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$30,000 Awarded for Worsening of Pain Condition after Accident in ICBC Case

In the recently published case of Estable v. New, 2011 BCSC 1556, Madam Justice Gropper awarded $30,000 in general damages to a plaintiff injured in a motor vehicle accident in October 2003. The court found that several of the plaintiff’s complaints were aggravated or exacerbated by the accident. In assessing damages for pain suffering and loss of enjoyment of life, Justice Gropper said the following:


[76] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga.


[77] I find that from October 2003 to the present, Ms. Estable has improved by approximately 50% to 60%. Nonetheless, she still suffers some impairment in her physical abilities.


[78] While Ms. Estable suffered physical injuries from the October 2003 accident, I am not satisfied that those injuries have impaired her mental abilities.


[79] In respect of determining an appropriate award for non-pecuniary damages, I must consider that the injuries to Ms. Estable’s wrists, which are not attributable to the October 2003 accident, have also significantly contributed to the factors that I have referred.


[80] I assess Ms. Estable’s non-pecuniary damages at $30,000.


Indivisible vs. Divisible Injuries in ICBC Injury Claim


The court found that there were multiple causes for the plaintiff’s injuries and the question was whether they were “divisible or indivisible”. In setting out the law respecting the approach to the two types of injuries, Justice Gropper said the following:


[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed…Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.


[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant…


[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate…


[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage…


[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.


[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him.


Attacking Credibility Using Clinical Records in ICBC Injury Claim


In the course of the trial the plaintiff was cross examined using the clinical records of her treating doctors. ICBC’s lawyer pointed out to the court that in several of the clinical records there was no mention of the injuries that the plaintiff said she sustained in the accident. On that point, Justice Gropper cautioned against using clinical records to establish an “admission by omission” and declined to conclude that the plaintiff did not complain of pain arising from the accident. In doing so, she noted the following:


[70] The British Columbia Court of Appeal has warned against relying on clinical records to establish an “admission by omission”. In Bancroft-Wilson v. Murphy, 2009 BCCA 195 at para. 11, the court stated:


[11] While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms. In effect, the defendant is contending for an admission by omission. In my view, that overstretches the limits of the admissions exception in the circumstances here. The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony.


[71] Mr. Justice N. Smith noted in Crane v. Lee, 2011 BCSC 898, the “absence of medical records does not, in and of itself, prove absence of injury”. He stated at paras. 25 and 26:


[25] … In Myers v. Leng, 2006 BCSC 1582, Gropper J. said:


[50] I am not troubled by the gap in the plaintiff seeking treatment. His decision not to continue to see a doctor about his neck and back complaints was clearly based on a reasonable conclusion that the doctors could only provide temporary relief from the pain by prescribing medication and physiotherapy. The plaintiff did not consider either to be helpful. It is a sensible and practical approach to medical treatment. If continuous medical treatment can cure you, or make you feel better, then it is worthwhile to attend on a regular basis. If it cannot, there really is no point in taking the doctor’s time. The purpose of a seeing a doctor is not to create a chronicle of complaints for the purpose of proving that you have ongoing pain from an injury arising from a motor-vehicle accident. Rather than detract from the accuracy of the plaintiff’s complaint, I consider the plaintiff’s course of conduct, in not seeing the doctor on a continuous basis, to enhance his evidence.


[26] I made similar comments in Edmondson v. Payer, 2011 BCSC 118 [Edmondson]:


[37] […] There certainly may be cases where a plaintiff’s description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff’s credibility. But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment. Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it.


[72] I do not accept that the clinical records demonstrate that Ms. Estable did not complain of pain arising from the injuries she sustained in the 2003 motor vehicle accidents. Ms. Estable disagrees that she did not mention her injuries and pain during those medical appointments. I find her credible on this point.

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