If you have sustained serious injuries in a car accident, both the negligent driver and ICBC will go over your past medical history with a fine-tooth comb. It is in their interests to find anything in your past that might reduce their own liability for the accident. Even if the accident aggravated a pre-existing injury, a judge may still decide to reduce the total amount of damages awarded if he or she believes the plaintiff would have been no worse off but-for the defendant’s negligence.
A May 6, 2019, judgment from the B.C. Supreme Court helps to illustrate what we are talking about. This case, Dornan v. Stephens, began with a car accident three years earlier. The plaintiff, who was 24 years old at the time, was riding in the back seat of his parents’ Jeep Wrangler. The plaintiff and his parents were returning from Vancouver to their home in Squamish, a small municipality located on the north end of Howe Sound along B.C. Highway 99.
While travelling on Highway 99 near the Tantalus View Point, the Jeep was rear-ended by a Ford truck, which was owned and operated by the defendants. The impact caused the plaintiff to “hit his head on the front head rest, the rear headrest and the Jeep’s roll cage,” according to court records. The plaintiff said he immediately experienced a “searing headache, eye pain and vision sensitivity” and nausea. Doctors at nearby Squamish General diagnosed the plaintiff with a traumatic brain injury (i.e., a concussion).
The plaintiff subsequently filed a personal injury lawsuit against the defendants. The defence admitted liability but contested the amount of damages claimed by the plaintiff. The issue of damages was therefore tried before Justice Phillip A. Mayer of B.C. Supreme Court earlier this year.
Prior to the accident, the plaintiff told Justice Mayer that he lived an “active, outdoor lifestyle.” The plaintiff frequently participated in a number of sports, including “recreational hockey, mountain biking, white-water kayaking, golfing and skiing.” With one notable exception, the plaintiff was in good pre-accident health.
That one exception, however, was the plaintiff’s history of concussions. Between the ages of 16 and 24, the plaintiff sustained “between eight and ten concussions of varying severity,” according to Justice Mayer, most of which were the result of playing hockey. Of critical note, the plaintiff sustained a concussion while skiing in November 2015, which was approximately six months before the car accident caused by the defendants.
Indeed, just two months before the accident, the plaintiff completed a session with an occupational therapist assigned to help him deal with the November 2015 concussion. At the time, the occupational therapist noted the plaintiff “was experiencing symptoms including fatigue, depression and tearfulness, frustration and impatience, taking longer to think and double vision.” She further noted the plaintiff had experienced “had experienced four major concussions” which reduced his overall activity level.
Justice Mayer admitted the occupational therapist’s records into evidence despite the plaintiff’s objections. Overall, the judge found the therapist to be a “reliable witness.” The judge further rejected the plaintiff’s explanation for participating in occupational therapy following the November 2015 concussion as an attempt to “to learn how to avoid future concussions” rather than deal with the cumulative impact of his prior injuries. Critically, Justice Mayer found the post-November 2015 concussion symptoms were “not entirely resolved prior to the Accident.”
That said, Justice Mayer did not let the defence off the hook. Although the plaintiff “may have been predisposed to suffering more serious concussion-related symptoms as a result of his previous history of concussions” that did not mean the accident had no impact. To the contrary, the defence conceded the plaintiff “suffered multiple injuries as a result of the accident.” This included “mild traumatic brain injury” and chronic post-concussion syndrome.
At trial, the plaintiff asked for an award of non-pecuniary damages–compensation for his pain, suffering, and loss of enjoyment of life–of between $200,000 and $250,000. The defendants suggested a lower award of no more than $160,000 was appropriate. Justice Mayer ultimately settled on an award of $200,000, which was closer to the plaintiff’s suggested range.
However, the judge then reduced the award by 30 percent–to $140,000–based on certain “contingencies.” Essentially, this is a reduction in non-pecuniary damages to “reflect a pre-existing condition.” In this case, that was the plaintiff’s prior history of concussions.
More precisely, Justice Mayer said that even if the accident had never taken place, it was likely the plaintiff “would have experienced a further concussion resulting in serious post-concussive symptoms,” due to his continued participation in various sporting activities. As noted earlier, the plaintiff had a historical track record of roughly one concussion per year dating back to when he was a teenager. Yet the plaintiff also said he always intended to continue pursuing “high-risk” activities. Justice Mayer concluded this meant the plaintiff would have probably “sustained a further concussion within one to three years” of his November 2015 skiing accident.
The judge also applied a 30% reduction to his award of damages for the plaintiff’s past loss of income, loss of future earning capacity, and future costs of medical care. Altogether, the Court awarded the plaintiff just over $478,000 in total damages.
Every case is unique, and you should not assume that just because you enjoyed certain “high risk” activities before an auto accident, that will automatically lead to the judge cutting your damage award. You should recognize that in any personal injury case, your entire past medical history may be fair game for the defence. That is why it is essential to work with an experienced Vancouver car accident lawyer who will help you make the strongest case possible to a judge.
Call Preszler Law today if you have been injured in a B.C. auto accident and require immediate legal advice and assistance.