When dealing with the legal aftermath of car accident, you cannot assume that a B.C. judge will conclude that your claimed injuries were the direct result of said accident. As a matter of law, the plaintiff in a personal injury case always bears the burden of proving causation. Defence lawyers can attempt to show that any post-accident injuries were somehow the result of a “pre-existing” condition unrelated to their client’s negligence.
In a recent judgment, Tathgur v. Dobson, Justice Lisa A. Warren of the B.C. Supreme Court in Vancouver awarded damages to a plaintiff injured in two separate auto accidents that occurred in May 2008 and September 2009, respectively. The defendants in both accidents conceded liability for the accident itself, but both contested the plaintiff’s claim that his ongoing neck and back pain were the direct result of the accidents.
The issue of damages was therefore tried before Justice Warren in a case that spanned parts of three years.
The plaintiff was 30 years old at the time of the May 2008 accident. He immigrated to Canada from India some years earlier and worked as a customer service representative for a payday loan company. Prior to the accident, the plaintiff said he had “no prior history of headaches, neck pain, back pain, or shoulder pain.”
Ironically, the first accident took place while the plaintiff was taking his driving test with an ICBC examiner. The defendant rear-ended the plaintiff’s vehicle. The next day, the plaintiff reported suffering from a headache and “stiffness in his neck.” When later examined by a doctor, the plaintiff further reported “upper back and lower back pain” as well as pains in his wrists and ankle.
The doctor prescribed a course of treatment involving medication, and the plaintiff subsequently missed four weeks of work.
In early 2009, the plaintiff took a new job as a sales representative with a publishing company. But he quit several months later, citing his inability to “perform some of the physical aspects of the work.”
Then, in September 2009, the second car accident took place. This time, the defendant side-swiped the plaintiff’s car. The impact caused the plaintiff’s body to move “forward and backward” and his head to hit his seat. The plaintiff said he “developed a severe spasm” in his lower back due to this second accident, and in the months that followed his symptoms from the first accident “were exacerbated.”
This time, the plaintiff said was out of work for a year due to his medical condition. When he recovered he looked for work unsuccessfully in both the U.S. and his native India. Eventually, in August 2010, the plaintiff found a new job as sales manager. Indeed, the plaintiff held several jobs with different employers between 2010 and the time of his trial.
At trial, the plaintiff and the defendants each presented expert testimony. Not surprisingly, the plaintiff’s expert confirmed he suffered a soft tissue injury in the first accident that was aggravated by the second accident. The defence’s expert, in contrast, said it was “unlikely” the plaintiff “sustained any significant injury to his lower back in the first accident,” and while the second accident probably aggravated his “pre-existing symptoms” of pain, the “most likely” explanation for this was the plaintiff’s own “inactivity and deconditioning.”
Justice Warren found the defence expert’s testimony “inadmissible” for several reasons, including the fact that the witness did not have access to all of the plaintiff’s medical records before rendering his opinion. The court found the expert “relied so heavily on opinions for which he had no proper foundation,” that it “strongly suggest[ed] that he had taken up the role of advocate for the defence.”
Meanwhile, the judge found the plaintiff’s testimony regarding his symptoms largely credible and supported by his clinical records and other medical evidence.
There was no question the defendants were liable for the plaintiff’s injuries. As to the amount, Justice Warren awarded $95,000 in non-pecuniary damages for the plaintiff’s “pain and suffering.” This was less than the $125,000 requested by the plaintiff, but significantly more than the $40,000 maximum suggested by the defence.
More tricky was the plaintiff’s claim for past loss of earning capacity. Specifically, the plaintiff asked the court for three things:
Justice Warren accepted the first claim for $1,920 and rejected the second claim for $32,984. On the latter, the judge acknowledged the plaintiff was “physically able to work” but “limited in his search by his inability to perform physical tasks.” That said, the plaintiff failed in proving causation because he did not point to any specific job he lost or could not pursue.
However, the court did accept the plaintiff’s third claim, which did refer to a specific job opportunity lost by the plaintiff. “[B]ut for the injuries” sustained in the accident, Justice Warren said, the plaintiff would have made $84,000 per year, as opposed to the $76,000 he then earned. The court awarded the plaintiff the difference, but declined to order further damages for the alleged loss of profit-sharing opportunities associated with the job.
In addition, the court awarded the plaintiff $150,000 in damages for loss of future earning capacity. This represents an estimated loss of $8,000 in salary per year until the plaintiff’s expected retirement age. Justice Warren said this figure anticipates the likelihood the plaintiff will “take time off work due to ongoing symptoms” as well as the “possibility that he will retire earlier than he otherwise would have done.”
As you can see, proving causation of a car accident victim’s damages is a highly detailed process. This is why it is crucial to work with an experienced Vancouver car accident lawyer who can guide you through the legal system. Call the Preszler Law Firm today to schedule a free consultation with a member of our legal team to discuss your accident and how we can best help you.