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Monday, November 24, 2014

Exacerbation of Pre-Existing Degenerative Neck Changes Garner $75,000 Award for Non-Pecuniary 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.

posted by Collette Parsons at


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