Plaintiff awarded $100,000 for Pain and Suffering in Complicated Case

Posted by Stevenson Whelton MacDonald & Swan
February 21, 2019

In the vast majority of personal injury cases, a settlement can be negotiated between the injured person and the defendants without the need for a trial.  However, when negligence or the amount of loss are contested by the defendant, the two parties may not be able to agree on a settlement or outcome for the case and a trial may be necessary.  This situation is particularly likely to occur in a complex claim where there are multiple causal factors that may have contributed to the plaintiff’s injuries, making it difficult to separate and assess the impact of the various causes.

Trial judge determines the cause of the plaintiff’s injuries in Akeelah v. Clow

A lawsuit, Akeelah v. Clow, arose after a man was injured in a rear-end collision. At the time of the 2018 trial, the plaintiff’s injuries, and his pain and suffering, prevented him from being able to work in the foreseeable future and he was expected to require a substantial amount of rehabilitation treatments and care in order to return to a somewhat normal life.  However, the car accident caused by the defendants was not the only event that potentially impacted the plaintiff’s current medical condition – the plaintiff was also involved in a second car accident a few months after the first, and he suffered a stroke 23 months after the first accident which he alleged was caused by the first accident.

The defendants in the case accepted the plaintiff’s evidence for his reduced level of health and quality of life, however, they disputed the seriousness of his injuries and disbelieved that his chronic inability to work resulted from the car accident which the defendant caused.  Rather, the defendants argued that the original accident resulted only in minor soft-tissue injuries and pain, as well as minor cognitive impairments and a temporary inability to work.  The defendants further argued that the stroke was not related to the car accident and there was no evidence to prove that the stroke and a worsening of the plaintiff’s condition would not have happened ‘but for’ the accident. 

The disagreement regarding the actual cause of the plaintiff’s poor medical condition was the key issue to be decided in a trial.  And, this decision would directly impact the appropriate amount of damages owed to the plaintiff, which was another issue of contention between the opposing parties.

In the days and weeks after the original accident, which occurred on November 18, 2013, the plaintiff went to the hospital as well as medical clinics, where he initially reported feeling extreme and broadly-based pain, headaches, nausea, neck pain and dizziness.  He was diagnosed as suffering from muscle spasms and possibly a concussion, and doctors prescribed pain medication and Naproxen.  X-rays indicated no fractures or joint abnormalities in his spine.

Medical evidence was given at the trial indicating that, in the months after the accident, the plaintiff complained of numbness, headaches, back pain and nausea. He also told doctors that his neck pain and lower back pain were slowly improving, and in January, he told his physiotherapist that he now had a normal range of motion in his spine.  At about this time, the plaintiff returned to work on a modified work plan and with shorter hours.

At the trial, the plaintiff stated that he didn’t remember ever telling his doctors and therapists that his pain and mobility were improving.  Rather, he said that his health had been on a decline when he was involved in a second car accident on February 3, 2014. The second accident was a low speed rear-end collision, for which plaintiff was deemed ‘at fault’.

The plaintiff gave evidence at trial that he suffered no injuries or additional pain due to the second accident; however, this statement was contradicted by several medical reports.  One report indicated that the plaintiff sought treatment for severe back pain and radiating pain in his lower and upper limbs only after the second accident occurred.  And, at this time, his chiropractor wrote a report stating that his symptoms prevented him from being able to work, allowing him to seek long-term disability benefits from his insurer.  Another medical report showed that the plaintiff told a caseworker at a Hamilton Acquired Brain Injury Clinic that his dizziness, headaches and pain symptoms increased after the second accident.

On several other occasions beginning March 2014, the plaintiff was treated by physicians and at a pain clinic, and the medical records indicated that he stated his condition and pain had improved significantly. And, video surveillance of the plaintiff in November 2014 showed that he was physically active and had no observable signs of disability.  Then, in January 2015, the plaintiff advised his doctor that, although he still had neck pain and upper back pain, his lower back pain had improved and he wished to return to work.

In mid-October 2015, the plaintiff experienced a stroke and was unable to speak for a few weeks afterwards.  The medical evidence confirmed that his physical condition and cognitive capabilities significantly deteriorated after the stroke.

The plaintiff’s evidence at trial contrasted with several of the medical reports that were produced between the first accident and his stroke (although none of the plaintiff’s treating practitioners gave evidence at trial).  For example, the plaintiff gave evidence at trial that he was using a walker or cane before his stroke. However, in the weeks before his stroke he told his occupational therapist that he was able to walk independently and go up and down stairs without a cane or physical assistance. And in September, he reported to his LTD assessor that he could now do many household chores, including cleaning, mowing the lawn and grocery shopping.

There was no question that, after the stroke, the plaintiff suffered from serious debilitating symptoms, which he claims were ultimately caused by the first accident.  His symptoms included:

  • Severe pain down the right side of his neck, shoulder and side
  • Significant head pain
  • Lower back and leg pain
  • Constant numbness in both arms
  • Cognitive disfunction, including difficulty focusing, making decisions and controlling his emotions
  • Depression and suicidal thoughts
  • Loss of strength
  • Being bed-ridden due to ongoing pain
  • Requiring several pain medications and reduced bowel movement
  • Rarely attending his place of worship

In order to find the defendants liable for the plaintiff’s damages caused by his stroke, the plaintiff was required to prove, on a balance of probabilities, that the stroke was caused by the plaintiff’s negligence and would not have occurred without the original car accident.

After assessing the medical evidence given by several physicians, the trial judge concluded that the plaintiff failed to prove that his stroke resulted from the car accident caused by the defendants.  For the losses arising out of the original car accident, the judge awarded the plaintiff the following damages: $100,000 for pain and suffering, $43,965 for future healthcare costs including rehabilitation treatments, and $6749 for past income loss.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.