If I have been in crashes in the past does that mean I don’t have a claim? Do the injuries from my previous crashes have an effect on the value of my claim? What if none of these crashes are my fault, am I still entitled to an award? It doesn’t seem fair!
In the case of Uppal v. Judge, 2016 BCSC 642 the plaintiff claimed damages arising from four motor vehicle accidents from July 20, 2009 to December 21, 2014. Prior to the July 20, 2009 collision, he had been in at least nine crashes since 2001, leaving him with psychological and physical injuries. The plaintiff’s psychological injuries made him a poor historian, who struggled to recall the details of the different crashes or articulate how his symptoms affected him over the course of time. The court found that although he did have a number of pre – existing symptoms, he was gradually improving in the lead up to the crash of July 20, 2009 and each of the subject crashes that followed made his condition worse and worse. Madam Justice Loo specifically considered his trajectory leading up to the July 20, 2009 crash, making awarding $65,000.00 in general damages. She remarks specifically on his credibility and pursuit of treatment, once more, showing that previous injuries will not preclude a deserving plaintiff from fair compensation.
[90] The defendants argue that at the time of the first subject accident in July 2009 the prospect for any improvement in Mr. Uppal’s symptoms were questionable, Mr. Pakulak made rehabilitation recommendations, but Mr. Uppal never followed those treatment recommendations. While there may have been some aggravation of Mr. Uppal’s “perception of his symptoms” as a result of the accidents, that finding rests on the court’s finding that he is a credible witness. All of the doctors who have treated Mr. Uppal have accepted his assertion that he has increased pain, but his evidence is questionable. He cannot say how he felt at any point in time. His evidence is therefore suspect. It lacked the detail that is required to properly make an assessment. The defendants rhetorically ask: “What got worse? How did it get worse? How long did the worsening last for?” The questions remain unanswered.
[91] The defendants in arguing that Mr. Uppal’s evidence is suspect, point out that he testified that between spring of 2009 and July 2009 Dr. Narang was weaning him off his medications, but that evidence was contradicted by Dr. Narang. It was not until much later.
[92] If there was a contradiction in the evidence on that point, I do not find that it affects my finding of Mr. Uppal’s credibility. He made it clear that he had a poor memory for dates, he stated that he cannot say from memory how he was feeling any particular point in time, all of his symptoms go up and down like a see-saw. The evidence is clear that his memory was affected by the earlier accidents and was made worse by the subject accidents. His symptoms of anxiety and depression were in remission in January 2009, but he was vulnerable to episodes of worsening symptoms. His symptoms were aggravated and worsened for varying periods of time, after each of the subject accidents.
[93] The defendants argue that Mr. Uppal never followed Mr. Pakulak’s recommendations and as I understand the argument it is to the effect that Mr. Uppal therefore could not have improved or got better before July 20, 2009. I accept Dr. Narang’s opinion that Mr. Uppal has had limited success with psychological treatments, including cognitive behavioural therapy. Mr. Uppal has attended pain clinics, and he has worked with a kinesiologist.
[94] I find on all of the evidence, that before the July 20, 2009 accident, Mr. Uppal was gradually improving, but that with each accident his symptoms were aggravated and worsened for varying periods of time, particularly with the accident on June 10, 2012. Mr. Uppal is not a malingerer. He felt the best he had for a long time in the spring of 2010 when he was working for Mrs. Gill. He has not returned to that state or the state he was in before the July 2009 accident.
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[97] I do not accept the defendants’ argument that a total non-pecuniary award of $25,000 should be apportioned between the four accidents: $10,000 for the 2010 accident and $5,000 each for the remaining accidents.
[98] I find an award of $65,000 for non-pecuniary damages to be appropriate
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