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Disability and Personal Injury Claims

I was disabled prior to my car crash, but things are much worse now.  Will the court take my pre-existing problems into account when assessing damages?

In reasons released this week, Justice Hinkson discussed the case of a woman who was significantly disabled prior to the motor vehicle collision that formed the subject of her personal injury claim (Cheema v Khan 2017 BCSC 974).  The plaintiff, Ms. Cheema, suffered from severe rheumatoid arthritis and severe depression prior to the collision – together, these conditions had rendered the plaintiff unquestionably unemployable, and her ability to perform what doctors often refer to as the ‘activities of daily living’ (walking, cleaning, and so on) was compromised.  The collision caused an aggravation of Ms. Cheema’s pre-existing body pain, accelerated the progression of her rheumatoid arthritis, and had a negative effect on her psychiatric state.

In assessing damages for pain and suffering, Justice Hinkson noted that the impact of an injury can be magnified where an individual has a pre-existing disability:

[114]     I am not persuaded that the injuries suffered by the plaintiffs in most of these cases are comparable to the injuries sustained by this plaintiff, but accept the principle expressed by Madam Justice Sinclair Prowse in Agar at para. 229, that to “rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life. Not only is it an enormous physical injury but the emotional damage is, to most people, well nigh incomprehensible.”

[115]     The reasoning in that case was recently applied by Mr. Justice Grist in Ramchuk, where he held:

[47]      … courts have recognized that the loss of function for a disabled individual can have a magnified effect. In Morgan [2012 BCSC 1237], Voith J. commented on the effect of injuries on an individual already suffering from a number of chronic conditions: chronic pain and respiratory failure. These conditions were aggravated in severity and frequency of onset as a result of the injury in that case.

[38]      Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true.

[40]      In Agar v. Morgan, 2003 BCSC 630, Madam Justice Sinclair Prowse addressed the question of how the non-pecuniary losses of an already disabled individual whose circumstances and enjoyment of life are still further curtailed should be measured. …

Justice Hinkson awarded Ms. Cheema $75,000.00 for pain and suffering, considering the above principle together with evidence regarding the significant decrease in Ms. Cheema’s enjoyment of life since the collision.

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