Most people associate life-changing injury with major motor vehicle accidents, however, relatively minor accidents can equally result in injuries with long-term or permanent effects. For example, a rear-end collision involving cars travelling, even at low speeds, causes an abrupt and violent jolt for the occupants of the vehicle that is rear-ended, which may result in soft-tissue injuries such as spinal cord injury, whiplash and back injury, as well as broken bones. Further, the risk of injury is greater for the occupants of a small car that is rear-ended or struck by a significantly larger and heavier vehicle. Some accident victims fully recover within weeks or a few months after a fender bender, but for others, the injuries don’t entirely heal and symptoms such as chronic pain, can impact the injured person’s ability to function and their enjoyment in life for many years or permanently.
In August 2012, a woman was rear-ended while stopped in traffic, just a few months after sustaining a workplace related injury. In the resulting trial, Olson v. Yelland, 2016, the injured woman sought compensation for special damages, general damages, loss of income, loss of future earning capacity, cost of future care, and housekeeping expenses (past and future). Although the defendant in this case admitted liability and acknowledged that the plaintiff had suffered soft-tissue injuries in the collision, the defendant argued that the woman was already functionally limited by pre-accident injuries to her lower back and knee, and damages should not be awarded to put her in an even better position than she was before the accident.
The plaintiff testified that when her vehicle was hit, her body became twisted; her shoulder hit the steering wheel; and her knee struck the dash. She claimed that the accident caused soft-tissue injuries to her left shoulder, neck and mid-back, and also caused worsening of her left knee symptoms. At trial, the woman testified that she experiences neck pain, pain in her mid-back, frequent migraine headaches, dizziness, nausea and fatigue, as well as ongoing pain in her left knee, since the accident. The dizziness occurs when she turns her head, and the nausea accompanies her headaches. In addition to, and associated with, her chronic pain, the accident victim alleges she suffers from bouts of depression as a result of her injuries.
The injured woman testified that her injuries and pain substantially affect her day-to-day functions because she has difficulty standing, walking, bending down, reaching and using stairs. She reported that she often has to stay home because the pain is so intense. A psychiatrist testified, on the plaintiff’s behalf, that the accident injured the woman’s neck and back, and aggravated her pre-existing knee injury, and further, given that she had already experienced symptoms for two years, it is doubtful that rehabilitation will cure her symptoms or improve her functioning.
The trial judge pronounced that the plaintiff is certainly entitled to be justly compensated for injuries and losses caused by the accident; however, the onus is on her to establish the extent of her injuries and consequences. He expressed some concern with the plaintiff’s credibility and with her evidence with respect to understating the effects of her pre-accident injuries and exaggerating her activity level prior to the accident. The judge was left in doubt as to whether her previous knee issues were truly exasperated by the accident, since the woman did not mention knee pain or related issues in her early visits to a walk-in clinic following the accident. The judge also criticized the plaintiff for failing to participate in a counselling program that was recommended after her work-place rehabilitation program.
It was the trial judge’s conclusion that the condition of the woman’s lower back and left knee must have substantially affected her ability to function at work and home before the accident, and further, that these injuries likely have the greatest impact on her life. The judge did not believe that the plaintiff would have been able to return to work due to her previous injuries, even if the accident had not occurred, nor did he agree that her ability to complete chores such as housekeeping and gardening were significantly diminished by the car accident. For this reason, the judge did not award damages for loss of income and loss of housekeeping capacity.
On the other hand, the judge accepted that the soft-tissue injuries to her mid-back, neck and trapezius muscles, resulting from the accident, caused more frequent and intense headaches and that these are likely to affect her for years to come. Accordingly, the judge awarded approximately $106,500 in damages, including 60,000 in general damages for her loss of enjoyment in life. The total damages awarded also comprises $4,220 in special damages including chiropractic fees; $35,000 for loss of future earning capacity; and $7,276.17 for future care costs.
When an accident victim has pre-existing health conditions or injury, an assessment of the injuries and consequences associated with the latest accident can be quite complicated. Every case is decided on its own merits, but a judge’s decision will rest heavily on the medical evidence presented in addition to the credibility of the plaintiff’s testimony. This is particularly true for such injuries as soft-tissue injuries and chronic pain, which cannot be proven by conventional medical procedures, such as X-rays. However, the courts now recognize the fact that ongoing pain and psychological symptoms associated with an accident and injury, can significantly impact a person’s quality of life.
Chronic pain is a disabling condition that often affects work performance, functioning in the home and social relationships. The respected lawyers with membership in the Injury Lawyers of Ontario (ILO) group are well experienced in representing motor vehicle accident victims suffering from chronic pain syndrome and associated psychological symptoms. If you or a family member are suffering from ongoing pain or other symptoms resulting from an accident, call ILO to find out about your legal rights and what’s involved in building a strong case for compensation.