The British Columbia trial judge in this stunning Disc Disease versus whiplash injury case (Farrant v. Laktin,2011 BCCA 336) was found to be wrong after misapprehending the threshold issue of causation as an “either/or” proposition and further erred in failing to consider whether there was a substantial connection between the accident and the injury claimant’s disabling pain. The Court of Appeal ordered a new trial.
The claimant suffered injuries in a car accident, filed a lawsuit in Vancouver and a Supreme Court judge awarded him $20,000 for his injuries: 2008 BCSC 234. On appeal, the claimant was seeking an order setting aside that award and directing a new trial, on the basis the trial judge did not properly apply the law on causation.
The injury claimant had a history of back problems resulting in significant degenerative changes in his spine. However he had minimal symptoms before the car accident. He suffered soft tissue injuries and a recurrence of his back pain in the car crash, which were diagnosed as Grade 2 whiplash. His condition waxed and waned and eventually he was permanently disabled and could no longer work.
At trial, ICBC, on behalf of the defendant, conceded the claimant’s back pain in the months immediately following the accident was caused by the car crash. The central issue was whether the claimant could establish a causal connection between the car accident and his subsequent and more debilitating back pain, which Unfortunately and erroneously the trial judge framed the issue in these terms:
” The threshold issue in this case is causation: was it the injury sustained in the accident that caused, and continues to cause, the plaintiff’s back and leg pain, or is his pain attributable to his pre-existing degenerative disease of the spine?”
The trial judge decided the claimant had not established the car accident caused the disabling pain and awarded only $20,000 for his personal injury.
In finding that the trial judge was wrong in the legal analysis of causation the Court of Appeal pointed out,
“ Turning to the judge’s analysis, I am satisfied that two uncontentious facts demonstrate that, in finding the plaintiff had failed to establish the disabling pain would not have occurred “but for” the defendant’s conduct, the trial judge considered only whether the accident was the sole cause of the disabling pain, and failed to turn his mind to whether there was a substantial connection between that pain and the accident.
 The first was the consensus of the medical witnesses that the plaintiff’s spinal degeneration made him more vulnerable to the injuries he sustained in the accident. This demonstrated some inter-relationship between the two potential causes of the disabling pain, and should have led the judge to consider whether the accident was a trigger that accelerated and aggravated the spinal degeneration, causing the disabling pain to develop earlier than it would have without the accident. In short, were the whiplash and spinal degeneration both a necessary cause of a single and indivisible disability?…
 That view is reinforced by the fact there was evidence relevant to both of those issues that the trial judge either failed to consider, or only mentioned in passing, without making the findings necessary to resolve these issues. As my views would lead to a new trial, I do not intend to review that evidence in detail, but will simply list some aspects that required greater attention from the trial judge if he properly considered whether the accident was substantially connected to the plaintiff’s disability. These include what, if any, of the plaintiff’s complaints were present from the date of the accident to the date of trial; greater attention to Dr. McTaggart’s chronology of the plaintiff’s complaints, notably the reliability of the report of 80 to 90% improvement in July 2004, the significance of that feature to Dr. McGraw’s opinion, and the temporal relationship between the plaintiff’s symptoms and variations in the physical demands of his work; and, finally, consideration of the crumbling skull doctrine, given the finding the plaintiff’s injuries in the accident were unresolved…
 I am satisfied the trial judge’s misapprehension of the “threshold issue” of causation as an either/or proposition permeated the balance of his decision, and he erred in failing to consider whether there was a substantial connection between the accident and the plaintiff’s disabling pain. The result must be a new trial.” Posted by Mr. Renn A. Holness