28 Sep Aggravation of Pre-existing Neck and Back Conditions

Posted at 10:29h in News by Heather Sweeney

The personal injury action of Rab v. Prescott, 2020 BCSC 1255 involved a Plaintiff who was rear ended while attempting to merge onto a busy street.  As a result of the accident, the Plaintiff claimed to have suffered an aggravation of certain pre-existing neck and back conditions. She also received a new diagnosis of myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”) from one physician.

The key issues in dispute at trial were the extent to which the accident aggravated her prior conditions, and whether the accident caused any new condition.

The Plaintiff had to prove on a balance of probabilities that her injuries would not have occurred “but for” the accident.  The accident did not need to be the only cause of the Plaintiff’s injuries but had to be a causal factor beyond the “de minimis” range. The judge decided that causation had been established, at least in relation to the aggravation of the Plaintiff’s past conditions and her increased fatigue.

The judge found the following factors and findings relevant to the determination of the proper non-pecuniary award:

  1. The Plaintiff had pain in her neck and back prior to the accident, but she was largely able to manage the pain on her own.
  2. The Plaintiff suffered an aggravation to the underlying pain in her neck and back as a result of the accident, as well as increased migraines.
  3. The Plaintiff had not suffered a new syndrome as a result of the accident. What has happened was a material aggravation of her pain mechanisms.
  4. The Plaintiff’s energy level had also been reduced as a result of the accident. That said, the Plaintiff was still able to continue work on her businesses for at least a few hours a day after the accident.
  5. The Plaintiff’s treatment had been narrow and sporadic, largely confined to acupuncture. It was difficult to know whether more comprehensive and intentional pain management treatment could have assisted but there was a material chance that it could.

The Plaintiff asked for non-pecuniary damages in the $100,000 and $140,000 range, while ICBC suggested $20,000–$30,000. The judge was assisted by a recent court decision with a similar level of pre-existing difficulties, coupled with comparable functional impacts after the accident. The judge found that the appropriate award for non-pecuniary damages in this case was $70,000.