A Pre-existing Injury doesn’t preclude a Successful Claim for Damages

If you sustain injuries caused by a negligent party, whether the injuries result from a car accident, slip and fall, or another accident, you are entitled to seek compensation from the ‘at fault’ party, even if you have a pre-existing condition or injury that was intensified by the accident for which damages are being sought.  In such cases, you are entitled to compensation in accordance with the degree to which the accident in question affected your life.  A previous injury, even one with a minimal impact, can substantially worsen when re-injured, to the extent that it is actually the latest accident and injury that causes the greatest pain and loss.  In cases where an injury case is complicated by multiple injuries, the court may need to allocate the relative fault of the various accidents or injuries in causing the plaintiff’s current medical condition, in order to decide the appropriate award of damages for a particular accident.

In Monks v. Zurich Insurance Co. and Monks v. ING Insurance Company of Canada, a woman was twice denied injury compensation and subsequently sued her insurers for statutory accident benefits, after her vehicle insurers alleged that her injuries were the result of a pre-existing condition or injury, rather than caused by the latest accident which they would have been obliged to indemnify.  The plaintiff, Suzanne Monks, was injured in three separate motor vehicle accidents over a six-year period: in 1993, 1995 and 1998.  The first was a fairly minor car accident resulting in a whiplash injury that, for the most part, resolved within three months. However, X-rays taken following the accident suggested the onset of a degenerative spinal disease (although the disease’s progression was not significant at the time). 

The second accident was more serious and resulted in significant injury to the plaintiff’s spine. After this accident, she was advised to avoid physical activities that may place her at risk of additional neck injuries.  Following the 1995 accident, the plaintiff’s insurer declined to pay her any statutory accident benefits based on the argument that her impairments resulted from her pre-existing degenerative spinal condition. In Monks v. Zurich Insurance Co., Ms. Monks sued her then insurance company, Zurich, for payment of denied accident benefits and was awarded $1.275 million in damages at the conclusion of that action.

In 1998, as a result of a third accident, Ms. Monks’ symptoms of injury worsened and intensified over time.  She experienced increasing neck pain, discomfort in her arms, a reduction in neck and head mobility and chronic headaches.  An MRI revealed significant neural tissue damage and a need for surgery.  Despite spinal decompression surgery, both in 1999 and 2001, to arrest the deterioration in her spine, the plaintiff’s condition failed to improve and she was eventually rendered an incomplete quadriplegic. Due to her injuries, the now 52-year-old woman is largely confined to bed, dependent on medications and attendant care, and unable to pursue gainful employment.  She suffers a multitude of debilitating symptoms including spastic quadriparesis (weakness of the limbs), persistent nausea and vomiting, chronic pain in the neck and shoulders, bladder and bowel dysfunction, extreme fatigue, gastrointestinal dysfunction, as well as psychological and cognitive problems.

ING Insurance Company of Canada, Ms. Monks’ vehicle insurer for the third accident, paid her statutory accident benefits for approximately three and a half years, but then stopped payment and attempted to seek repayment on some of the payments already made, on the alleged grounds that Ms. Monks was not catastrophically impaired as per the Statutory Accident Benefits Schedule (SABS) defined in the Insurance Act.  In the trial, ING changed their argument and no longer disputed that the plaintiff was catastrophically impaired, but instead claimed that the cause of her impairment was the two previous accidents and her pre-existing spinal disease.

In Monks v. ING Insurance Company of Canada, the plaintiff claimed declaratory relief and asked for an award of aggravated damages.  The central issue in this trial was causation.  On the basis of the testimony and reports of numerous medical experts, the judge agreed with the plaintiff that, although the second accident was a significant factor in the development of her condition, the third accident hastened and accelerated her symptoms and contributed materially to her overall condition.  The court rejected the defendant insurer’s argument that they should not be required to pay any benefits until the funds from the plaintiff’s settlement against Zurich ran out.  The judge also disagreed with ING’s argument that the plaintiff’s impairment was caused by her previous accidents and pre-existing condition.

It was concluded that Ms. Monks suffered a catastrophic impairment as a result of her third car accident and accordingly, she is entitled to receive statutory accident benefits from ING in accordance to the maximum benefits due to a catastrophically impaired person, including past and future medical, rehabilitation and attendant care benefits, income replacement benefits, and housekeeping and home modification benefits.  The plaintiff was also awarded $50,000 in aggravated damages, plus costs and interest.