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Pre-existing/Intervening Events and Non-Pecuniary Damages

What if I was really quite injured before I even got in a car crash?  I seem to be accident-prone – can I still be compensated for my injuries from when I was rear-ended?  What if I keep having new injuries after the rear-ender?

In reasons released by the British Columbia Supreme Court this week, Justice Saunders considered the case of a woman he described as an “extremely poor historian” who had significant health issues prior to either of the two subject collisions (Khudabux v McClary 2016 BCSC 1886).  The plaintiff, Ms. Khudabux, appeared to be one of those ‘snake bitten’ people whose life is riddled with accidents of every kind.  The following list is a summation of pre-existing and intervening events and injuries (including psychological) as identified by the court, with the index crashes underlined for clarity:

  1. A traumatic childhood
  2. Serious depression
  3. A 2006 incident in which she suffered serious injuries after being struck by a car (as a pedestrian)
  4. A 2010 collision which exacerbated the injuries she was continuing the suffer from the 2006 incident
  5. The 2011 subject crash (for which she was found 20% at fault)
  6. A 2011 slip and fall, which aggravated her injuries
  7. A 2011 gallbladder surgery
  8. A 2012 slip and fall that caused her to hit her head
  9. A 2012 involuntary hospitalization for psychiatric issues, apparently caused by conflict with a family member
  10. A 2012 crash
  11. A 2012 ‘finger injury’
  12. A October, 2013 fall from a chair which left her entirely disabled from work
  13. The 2014 subject crash
  14. 2015 family stressors, including a breakdown in the relationship with her sons

As above, the plaintiff had extreme difficulty articulating how these various incidents had affected her symptoms – Justice Saunders described her testimony as a series of “long, rambling, and, frankly, histrionic narratives” in which she “avoided answering … questions directly.”  Over the course of that testimony, the plaintiff attributed the bulk of her ongoing symptoms to the 2014 crash, which she described as the most severe, leaving her ‘paralyzed’ (perhaps unsurprisingly, she was not, in fact, paralyzed.)  After a lengthy consideration of the expert evidence, Justice Saunders wrote the following in awarding the plaintiff a total of $32,000.00 in general damages:

[204]     That fact of the plaintiff’s pre-existing level of disability, of course, does not in itself mitigate the defendants’ liability; a tortfeasor must take the victim as they are found. The issue is whether, and to what extent, the second collision in the 2011 MVA made any appreciable difference in respect of the factors enumerated in Stapley, in light of the independent traumas that followed. Those traumas include the 2011 slip-and-fall accident; the shower accident in Africa; the 2010 and 2012 MVAs; and, most significantly, the 2013 fall from the recliner chair. (I note that neither Ms. Khudabux’s November 30, 2013 resignation letter, nor her letter to her son on January 14, 2014, made any reference to the motor vehicle accidents). The traumas she endured also include the cumulative psychological impact of the numerous incidents of interpersonal conflict she has experienced, including conflicts in the workplace and within her family.

[205]     Without taking into account the comparison between Ms. Khudabux’s current with-accident and notional without-accident condition, and accounting not only for the aggravation of her pre-existing injuries from the 2011 MVA but also from the tortious and non-tortious injuries she subsequently sustained, I would assess her non-pecuniary damages globally at $75,000.

[206]     I then must account for what position I find Ms. Khudabux would likely have been in in any event, but for the 2011 MVA. I am unpersuaded that there is a great disparity, given Ms. Khudabux’s “original position” and given the number of other intervening traumas she has sustained, between the pain, suffering, and loss of enjoyment of life that Ms. Khudabux now endures, and the situation she would find herself in had the collision with McClary never occurred. I find there is a high probability that Ms. Khudabux would be nearly as substantially incapacitated and affected as is now the case. Accordingly, I reduce Ms. Khudabux’s award to reflect this probability and the extent to which her current condition is only marginally worse than what otherwise would have been the case. (Note that this adjustment has no bearing on the damages she is entitled to for the acute phase of her injuries; the adjustment begins at the point at which her pre-existing and subsequent injuries predominate.) On that basis I reduce the $75,000 amount to $30,000.

[207]     That figure must then be further reduced to account for Ms. Khudabux’s contributory negligence, which I have quantified at 20%.

[208]     I therefore award Ms. Khudabux, as against the defendant McClary, non-pecuniary damages of $24,000.

[209]     With respect to the 2014 MVA, I find that there was likely only a temporary aggravation in Ms. Khudabux’s physical symptoms, with, consequentially, some small degree of reduction in her resiliency in respect of future trauma. I regard Dr. MacDonald’s opinion as to the 2014 MVA having a continuing role in the plaintiff’s current presentation as being largely a matter of speculation and advocacy. In respect of the 2014 MVA, I award a further $8,000 as against the defendant MacDonald.

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