If a couple of years have passed since the crash, and I suffer “popping” injuries that aggravate my existing pain, will ICBC have to pay for those changes?
In today’s case, (Cantwell v. Warren, 2017 BCSC 856), the plaintiff was injured in a 2011 parking lot collision, resulting in pain at level T3,4,5 (mid-back level), and toward the front of her chest/rib area. She also suffered neck pain on the left side. Almost two years later she was shoulder checking, and felt a “pop” in her left shoulder/rib area, which increased her existing pain significantly. The ICBC lawyer argued that ICBC should not be liable for the the new “popping” injuries, saying that the symptoms from the “popping” injuries were more in the back than the 2011 MVC injuries.
There is much personal injury law on if and when the original at-fault party should be liable for changes or worsening of injuries long after the original event. If the injuries are considered a singular injury (or an “indivisible injury” in legal jargon), then any at-fault party is liable for the entirety of the effects of the injury, despite delays. In deciding that the injuries were indivisible and that the popping injury would not have been so significant absent the collision injuries, Mr. Justice Macintosh provided the following reasons:
[35] From the Plaintiff’s testimony, and the evidence of Drs. Oliver, Bos, Graboski and Killian, taken as a whole, I find that the injury from the 2011 accident and the injury from the January 2013 popping event are a single, indivisible injury. In my view, the Defendants seek to make too much of the fact that the center of the pain in the rib area was more in the front after the 2011 accident and more in the back from the 2013 popping incident. The medical evidence as a whole supports the conclusion that the injuries from the two events are inseparable.
[36] Returning to the applicable law, the Defendants submitted that the nuanced consideration of the difference between “but for” and “material contribution”, found in Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, and Clements v. Clements, [2012] 2 S.C.R. 181, is significant for the purposes of Ms. Cantwell’s case. I respectfully do not accept that submission. But for the 2011 accident, I find that the damage Ms. Cantwell suffered from the January 2013 popping event probably would not have occurred.
[37] To conclude this part of the reasons, I find that the legal tests expressed in Athey, when linked to the facts at bar, lead to the finding that the Defendants are liable for Ms. Cantwell’s damages arising from both the 2011 accident and the 2013 popping incident.
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