Following a car accident the resulting pain can be immediate but masked by other injuries for several days. The issue then becomes whether the car accident caused the injury given the symptoms may be reported several days or weeks after the car crash.
In this personal injury case the claimant was travelling northbound on Highway 22 near Castlegar, British Columbia when a vehicle driving in the opposite direction at high speed in the claimant’s lane forced the claimant to brake sharply and swerve into a ditch in order to avoid a head-on collision. The other driver admitted liability.
It was common ground that the claimant suffered a rotator cuff tear, superior labral tear and significant biceps tendinitis that required surgical repair. The question was whether those shoulder injuries were caused or contributed to by the MVA. The claimant said that her right shoulder and neck started immediately after the MVA.  Yet, it appears from the relevant clinical records that the claimant did not report significant or acute shoulder pain to the emergency room physician or to anyone other than her massage therapist for several weeks.
The judge articulated the the law of legal causation this way:

[125]     The central issue in this case is causation.

[126]     The “but for” test is the general test for factual causation: the plaintiff must prove on a balance of probabilities that but for the defendant’s negligence, she would not have suffered her injuries.  The defendant’s negligence must have been a necessary cause of the injury.  This test was summarized and affirmed by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, at paras. 8–10 (see also: Ediger v. Johnston, 2013 SCC 18, at paras. 28–29; Resurfice Corp. v. Hanke, 2007 SCC 7, at paras. 21–23). 

[127]     The plaintiff need only establish a “substantial connection between the injury and the defendant’s conduct” in order to establish causation: Sam v. Wilson, 2007 BCCA 622 at para. 107.  A substantial connection is something beyond the de minimus range: Farrant v. Laktin, 2011 BCCA 336, at paras. 9–11.

[128]     It is common ground that the plaintiff suffered a rotator cuff tear, superior labral tear and significant biceps tendinitis that required surgical repair.  She also suffered low back pain.  Her symptoms have improved but are still present.  The question is whether those injuries were caused or contributed to by the MVA.(Ross v. Dupuis,2017 BCSC 2159)

The judge found that it was more probable than not that the claimant stretching her right arm back to brace her child during the MVA was the mechanism by which she suffered her shoulder injury.  The resulting pain was immediate but masked by her other injuries such that she did not discern specific pain from her rotator cuff/SLAP injury for several days.

   The claimant was entitled to judgment for the following amounts:

a) Pain and Suffering: $120,000
b) Past income loss: $120,000
c) Loss of future earning capacity: $200,000
d) Cost of future care: $3,000
e) Loss of housekeeping capacity: $2,000
f) In-trust claim: $0.00
g) Out of pocket expenses: $12,570.75
TOTAL $457,570.75

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment