In this first reported personal injury case of 2014 the judge awarded the claimant $100,000.00 for pain and suffering and reduced it by 40% to $60,000.00 reflecting that only 60% of her ongoing complaints and symptoms were caused by the car accident, with the balance attributable to her pre-existing condition.(Raikou v. Spencer,2014 BCSC 1).
The judge framed the central issue in this case as to whether the claimant’s ongoing psychological symptoms were caused by the accident or were a continuation of her pre-existing condition. However, in terms of the injury claimant’s psychological issues, the judge found that she was still experiencing symptoms of depression at the time of the accident which were then aggravated by the accident.
The court also accepted that the car accident caused the soft tissue injuries to the claimant’s neck, back and aggravation of her pre-existing TMD symptoms but was not satisfied on the evidence that the accident caused any ongoing dizziness and headaches.
Percentage reduction can be used to recognize the effects of the prior condition to future events but it is well established that the finding of causation is really an all or nothing proposition. Once causation has been established the analysis then focuses on the assessment of damages. This decision may well have conflated the two assessments. The law according to Athey is that negligent conduct either was or was not a cause of the injury. The court must decide on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty.
There is no basis for a reduction of liability because of the existence of other preconditions: Defendants remain liable for all injuries caused or contributed to by their negligence. (Athey v. Leonati,  3 S.C.R. 458).
The judge stated at paragraph 69 ,Considering the evidence in its entirety, I find that the accident caused 60% of Ms. Raikou’s post-accident complaints and symptoms with the balance being attributable to her pre-existing condition.(Emphasis added)
I will keep my eye on this case as it may well end up in the Court of Appeal.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
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