the Plaintiff suffered a moderate soft tissue neck and shoulder strain, and a mild low back strain. Her pre-existing condition affected her recovery time, made her more susceptible to pain and impacted the persistence of her symptoms. Although she continued her activities, the Court recognized she required assistance and that she was stoic. However, the Court found that because the Plaintiff did not follow her family doctor’s advice to continue physical therapy and active rehabilitation, which likely prolonged her symptoms. The Court also accepted the evidence that she would continue to improve and her symptoms may resolve in one or two years.
The Court awarded the Plaintiff non-pecuniary damages of $45,000, but reduced this by 10% to $40,500 for her failure to mitigate.