Newspaper Article January 2007
MILTON
JURY AWARDS OAKVILLE MAN ONE OF LARGEST DAMAGE
AWARDS IN CANADA
FOR CHRONIC BACK PAIN CAUSED BY CAR ACCIDENT.
On the evening of January 20th 1998, George Tulloch was the
seatbelted rear-seat passenger of a car driven by his employer, Ruby.
The two were on their way home after dropping off a fellow co-worker, when the
car they were travelling in was t-boned at an intersection by another car that
failed to stop at a red light. Ruby did
not sustain serious injuries in the accident, however George, who was 62 at the
time of the accident and employed full time at Ruby’s dry cleaning business in Oakville, suffered a permanent
serious impairment to his lower back.
George brought a lawsuit against the at-fault driver to recover damages
for the injuries he sustained and was awarded $125,000.00 by a Milton
jury, plus loss of income and legal costs.
In the past few years, chronic pain has become the
frequent subject of litigation, both in personal injury and workers'
compensation claims.
On October 3, 2003, the Supreme Court of Canada
opened it's doors to chronic pain litigation with its unanimous decision, Nova Scotia (Workers' Compensation Board) v. Martin in
which the Court held that the Nova Scotia Workers'
Compensation Act and Regulations limiting benefits for chronic pain
infringes the equality rights protected by the Canadian Charter of Rights
and Freedoms . In that case, Supreme Court Justice Gonthier
noted that Chronic pain syndrome and related medical conditions have emerged in
recent years as one of the most difficult problems. There is no authoritative definition of
chronic pain. It is, however, generally considered to be pain that persists
beyond the normal healing time for the underlying injury or is disproportionate
to such injury, and whose existence is not supported by objective findings at
the site of the injury under current medical techniques. Despite this lack of
objective findings, there is no doubt that chronic pain patients are suffering
and in distress, and that the disability they experience is real. Despite this
reality, since chronic pain sufferers are impaired by a condition that cannot always
be supported by objective findings, they have been subjected to persistent
suspicions of malingering on the part of employers, compensation officials and
even physicians.
George's lawyers, Chris
Haber and Matt Lalande
from the law firm of Haber an Associates
in Burlington,
argued that prior to the accident, George was a healthy, active and employed 62
year old man with no reported pre-existing injuries. Since the accident, and despite years of
attempted rehabilitation, George was left with chronic low back pain with major
limitations such simple movements including walking, bending, sitting,
standing, twisting and lifting. Haber
argued that George's injuries prevented him from working to retirement as he
intended and that the chronic back pain would afflict him for the rest of his
senior years, which to most, should be considered the golden years of life and not
“the suffering years.”
Unfortunately, our Courts have had a tendency to
downgrade soft-tissue chronic pain injuries as if they weren’t really all that
serious. Injured persons disabled by
"invisible" impairments such as chronic pain and chronic fatigue are
often thought of a malingerers who tend amplify their symptoms because of the
absence of “objective” physical findings.
This school of thought often makes chronic pain difficult to prove and
presents a serious challenge for Plaintiff lawyers.
Although $125,000.00 is a very high award for
chronic low back pain in Canada,
it is not nearly enough compensation for life-long pain. Haber notes that “chronic pain injuries
caused by a traumatic event such as a car accident, can be just as crippling
and devastating for the victim as other major physical or mental injuries can
be. It all depends, of course, on the
plaintiff's life circumstances, including age, general health, employment and
lifestyle. In this case, George is a
senior citizen who was robbed of his golden years and is forced to live rest of
his days using a walker because he is debilitated by chronic low back pain
caused by the car accident. It is time
that our courts started realizing that chronic pain injuries can bee lifelong
and permanent and fortunately for George, his jury recognized the permanency of
his injuries and the constant pain he is in.
They also recognized a serious loss of income."
With
offices in both Burlington
and Milton,
Haber and Associates specializes in personal injury with an emphasis on serious
motor vehicle accident cases.
Christopher Haber or Matt Lalande
can be reached directly at 905-639-8894 or by visiting www.haber-lawyer.com.