Tuesday, June 3, 2014

The Notorious "Pre-Existing Condition" - What does the Court say?

Judicial reasons for judgement were delivered on May 29, 2014 by the Honorable Mr. Justice Bernart in MacAulay v. Field 2014 BCSC 937.  The trial was conducted by Tim Delaney of our office at LK Law - the case involved a 51 year old female plaintiff with pre-existing back and neck issues. 

Insurance companies, like ICBC, tend to argue that your injuries are worth less because you already had an injured back or neck - they say it was a "pre-existing condition" or "pre-existing injury" and therefore the accident only mildly contributed to some pain.  It the job of a good personal injury lawyer to highlight the difference between how the condition manifested before the accident and how it changed after. Not all cases are alike. 

In MacAulay, our client was a wife, mother and executive assistant and was 47 years old at the time of the motor vehicle accident. She was a physically active woman who worked full time, tended to her house and garden, and enjoyed various physical, recreational and social pursuits with family and friends. The plaintiff had been in two prior accidents, but testified she had fully recovered on both occasions and never been physically limited until the subject February 2010 accident.

Post accident the plaintiff tried to resume various pre-accident activities including biking, weight training, aerobics and golfing but found that she was unable to engage or had to significantly curtail them due to the pain in her neck and back. Her ability to garden and do household chores had also been curtailed, and at work she found she could no longer sit for long periods without breaks to stand or stretch.

ICBC argued that the plaintiff had recovered to her pre-accident condition. Furthermore, even if she had not, she was now at her current condition as a result of the natural progression of her arthritis and her age. Therefore it was only the defendant’s responsibility to restore the plaintiff to her original pre- accident condition, not a better one. 

The Court disagreed with ICBC and applied the thin skull doctrine. The Court found the evidence to establish that the plaintiff had a pre-existing condition that was ‘activated’ by the result of the accident and therefore was entitled to an award not reduced because of the resulting long term debilitation.  

The Court stated:

“the plaintiff was a physically active woman who enjoyed various athletic and recreational pursuits as a dominant aspect of her social life with family and friends. This enjoyment had been taken from her by the negligent act of the defendants.” 

The injuries the plaintiff sustained were a significant loss of lifestyle, an impairment of relationships, daily discomfort, sleepless nights and painful flare-ups. The plaintiff was awarded $75,000 in non-pecuniary damages (pain and suffering), $ 1,700 in Special Damages, and $10,000 for Future Care totaling a payout of $ 86,700.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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