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Multiple Crashes and Causation

If I am involved in a number of crashes, how does compensation work?  What if the injuries from each crash built on the injuries from the last?  What if there is no objective evidence of my serious injuries?

In the recent case Kallstrom v Yip (2016 BCSC 829), the plaintiff was involved in seven car crashes, five of which were at issue in the trial.  She suffered from persistent, disabling soft tissue pain as well as headaches and depression.  She had attempted suicide three times since the crashes and endured a “substantial impairment of family and social relationships and a significant loss of lifestyle.”

The plaintiff was not found liable for any of the five subject crashes, several of which were low velocity crashes that occurred in parking lots or other low speed settings.  Justice Kent noted that while there is often some skepticism about significant injuries sustained in minor crashes, “it must be remembered… that not everybody has the mental or physical constitution of a rugby prop forward.”  The defendants argued that there was a lack of objective evidence of injuries, and further that the injuries could be at least partially attributed to other, non-tortious causes.  Justice Kent responded to this argument as follows:

[356]     In my opinion, the defendants have, to some degree, misapprehended the causation principles in tort law expounded in Athey and Bradley v. Groves, as discussed earlier in this judgment.  Ms. Kallstrom’s medical problems constitute an indivisible injury occasioned by a combination of both non-tortious and tortious causes.  It is not necessary for Ms. Kallstrom to establish that the MVAs were the sole cause of her injuries and related losses.  It is sufficient, for the defendants to be liable, that each of the MVAs is just part of the cause of Ms. Kallstrom’s injuries and, if so, the defendants are all jointly liable for the entire amount of Ms. Kallstrom’s loss, excepting only those items that can be specifically allocated to any one MVA.

[357]     The expert medical evidence adduced by the defendants does not in any way disprove any connection between the MVAs and Ms. Kallstrom’s injuries.

[358]     I give no weight whatsoever to Dr. Schweigel’s report.  It is an “old school”, paternalistic report from an orthopod who clings to the view that a minor collision will not likely cause injury and who proclaims “amazement” at Ms. Kallstrom’s assertions of neck pain.  I simply do not accept his purported diagnosis of “a few days” disability following the first two MVAs nor his assessment that MVA 3 “may have” disabled Ms. Kallstrom for anywhere from three to six months.  I acknowledge, of course, that his examination was relatively early in these proceedings (January 26, 2004) and he did not have the benefit of seeing the chronicity of Ms. Kallstrom’s pain and depression develop.

[359]     Dr. Horlick is more sophisticated in his approach.  He limits his opinion to an assessment of physical impairment to Ms. Kallstrom’s musculoskeletal system.  He finds no “objective pathology” in any musculoskeletal area and he thus concludes that Ms. Kallstrom’s complaints of pain are myofascial in origin.  He did not in any way challenge the diagnoses of Dr. Anderson (psychiatrist) or Dr. Stolar (rheumatologist).

[360]     The primary challenge to the etiology of Ms. Kallstrom’s complaints came from the defendants’ expert in psychology, Dr. Koch.  However, Dr. Koch’s opinion was completely discredited during cross-examination and I am unable to give any weight to his suggestion that Ms. Kallstrom’s problems stem from a borderline personality disorder and not from the MVAs.  Dr. Koch did acknowledge that his testing of Ms. Kallstrom produced reliable findings of clinically significant pain and depression.

Justice Kent accepted the evidence of the plaintiff’s medical experts and the plaintiff herself, finding that the plaintiff’s chronic pain and depression was the cumulative effect of both the crashes and the soft tissue injuries arising from the crashes.  He went on to award the plaintiff $180,000.00 in general damages.