While I admit to suffering from chronic health conditions before my crash, I was able to manage them with medication and exercise. In no way did they limit me in my abilities to do my job or live my life the way I wanted. My crash injuries, on the other hand, do limit me. How will the courts determine what losses are from the crash as opposed to my other health issues.
The 60 year old plaintiff in McCagherty v. Camps (2016 BCSC 1974) suffered from pre-existing rheumatoid arthritis, osteoarthritis, hypertension, and degenerating spine disease. Defence counsel in this case argued that it was these pre-existing conditions and that caused Ms. McCagherty to leave her job as a hostess-bartender five months after her crash and not her crash injuries. Ms. McCagherty argued that while she did indeed have these conditions they had never caused her to miss work either before or after her crash. She claimed that the flare ups of her arthritis, one of which occurred three months after the crash and two months previous to her leaving her job, were temporary and effectively treated with medication adjustments. She claimed she held on to her job as long as she could but finally had to leave because her crash injuries made it impossible to continue with the heavier aspects of her employment duties. Her doctor agreed and wrote her a letter supporting her decision to leave that employment. She eventually found work as a part time cashier.
One issue of consideration complicating this matter was the evidence of the plaintiff’s family doctor. Mr. Justice Williams found the report of the family doctor “had a distinct and unacceptable tone of advocacy for the plaintiff’s cause”. He also found that for many of the doctor’s visits there was no physical examination and the doctor was basically just taking her client’s subjective reports as fact. As a result, Mr. Justice Williams was unable to rely on the opinions of the family doctor.
After consideration of all the evidence, the ruling basically boiled down to a look at the pre-crash level of functioning:
[30] I have examined the evidence on this issue with some care. The evidence of Ms. McCagherty’s pre-existing medical conditions as they are relevant here causes me to conclude that, prior to the subject motor vehicle accident, she had rheumatoid arthritis, osteoarthritis, hypertension and degenerating spine disease. She also experienced an episode of back and shoulder pain which occurred while employed at a furniture store, though I am satisfied that injury had resolved. I am unable to accede to the defendant’s view of the effect of the plaintiff’s extant health conditions, and conclude that the actual functional problems arising from them were occasional and minor in terms of causing problems for her on a day to day basis. There is no evidence of her having missed work nor that she was unable to do the work her job required. It is, in my view, also significant that she was able to engage in power walking on a virtual daily basis.
[31] My conclusion is that while these conditions were present, they were asymptomatic.
While pre-existing conditions would be seen as a negative contingency on Loss of Future Capacity, they did not diminish her award for non-pecuniary damages.
At the time of the trial Ms. McCagherty was reporting ongoing discomfort in her neck, back and shoulder area, with the pain in her knee mostly resolved. Her headaches were intermittent with varying degrees of discomfort. Her injuries cause her to feel tired and have impacted her previously daily fitness walking. She subsequently gained weight. Her social interactions and ability to enjoy a vacation were affected. Her husband has had to take over chores inside the home, a role that was previously shared between them.
In consideration of these impacts, Justice Williams awarded the plaintiff $70,000 in non-pecuniary damages.
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