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Goldie v McLean: Pair of Auto Accidents Cause Kelowna Welder Chronic Back Pain


One of the most common outcomes of an auto accident is chronic pain, particularly in the victim’s back. Indeed, such back pain may linger in a victim for years following an accident and affect his or her ability to work or carry out the basic activities of daily living. When the accident itself was the result of third-party negligence, the victim is entitled to seek compensation for these permanent injuries.

Of course, the defendant may try and argue that the victim’s pain is simply the natural result of getting older or otherwise not directly attributable to the accident. In some cases, the defence may even try and offer evidence of the victim working as “proof” their back pain is not really that severe. Such tactics can backfire, however, particularly when a B.C. judge is faced with a victim who offers credible testimony in support of their personal injury claim.

A recent decision from the B.C. Supreme Court, Goldie v. McLean, offers a case in point. This case actually involved two separate auto accidents that affected the same victim. The plaintiff, a man in his 40s, previously worked as a welder. In 2006, he returned to his home town of Vernon, B.C., north of Kelowna. A few years later, the plaintiff got married.

The First Accident

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Shortly before the wedding, in March 2011, the plaintiff was involved in the first of his two auto accidents. The plaintiff was a passenger in the back seat of his Nissan Pathfinder. His then-fiancee was the driver. She completed a turn at the intersection of 32nd Street and 39th Avenue in Vernon when the Pathfinder collided with a Ford.

There was no question the Ford driver was responsible for the accident. He conceded as much at trial. The plaintiff’s vehicle had been in the intersection legally. The Ford defendant had entered the intersection under a “red or stale yellow light,” according to court records.

The plaintiff said he was “quite sore” after this first accident, reporting pain in his neck, ankle, and back. He was unable to resume his full work schedule for approximately three months after the accident. And most of his lingering symptoms did not subside until the fall of 2011.

Even after that time, however, the plaintiff said he continued to experience chronic lower back pain. At trial, the plaintiff testified that while “he remained functional, he experienced a slow ache that never went away.” Towards the end of a typical work day, the plaintiff rated his lower back pain as a 7 out of 10.

The Second Accident

In early 2015, the plaintiff and his family moved to a new home in the Bella Vista neighbourhood of Vernon. By this point, some four years after the first accident, the plaintiff said he “was making slow but steady progress” in managing his lower back pain. Unfortunately, it was around this point the second accident occurred.

The second accident actually took place in August 2015 near the plaintiff’s new home. This time the plaintiff was driving a GMC truck. He was struck by a Nissan Pathfinder. As with the first accident, the other driver admitted liability for the second accident.

Due to the injuries sustained in the second accident, the plaintiff was unable to return to work for 10 months. The plaintiff testified he continued to suffer from chronic lower back pain.

The Lawsuit and the Judge’s Ruling

The plaintiff subsequently filed a personal injury lawsuit, naming the negligent drivers in both the first and second accidents as defendants. While both defendants admitted liability, as previously noted, they contested the plaintiff’s damages. More precisely, the defence argued the plaintiff’s chronic lower back pain was “caused by normal aging processes and, thus, is unrelated to the Accidents.”

The case was tried before Justice G.P. Weatherill of B.C. Supreme Court in Vernon during April 2019. On June 18, 2019, Justice Weatherill gave his judgment. He concluded the “probable triggering event” for the plaintiff’s low back pain was the First Accident,“ and he was “satisfied that the plaintiff’s ongoing low back pain is attributable to the Accidents.”

Justice Weatherill cited both the testimony of the plaintiff–which he found to be “genuine and reliable”–as well as that of an expert in physical medicine and rehabilitation who examined the plaintiff. The expert testified “the First Accident was likely the cause of the plaintiff’s back pain.” While the plaintiff was able to return to work shortly after the first accident, the expert said that was “largely inconsequential,” as the “delayed onset of low back pain symptoms is not uncommon” in cases like these. The expert further noted that “back issues are difficult to treat” and that while “further rehabilitation may improve the plaintiff’s function, it would not cure his pain.”

Justice Weatherill also rejected the defence’s effort to minimize the plaintiff’s lower back pain issues by introducing video surveillance footage that showed him “sweeping and walking on his deck and bending normally.” The judge said this was not a case where the plaintiff claimed he was “disabled.” Rather, the issue was whether or not the plaintiff “experiences pain” while performing basic activities, including sweeping his deck.

Altogether, the judge awarded the plaintiff just over $416,000 in damages. This included $100,000 in non-pecuniary damages, which compensates the plaintiff for his pain and suffering. It also includes $107,000 in damages to cover the costs of the plaintiff’s future care, and another $140,000 for his estimated future loss of earning capacity. With respect to the latter, the judge again pointed to the testimony of the expert, who said the plaintiff “will probably not reach his normal work life expectancy of 20-25 years.”

Contact Preszler Injury Lawyers Today if You Have Been Injured in a Kelowna, B.C. Auto Accident

No amount of money can make chronic pain vanish. But it can help put you and your family on a more solid financial footing when an accident has left you unable to work or perform household activities at level to which you are accustomed. So, if you have been seriously hurt in an accident and need legal advice from a qualified Kelowna personal injury lawyer, contact Preszler Injury Lawyers today to schedule a free consultation.

Source:

https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc991/2019bcsc991.html

 

 

 

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