Many people who are injured in an automobile accident have a pre-existing condition, such as a back injury, which worsens as a result of the accident. This can create challenges and complexity in a personal injury claim as the judge or arbitrator must attempt to separate the effects of the pre-existing condition from the consequences of the accident. And, insurance companies often take advantage of this circumstance by challenging a plaintiff’s declaration of their losses and arguing that the accident victim’s injuries and losses can be attributed to their pre-accident condition, rather than resulting from the accident.
Rolley v. MacDonell (2018) is a civil action which arose after a pedestrian was struck by a car and seriously injured while crossing the street at an intersection. Determination of the appropriate damages in the Rolley case was particularly difficult because the injured pedestrian (the plaintiff) had “one of the most complex medical histories ever seen by the litigation experts who testified at trial”. Prior to the accident, Mr. Rolley had been diagnosed with over 13 conditions, including myocardial infarction (heart attack), fibromyalgia, melanoma (initially thought to be fatal), restless leg syndrome, hypothyroidism and sarcoidosis (a disabling condition). The challenge for the Court was to separate the long-term consequences of Mr. Rolley’s pre-existing conditions from any effects of the accident.
Rolley v. MacDonell: Background and Analysis
The key issues to be decided in the trial include: 1) how was liability for the accident to be apportioned between the plaintiff and defendant driver; 2) what injuries resulted from the accident; 3) the amount of damages associated with the injuries; and 4) whether the plaintiff’s injuries meet the threshold for an award of non-pecuniary damages.
Determining Liability for the Pedestrian Accident
In any action where a pedestrian is injured in a car accident, the onus is on the car driver to disprove that their negligence or improper driving conduct was a contributing factor in the collision (per Ontario’s Highway Traffic Act, s. 193(1)). In the current case, the judge ruled that the at fault driver (the defendant) was wholly liable for the accident and any losses arising from the accident because she failed to meet this onus, based on the following circumstances.
Police ticketed the at fault driver, Ms. MacDonell, at the scene of the accident for the HTA offence of failing to yield to a pedestrian crossing the road in an uncontrolled pedestrian crossover, and the defendant paid the ticket and didn’t dispute the charge. And, as pointed out by the plaintiff’s counsel, when a defendant is convicted of an HTA offence and fails to successfully appeal the charge, the conviction serves as prima facie proof that they committed a crime and were guilty of the offence.
Further, the plaintiff asserted that Ms. MacDonell did not bring her car to a stop before entering the pedestrian crossover and she proceeded into the crossover while the plaintiff was still on the road. The judge found no evidence to disprove the plaintiff’s assertions and believed that the defendant’s description of the circumstances leading up to the accident were conflicting and unreliable, including her statement that she didn’t know where the defendant came from or was going to.
The judge also rejected the defendant’s assertion that the plaintiff is 25 percent contributorily liable for his injuries because he failed to cross at a delineated pedestrian crosswalk. Based on the testimony of the plaintiff as well as an independent witness, both of whom were perceived as credible, the judge concluded that Mr. Rolley was well into the crosswalk before being struck by Ms. MacDonell’s car; the collision occurred within the pedestrian crossing area; and the defendant failed to see Mr. Rolley before the accident occurred.
The Plaintiff’s Injuries
The plaintiff was diagnosed with melanoma four years before the pedestrian accident and at that time, he stopped working as a full-time teacher. One year later, he was also diagnosed with sarcoidosis. In 2012, when the accident occurred, the plaintiff had, for several years, been receiving long-term disability benefits (through his employer, the school board) as well as Canada Pension Plan (CPP) disability benefits. Family members testified that, despite his disability, Mr. Rolley was able to manage his condition through physical activity when he was able, and was also able to manage his chronic pain. However, after the accident occurred, Mr. Rolley’s level of function and role within his family and in social interactions were severely diminished. And, the outcome of this cases rested largely on the question of causation.
The plaintiff had a complex and lengthy medical history well before being diagnosed with melanoma and sarcoidosis. In 1998, he suffered a myocardial infarction. He was then diagnosed with restless leg syndrome; and fibromyalgia or chronic pain; and diffuse body pain that eventually led to a diagnosis of sarcoidosis. And, ten years before the accident, the plaintiff was treated by a psychiatrist for sleep disturbances, difficulties with concentration and memory, and fatigue.
The plaintiff’s various health problems caused widespread complications and difficulties for the plaintiff, as reported in a questionnaire Mr. Rolley completed for his CPP disability benefits application. One year prior to the accident, Mr. Rolley wrote that he experienced pain in his feet, ankles and knees when standing and walking; severe back pain when bending; suffered extreme fatigue if he didn’t limit household chores to very short periods of time; was frustrated because he frequently forgot people’s names and why he entered a room; and was unable to walk more than 50 feet without shortness or breath and chest pain.
The plaintiffs acknowledged Mr. Rolley’s complicated medical history; however, the plaintiffs submitted that he experienced injuries in the accident that are distinguishable from his pre-accident symptoms. Mr. Rolley was 54 years old when the accident occurred and his personal injury claim alleged that he suffered the following injuries as a result of the accident.Traumatic brain injury (TBI)
- Post-concussion syndrome
- Somatic symptom disorder
- Worsening of his pre-existing chronic pain syndrome
- Post-traumatic headaches
- Major depression
- Adjustment disorder
- Post-traumatic vision syndrome
The plaintiff maintained that the mild traumatic brain injury (TBI) he sustained in the accident has resulted in serious symptoms which have a substantial impact on his life. In particular, the accident exacerbated his chronic plain syndrome and he is no longer able to effectively manage his chronic pain condition.
The defendant challenged the plaintiff’s claim that he suffered a TBI and argued that the plaintiff’s pre- and post-accident symptoms are very similar. And certainly, the causation issue with respect to the plaintiff’s pain and cognitive symptoms is extremely relevant to this case, since it directly impacts the amount and type of damages to which he is eligible, such as the cost of assistive devices, past and future attendant care expenses, and home maintenance services.
Several physicians and others, including Mr. Rolley’s children, gave evidence with regards to his injuries and symptoms, and their effect on his behaviour and functioning. In order to decide whether the plaintiff had suffered a traumatic brain injury, the judge considered what happened to Mr. Rolley during and immediately following the accident as well as the opinions of several health-care professionals who testified. The following factors are used in diagnosing TBI and all were present in the plaintiff’s case:
- Retrograde amnesia – the plaintiff suffers from retrograde amnesia and has no memory of the time between when he stepped off the sidewalk and was struck by the car.
- Brief loss of consciousness
- Confusion immediately after the collision
- Acceleration/deceleration forces experienced by the plaintiff when he was hit
The judge was satisfied that Mr. Rolley sustained a TBI. And, based on extensive lay witness and medical testimony evidence, the judge also believed that the plaintiff was suffering from somatic symptom disorder, adjustment disorder, depression, post-traumatic headaches and post-traumatic vision syndrome. The evidence also supported the plaintiff’s claim that the pedestrian accident exacerbated his chronic pain symptoms. The only condition claimed by the plaintiff, for which the judge found there was insufficient substantiating evidence, was post-concussion syndrome.
There was an extensive amount of lay witness testimony (far too much to discuss in this article) which gave an indication of the significant changes in the plaintiff’s cognitive function and emotions that occurred since the accident. A close long-time friend of the plaintiff was among the witnesses who described how the plaintiff had changed. The friend reported that the plaintiff is no longer able to participate in most of the physical activities they formally did together; he is forgetful, easily side-tracked, far more subdued and often fabricates information when recounting events; and when driving together, the plaintiff forgets how to get to his friend’s house and where they are going. The judge found the friend’s testimony to be forthright and credible.
Mr. Rolley’s son also gave testimony on the changes in his dad’s behaviour. The son stated that he can no longer have meaningful conversations with his father; his dad has lost his self-confidence and isolates himself; and it’s no longer fun to play video games with because his father isn’t progressing in his skills, is easily frustrated and overly competitive.
Medical testimony revealed that the plaintiff has experienced a substantial increase in his general level of pain since the collision, and new pain symptoms, such as neck pain and headaches, appeared after the collision. Further, it is believed that Mr. Rolley’s “post-collision prognosis for management of his pain condition is poor” because his “cognitive difficulties contribute to [his] inability to regain control over his pain condition”. And, these cognitive problems are distinct from, and greater than, any he had before the accident. Although Mr. Rolley complained of troubling sleeping before the accident, which sometimes affected his memory, the pre-accident medical reports and documents did not support the defendant’s allegations that the plaintiff had pre-existing cognitive deficits.
The judge concluded that, without the negligence of the defendant driver, the plaintiff would not have suffered the injuries alleged in the civil action.
A Finding of Damages
The analysis and calculations required in determining the appropriate financial/pecuniary damages in this case were lengthy and are reflected in the determination of awarded damages below. In the determination of non-pecuniary damages for pain and suffering, and loss of care, guidance and companionship, the judge was required to consider the effect of Mr. Rolley’s injury on his enjoyment in life and on his family, and this analysis particularly brought to light the devastating effect that a traumatic brain injury can have on a family.
Mr. Rolley’s wife testified that her husband’s level of function no longer reflects the kind of spouse or father he previously was, and their relationship has changed significantly. They no longer have meaningful conversations and often sit in silence due to the plaintiff’s cognitive problems, and his frustration and preference for isolation. The plaintiff can no longer contribute substantially in household chores, home maintenance and family activities. Mrs. Rolley described being lonely due to the loss of her life partner; instead, she is now her husband’s caregiver. She adopted four children after the accident, for whom she is currently the sole and primary caregiver.
One of the couple’s children was 12-years-old at the time of the accident, and he testified that his dad is no longer able to coach his soccer team as he once did; he can no longer go to his father for help or advice; and interactions with his dad often turn into arguments because Mr. Rolley is unable to handle meaningful conversations, doesn’t listen and often forgets what’s been said. The son also gave evidence that when he arrives home after school and his mother is not home, his dad is overwhelmed, often forgets the children’s names and what the younger children should be doing; is unable to manage the children’s lunches and agendas; and forgets how to use kitchen devices such as the microwave or oven.
Should the plaintiffs’ damages be reduced due to a failure to obtain appropriate medical treatment?
The defendant argued that Mr. Rolley did not mitigate his damages by pursuing psychological counselling. The judge disagreed and ruled that the defendant did not establish the possible impact of psychological counselling on the plaintiff’s condition or on his level of function, or even whether the plaintiff would in fact benefit from psychological counselling.
Should the plaintiffs’ damages be reduced due to ‘crumbling skull’ principle?
The defendant also argued that the crumbling skull principle is applicable in Mr. Rolley’s case and accordingly, damages should be reduced by 25 per cent.
For the crumbling skull principle to apply, the evidence must support a finding that there was a measurable risk, before the accident, that the plaintiff would be detrimentally impacted by his pre-existing conditions, regardless of the accident and the defendant’s negligence. In the current case, the judge found that, due to the complexity of Mr. Rolley’s pre-accident condition, the sheer number of health problems, the fluctuations in his general health and the fact that his overall condition was expected to be prolonged, it is likely that some of Mr. Rolley’s symptoms would have persisted and negatively affected his health, even if the collision had not occurred. Therefore, the judge concluded that the crumbling skull principle applies.
Do the plaintiffs’ injuries meet the Threshold for Non-pecuniary damages?
The Insurance Act requires that, in order to be eligible for non-pecuniary damages arising from a motor vehicle accident, a person’s injury must meet the threshold. This requirement applies to damages for pain, suffering and loss of enjoyment in life, as well as damages for loss of care, guidance and companionship, pursuant to the Family Law Act. In order to meet the threshold, a plaintiff must provide evidence to show that they suffered a “permanent serious disfigurement” or a “permanent serious impairment of an important physical, mental or psychological function”.
The judge found that Mr. Rolley’s impairments met the threshold for non-pecuniary damages: they substantially interfere with most of his normal daily activities; are important impairments because he is no longer able to independently care for himself and look out for his well-being, as one would expect for someone in their late fifties; and are permanent, since his condition is not expected to improve much, if at all, in the future.
The following damages were awarded (after the 25% deduction for ‘crumbling skull’):
- $ 142,500: non-pecuniary damages for pain, suffering and loss of enjoyment in life
- $1,710,752: future attendant care services
- $ 3,240: future occupational therapy
- $ 6,318: prism glasses and future vision therapy
- $ 26,648: future home maintenance services
- Loss of income damages were not sought because the plaintiff was receiving LTD and CPPDB income-replacement payments
- $ 48,750: non-pecuniary damages for loss of care, guidance and companionship due to her husband’s injury
- $ 47,685: past attendant care services
- $ 2,543: social worker services
‘J.P.’, the Rolley’s son
- $ 30,000: non-pecuniary damages for loss of care, guidance and companionship
- $ 4,500: past attendant care services
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