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.

$131,250 Non Pecuniary Assessment for Chronic TMJ Injury

October 2nd, 2015

Reasons for judgement were released today assessing damages for a severe jaw injury sustained in a vehicle collision.

In today’s case (Williams v. Gallagher) the Plaintiff, who was 20 at the time, was involved in a 2010 vehicle collision caused by the Defendant.  The Plaintiff suffered a variety of injuries the most serious of which was an injury to the temporomandibular (TM) joints in his jaw.  This required surgical intervention which did not cure his pain and the Plaintiff  was expected to have chronic lingering problems.  In assessing non-pecuniary damages at just over $130,000 after factoring in some contingencies Madam Justice Warren provided the following reasons:

80]     For the past five years, Mr. Williams has suffered from very severe, debilitating pain. The ongoing neck, back and shoulder pain is significant but the jaw pain is excruciating. He testified that he wakes up in pain every morning. He takes 10 to 12 Percocet each day which reduces the pain but does not eliminate it. The Percocet leaves him feeling foggy and impairs his ability to focus. If he does not take the Percocet, the pain is unbearable. He has attended at the emergency department of the hospital on several occasions because he cannot bear its intensity. He testified that he feels trapped in his jaw pain and it controls his life.

[181]     Dr. Courtemanche explained that facial pain is qualitatively different from pain in other parts of the body. As he put it, people think of themselves as living in their heads. A person may be able to distance or dissociate themselves from pain in an extremity, such as foot, but may find it impossible to do the same with pain in the head or face. Also, unlike an injured knee or hip, it is almost impossible for a patient not to use an injured jaw, which is engaged each time the patient speaks or eats. Dr. Courtemanche explained that injured TM joints often result in severe muscle spasm, which he has observed repeatedly when examining Mr. Williams, and this prevents the joint from finding any comfortable rest place.

[182]     Mr. Williams has undergone extensive, invasive, painful orthodontic treatment including two surgeries. In addition to the neck, back and shoulder pain, which alone is significant, and the excruciating jaw pain, he now suffers from significant psychological conditions that are debilitating.

[183]     Mr. Williams testified that as each jaw treatment failed, he became more anxious and his feelings of hopelessness increased. He has spent his savings on living expenses and medical treatments. He is overwhelmed by worry about his inability to work. On several occasions when his testimony turned to his future, he broke down in sobs.

[184]     Dr. Courtemanche agreed, at trial, that the surgery he is now recommending is rarely indicated but, in the circumstances of this case, he continues to be of the view that it is worth trying. However, he said that, at best, the surgery will temporarily alleviate the pain, that Mr. Williams will likely continue to suffer TMJ pain for the rest of his life, and that his TMJ disorder cannot be cured. He also said that, eventually, Mr. Williams will probably require a TM joint replacement, which is likely to last 15 years, after which the replacement would have to be repeated.

[185]     Mr. Williams testified that the prospect of living with no hope of pain relief causes him such despair that he wishes to end his life. He said he hides the severity of his symptoms from his mother because he does not want her to know that her son would rather die than live with the pain.

[186]     Mr. Williams’ symptoms have very significantly affected all aspects of his life. He can no longer play soccer. He has no interest in going to movies or sporting events. He is restricted in what he can eat. His personality has been affected. He has become isolated and socially withdrawn. He now spends most of his time alone at home or going for drives. He does still go out with friends for meals or drinks, as often as once a week, but sometimes he does not socialize at all for several weeks in a row. Mr. Webber and Mr. Kreklewetz testified that sometimes they go to Mr. Williams’ house and force him to go out.

[187]     The injuries Mr. Williams suffered have prevented him from working. He has suffered financial consequences as a result which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. He has had to live with the likelihood that his injuries will preclude him from working in any physical job, which has caused him to despair about his future. Given his limited academic success to date, and now limited functionality, he fears that his options for more sedentary work are few even if he manages to develop strategies for dealing with the pain. It is apparent that this reality has weighed very heavily on him, and is a significant contributing cause of his psychological conditions.

[188]     Mr. Williams has been transformed from a happy, social young man with an optimistic future, who was focussed on his work and was well on his way to achieving his life goals, into an anxious, fearful and isolated young man who is barely managing to get through each day and who is tormented by virtually constant, intense pain.

[189]     I accept the evidence of Dr. Adrian, Dr. Courtemanche and Dr. Smith concerning Mr. Williams’ prognosis. Mr. Williams’ neck, back and shoulder injuries are most likely permanent. The TMJ disorder cannot be cured. Even if Mr. Williams undergoes the surgery recommended by Dr. Courtemanche, the best case scenario is that he will experience some temporary alleviation of the pain. He faces the prospect of more than one jaw replacement surgery in his lifetime and the prospect of many years of ongoing pain and compromised lifestyle. Even if the pain improves, it is unlikely he will experience a full remission of the depressive and anxiety symptoms and he will remain vulnerable to developing those kinds of symptoms in times of stress…

[203]     On balance, I think an appropriate assessment, for non-pecuniary damages is $175,000, less:

·       a reduction of 10%, or $17,500, to account for the contingency that Mr. Williams would have undergone the orthodontic treatment in any event and, as a result, would have suffered some pain associated with the treatment itself;

·       10%, or $17,500, to account for the contingency that if he underwent the orthodontic treatment, it would have triggered chronic TMJ disorder in any event; and

·       5%, or $8,750, to account for the contingency that if he underwent the orthodontic treatment and if that treatment triggered the chronic TMJ disorder, the resulting pain and disability would have in turn triggered the psychological conditions.

After accounting for those contingencies I award non-pecuniary damages to Mr. Williams of $131,250. To be clear, this award reflects the positive contingency that Mr. Williams’ functionality and quality of life may improve, even if his pain does not, if he follows the recommendations of his physicians.

BC Supreme Court – Nothing Negligent About Kids Playing “Grounders”

October 1st, 2015

Reasons for judgement were released today by the BC Supreme Court, Victoria Registy, addressing whether a variation of tag called ‘grounders’ played by kids at school was negligent.  In short the Court held it was not.

In today’s case (Thompson v. Corporation of the District of Saanich) the Plaintiff was playing a game called ‘grounders’ with other kids aged 8-11 at a middle school day camp during recess when she fell fell from a piece of playground equipment and struck her head.  She sued for damages arguing the school was negligent in allowing kids to play this game.  The court dismissed the claim finding this was nothing more than an unfortunate accident.  In reaching this conclusion Mr. Justice Baird provided the following reasons:

4]             The program assistant who was supervising the playground at the material time knew that the plaintiff and her young peers were playing grounders and did not stop them. Indeed, the evidence suggests that he may well have participated in the game for a time. He deposed in evidence that he had played and enjoyed the game himself as a child and considered it to be perfectly harmless. He described the rules as follows:

Grounders is a version of tag in which one child is “it” and the other children climb on to the playground structure. The child who is “it” attempts to “tag” the children on the playground structure from the ground. The children on the structure move around to avoid being tagged. If the child who is “it” decides to climb on to the playground structure they have to close their eyes. The other children on the playground structure never close their eyes and this gives them a significant advantage. If the child who is “it” opens their eyes while on the playground structure the other children yell “broken dishes, broken dishes.” If a child that was not “it” climbed off the playground structure the child who was “it” could yell “grounders” and then the other child who was on the ground would become “it”.

[19]         The evidence submitted on this hearing establishes, and my own experiences both as a child and a parent confirm, that grounders and games like it involving pursuit and evasion are commonly played by children, who enjoy them — as did the plaintiff, whose evidence on this point was clear — because they are exciting and fun. I am prepared to take notice of the fact that, in the overwhelming majority of cases, no mischief comes to anyone from such innocent pleasures.

[20]         Specifically, I find that there is nothing inherently dangerous about grounders such that special training or instruction is required to play it or to superintend children of the plaintiff’s age and experience who choose to do so. I must reject the argument advanced by the plaintiff that it was the sort of activity that required parental consent or approval in advance. There is no doubt that games like grounders involve a small degree of risk, as do all children’s outdoor activities involving running, jumping, climbing, tagging, chasing, dodging, feinting, and so on. But judging the matter by the objective measure of the reasonably careful and prudent parent, I conclude that the risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.

[21]         The evidence satisfies me, furthermore, that the plaintiff and her peers were adequately supervised during their play time. I repeat that the District’s duty to the plaintiff did not include the removal of every possible danger that might arise while she was in the care of its employees, but was only to protect her from unreasonable risk of harm. A supervisor was close at hand minding the children throughout the recess. There was nothing to suggest that he was doing so other than diligently and conscientiously. He was standing on the playground equipment near to the plaintiff at a vantage that gave him a good view of the game and the state of play. There was no evidence that any of the children were behaving recklessly or aggressively or that there was anything unpleasant, malevolent or hazardous about their manner of interaction. The plaintiff was not pushed or touched. She said quite simply that she was moving backwards away from the child who was “it” and lost her footing.

[22]         I sympathise strongly with the plaintiff and her family. What little I was told about the consequences of this accident suggested that the plaintiff’s injuries were not trivial. But I am afraid that the consequences of the plaintiff’s misadventure cannot transform the District into a no-fault insurer, and perfection is not the standard of care to be discharged by its employees when minding school-aged children.

A Drunken Push Leads to Over $500,000 in Consequences

October 1st, 2015

In a stark example of the profound consequences that can come from a modest confrontation, damages of $553,000 were ordered to be paid after an intoxicated groom to be pushed a man that was teasing him.

In today’s case (Robinson v. Bud’s Bar Inc) the Defendant, a groom to be who was “exotically dressed and wearing a ball and chain” following a bachelor party, was approached by the Plaintiff and teased about his upcoming marriage.  Both parties were intoxicated.  The Defendant responded by pushing the plaintiff who fell down, struck his head on the ground, and suffered a permanent brain injury.

The Court assessed damages at $790,000 but then reduced these by 30% for the Plaintiff’s contributory negligence and provocation.  In reaching this split of fault Mr. Justice Sigurdson provided the following reasons:

[140]     I find on the evidence that both men were intoxicated. I find that the plaintiff came up to the defendant Leelund Turner and teased him and persisted to do so despite being told to leave and being asked by his friend or friends to get going. I do not conclude that the defendant Leelund Turner held the plaintiff before pushing him as counsel suggested. I find the plaintiff had a reasonable opportunity to extricate himself from the situation. The plaintiff could easily have walked away but the plaintiff persisted to tease Leelund Turner. The push was sudden and careless but it followed the Leelund Turner’s plea to Mr. Robinson to leave him alone.

[141]     I find that in these particular circumstances the defendant Leelund Turner has satisfied me that the plaintiff was both contributorily negligent and provoked the negligent push. In these particular circumstances the concepts overlap to a degree. While I recognize that alcohol consumption is not itself negligence, here I find that the plaintiff was intoxicated to the extent that he persisted to be rude to the defendant Leelund Turner in close quarters despite being told to back away by Leelund Turner and being told by his friend that he should leave. I find that for Mr. Robinson to persist as he did to tease the defendant Leelund Turner at close quarters, he was partly at fault for the injury.

[142]     I think that the conduct of the plaintiff also amounted to provocation. While the plaintiff’s counsel says that the conduct does not meet the definition of provocation, I think in the circumstances of this case that it can easily be inferred from the evidence that the persistence of the plaintiff at close quarters that was rude and aggressive caused the defendant Leelund Turner to momentarily lose his power of self control and push the plaintiff abruptly, forcibly and carelessly away, resulting in the fall.

[143]     While I do not find that the defendant Leelund Turner has proven that had Mr. Robinson not been intoxicated, the drastic results of the fall would have been avoided, I think that Mr. Robinson must bear some responsibility because of his fault in approaching the defendant Leelund Turner and persistently teasing him at close quarters.

[144]     Accordingly although I find the defendant Leelund Turner liable, I find that both contributory negligence and provocation have been proven by the defendant Leelund Turner and that the damages incurred by the plaintiff as a result of the defendant’s negligence must be reduced by 30%.

$70,000 Non-Pecuniary Assessement For Largely Recovered but “Vulnerable” Soft Tissue Injuries

September 28th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a collision.

In today’s case (Boysen-Barstow v. ICBC) the Plaintiff was injured in a 2011 collision caused by an unidentified motorist. ICBC accepted statutory fault for the collision.  The Plaintiff sustained various soft tissue injuries which enjoyed significant recovery but remained susceptible to aggravation.  In assessing non-pecuniary damages at $70,000 Mr. Justice Williams provided the following reasons:

25]         My conclusion is that the plaintiff sustained moderate soft tissue injuries in the accident, causing her neck and back pain and headaches. The headaches resolved within a few months, and the other physical discomfort gradually resolved to the point that, by taking appropriate care, Ms. Barstow was substantially pain free by the end of 2013. I accept that she has a certain vulnerability to back discomfort with prolonged sitting and that requires some management; that is a condition which has not fully resolved, although it is certainly not characterizable as an acute disability. It is a relatively minor artefact of the accident requiring some accommodation.

[26]         It follows that I am not fully able to accept the opinion of Dr. le Nobel as an accurate view of Ms. Barstow’s condition and prognosis. With respect, it simply does not accord with the substantial body of evidence that is before me.

[27]         As for the psychological aspect of the effects of the accident, the phobia experienced while travelling in a motor vehicle, both as a passenger and a driver, I accept that was, certainly initially, a problem that caused serious difficulties for the plaintiff. It contributed to her difficulties in carrying out her duties at work when she returned and was, I am sure, a factor in her decision to end that employment. However, I am also satisfied that by the time of trial, that has substantially resolved and whatever lingering unease she may have in an automobile is of a quite minor magnitude.

[28]         I accept the evidence of the plaintiff and Mr. Barstow that the plaintiff’s disposition and temperament was adversely affected to an extent by the accident, though that has diminished over time. I also acknowledge that the plaintiff’s marriage was, during that time, made more difficult as a result.

[29]         In terms of determining the appropriate quantum of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life, the role of the court is to arrive at a sum which is fair to both the plaintiff and the defendant, and which provides a full and proper one-time compensation for all of the effects that have been caused by the defendants’ negligence—effects past, present, and future…

[35]         In my respectful view, when the circumstances are considered in their totality, together with the cases relied upon, the quantum of the award sought by the plaintiff is excessive. I find that an appropriate award for pain, suffering, and loss of enjoyment of life is $70,000.

BC Court of Appeal Addresses Threshold in Proving Psychological Injury Claim

September 23rd, 2015

Reasons for judgement were released today by the BC Court of Appeal confirming the threshold that has to be met to successfully prove a psychological injury claim.

In today’s case (Saadati v. Moorhead) the Plaintiff was involved in a collisions and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  THe BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.

In reaching this finding the BC Court of Appeal provided the following reasons:

[28]        I do not accept Mr. Saadati’s argument that the above quoted passage brought about a change in the law.  I agree with the decision in Healy, wherein Mr. Justice Sharpe, writing for a five-member panel of the Court of Appeal for Ontario, held that Mustapha did not remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition:  paras. 39-63.  As discussed in that decision, this requirement is also the law in the United Kingdom, Australia, and New Zealand.  I also agree with the reasoning on this point in the judgment of Mr. Justice Joyce in Kotai:  paras. 64-69.

[29]        In the alternative, Mr. Saadati submits there was medical evidence at trial to support a finding he suffers from a recognizable psychiatric condition.  In that regard, he states in para. 67 of his factum:

[T]here was clearly expert evidence before the court.  While that evidence may have had limited weight due to the inadmissibility of evidence relied on by Dr. Mok, it was still before the court.  It is submitted that even under the strictest version of the test proposed, Mr. Justice Funt was permitted to find compensable psychological harm.

Dr. Hiram Mok is a psychiatrist who prepared an expert report tendered by Mr. Saadati.  That report was based on an evaluation of Mr. Saadati which took place in the summer of 2010, more than a year after the fifth accident.

[30]        The difficulty with this argument is that the trial judge, who had before him both Dr. Mok’s report and his viva voce testimony, was not satisfied Mr. Saadati had proven he suffers from a recognized medical condition.  Given, as Mr. Saadati concedes, Mr. Mok’s evidence was of “limited weight”, it is not for this Court to make a finding based on that evidence that the trial judge was not prepared to make.

[31]        In the further alternative, Mr. Saadati submits, based on para. 41 of Odhavji Estates, that even if he did not prove he suffers from a “recognizable … psychopathological harm”, he is nonetheless entitled to damages on the basis that he proved he suffers from a “visible and provable illness”.  He says that “illness” was visible to his family and friends and that a medical diagnosis is not required.  I disagree.

[32]        In my view, it is apparent from how those expressions are used in the cases cited in para. 41 of Odhavji Estates—Guay v. Sun Publishing Company, [1953] 2 S.C.R. 216 at 238, and Frame v. Smith, [1987] 2 S.C.R. 99 at 127-129—that both connote a medically recognized condition that affects a person’s health or well-being.  Absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness.

[33]        For the above reasons, I am of the view Mr. Saadati did not prove an entitlement to compensation arising out of the second accident.

Passengers Operating Vehicles are “Users” Covered By ICBC Insurance Scheme

September 23rd, 2015

Important reasons for judgement were released today by the BC Court of Appeal addressing the scope of ICBC insurance coverage when a collision is caused by a passenger intervening in the use and operation of a vehicle.

In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.

The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  The matter proceeded to trial and damages of over $800,000 were assessed.  The Defendant motorist was insured with ICBC at the time.  ICBC refused to pay arguing they had no responsibility to cover the damages.

The trial judge sided with ICBC and found no coverage existed in these circumstances.  The BC Court of Appeal overturned this judgement finding the trial judge erred.  In finding ICBC liable to cover the damages the Court provided the following reasons:

[46]        The word “use” is to be considered in the context of the legislative scheme to provide “access to compensation for those who suffer losses” as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above. The word has been given a broad meaning in other judicial authorities. Considering all of these factors, as noted in Rizzo Shoes, I can only conclude that the word “use” in s. 63(b) includes use by a passenger in a motor vehicle when it is used as a motor vehicle.

ii)        In the context of the facts of this case, is there some nexus or causal relationship between Ms. Felix’s injuries and the use of her vehicle by Mr. Hearne?

[47]        The Court in Vytlingam addressed the issues of causation at para. 25, and said:

For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.

[48]        I would adopt the analysis and rephrase it in this context, as, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made.”

[49]        In Amos, the Court said, at para. 26, “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.”  See also Westmount (City) v. Rossy, 2012 SCC 30 at para. 42.

[50]        While a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix’s injuries. It matters not for these purposes that he did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was “using” the vehicle. As a result, Ms. Felix suffered injury. There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries. I would not disagree with the trial judge on this point.

Hospital Found Liable For Brain Injury Following Patient Suicide Attempt

September 22nd, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a hospital liable for a profound and permanent brain injury a patient suffered during a suicide attempt by hanging while in the care of the Defendant.

In today’s case (Paur v. Providence Health Care) the Plaintiff “suffered a brain injury when he attempted suicide by hanging in a bathroom at St. Paul’s Hospital“. He was there certified under the mental health act following having suicidal thoughts.  In finding the hospital was negligent in their care of the Plaintiff and finding them liable for his damages Madam Justice Griffin provided the following reasons:

[6]             I have conclude that SPH was negligent because, in summary:

a)    as part of its patient mix, SPH had a large number of suicidal, intoxicated patients treated in the ER who were certified and held involuntarily, many of them held in the Comox Unit;

b)    SPH knew or ought to have known of the real risk that a suicidal, intoxicated certified patient might attempt suicide by hanging in the hospital;

c)     SPH knew or ought to have known that the bathroom in the Comox Unit was unsafe for such a patient as the bathroom had not been made ligature-proof;

d)    SPH knew or ought to have known that the risk to a patient who attempts hanging is a very grave risk, as serious irreversible brain damage can be done to the patient quickly, within the range of five minutes, and the hanging can be fatal beyond ten minutes; and

e)    SPH had no policies or protocols for nursing staff in place to ensure that such patients were not permitted to be unmonitored in an unsafe locked bathroom for a period of time approaching five minutes or more.

[7]             This is not a case where, in the exercise of clinical judgment as to the degree of suicide risk Mr. Paur presented, medical professionals made a decision to allow Mr. Paur the freedom to be unmonitored for a period of time in an environment in which he might attempt hanging. Because he was intoxicated, Mr. Paur’s level of suicide risk had yet to be assessed beyond the fact that he was a suicide risk.

[8]             Nor is it a case where, after weighing the known risks, costs and benefits, SPH made a decision as to how to deal with the risk of suicidal patients attempting suicide by hanging in the bathroom in the Comox Unit, either by designing the bathroom a certain way or by instituting nursing policies to deal with the risk. Rather, this is a case where SPH ought to have known there was a significant risk to suicidal patients posed by the bathroom in the Comox Unit and by the lack of protective policies concerning bathroom use, but did nothing about this risk.

[9]             Mr. Paur was left unmonitored in the bathroom for a long enough period to be able to wrap a hospital gown around his neck, open up the ceiling tiles, tie the gown around fixtures in the ceiling, and hang himself to the point of unconsciousness, causing brain damage.

[10]         It would have been relatively simple and not too costly for SPH to design the bathroom facilities safely to prevent the risk of suicide by hanging; or, alternatively, to establish policies to mitigate the risk of a suicidal patient being left alone in the bathroom unmonitored for a sufficiently long period of time as to cause serious harm from hanging.

ICBC Punished 25% for Unproven Fraud Allegation

September 21st, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that unproven allegations of fraud can be used as a factor to minimize a successful party’s costs entitlement after beating a formal offer.

In today’s case (Gupta v. Doe) the Plaintiff was involved in three separate collisions and sued for damages.   At trial the Plaintiff was awarded just over $43,000.  Priro to trial ICBC made several formal offers, the first at $90,000 and the last at $164,000.  Having beaten their formal offer by a considerable margin ICBC asked for post offer costs.

The Court agreed that ICBC was entitled to post offer costs and would have awarded these fully but did not due to ICBC’s unproven allegations of fraud with respect to one of the collisions.  In reducing ICBC’s costs award Mr. Justice Jenkins reasoned as follows –

[27]         One additional factor which I consider to be appropriate for consideration was the allegation of fraud on the part of the defence in the defence of the 2009 accident. The circumstances of that accident which involved a hit and run driver were included in the testimony of the plaintiff and no explanation was provided by the defence to support this most serious of allegations which subsequently was abandoned by the defence.

[28]         In these circumstances, it is appropriate that the plaintiff be awarded costs of the action for damages arising from the 2009 action. Such allegations should never be made without serious consideration by the accuser of the ability to be able to prove the allegations. In this case, it would appear as though the allegations could never have been substantiated and as a result, it is a factor in favour of the plaintiff in considering costs. The problem that follows is how to reflect this conduct on the part of ICBC in the award of costs.

[29]         I have come to the conclusion that this factor, i.e. the unproven and abandoned allegation of fraud and the third factor enumerated under Rule 9-1(6), i.e. the relative financial circumstances of the parties should be reflected in the award of costs with a 25% reduction in any amount of costs otherwise payable to the defendants.

[30]         Accordingly, the plaintiff is entitled to her full costs on Scale B in all three actions to August 14, 2014.

[31]         Considering the options available to a judge under R. 9-1(5), the factors which may be considered under R. 9-1(6) and all other factors where an offer has been made, I award 75% of one set of costs on Scale B to the defence in respect of all steps taken after delivery of the offer of settlement of August 14, 2014 as contemplated under R. 9-1(5)(d).

Worsening Prognosis Insufficient To Allow Late Defence Medical Exam

September 15th, 2015

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding that a Plaintiff’s failure to recover from injuries is not enough for a Defendant to secure a late defence medical exam.

In today’s case (Dzumhur v. Davoody) the Plaintiff was injured in a a collision and sued for damages.  In the course of the lawsuit the Plaintiff served an expert report opining that the Plaintiff ought to recover provided the injuries are responsive to recommended treatments.  The Defendant did not obtain a defence medical report and as the deadline approached for exchanging expert evidence the Plaintiff served an updated report suggesting the Plaintiff’s prognosis was poor.  The Defendant argued they ought to be entitled to a late exam in these circumstances but the Court disagreed noting the defence should have been alive to this possibility earlier.  In dismissing the requested late exam Master Muir provided the following reasons:

[13]         Further, I am not satisfied that the defendants can properly say they shall have been truly taken by surprise by the medical condition of the plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in careful terms that said in essence: provided the plaintiff responds to the treatments prescribed, he should fully recover. Well, that is the very nub of the matter: will he or will he not respond to the treatments? Did he or did he not respond to the treatments? Obviously Dr. Caillier’s second report indicates that he did not

[14]         The defendant then had an opportunity to discover the plaintiff in May of this year, two weeks before the plaintiff saw his doctor. At the discovery, I am advised it was evident that the plaintiff was still playing soccer, but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]         There is no basis that I can see on the evidence for the assertion that the second report of Dr. Caillier took them or should have taken them, perhaps more to the point, completely by surprise. The possibility existed that the treatments would not be successful. The defendant must be seen to have chosen to accept that risk without obtaining an IME before the 84-day deadline.

[16]         One of the important factors in these cases, as noted in Timar at para. 21, is whether the party can claim to be truly surprised by the condition of the plaintiff. Here it is my view that that is not the case. There is nothing that satisfies me that Dr. Bishop cannot do a responsive report to the report of Dr. Caillier without a complete IME of the plaintiff. As a result, the application is dismissed.

$20,000 Non-Pecuniary Assessment For Modest and Lingering Soft Tissue Injuries

September 14th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries sustained in a collision.

In today’s case (Hall-Smith v. Yamelst) the Plaintiff was involved in a so called ‘low velocity’ collision in 2009.  Fault was admitted by the offending motorist.  The Plaintiff alleged she sustained fairly serious injuries from the collision with detrimental consequences.  The Court had issues with the Plaintiff’s credibility but did accept the collision caused some level of lingering injures.  In assessing non-pecuniary damages at $20,000 Madam Justice Dillon provided the following reasons:

[50]         The plaintiff lacked credibility about the nature of her injuries. The physical complaints were out of proportion to the severity of the accident. While this court appreciates that not all plaintiffs respond the same way to a minor incident and that a minor accident does not in itself define injury, this plaintiff’s response was so unrealistic as to affect credibility. The plaintiff was vague or could not remember when asked about post-accident activities in cross-examination and her answers were contrary to other witnesses. The documentary evidence that the plaintiff completed herself in April and May 2009 belied the suggestion that she was still considerably disabled from injury sustained in the accident or that she was suffering back and knee pain. ICBC and Turning Point documents completed by the plaintiff mentioned only pain in her neck. She misled Mr. Nordin by attributing her relapse back into drugs shortly after the accident as due to taking prescribed medication, by implying that her UBC employment was permanent and that she left due to increased back pain, and by telling him that she left the licensed practical nurse programme due to back pain and financial difficulty.

[51]         The preponderance of medical opinion does not find that knee or groin pain was caused by the accident. The plaintiff’s fiancé was unaware of any knee pain.

[52]         It is accepted that the plaintiff suffered soft tissue injury to her neck and mid back as a result of the accident. Dr. O’Connor also said initially that she suffered exacerbation of a pre-existing degeneration of the spine that caused low back pain that had not existed prior to the accident. However, the doctor changed this view when faced with the suggestion of no complaint of back pain until the plaintiff saw Dr. Harjee in October 2009 and the plaintiff’s failure to report back pain in important documentation in April and May 2009. In these circumstances that were brought to Dr. O’Connor’s attention, he concluded that the farther the low back pain complaint was from the accident, the less likely that it had been caused by the accident. But, the plaintiff had reported back pain in her first visit to the doctor immediately after the accident. In this circumstance, Dr. O’Connor’s initial opinion still prevails and it is accepted that the plaintiff suffered exacerbation of her pre-existing degenerative condition as a result of the accident and began to have pain in her lower back that did not exist prior to the accident. In any event, the injury to the plaintiff’s neck and back had largely resolved by the time that the plaintiff saw Dr. O’Connor in December 2011. At that time, any residual pain was as a result of the exacerbation of the pre-existing degenerative disc condition and heightened pain from chronic anxiety unrelated to the accident. The plaintiff would have suffered back pain at an early age eventually in any event of the accident. In all of the circumstances, it cannot be concluded that all of the plaintiff’s present symptoms are as a result of the accident. The prognosis of Dr. O’Connor is accepted, however, so that at least a small part of her ongoing back and related pain is attributable to the accident and there is no prospect for resolution with time.

[53]         Despite her injuries, the plaintiff was able to enter and succeed in a rehabilitation programme for the first time within two months of the accident. She felt sufficiently secure in her physical wellbeing to engage in dodgeball and other activities. She was able to work at a shoe store where she maintained part time employment for the first time. She completed a nine month medical office assistant programme that was rigorous in time demands. She was able to get work as a medical office assistant but did not keep the work for reasons that were not related to injury from the accident. She eventually found employment suited to her and has successfully worked full time since June 2014. Given the plaintiff’s pre-accident background and her dependence upon social assistance due to chronic anxiety, she has done quite well since the accident despite injury. The plaintiff has managed despite the injuries. From all of this, the nature of the injuries suffered in the accident, and the existence of other non-accident related physical ailments, it is concluded that the injuries suffered in the accident were relatively minor and did not prevent the plaintiff from establishing herself away from a troubled past…

[55]         It is important to remember that non-pecuniary damages are awarded to compensate an individual for the pain, suffering and loss of enjoyment of life and loss of amenities caused by the accident and that the compensation awarded should be fair and reasonable to both parties (Miller v. Lawlor, 2012 BCSC 387 at para. 109 (Miller)). The fact that this was a low velocity collision does not rule out injury (Dao v. Vance, 2008 BCSC 1092 at para. 19; Naidu v. Gill, 2012 BCSC 1461 at paras. 33-34). The inexhaustive list of factors to be taken into account in the assessment of non-pecuniary damages is well established as listed in Miller at para. 105 and Buttar v. Brennan, 2012 BCSC 531 at para. 35. These factors have been considered in coming to the conclusion here.

[56]         The plaintiff had substantially recovered from the effects of the accident by December 2011 when she first saw Dr. O’Connor, except for aggravation of the pre-existing degenerative disc disease. The impact of the accident upon the life of the plaintiff was not significant. She was able to recover to the extent that only her neck pain was worthy of her comment by the spring of 2009. She was able to rehabilitate and educate herself for the first time. She was able to start serious work and eventually get and maintain full time employment that she never had before. She started and has maintained a stable family life. As in Sevinski v. Vance, 2011 BCSC 892 at para. 84, it not possible to determine here the extent of the plaintiff’s participation in sports and other activities prior to the accident based upon her evidence and prior lifestyle. There is no evidence of prior regular participation that was hindered by the accident.

[57]         The plaintiff is awarded $20,000 for her non-pecuniary damages.