Legal Resource:

Can a disc herniation be asymptomatic for some period of time (specifically: several years after an accident) and still be causally related to an accident?  Find out by reading our ARTICLE.

This key issue in this case is causation.  Is the Plaintiff’s herniated disc that was asymptomatic for several years after the accidents, causally related to two motor vehicle accidents the Plaintiff was involved in. 

The defence’s position was that the herniated disc was not related. They took the position that the Plaintiff’s disability was due to an addiction to opioids and the back pain was myofascial pain.

The Court disagreed.  The case is referenced as Knight v Zenone, 2022 BCSC 99 (CanLII).  This case was appealed and we will note the appeal decision in this article.

On the topic of damages, the Plaintiff referenced two cases involving multiple accidents and similar injuries that led to an impact on daily life:

[134]   Two cases advanced by the plaintiff are particularly noteworthy. In Moges v. Sanderson, 2020 BCSC 1511, the court considered a male plaintiff involved in three motor vehicle accidents, the first of which was most severe and the subsequent accidents causing a number of significant aggravations. At trial, the plaintiff had low back, shoulder, knee, ankle, neck pain and migraine headaches. This had developed into chronic pain, had led to moderately severe major depressive disorder and an anxiety disorder. The injuries significantly restricted his physical activities, such that he was only able to go for short walks and was only able to drive for a short period of time. Like the plaintiff in this case, the plaintiff in Moges was hard-working and studious. He was very active in soccer, as well as hiking and biking. He had a future plan to enhance his employment opportunity in the area of engineering. As a result of the accident, his future was bleak and he was essentially competitively unemployable.

[135]   The court awarded non-pecuniary damages in the amount of $200,000.

[136]   In Ranahan v. Oceguera, 2019 BSCS 228, the court found a 45-year-old female plaintiff who sustained a mild traumatic brain injury, soft tissue injuries, back and neck pain, as well as cognitive disturbances that affected both her sleep and her memory. Six years after the accident she continued to have frequent headaches, tightness in her upper back and neck pain, as well as ongoing mood symptoms, including irritability. Like the plaintiff in this case, Ms. Ranahan was physically active prior to the accident in that she hiked the Grouse Grind, participated in family activities of cross-country skiing and biking and, though she did not apparently work, she was involved in various extracurricular activities such as mentoring, teaching and volunteering. She was, however, still able to involve herself in some of these activities though not as completely as she did prior to the accident. This is a significant difference from the plaintiff in the present case.

[137]   In Ranahan, the court ordered non-pecuniary damages of $160,000.

Supreme Court Conclusion on causation:

[138]   The injuries suffered by this plaintiff in these accidents has had a profound effect on her life. I find that it will continue to have a profound effect on her life. She is a relatively young woman. Prior to the accident, she balanced a burgeoning career, educational pursuits designed to enhance her career options, and a busy personal life involving the care of a young daughter as a single parent, while still finding time to regularly exercise through attendance at the gym and through the playing of soccer.

[139]   Post-accident, she can barely function. She has a long life ahead of her which will involve dealing with pain and the effects of the accidents on her physical condition. She is significantly deconditioned from her former position as a healthy, active young woman and the prospects for improvement are perhaps hopeful, but limited.

[140]   In all the circumstances, I find the position advanced by plaintiff’s counsel to be a reasonable one and I award non-pecuniary damages to this plaintiff in the amount of $200,000.

APPEAL:

The Appeal decision is referenced as:  Zenone v. Knight, 2024 BCCA 200 (CanLII)

The Court of Appeal stated that a “common sense inference of causation” approach was acceptable, and did not alter the lower Court decision.  However, there was partial success on the cost of future care award.

The respondent was awarded damages for injuries she sustained in two motor vehicle accidents for which the appellants admitted liability. The trial judge found that the respondent’s entire medical condition at the time of trial, including a disc herniation that occurred several years later, was causally related to the motor vehicle accidents. The appellants say the judge erred in finding that the respondent’s disc herniation was caused by the motor vehicle accidents and in assessing damages for loss of future earning capacity and cost of future care.

Held: Appeal allowed in part. The award for cost of future care is remitted to the trial judge to specify which items have been allowed and in what amount. The balance of the appeal is dismissed. The judge did not shift the burden of proof onto the appellants to disprove that the accidents caused Ms. K’s disc herniation. The judge’s conclusion that the disc herniation was causally related to accidents was based on the weight of the evidence and it was open to him to draw a common-sense inference of causation. The judge did not err by failing to apply the test for loss of future earning capacity, or by basing the award on speculative future events.

Accepted Facts from expert:

“a disc herniation may be asymptomatic, and opined that it was possible the motor vehicle accidents had made Ms. K more susceptible to such an injury:

Q & A with Orthopedic Surgeon:

Q:        [A disc herniation] can be completely asymptomatic?

A:         Completely asymptomatic.

Q:        For instance, if the herniation at the time isn’t putting pressure on any nerve, you would very likely be asymptomatic?

A:         It can be.

Q:        And would you agree with me that symptoms can vary greatly with people that have suffered or have had a disk herniation?

A:         Yes.

Q:        And would you agree with me then that an asymptomatic disk herniation can be brought about by normal activity and normal movements and not necessarily a huge inciting event? What I mean by that is someone lifting a huge amount or a very heavy amount and it kind of spontaneously happening that way?

A:         Yes, it can.

Q:        And would you agree that Ms. Knight being involved in these two motor vehicle accidents, that that made her more susceptible to this disk herniation taking place at a later date?

A:         I can’t give an answer. I don’t know the answer to that.

Q:        But it’s possible?

A:         It’s possible.

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