Exacerbation of pre-existing degenerative neck changes garner $75,000 award for damages

In McCartney v. McArthur, 2014BCSC 2164, the plaintiff had suffered of pre-existing pain symptoms, with flares of stiffness and limited range of motion at times. His car was rear-ended while stopped in traffic, pushing him into the car ahead of him, causing significant exacerbation of these prior injuries, as well as soft tissue injury to his neck, left shoulder area, left paraspinal muscles, and the dorsal area.

The majority of the medical experts opined that the plaintiff had experienced age-related degenerative changes which pre-dated the collision. He had been seeing a chiropractor on a regular basis for two years preceding the accident, and some of the experts were of the opinion that the plaintiff would have continued to require chiropractic treatment even if the accident had not occurred. Nevertheless, the accident caused aggravation of these changes, leading to increased pain and decreased functioning. No evidence was presented, which would suggest that the plaintiff’s pre-existing symptoms restricted his ability to carry out his regular employment, or household maintenance duties, There was, however, considerable evidence showing this not to be the case.

On the expert evidence tendered at trial, the Court found:

[67]       The plaintiff testified that his primary problem since the accident is the pain in his neck that arises when his neck is in certain positions such as looking up. He also experiences pain in his left shoulder from time to time. The medical experts generally agree that there were degenerative changes in the plaintiff’s neck prior to the accident and they may have been somewhat responsible for the pain he now suffers but may not have caused him any pain before the accident. They generally agree that the accident aggravated the plaintiff’s pre-existing neck problems. …[69]        I am satisfied that the defendant’s negligence, which has been admitted, contributed to the injuries complained of by the plaintiff. While the plaintiff’s pre-existing condition resulted in symptoms in his neck area that had some similarity to those he experienced after the accident, the degree of pain experienced by him clearly increased after the accident and, I find, became chronic in nature. In particular, Dr. Gittens testified that the plaintiff’s pre-existing condition, involving some degenerative changes in his spine, was aggravated by the accident. He said that his pain, which he described as neuropathic, occurs after the underlying trauma has resolved and is extremely difficult to resolve. He said it may be a permanent condition. In my view, the evidence establishes that the symptoms suffered by the plaintiff after the accident were different and worse than before the accident. His neck condition was significantly aggravated by the accident.

In awarding damages in the amount of $75,000 for pain and suffering, the Court noted:

[72]        In my view, there is no measurable risk that the pre-existing condition of the plaintiff would have resulted in the symptoms experienced by him after the accident. … [76]        I have concluded that the plaintiff suffered aggravation to his neck pain as a result of the accident and his pain has become chronic in nature. For the first time, the pain that the plaintiff suffers imposes some functional limitations on him. [77]      The evidence also establishes that the plaintiff went from an outgoing pleasant person to someone who was easily irritated by other people. This has interfered with his ability to work effectively as a cabinet salesman. [78]    I am satisfied that the accident has negatively affected the quality and enjoyment of the plaintiff’s life and that may continue indefinitely. He will likely continue to suffer pain, together with the associated deleterious effects on his enjoyment of life. [79]      After considering the relevant case law referred to by counsel and keeping in mind that the award in each case is very dependent upon the unique facts of the case, I award the plaintiff $75,000 in non-pecuniary damages.

No adverse inference when clinical records disclosed to the defence and provided to experts

During the usual course of a personal injury action an injured plaintiff may be treated by one or more medical professionals. Those professionals typically maintain clinical notes of each visit. If a matter proceeds to trial and the plaintiff elects not to call the treating physician, for example, the lawyer hired by ICBC may ask the court to draw what is termed an “adverse inference”, meaning they ask the court to make a finding that the plaintiff elected not to call that treating physician because had that doctor actually attended court to testify, they would have likely given unhelpful information. Such an unfavourable finding of the court would likely hurt one’s case at trial, to some degree.

This issue arose in the recent decision Beggs v. Stone, 2014 BCSC 2120. Ms. Beggs was a plaintiff who suffered various soft tissue and psychological injuries following a 2009 motor vehicle collision. At trial the plaintiff did not call as witnesses some treating professionals. The plaintiff did however advance various other expert medical opinion evidence. The defence lawyer asked the trial judge to correspondingly draw an adverse inference because of this. Mr. Justice N. Smith declined to do so placing particular emphasis on the fact that the plaintiff had disclosed to the defence her clinical records from the relevant treating professionals and these records were subsumed into the experts’ analyses.

The Court stated as follows:

[22]         Counsel for the defence seeks an adverse inference from the plaintiff’s failure to call the family physician who treated her before and in the year following the accident and more particularly the psychologists who treated her both here and in Winnipeg after the accident. The factors for drawing an adverse inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35. These include the evidence before the court, the explanations for not calling the witness, the nature of the evidence that could be provided, the extent of disclosure of the witness’s clinical notes and the circumstances of the trial. [23]         In declining to draw an adverse inference, I place particular emphasis on the fact that the clinical records of all of these professionals were disclosed to defence counsel and were reviewed by all the experts who gave their opinions in part based upon those records. The plaintiff’s pre-accident condition and post-accident progress are well documented, and there is nothing to suggest that there is anything in those records that contradicts anything that the doctors who have testified have stated.

All said, the proper disclosure of relevant clinical records has the potential to hinder a defence plea that the court draw an adverse inference should a treating professional not be called as a witness at trial.

Defendant bus company granted leave to withdraw admissions of liability and negligence

Earlier this week, in the case of Finch v. Anderson, 2014BCSC 2008, reasons for judgment were released in an application to withdraw the defendants’ earlier admissions of negligence and liability.

The collision occurred when a bus operated and driven by the defendants rear-ended the plaintiff’s vehicle, which had been stopped in the bus lane on Highway 99 in Surrey, B.C., allegedly due to a failed engine. The defendant driver made a statement on the day of the collision, relaying his account of where the accident had transpired, and the circumstances leading up to the collision. The plaintiff made a report to ICBC immediately following the accident, and eleven days after the accident she gave a statement regarding the accident circumstances. The defendant corporation investigated the accident, resulting in an internal determination that the defendant driver improperly obstructed his view and failed to distance himself from a large truck that had been travelling in the lane next to him, just prior to the accident. On the basis of this internal report, an admission of liability was made.

During examination for discovery, the defendants learned of certain facts that were not known when the admission of liability was made. In their application, the defendants submitted that this evidence raised questions surrounding the circumstances of the plaintiff’s presence on the side of the highway, pointing to facts which now appeared to show that the plaintiff’s vehicle was not disabled and that she may have been pulled over for the purpose of taking or making a phone call, and revealed a discrepancy of approximately two kilometers regarding the accident location. Based on this evidence, the defendants argued that the plaintiff was in contravention of section 187 of the Motor Vehicle Act, and pointed to a number of BC Supreme Court and Court of Appeal ruling which found drivers stopped on a highway to be negligent.

Under Supreme Court Civil Rule 7-7(5), an admission in a pleading cannot be withdrawn other than by consent of with leave of the Court The applicable test was recently set out in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104:

[27]      With respect to applications under Rule 7-7(5)(c), the leave to withdraw an admission made in a pleading, the principles to be applied and the factors to be considered have been summarized and endorsed by the Court of Appeal in Munster & Sons Development Ltd. v. Shaw, 2005 BCCA 564 (CanLII) (at para. 10) as follows:…1. The test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact. 2. In applying that test, all the circumstances should be taken into account including the following:a. the admission has been made inadvertently, hastily, or without knowledge of the facts. b. the fact admitted was not within the knowledge of the party making the admission. c. the fact admitted is not true. d. the fact admitted is one of mixed fact and law. e. the withdrawal of the admission would not prejudice a party. f. there has been no delay in applying to withdraw the admission.

In allowing the application, the Court stated:

[22]   Here whether the plaintiff was negligent is a triable issue. The admission, although not inadvertent, appears to have been made considering only the actions of the defendant driver and not the potential negligence of the plaintiff and without full knowledge of the facts. Although slim, there were facts raised on the examinations for discovery that highlighted the potential for such negligence. [23]  Clearly the admission is not a purely factual one – an admission of negligence and liability involves mixed fact and law. [24]   As to prejudice, the plaintiff suggested that she has been deprived of the ability to fully investigate the circumstances of the accident and that she would have done so promptly had she known liability would be disputed. [25] There were four independent witnesses to the accident that were identified by the defendant driver. Since the hearing of this application, I have been advised that three of those witnesses were in fact contacted by counsel for the plaintiff prior to this application. Although their memories may have faded, there is no indication that the plaintiff’s ability to investigate this matter has been impaired. [26]   I am satisfied that there is no significant prejudice to the plaintiff here.