The claimant was injured in two motor vehicle accidents with liability admitted for both. The issue at trial was the assessment of her losses including non-pecuniary damages (pain and suffering), compensation for loss of past and future earning capacity, loss of housekeeping capacity, costs of future care and special damages.
In the first car accident she was stopped behind other cars at a red light at the intersection of Turner Road and Old Island Highway when she was rear ended. In the second accident she was stopped at a stop sign in the parking lot of the Country Club Mall her car was hit on the side by the defendant who was backing out of a parking spot. This was a minor accident which resulted in minimal damage.
Legal Causation in Personal Injury Cases
The burden was on the claimant to establish on a balance of probabilities that, “but for” the accidents she would not have suffered the injuries claimed. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimis.
The defendants conceded that the claimant suffers neck pain and headaches as a result of the accidents but that due to her pre-existing neck pain any damages should be reduced. However, all of the medical experts agree that as a result of the accidents the claimant suffered from chronic neck pain and headaches. Dr. Robinson was of the opinion that “the degenerative changes in her cervical spine predates the motor vehicle accident and is probably asymptomatic”.
In finding the accident were the legal cause of her injury the judge had this to say,
[86] The “but for” inquiry is not intended to pedantically itemize all the potential causes of Ms. McCully’s injuries with scientific precision. Instead, this inquiry is focused on whether the plaintiff would have incurred her injuries but for the defendants’ liability on a balance of probabilities. The balance of the medical expert opinion indicate that any pre-existing degenerative neck issues would have remained asymptomatic. Accordingly, I am satisfied that but for the liability of the defendants, her neck issues would not have otherwise manifested to the same degree of pain that Ms. McCully now experiences. I now turn to the assessment of the extent of the defendants’ liability for any of Ms. McCully’s damages.( McCully v. Moss, 2019 BCSC 81)
The total court award is summarized:
Non-pecuniary damages (pain and suffering award)- $85,000
Past Loss of Earning Capacity- $16,000
Costs of Future Care- $12,230
Special Damages (out of pocket)- $6,668
Total personal injury award: $119,898