The medical consensus was that the car accident victim had pre-existing degenerative changes of the lumbar spine which pre-dated the two motor vehicle accidents in question. The issue was to what extent the injury claimant may have suffered chronic low back pain despite the car accidents (Hoy v. Williams,2014 BCSC 234)The weight of medical opinion established that the claimant’s disc herniation did not triggered any neurological compromise and that the ongoing pain was discogenic in nature.
At the time of the first accident, the claimant was struck in the rear with such force that his truck was pushed forward five to six feet. The second accident was very similar, his vehicle was struck in the rear. In reducing the injury claimants personal injury award to account for his prior low back problems the judge comments at paragraph 131:
I have already found that there was a realistic chance Mr. Hoy would have suffered ongoing episodes of back pain and that he was at risk of re-injury such that the development of possibly chronic pain symptomology might have occurred. A reduction in the damages to be assessed is therefore warranted. Bearing in mind the plaintiff’s excellent physical conditioning before the accidents and also bearing in mind the caution urged by the Court of Appeal in the Bouchard v. Brown Bros. case, supra (more specifically discussed at para. 117 above), I find on all of the evidence that a fair and appropriate reduction in the plaintiff’s damages to reflect his pre-existing low back problems would be 15%. The parties are agreed that this discount applies only to any awards of general non-pecuniary damages, as well as damages for future loss of income earning capacity and the cost of future care.
The total personal injury award was as follows:
Pain and suffering compensation $72,250.00; Past Loss of Firefighting Income $16,520.00; Out of pocket expenses $2,191.86; Past Loss of Earning Capacity $3,500.00; Loss of Future Earning Capacity $250,750.00; Cost of Future Care $7,225.00 for a Total of $352,436.86.
Posted By Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.