Businesswoman feeling pain in neck after sitting at the table with laptop. Submitted photo.

Hergott: When a crash causes further injury

Lawyer Paul Hergott covers how those with pre-existing neck or back condition face extra hurdles after a crash.

You have already learned to live with a chronic neck and back condition. Then an absent-minded driver makes it worse. Do you have a claim?

Of course you do. But it’s the toughest of claims.

Why do I say “of course?” Because this is a most basic of legal rights we have as British Columbians. If someone causes you harm, they are accountable to fairly compensate you for that harm.

It’s as basic as a loan transaction. If you lend money, the borrower is accountable to pay it back.

But in a motor vehicle collision you don’t choose to lend the money. Harms and losses are imposed on you.

And unlike a loan transaction, where the amount of the claim is crystal clear, the onus is on you to prove your harms and losses from a crash injury.

Those with a pre-existing neck or back condition face extra hurdles. The offending driver (through their liability insurance company ICBC) will say: “You had neck pain before the crash. You have neck pain now. Where is the loss?”

Fortunately, the law doesn’t work that way. But if you don’t understand how the law works, you’re likely to be taken advantage of.

Think about the moment of vehicle impact as being the start of two time lines.

One time line pretends the absent minded driver wasn’t motoring around with their head up their ass. It pretends they noticed your completely stopped vehicle, applied the brakes and came to a stop behind you. Let’s call that your “should have.”

The other is your new reality.

If your new reality is the same as your “should have,” then do a happy dance because that means you weren’t injured! Absent an injury, there’s no injury related harms and losses and therefore no claim.

But if your chronic neck and back pain starts worsening that evening, and you wake up the next morning in a jacked up world of hurt, brace yourself for a challenge.

The most important challenge is figuring out how to recover as quickly and fully as possible. Your best case scenario, after doing all that rehabilitation, is a return to whatever level of chronic neck and back pain you had gotten used to before the collision.

You’re likely to ignore the other challenge: proving the difference between your new reality and that “should have” time line.

A year and a half later, after undergoing all sorts of care and reaching a new plateau, you’re asked how you’re feeling. No big surprise: you have chronic neck and back pain! But is it different from what it would have been had the collision not occurred?

Read more: Hergott: The slippery surface on injury claims

Read more: Hergott: The problem with passing school buses

You’ve gotten used to a “new normal”. You know that your new normal is worse than it had been before. But how much worse?

You’re getting weekly headaches. How often were you getting headaches before the collision?

You wake up with pain and stiffness every morning at a 7 out of 10. What was the level before?

You knew to keep a journal of your symptoms, and diligently did that. You can look back at that journal to refresh your memory about how things had been after the collision.

But that’s not enough. You must also compare that new normal with how things had been before.

It’s even more important to journal your pre-collision condition. That journaling must be done as immediately as possible, while your memory of that pre-collision condition is as clear as it will ever be.

The more you wait, the more you get used to your new normal and forget how things had been before.

If you cannot describe the differences between your new normal and that pre-collision condition in a very detailed, clear and credible way, your chance at fair compensation for your harms and losses will swirl down the toilet bowl.

Please do keep a journal to help refresh your memory of the onset and progression of post-collision symptoms. But please also sit down as soon as possible to prepare a very detailed journal of how things had been in the lead up to the collision.

Early in the New Year, I plan to pick up from here to explain how medical specialists, and the courts, gaze into the crystal ball to establish your “should have” time line. You will see that it’s more complicated than just looking at your status immediately before the collision.

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