Quantum Assessment
Back - Causation _ PRACTICE - Trial - Mini-trial - Plaintiff,
38, blaming 1995 accident for thoracic disc protrusions discovered
in 1998 - Assessment of damages proceeding by way of mini-trial,
where court finding causation proven - Court further finding that
plaintiff's ongoing complaints of pain being largely treatable at
pain clinic - Court taking into account the potential seriousness
of the disc protrusions and the uncertainty of plaintiff's prognosis
in awarding $125,000 for non-pecuniary damages.
The plaintiff, now age 38, was injured in a motor vehicle accident
in April 1995. The key issue on an assessment of damages was whether
the accident was the cause of thoracic disc protrusions discovered
by way of MRI scan in March 1998. There were three such protrusions,
most notably at the 4-5 level, where there had been a 30% narrowing
of the spinal canal. The plaintiff had suffered myriad complaints
since the accident date, which she blamed on those protrusions.
The court's task was complicated by the fact that the plaintiff
had also been injured in an earlier accident, in September 1993.
The matter proceeded by way of a mini-trial. Held, judgment for
plaintiff for, inter alia, $125,000 in non-pecuniary damages and
$100,000 for loss of earning capacity. To proceed by way of mini-trial
is useful in a number of ways, particularly with respect to limiting
the costs and the time that has to be taken. However, there are
some limitations, which are inevitable in the process. Most of the
issues the court was being asked to decide in the present case were
dependent on the resolution of conflicting expert opinions, and,
of course, without viva voce evidence there was no chance to assess
and weigh the divergent opinions, or to have the experts explain
aspects of their reports. However, on the written material presented
and the submissions of counsel, the court would attempt to provide
some idea as to its findings, recognizing those limitations. The
September 1993 accident was a serious one which caused serious injuries,
but there was insufficient evidence to show that the plaintiff's
thoracic spine was injured in that accident. She had substantially
recovered from it when the second accident occurred, and her complaints
prior to the second were, in any event, very different from those
experienced since then. Further, there was insufficient evidence
to support any finding that her injuries arising from the 1995 accident
were due to some spontaneous or congenital cause. Accordingly there
was no basis upon which to reduce the award of damages by an apportionment.
As for the key issue, although the various medical opinions presented
a confusing picture, the conclusion to be drawn was that the thoracic
disc protrusions were due to the April 1995 accident. They were
somewhat symptomatic, and might become more so, although that was
by no means certain. Surgery was not presently recommended and it
had been pointed out that the protrusions could resolve spontaneously.
The situation was, however, potentially serious. Overall, the prognosis
was uncertain, although it was shown that a significant part of
the plaintiff's current pain was capable of being treated at a pain
clinic. Non-pecuniary damages would be assessed at $125,000. Past
income loss amounted to $2,500 and the award for loss of future
earning capacity would be assessed, arbitrarily, at $100,000. Future
care costs would be assessed at, inter alia, $25,000 for treatment
at a pain clinic.
Black v. Self, S.C., Neilson J.., Doc. Vancouver B971672, January
25, 2001 (oral), 45 pp. [CLE No. 01-21643] o I. Sisett, for plaintiff;
S.I. Oliver, for defendant.
[Go Back To The Cases]
|
