22 Jun Pre-existing Medical Conditions

In Diep v. Cunha, 2015 BCSC 819, a 38 year old seamstress sustained injuries when struck as a pedestrian by the Defendant’s motor vehicle.  Her injuries were primarily to her low back and left leg.

The plaintiff suffered from severe scoliosis of her thoracolumbar spine but argued that this condition did not cause her any symptoms prior to the accident. Justice Verhoeven found that despite her scoliosis, she was essentially healthy prior to the accident.

As is often the case in personal injury litigation, ICBC argued that any award for damages had to be reduced on account of the risk that the Plaintiff’s pre-existing condition would have detrimentally affected her in the future, regardless of the accident.

Justice Verhoeven disagreed, stating at para. 63:

[63]         The evidence does not support this submission.  The plaintiff’s scoliosis was essentially asymptomatic prior to the accident. That condition has little if any relationship to her present diagnosis.  The pain she was complaining of in 2008 for which she saw Dr. Dvorak was of a different kind and character to that which she complained of following the accident.  There is no medical opinion before me which supports a conclusion that there was a material risk (or “measurable” risk) that her scoliosis would have become symptomatic and would have caused her to suffer injury or loss in future regardless of the accident.

Justice Verhoeven went on to award the Plaintiff damages totalling just under $375,000, including $75,000 for pain and suffering.