The Lawyers Weekly - January 14, 2011

Accident exacerbated
pre-existing conditions

Jury
Continued From Page 8

The plaintiff’s pre-existing medical history included fibromyalgia, headaches, low back pain, weight gain and neck pain. One of the issues at trial was whether the plaintiff had pre-existing arthritis which caused knee pain and the need for potential knee replacement surgery.

Justice Rady wrote, “The impact of
the plaintiff’s fibromyalgia and weight
gain upon her other injuries will
require a consideration of reasonably
complex medical science.” She con-
tinued, “The jury would be asked to
consider the challenging legal princi-
ples of a thin versus crumbling skull
plaintiff...If it
were found that
the plaintiff ’s knee
injury is unrelated
to the motor
vehicle accident,
the jury would be
asked to consider
the duration of
the plaintiff’s dis-
ability relating to
proposed knee
surgery and to
reduce damages
accordingly.”
Conflicting
medical engineer-
ing and biomech-
anical expert evi-
dence would also
be presented. Jus-
tice Rady wrote,
“There may be a
dispute about the
expertise of some
experts and the
admissibility of
their reports.”
For medical
reasons, Green
was not able to
testify. Justice
Rady felt concern
that the use of his
transcript would
be problematic for
the jury. His anticipated evidence, that
Edward Placzek braked suddenly,
would force plaintiff’s counsel to
defend him. The jury would likely find
this confusing.

The fact that defence had not undertaken to call its expert witnesses meant that plaintiff counsel would likely have to put the defence experts’ evidence to the plaintiff.

Because of these factors, Justice Rady concluded that the case was of sufficient complexity that it was in the interests of justice that the jury notice be struck.

In subsequent reasons (see Placzek
v. Green, [2010] O.J. No. 4382) Jus-
tice Rady concluded that the defend-
ant was liable for the accident and that
the speed he was travelling exceeded
the limits for tissue damage. As a
result of the accident, the plaintiff suf-
fered an acute cervical upper back
strain. However, the development of
the osteoarthritis in the plaintiff’s left
knee was not causally linked to the
accident, although her weight gain,
which was linked to the accident, had
an impact on her condition.

It is difficult to see how the facts in Placzek differ from those in most complex chronic pain cases decided by juries regularly.

Evelyn ten Cate is a partner at Foster, Townsend, Graham and Associates, LLP in London, Ont. She practises insurance defence and plaintiff personal injury law.

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