How does a pre-existing injury affect my claim?

  • The person who hit you is liable only for the injuries that he caused you
  • You will be fully compensated for your injuries, even if they are more serious than expected due to your pre-accident injury.
  • Any pre-existing injuries that are not affecting your day to day functioning will not affect your award

Often, ICBC will argue that a claimant has a pre-existing problem and therefore damages should be reduced.

We represented Mr. Lutz who was a 38 year old paving equipment operator.  He was in good health but had suffered a foot injury in his teens and many serious skiing injuries before his car accident.  However, he was not having any ongoing functional problems from these injuries.  A vehicle drove onto and parked on his previously fractured foot.  At trial, he continued to experience tenderness and numbness in his foot, and intermittent lower back pain. He took painkillers, used orthotics, and went to his chiropractor regularly.  He missed no time from work but reduced his usual leisure activities. ICBC argued that his complaints stemmed from his childhood injury and a workplace injury.  The Judge decided that our client had suffered a permanent partial disability that might require surgery. His boyhood injury had left him vulnerable to injury. There was nothing to suggest that his current foot symptoms would have occurred but for the accident.  Mr. Lutz was awarded $45,000 for pain and suffering and $6,670 to cover the costs of future orthotics and treatment.

In Morgan v. Galbraith, our client Mr. Morgan had a bad back before the collision, and had back surgery.  Even after surgery his back flared up occasionally, requiring therapy and time off work.  After the collision his back pain became constant.  The trial judge accepted that the accident was the cause of the constant pain.  The pre-accident back condition made him more vulnerable to injury.  If the accident has not occurred, he probably would have continued to have episodic pain, but it was not inevitable that he would have had constant pain.  No deduction was made from the $100,000 award for the pre-accident back pain.

In Bouchard v. Brown Brothers, Mr. Bouchard had been diagnosed with early degenerative disc disease before the collision.  However, he had no back pain for a year and a half before the collision.  The trial judge accepted that even without the collision there was a measureable risk that he would have serious back problems one day.  The trial judge reduced his damages by 40% to account for this risk.

The Court of Appeal decided that a 40% reduction was too much.  All the evidence indicated that if the collision had never occurred Mr. Bouchard’s back would have gradually, not suddenly, deteriorated.  A 20% reduction was substituted.  No reduction was made on the past income award or out of pocket expense award, as Mr. Bouchard’s back would not have deteriorated before trial if the accident had not happened.

We can help you determine what your claim is worth.  Contact us.

Read the cases:  Lutz v. Lim

                           Morgan v. Galbraith

                           Bouchard v. Brown Bros. Motor Lease Canada Ltd.

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