How have defence counsel in a personal injury action been advised to take walks as part of their rehabilitation from soft tissue injuries?

Defence counsel relied on the decision of Macdonald J. in Timmins v. Dean, [1997] B.C.J. No. 1500 (S.C.), a case in which the plaintiff suffered soft tissue injuries to her neck and shoulders, a minimal compression fracture of one of her vertebrae and dizziness, after a motor vehicle accident caused by the defendant’s negligence. She was advised to take walks as part of her therapy. She was on one of her walks when she fell and fractured her kneecap. She alleged that the fall occurred when a sudden and severe headache, attributable to the injuries she had suffered in the accident, caused her to lose her balance and fall. However, Macdonald J. rejected her contention that the fall resulted from her injuries, finding instead that she had simply slipped and fallen while walking. He said (at ¶7): The fact that the plaintiff was walking on that day at the urging of her doctor and her physiotherapist as part of her rehabilitation from the soft tissue injuries which she suffered to her neck and shoulder areas some five months earlier, is not sufficient to bring this case within the test in Athey v. Leonati. Here, the May 5, 1994 motor vehicle accident was merely one of the “myriad of other background events”. The plaintiff broke her kneecap because she slipped and fell. The defendants’ admitted negligence was neither a cause of the harm nor part of the cause.

In my view, this case is distinguishable from the facts of the case at bar. It is significant that Macdonald J. rejected the plaintiff’s evidence that a sudden headache, attributable to the accident, had caused her to fall. It was his rejection of this evidence, “the only evidence which link[ed] the October 15, 1994 fall to the injuries suffered in the May 5, 1994 accident”, that took the case out of the principle expressed in Athey v. Leonati (¶8). Presumably, Macdonald J. attributed the fall to the plaintiff’s own carelessness and, therefore, held that the defendant could not be held liable. There is no evidence in the case at bar that the plaintiff was careless in using the elliptical machine.