Court of Appeal Reiterates Appropriate test For Causation
FARRANT V. LAKTIN, 2011 BCCA 336 (“FARRANT”), an August 2, 2011 judgment of Neilson J.A., underscores how causation is not an “either/or” proposition. The trial judge in FARRANT held that the Plaintiff’s pre-existing spinal degeneration was the cause of his ongoing pain, and that the whiplash he suffered in the accident at issue resolved within four months. These conclusions led the trial judge to award damages of $20,000; the Plaintiff appealed.
The Court of Appeal in FARRANT found that the trial judge had erred by analyzing causation on an either/or basis. Specifically, Neilson J.A. held that two facts in particular demonstrated that “the trial judge considered only whether the accident was the sole cause of the disabling pain, and failed to turn his mind to whether there was a substantial connection between that pain and the accident” (at para. 49).
Neilson J.A. described these two important facts as follows (at paras. 50-51):
THE FIRST WAS THE CONSENSUS OF THE MEDICAL WITNESSES THAT THE PLAINTIFF’S SPINAL DEGENERATION MADE HIM MORE VULNERABLE TO THE INJURIES HE SUSTAINED IN THE ACCIDENT. THIS DEMONSTRATED SOME INTER-RELATIONSHIP BETWEEN THE TWO POTENTIAL CAUSES OF THE DISABLING PAIN, AND SHOULD HAVE LED THE JUDGE TO CONSIDER WHETHER THE ACCIDENT WAS A TRIGGER THAT ACCELERATED AND AGGRAVATED THE SPINAL DEGENERATION, CAUSING THE DISABLING PAIN TO DEVELOP EARLIER THAN IT WOULD HAVE WITHOUT THE ACCIDENT. IN SHORT, WERE THE WHIPLASH AND SPINAL DEGENERATION BOTH A NECESSARY CAUSE OF A SINGLE AND INDIVISIBLE DISABILITY?
THE SECOND WAS THE TRIAL JUDGE’S FINDING THAT THE PLAINTIFF’S CONDITION AFTER THE ACCIDENT NEVER RESOLVED TO ITS PRE-ACCIDENT STATE. THIS ESTABLISHED THAT THE INJURY FROM THE ACCIDENT CONTINUED TO CONTRIBUTE TO THE PLAINTIFF’S BACK PAIN TO SOME DEGREE AT THE TIME OF TRIAL. THE TRIAL JUDGE WAS THEREFORE OBLIGED TO ASSESS THE EXTENT OF ITS CONTRIBUTION, AND DETERMINE IF IT WAS SUBSTANTIALLY CONNECTED TO THE DISABLING PAIN BEYOND THE DE MINIMUS RANGE. IF SO, THE CRUMBLING SKULL DOCTRINE WOULD COME INTO PLAY, REQUIRING AN ASSESSMENT OF WHAT THE PLAINTIFF’S CONDITION WOULD HAVE BEEN HAD THE ACCIDENT NOT OCCURRED.
The Plaintiff only had to establish a “substantial connection” between the whiplash suffered in the car accident and the ongoing pain; he did not have to prove that the whiplash was the ONLY cause of the ongoing pain.
Neilson J.A. concluded her judgment by listing some factors that the trial judge was obliged to consider in order to determine whether there was in fact the requisite “substantial connection” between the injuries the Plaintiff suffered in the accident and his ongoing condition. These factors included which of the Plaintiff’s injuries were present from the date of the accident to the date of the trial and the “crumbling skull doctrine”, which requires “an assessment of what the plaintiff’s condition would have been had the accident not occurred” (at para. 51).
While the trial judge found that the spinal degeneration and whiplash were fully divisible injuries, Neilson J.A.’s analysis in FARRANT revealed that there was in fact enough evidence of a “substantial connection” between the accident and the Plaintiff’s ongoing symptoms for a new trial to be ordered.
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