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 Pichugina v. Matula, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, loss of housekeeping capacity, loss of income, loss of future income, special damages (out of pocket expenses), and the cost of future care. Prior to the accident, the Plaintiff had issues with her neck, back, and shoulders. The Court found that the motor vehicle accident aggravated the Plaintiff’s pre-existing symptoms, and that the Plaintiff’s symptoms continued by the time of trial, which was nearly four years after the motor vehicle collision. Further, the Plaintiff’s symptoms were expected to continue. The Court awarded the Plaintiff $45,000.00 for non-pecuniary damages.

[56] On the totality of the evidence before me, I find that, as a result of the accident, the plaintiff sustained aggravation to her already symptomatic neck, right shoulder, and low back and sustained aggravation to her pre-existing headaches. In my opinion, there is no evidence to support a conclusion that the accident caused the minimal winging of the plaintiff’s right scapula. Although the plaintiff returned to work full-time by the end of two months following the accident, and experienced much improvement in her condition by the spring of 2011, she cannot take advantage of a flexible work schedule, and, while she remains physically active, some activities are no longer comfortable for her.

 

[57] According to Dr. Vorobeychik, the plaintiff’s symptoms have improved, but she still experiences migraine headaches and problems with her right shoulder, neck, and back when she is active or upon exertion. The overall medical evidence, and that of the plaintiff, is that there has been gradual improvement in her condition post-accident, and she appears to be handling her headaches better. According to Dr. Robinson, the plaintiff will probably continue to have gradual improvement over the next three to five years, but she remains at risk for persisting neck and right shoulder pain, which would act as an aggravator to her migraine predisposition.

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 Sangha v. Chen, the British Columbia Court of Appeal weighed in on the issue of aggravation of injuries, in this case the Plaintiff‘s depression. The Plaintiff was involved in a motor vehicle collision at an intersection, and both the Plaintiff and Defendant were held to be liable. The Plaintiff had pre-existing chronic pain and depression and, although the Court acknowledged that the collision in question aggravated the Plaintiff‘s pre-existing depression, the Court did not award damages in this respect, stating that the Plaintiff would still have suffered the depression in any event. The Court of Appeal ruled this to be in error, and ordered the matter to be remitted to the Supreme Court for a fresh assessment of the quantum issue.

 

[26] With respect, it does not appear to me to have been open to the judge to find, as she did in para. 110 that Mr. Sangha “would have suffered his current symptoms, in any event”, having found earlier in that same paragraph that “his physical injuries aggravated his previous depressed state”. Further, her conclusion that Mr. Sangha would have suffered his current symptoms appears to be inconsistent with her view expressed in para. 111 that “at most the injuries suffered in the accident aggravated the plaintiff’s mood symptoms”. Given that the “mood symptoms” are exactly those symptoms encompassed within the pre-existing condition of depressive illness, para. 111 appears to allow for attribution of at least a portion of Mr. Sangha’s current symptoms to the physical injuries sustained in the accident.

[29] The correct approach to pre-existing conditions is discussed in Athey v. Leonati, [1996] 3 S.C.R. 458, under the rubric of “crumbling skull:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff‘s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.

 

[31] I respectfully conclude that the judge erred in failing to reflect, in her damages award, her conclusion of fact that “the physical injuries aggravated his previous depressed state” and “the accident did cause at least some of” the psychological symptoms. To what extent the damages should have been adjusted to account for these conclusions I cannot say. That question is one particularly within the purview of a trial judge. Accordingly, in my view, the award of damages must be set aside and the issue of quantum of damages must be remitted to the Supreme Court of British Columbia for fresh assessment.

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.

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.