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How Damages are Awarded if you have a Pre-existing Condition or Injury

Posted by Kotak Law Office on December 09, 2016
Posted under Car Accidents, Catastrophic Impairment

Unfortunately, it is not unusual for someone suffering from an injury or pre-existing condition to be involved in a second accident  or multiple collisions resulting in additional injuries or causing their previous symptoms to become more severe.  When someone seeks damages for losses resulting from a subsequent accident, an arbitrator or judge must determine what portion of the victim’s losses were likely the result of the latest accident being claimed and what portion may be attributable to a pre-existing injury.  In these situations, in an attempt to mitigate their liability, a defendant sometimes argues that most, if not all, of a plaintiff’s injuries are due to the pre-existing condition. However, an accident victim can be successful in proving their case when they provide expert and credible medical evidence to support their changed health and circumstances, as a result of the accident.   

Desbiens v. Mordini (2004) is an example in case law, where the court was tasked with determining the amount of damages that could be fairly attributed to injuries a man sustained in a car accident.  This case involved a Mississauga man, Phillipe Desbiens, who had been rendered a paraplegic in a work-related injury at the age of 44, and then was injured again 13 years later when he was struck by a vehicle while in his wheelchair on a city sidewalk.  The injury that caused his paraplegia happened in 1986 when the man fell off a roof and injured his spine while working as a roofer in Mississauga.  When the vehicle struck Mr. Desbiens in 1999, he was thrown about 10 feet onto the road, which fractured his right femur and caused multiple soft-tissue injuries to his right side. The injured man asserts that he was able to function fairly independently before the accident but since then, he is dependent on others for help with day-to-day activities and also has significant additional healthcare expenses.

The defendant driver in this case admitted their liability in causing the accident and also acknowledged that the plaintiff’s injuries meet the ‘permanent and serious threshold’ under the Insurance Act, section 267.5(5). However, the defendants argued that the plaintiff’s injuries that resulted from the car accident do not meet the definition of ‘catastrophic impairment’ under 267.5(4), (f) and (g) of the Act which states that any impairment or combination thereof must result in “55 per cent of more impairment of the whole person” or “a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder”.

The medical experts who gave evidence on behalf of the plaintiff supported his testimony that prior to the accident, he was able to function largely independently in terms of self-care, transfers in and out of his wheelchair, driving his adapted van, helping with light kitchen duties and so on.  Medical evidence further showed that after the accident, Mr. Desbien experienced new symptoms including: severe chronic headaches, insomnia, psychological distress, a reduction in cognitive function, and substantial pain in various parts of his body, particularly his back and elbows.  Based on the observations of the health care professionals speaking for the plaintiff, the trial judge rejected the defendant’s allegations that Mr. Desbiens was exaggerating his level of independence prior to the accident or his injuries after the accident.  Rather, the judge accepted that the plaintiff’s condition worsened, from a state where he was functioning at a fairly high level to the current situation where he has lost much of his independence and largely relies on others for help with most daily activities.

With respect to the question of whether Mr. Desbiens suffered a catastrophic impairment as defined in the Act, the judge concluded that when his impairments are assessed in the context of his pre-existing paraplegia, the plaintiff did, in fact, sustain catastrophic impairment as defined in clause (f) of the regulation.  In coming to this conclusion, the judge was highly influenced by a comprehensive evaluation completed by one of the plaintiff’s physicians, who was both a neurologist and psychiatrist.

Mr. Desbiens was awarded over $1 Million in damages after a deduction for the almost $170,000 he was already paid in statutory accident benefits under his vehicle insurance policy. The total in damages includes $135,000 for non-pecuniary damages (for pain and suffering), $77,500 in Family Law claims, almost $920,000 in future care costs for (rehabilitation, medical and attendant care expenses), and about $57,000 in special damages (including housekeeping fees and other expenses).   At the time of the trial in April 2004, the plaintiff was in his early 60’s and the future care calculations were based on a life expectancy of 14.75 years.  (The life expectancy for individuals with paraplegia is somewhat lower largely because any medical condition, such as a minor heart problem, is magnified as persons with paraplegia age, since they must exert far more energy to complete normal activities.)

Motor vehicle accidents are, of course, not the only incidents that may cause re-injury. Successive slip-and-fall accidents and/or recreational/sports accidents also often result in additional injuries or increase the severity of a person’s injuries. Brain injuries, back and spinal injuries, and sprains are particularly vulnerable in terms of worsening with repetitive trauma or injury resulting from an accident.

If you have successfully claimed damages from a negligent party for one accident and then are subsequently injured in another accident, you are entitled to claim against the negligent party in the second incident, for injuries and losses associated with that accident.  You are also not obligated to wait until your first claim has been resolved before filing a subsequent action.  

At Kotak Injury Law, our experienced personal injury team has represented many clients who were injured in one or multiple accidents, and we can provide expert advice on your optimal legal approach for obtaining deserved compensation.  Call Kotak Law today to schedule an initial consultation, at no cost to you or your family, and find out 

Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader's situation by competent legal counsel who has had an opportunity to review all of the facts.
Posted under Car Accidents, Catastrophic Impairment
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