How will my pre – crash limitations affect my claim? Should I try to downplay my pre – existing injuries? What if my pre – existing injuries make me more susceptible to being injured? How does the court balance these considerations?
In the recent decision of Olson v. Yelland, 2016 BCSC 216 (http://www.courts.gov.bc.ca/jdb-txt/sc/16/02/2016BCSC0216.htm) the plaintiff was injured in a rear – ender crash and suffered soft tissue injuries to her neck, shoulder, mid – back, with associated headaches which added additional pain with activities involving those areas. Shortly before the crash the plaintiff was injured in a workplace accident causing injury to the lower back. She had also undergone extensive knee surgery approximately 25 years before the crash and suffered from a slowly degenerating knee joint. Mr. Justice Weatherill gave specific consideration to these pre – crash limitations making comparison to the injuries that arose as a result of the crash. He found the plaintiff’s evidence to be unreliable given the obvious impact that the pre- existing injuries had on her life before the crash and her inability to recognize them. However, Mr. Justice Weatherill carefully considers the fact that even minor injuries would have a heightened impact on the plaintiff’s enjoyment of life awarding $60,000.00 for pain and suffering.
[127] The plaintiff described her activities prior to the Accident as including mountain biking, tennis, hiking, skating, darts, dog walking, foozeball and activities with her son. She walked her dogs on a daily basis, played darts about once per week, hiked about once per week and skated in the winter, or as often as she could.
[128] I am not persuaded that these activities were regular or that the Accident impacted them to any great degree. In a case such as this, where the plaintiff’s evidence is not entirely reliable, one would normally have expected corroboration of the reduction in these activities through evidence from the plaintiff’s son with whom she lives, or through friends or other members of her family who would have known her pre and post-Accident. No such evidence was led.
[129] In my judgement, the proper award for general damages in this case is far closer to what the defendant suggests than what the plaintiff suggests. The cases the plaintiff relies on relate to injuries that are significantly worse than the injuries and resulting loss of function that the plaintiff sustained in the Accident.
[130] While I accept that the plaintiff suffered soft tissues injuries to her neck and mid-back and that she has suffered headaches as a consequence of the Accident, I do not accept that the plaintiff’s Original Position was as functional as she suggests.
[131] However, because of who she was prior to the Accident, even relatively minor injuries would have a significant impact on the plaintiff. She is now worse off as a result of her Accident injuries and her enjoyment of life has been diminished even further than it was pre-Accident. As Dr. Stewart put it, the Accident was the third strike against her.
[132] In the circumstances, and following the principles set out in Stapley, I find that a reasonable award for general damages is $60,000. As will be seen below, within this sum I have included the plaintiff’s claim for reduced homemaking abilities
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