This car accident claimant with born with spina bifida, scoliosis and kyphosis. When she was three she had her fibula taken from her left leg and fused into her spine. All her life, she has suffered pain, primarily from the kyphosis. However, she has always managed that pain (Cantwell v. Warren, 2017 BCSC 856).
The car accident in question was relatively minor. “Even for people without any pre-accident medical conditions, however, the law recognizes that low-impact collisions can cause injury. See, for example, Lubick v. Mei and another, 2008 BCSC 555.”
The claimant also had an incident about 2 years after the car accident when she felt a “pop” in her left shoulder and rib area. This popping incident made the pain in her back and ribs markedly worse.
The claimant was driving her Toyota Echo through the parking lot of a store in Esquimalt travelling at about 25 kph when the other driver pulled forward from a stall into the roadway of the parking lot. On impact she felt a popping and burning sensation in her chest. No ambulance was called and the damage to the claimant’s vehicle was about $1,500. The claimant reported the collision to ICBC.
The Supreme Court judge found that the car accident and the injury from the popping event were a single, indivisible injury. The medical evidence supported the conclusion that the injuries from the two events were inseparable.
The pain she had from the accident was at the level of the T3, 4 and 5 vertebrae, toward the front of her chest area. She also suffered neck pain which started in the front and radiated around to the back of the neck on the left side. She suffered soft-tissue injury and the subsequent symptoms from the popping incident also reflect soft-tissue injury.
The court found that the legal tests expressed in Athey, when linked to the facts at bar, lead to the finding that the other driver is are liable for the claimant’s damages arising from both the car accident and the subsequent popping incident.
The ICBC injury claimant was therefore awarded following as part of her award:
|Pain and Suffering||$70,000.00|
|Past wage loss||$142,607.00|
|Loss of future earning capacity||$550,000.00|
|Out of Pocket expenses $6,723.00|