BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

$6 Million Damage Assessment After Teen Injured By Corroded Lamppost

July 21st, 2016

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for profound injuries after a plaintiff fell two stories after falling while swinging from a corroded lamp-post.

In this week’s case (Mackey v. British Columbia) the Court summarized the facts as follows

On March 31, 2007, when David Mackey was 17, he climbed onto a concrete baluster.  The baluster formed part of a railing along the perimeter of a pedestrian plaza at 812 Wharf Street, overlooking the waterfront, in Victoria.  On the baluster stood a lamp post.  It was about 6 feet tall.  David Mackey swung around the lamp post.  It was corroded to the core.  When David Mackey swung around it, the lamp post came loose.  It tottered, and he fell two storeys onto the concrete walkway below.  He suffered severe traumatic brain injury.

The Court found the injury caused profound disability and awarded damages assessing a lifetime of earnings and care totaling nearly $6 million.

The court reduced this amount by 65% to account for the Plaintiff’s contributory negligence.  In finding the Province 35% and the Plaintiff 65% for the incident Mr. Justice MacIntosh reasoned as follows:

[39]         From the evidence above, I reach the following conclusions.

[40]         The lamp post was severely corroded when David Mackey fell.  The lamp post had never been inspected or maintained to see that it was intact.  The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it.  Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.

[41]         But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened.  What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way.  Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below.  I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements, [2012] 2 S.C.R. 181:

[9]        The “but for” causation test must be applied in a robust common sense fashion.  There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  [Citations omitted.]

[10]      A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.  Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]

[42]         Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened…

[60]         When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall andPaquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident.  David Mackey was nearly 18.  He mounted a safe railing where there was a dangerous drop below.  He had probably also heard Ms. Arner’s warning to Ryan Ramsay.  On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job.  The lamp post, on top of the railing, was its own accident waiting to happen.  As noted earlier, it could have been pushed over by a force of only 12.5 pounds.

$50,000 Non-Pecuniary Assessment for “Lingering” Soft Tissue Injury

July 19th, 2016

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court,  Vancouver Registry, valuing a claim dealing with a ‘lingering‘ neck and shoulder soft tissue injury.

In today’s case (Lal v. Le) the Plaintiff was involved in a 2011 rear-end collision that the Defendant accepted blame for.  The Plaintiff suffered various soft tissue injuries the most serious of which involved his neck and shoulder and symptoms lingered to the time of trial.  Some long term symptoms were anticipated.  In assessing non-pecuniary damages at $50,000 Madam Justice Adair provided the following reasons:

[102]     Accordingly, I find that, as a result of the accident, Mr. Lal sustained soft tissue injuries to his neck, back, chest, elbow, leg and shin areas.  He also sustained ulnar nerve irritation symptoms, and experienced headaches as a result of his injuries.  Most of these injuries resolved over a few months.  However, the most serious injuries, a moderate soft tissue injury to his neck, and a moderate muscular strain in his right middle and lower back, did not.  As of April 2014, there continued to be objective signs of injury.  I find that, by April 2014, Mr. Lal had improved to the point that he was pain-free at times, although, with heavier and awkward work, he experienced symptoms in his neck and back, and also occasional headaches.  I find that these symptoms resulted from the injuries he suffered in the accident.  By October 2015, Mr. Lal’s mid-back injury had resolved.  However, I find that, as of trial, Mr. Lal continued to experience symptoms as a result of the injuries suffered in the accident, particularly symptoms in his neck.  He is likely to have some lingering neck and shoulder pain long-term, although the prognosis is more favourable that his back pain will fully resolve over the next year.

[103]     I find further that, as a result of the injuries Mr. Lal suffered in the accident, there is a risk that he will be unable long-term to work as a boilermaker, although he should be able to work full-time as an armored car driver.  In addition, I find that, as a result of the injuries suffered in the accident, Mr. Lal will be at increased risk of a work-related neck or back injury.  Given the physical nature of his employment, this is a real risk…

[110]     Considering Mr. Lal’s age and the other factors described above, and the cases cited to me, I conclude that an appropriate award for non-pecuniary damages is $50,000.

$50,000 Non-Pecuniary Assessment for “Persistent” Soft Tissue Injuries

July 6th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for ‘persistent’ soft tissue injuries.

In today’s case (Smith v. Evashkevich) the Plaintiff was involved in a 2010 rear end collision that the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries to his neck and shoulder which persisted at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $50,000 Mr. Justice Steeves provide the following reasons:

[74]         Considering the expert evidence summarized above with the evidence at trial, I conclude that the plaintiff continues to have complaints of pain and stiffness in his neck, shoulders and back as a result of the June 2010 accident. This is supported by medical findings of tenderness on palpation. The plaintiff, his family and close friends also describe the plaintiff’s discomfort with his neck and shoulders.

[75]         These have always been soft-tissue symptoms, albeit persistent ones. The plaintiff was prescribed with a muscle relaxant on July 5, 2010 for the accident injuries. After that he has used over the counter medication.

[84]         In summary the plaintiff continues to suffer from soft tissue injuries in the neck, shoulder and back that can be causally related to the 2010 accident. While there are flare-ups he manages the symptoms well and he does not miss work as a result of them. He does not golf or snowboard like he did before the accident and he is more withdrawn in his relationships. There is some general anxiety as a result of the chronic nature of the plaintiff’s symptoms but anything more is related to his feeling of being overwhelmed at work.

[85]         In these circumstances I conclude an award of $50,000 for non-pecuniary damages is appropriate.

Disputed Injury Diagnosis – Six of One, Half a Dozen of the Other…

June 30th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making the common sense finding that the debate over diagnosis is not nearly as important in a personal injury lawsuit as whether symptoms are tied to the indicent in question.

In today’s case (Tan v. Mintzler) the Plaintiff was injured in a 2012 collision and experienced chronic cognitive symptoms.  At trial a debate arose about whether the symptoms were due to a head injury from the collision or secondary to chronic pain.  The Court found the Plaintiff did indeed suffer a head injury however noted the debate was largely insignificant as whatever the diagnosis the symptoms were linked to the trauma of the collision.  In basically saying ‘six of one, half a dozen of the other’ Mr. Justice Groves provided the following reasons:

[54]         For the plaintiff, Drs. Weiss, Cameron, and Kaushansky gave evidence that they believed Ms. Tan had suffered an MTBI.  Dr. Weiss recommended Ms. Tan be referred to a neurologist to confirm her suspicion, a recommendation that was followed with her visit to Dr. Cameron.

[55]         One of the most significant factors in diagnosing the MTBI was Ms. Tan’s evidence that she has no recall of the Accident after hearing the initial sound of the impact.  The next thing she remembers is the policeman, Cst. Upshall, knocking on her car window.  It was also Ms. Tan’s evidence that she has a spotty memory of the events which transpired after she returned home from the hospital that day.  It was also relevant to the MTBI diagnosis that Ms. Tan was diagnosed as having a concussion at the hospital the day after the Accident and by Dr. Fong for several months after the Accident.  The doctors also relied on an MRI brain scan which showed an abnormality in the plaintiff’s left parietal lobe which Dr. Cameron testified “probably occurred” at the time of the Accident.

[56]         As I have said, Dr. Dost strongly disagreed with the MTBI diagnosis and with the methodology of the other three doctors.

[57]         The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with.  The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.

In going on to assess non-pecuniary damages at $210,000 the Court provided the following reasons:

[73]         Ms. Tan is 56 years of age.  I have found that she suffered an MTBI during the accident and that she suffers from depression, anxiety, and mild PTSD.  She has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  I have also found that Ms. Tan suffers from chronic pain on her left hand side and in her face and jaw.  The prognoses for Ms. Tan’s physical and psychological conditions were generally guarded or poor with the exception of the pain in her face and jaw, which may lessen with treatment.  I do note that several experts indicated that Ms. Tan may see some improvement with psychological treatment.

[74]         I also accept that the plaintiff’s personal and intimate relationships have been affected.  She now socializes very little and her relationship with her husband has deteriorated as a result of the injuries caused by the accident.  She is fearful of travel by car and has not driven since the accident.

[75]         Finally, I accept that the plaintiff’s ability to maintain her home, including her ability to cook, garden, and do laundry, has been impaired as a result of the accident.  She has and will continue to suffer some loss of housekeeping capacity.  However, Ms. Tan continues to be able to do some light housekeeping and has been able to manage the family home while her husband has been away for extended periods with only minimal assistance from her daughter.  I have therefore chosen to address this head of loss as part of the plaintiff’s non-pecuniary damages, rather than as a separate claim; Johal v. Radek, 2016 BCSC 454 at paras. 59-60….

[89]         Having regard to the findings I made and the authorities reviewed, I consider that an award of $210,000 properly compensates Ms. Tan for her non-pecuniary losses.  This award also includes and recognizes that Ms. Tan has and will continue to suffer some diminution in her housekeeping capacity.

No Forced “Consent” When Attending Court Ordered Medical Examination

June 28th, 2016

Although there are conflicting authorities on the subject in British Columbia, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding it is not appropriate for a Court to order a Plaintiff to sign a ‘consent’ form when attending a court ordered independent medical exam.

In today’s case (Gill v. Wal-Mart Canada Corporation) the Plaintiff sued the Defendant for personal injuries after a slip and fall incident.  In the course of the lawsuit the Plaintiff agreed to be examined by a physician of the Defendant’s choosing but refused to sign a ‘consent’ form the physician required.  The Defendant asked the Court to order the Plaintiff to sign the consent form but the application was dismissed.  In finding judicially ordered ‘consent’ to be inappropriate Master Harper provided the following reasons:

[31]         In my view, because an order compelling an IME is discretionary, I am not bound by Kalaora or Nikolic to order that the plaintiff sign the consent form. I prefer to follow the reasoning of Peel. In addition, although Dr. Travlos and the College have a legitimate interest in ensuring that a person attending for an IME is properly informed about all aspects of the IME, there are alternative methods to compelled consent to convey the information. I conclude that the plaintiff in this case should not be compelled to sign the consent form required by Dr. Travlos.

[32]         Even if I were of the view that Ms. Gill should be compelled to sign a reasonable consent form, Dr. Travlos’s consent form contains clauses that are not reasonable.

i)       First, Ms. Gill should not be expected to have to agree in writing as to the definition of physiatrist: Slobodzian v. Mitchell and Hameiri (unreported, February 2, 2015, Courtenay Supreme Court Action S085376);

ii)     Second, the last paragraph of the consent form contains this statement: “I am signing this document voluntarily …”. Ms. Gill would not be signing the document voluntarily if compelled to do so by court order;

iii)    Third, the consent form says:

I hereby release Dr. Travlos, his employees and agents, from any and all claims whatsoever, which may arise as a result of the release of the above information.

The clause is difficult to interpret. Dr. Travlos might mean that he is released from liability for releasing the report to the referring source. Or, he might mean that he is released from liability for releasing the report to someone other than the referring source. In either case, a release of liability goes beyond the bounds of a reasonable consent form.

[33]         In Mund v. Braun, 2010 BCSC 1714, the IME doctor required the execution of a jurisdiction agreement. The plaintiff declined to sign it and the court declined to order the plaintiff to sign it on the basis that the court did not have jurisdiction to order the plaintiff to sign a jurisdiction agreement. The release of liability in Dr. Travlos’s consent form is in the same category and is therefore objectionable.

[34]         Both Dr. Travlos and the College have a legitimate interest in ensuring that persons attending IMEs understand the nature and purpose of the IME. Clarity is always better than confusion.

[35]         The options presented on this application were limited to the court ordering the consent form be signed, or not. In my view, there are other options. The desired outcome of a party attending an IME fully informed about the IME could be met if the court were asked to incorporate reasonable terms into the order granting the IME. Those terms would meet the reasonable and legitimate interests of the plaintiff, the defendant, the examining doctor and the College.

[36]         Of course, the terms would have to be acceptable to the doctor or the exercise is meaningless. A drawback to this option is the unnecessary increase in court applications. Both Dr. Travlos and the doctor in Kalaora said that most people seeing them for IMEs consent. It would not be proportionate to require all applications for IMEs to result in a court order.

[37]         The concerns about “improved communication by physicians” and “enhanced understanding by patients” expressed in the guideline could also be met by the doctor providing written information about the IME to the party in advance of the examination. This option would be simpler and less expensive than a court order incorporating the information the doctor seeks to convey to the person being examined.

[38]         An even better option might be for the College to amend its guideline to provide recommendations for physicians conducting IMEs that are court-ordered and not by consent. 

$80,000 Non-Pecuniary Assessment for Permanent, Partially Disabling Shoulder Injury

June 27th, 2016

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $80,000 for a permanent, partially disabling, shoulder injury.

In today’s case (Mocharski v. Ngo) the Plaintiff was involved in a 2011 collision that the Defendant motorist was found fully at fault for.  The Plaintiff suffered a left shoulder injury which, despite surgical intervention, remained problematic and resulted in a permanent partial disability.  In assessing non-pecuniary damages at $80,000 Mr. Justice Abrioux made the following findings:

[105]     When I apply the principles to which I have referred to the evidence in this case, I make the following findings of fact and reach certain conclusions. As a result of the Accident, the plaintiff sustained the following injuries:

(a) a left shoulder glenohumeral Iabral tear and acromioclavicular joint pain,

(b) left shoulder impingement syndrome,

(c) myofascial pain syndrome affecting the neck,

(d) cervicogenic headaches,

(e) myofascial pain syndrome affecting the back.

[106]     I also find that:

(a) the plaintiff sustained moderately severe soft tissue injuries in the Accident as well as an injury to the left shoulder that ultimately required surgical intervention;

(b) he is left with a permanent partial disability to his left shoulder and will continue to suffer from that condition;

(c) while the symptoms arising from the non-shoulder injuries have lessened considerably over time, the plaintiff was essentially totally incapacitated from a physical perspective for a period of approximately one year due to the injuries sustained in the Accident. These symptoms have and will continue to provide him with occasional discomfort in the future depending on the activities he performs…

[115]     Each case turns on its own facts. Taking into account the Stapley v. Hejslet factors, I award the plaintiff $80,000 under this head of damages.

$265,000 Non-Pecuniary Assessment for PTSD and Major Depressive Disorder

June 27th, 2016

In what is one of the highest non-pecuniary awards in Canadian history for psychiatric injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $265,000 for psychological injuries stemming from a collision.

In last week’s case (Hans v. Volvo Trucks North America Inc) the Plaintiff was operating a fully-loaded tractor trailer when, without warning, all electrical power failed and the vehicle started to jack-knife.  The trailer struck the cab of the truck and forced the vehicle off the road.

The Court found that the vehicle manufacturer was responsible for the collision because “Volvo was negligent in the installation of the hardware that was supplied by Norgren on the cab positive terminal of the Truck, and that the total loss of electrical power resulted from that negligent installation.

The Plaintiff, while not suffering significant physical injuries, sustained profound psychological consequences including PTSD and a major depressive disorder secondary to this.  In assessing non-pecuniary damages at $265,000 Mr. Justice Davies provided the following reasons:

[479]     Mr. Hans’ injuries were life altering in every respect.

[480]     The evidence of not only Mrs. Hans but also that of Mr. Hans’ daughter and his many friends who testified establishes that before the collision Mr. Hans was a gregarious, fun-loving, competitive, hard-working, ambitious and financially driven young man with boundless energy.

[481]     Although he had gained weight as a truck driver he was still a man with great strength and athletic ability resulting in a prodigious capacity for hard labour which he immensely enjoyed. His one-time employer Ron Collick described Mr. Hans as “a jolly giant”.

[482]     Mr. Hans lived a socially and emotionally rewarding life often centered on work but also often involving his family, his friends of many years and his love of travel which he shared with Mrs. Hans and their children both in North America and in India.

[483]     Mr. Hans shared a loving partnership with his wife as her husband, business partner, and as a father to their children.  He was a full participant with Mrs. Hans in all aspects of their children’s lives and in household responsibilities.

[484]     Mr. Hans was a proud man with a taste for good clothing who cared for his appearance. Socially he was often the center of attention – while dancing or even while playing with children.

[485]     Over the seven years since the collision all of that has changed drastically because of PTSD accompanied by Mr. Hans’ suffering from a Major Depressive Disorder that arose as a consequence of PTSD.

[486]     Mr. Hans is now emotionally and socially a shell of his former self.

[487]     His gregariousness has been replaced by isolation and withdrawal from contact with friends and family.

[488]     His love of fun has been replaced by depression, agitation and volatile bursts of anger. 

[489]     Competitiveness has been replaced by lethargy.

[490]     Ambition has turned to resentment and the blaming of those he believes have ruined his life.

[491]     Where he once ran and played sports he now walks aimlessly. Dr. Thinda reported that Mr. Hans has a slow gait due to psychomotor retardation or the effects of the medication he is prescribed for his psychiatric symptoms.

[492]     Mr. Hans’ capacity for and love of hard work have been replaced by indolence and despair.

[493]     He neglects his personal hygiene and cares little for his appearance. He is irritable and has significant problems with concentration and memory. He suffers from nightmares, sleeplessness and bad eating habits.

[494]     He has little interest in his children and must be coaxed to attend their activities. When he does, he is often uncomfortable, disinterested or both.

[495]     Mr. Hans is no longer active in the partnership that he and Mrs. Hans forged during the years of their marriage before the collision. He does not share in responsibility or workload but rather requires supervision and care.

[496]     He has attempted suicide three times each of which has seen him hospitalized for extended periods.

[497]     His life is now ruled by pharmaceutical intervention to attempt to overcome the symptoms of PTSD and Major Depression which dominate his existence. Without that medication his existence is further threatened.

[498]     Mr. Hans faces a future of continued pharmaceutical and psychiatric intervention as well as close supervision as his treating medical professionals, family and friends attempt to preclude the active manifestation of his suicidal ideation.

[499]     While it is a positive sign that Mr. Hans has not attempted suicide for more than 5 years since his last attempt, that must be measured against the medical intervention and supervision that has been necessary to attain that modest success.

[500]     Mr. Hans’ self-loathing and despair were starkly evidenced by his testimony at trial as well as by his anger and resentment at those whom he holds responsible for the loss of his capacity to care and provide for his family and enjoy life as he once did.

[501]     The totality of the medical evidence establishes that there is little prospect that Mr. Hans will ever recover socially, emotionally or mentally from the effects of the collision.

[502]     The prognosis for real progress after almost seven years of the debilitating effects of PTSD and Major Depressive Disorder from which Mr. Hans suffers is guarded at best and bleak at worst…

[528]     Considering that factor together with all of the other factors enumerated in Stapley to which I have alluded I have concluded that the appropriate award for Mr. Hans’ past and future pain and suffering and loss of enjoyment of life is $265,000.


$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

June 23rd, 2016

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.

In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.

In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.

Defendant Ordered to Pay $7,500 After “Body-Checking” Plaintiff During Debt Collection

June 23rd, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay a Plaintiff $5,000 in non-pecuniary damages and a further $2,500 in punitive damages following an assault during a debt collection.

In today’s case (Ross v. Dhillon) the Plaintiff attended the Defendant’s business to collect an outstanding business account with respect to some industrial equipment purchased by the Defendant.  The Defendant made partial payment and the Plaintiff,  unsatisfied with this, removed a part from the equipment.  As he attempted to leave the Defendant “body‑checked him into the door frame and held him against it for several seconds.”.

The Court found this incident caused a minor aggravation of pre-existing injuries the Plaintiff suffered in a collision.  In assessing damages at $7,500 Mr. Justice Smith provided the following reasons:

[20]         I therefore find that the plaintiff experienced a minor and short‑lived aggravation of his neck and back symptoms, accompanied by an equally minor and short‑lived condition that produced some numbness in his hand…

[23]         Considering the minor nature of the plaintiff’s injuries, including the brief aggravation of his previous symptoms and including a component for aggravated damages, I award the plaintiff non‑pecuniary damages of $5,000.

[24]         I also find this to be an appropriate case for punitive damages. The defendant’s conduct was willful, reckless and dangerous. While his conduct was at the low end of any scale that would measure violent conduct, no amount of violence was an acceptable response to this dispute about a relatively small debt.

[25]         In Van Hartevelt v. Grewal, 2012 BCSC 658, the court awarded $10,000 in punitive damages to a plaintiff who was beaten about the head and kicked in the ribs. The violence in this case was much less severe, and I award punitive damages of $2,500.

Adverse Inference Drawn For “Absence of Evidence From Any Treating Doctor”

June 23rd, 2016

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, drawing an adverse inference for a Plaintiff in a personal injury lawsuit who failed to lead evidence from any treating physician.

In this week’s case (Mohamud v. Yu) the Plaintiff was involved in two collisions and sued for damages.  The Defendants admitted fault for both crashes.  At trial the Plaintiff sought over $260,000 in damages.

The Plaintiff led expert evidence in support of her case but none of these witnesses were treating physicians.  Madam Justice Fisher rejected much of the Plaintiff’s claim awarding of $61,532.  Influential in this decisions was the absence of expert evidence from treating physicians.  In drawing an adverse inference Madam Justice Fisher reasoned as follows:

[33]        The plaintiff was a poor historian. Important parts of her evidence were inconsistent with statements she made (or did not make) to others, such as her family doctor and the experts who testified on her behalf. Some of these inconsistencies may be quite normal, but the extent of the inconsistencies here are of concern, particularly in the absence of any objective confirmatory evidence from a treating doctor or other medical professional. Most notably, the plaintiff’s family doctor, who saw her throughout these years, did not testify or provide an expert report. It is especially troubling that this is a doctor whom the plaintiff said was her long-time, trusted family physician.

[34]        In these circumstances, the defendants urge me to draw an adverse inference from the plaintiff’s failure to call evidence from her family doctor…

[39] The plaintiff’s explanation for her failure to call her family doctor was that she called the witnesses she considered the most necessary, she did not have the means to obtain “every possible medical report”, the family doctor is not always the best able to give an opinion “given the era of walk-in clinics and five minute appointments” and it was open to the defendant to call the doctor, especially since the clinical notes indicate that the doctor prepared a CL19 report. On this last matter, counsel for the defendants advised the court that he not aware of such a report and had never received a copy.

[40] I certainly accept that a plaintiff is entitled to call the witnesses she considers necessary but I do not agree that the family doctor in the circumstances here would not be the best able to give an opinion. While it does appear in the clinical records that the plaintiff saw other physicians from time to time, her primary care physician is the only person who could have given the court an opinion about the plaintiff’s condition, informed by a long standing relationship and observations throughout the relevant periods of time (following not only the two accidents but also the Skytrain fall). This takes on more importance in light of the plaintiff’s evidence that she would have described all of her symptoms and complaints to her doctor and that whatever was recorded in the clinical notes reflected what she told the doctor at the time. I do not consider the fact that the defendant could have called the doctor as a witness to adequately explain this plaintiff’s failure to do so.

[41] The circumstances here are very different from those in Buksh, where the absent witnesses were not long-standing family doctors and the issue arose in the context of a trial where all clinical records had been admitted into evidence and had been before the jury. They are, however, quite similar to the circumstances in Andrews v. Mainster, 2014 BCSC 541, where the plaintiff failed to call any health care professionals who treated her before or after the accident. In that case, the court drew an adverse inference.

[42] Accordingly, I consider it appropriate in these circumstances to draw an adverse inference from the plaintiff’s failure to call her family doctor to give evidence, at least as a treating physician if not also as an expert witness.