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Car Accident Held Responsible For Early Onset Arthritis

Posted on by Goodman Law

In the recent case of Dulay v. Lachance, the Plaintiff was injured in a car accident which resulted in chronic knee pain and dysfunction.

The Plaintiff’s clinical records revealed that the he had pre-existing arthritis in his injured knee, although the arthritis was asymptomatic prior to the accident. Despite this, ICBC argued that the collision was coincidental to the onset of symptoms, and that the Plaintiff’s knee problems were in fact inevitable.

Madam Justice Maisonville rejected this defense as follows:

[96] The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident…

[106] There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident…

In awarding $75,000 in pain and suffering, the Court was particularly sensitive to how such an injury affects the precious years of a retiree:

[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:

“The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age…”

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