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$100,00 Award for Pain and Suffering in ICBC Case Despite Disc Disease

 
In this ICBC disc disease car accident case(Peso v. Hollaway,2012 BCSC 1763) the claimant was returning from Osoyoos when he stopped his vehicle on 104th Avenue, in Surrey and came across two other motorists in an altercation. He was about to provide assistance when a vehicle reversed and struck the claimant’s car. The claimant’s car only sustained $1,500 of damage. 
The Insurance Corporation of British Columbia, ICBC, alleged that the claimants ongoing condition was not due to the car crash and was caused by his pre-existing adolescent disc disease.  To understand more about legal cause versus medical cause check out by short video about Legal cause in ICBC claims.
The claimant did not experience immediate symptoms and did not seek medical treatment on the day of the collision. However, over the course of the next day or two he experienced increasing symptoms in his low back. Unfortunately, time proved that the claimant sustained a significant low back injury in the collision. Symptoms included pain that radiated down his left leg. Ultimately, this problem required surgical intervention.
In this case the Supreme Court Judge went on to find that the on-going condition was due to the car accident and stated, 

[67]  The Plaintiff must establish on a balance of probabilities that but for the Defendant’s negligence, the Plaintiff would not have sustained the injuries and losses claimed. The test is to be applied robustly, and with common sense. Clements v. Clements, 2012 SCC 32. There may be more than one cause of an injury. Causation is established if the contribution of the Defendant’s negligence was more than de minimis: Athey v. Leonati 1996 CanLII 183 (S.C.C.) at paragraph 44.

[68] Where the injury caused by the Defendant is indivisible from the injuries arising from other causes the Defendant is responsible for the whole of the Plaintiff’s loss: E.D.G. v. Hammer 2003 SCC 52 (CanLII), Ashcroft v. Dhaliwal 2008 BCCA 352, Bradley v. Groves 2010 BCCA 361 (CanLII).

[69] Mr. Peso had a condition known as adolescent disc disease. The natural history of this condition would have caused Mr. Peso episodic back pain but little in the way of disability. But for the collision, Mr. Peso would not have undergone surgery and would not have been left with a back permanently vulnerable to flare ups, deterioration, and further surgery. Thus the injuries sustained in the collision are indivisible from those that existed before the collision. Dr. Street opines that the collision significantly aggravated Mr. Peso’s condition and made it permanently worse. Dr. Werry agrees with this characterization of causation in his report dated February 14, 2008 and he affirmed this at trial. Accordingly I am satisfied the Defendant is responsible for the whole of Mr. Peso’s loss.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A., LL.B.

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