ICBC Law

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.

$45,000 Non-Pecuniary Assessment for “Persistent Episodes of Low Back Pain”

May 1st, 2016

Reasons for judgment were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a persistent low back injury.

In the recent case (Jones v. McLerie) the Plaintiff was involved in a 2011 rear-end collision that the Defendant admitted fault for.  The collision caused a low back soft tissue injury that persisted to the time of trial with symptoms flaring with heavier physical activity.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[37]         I find that Mr. Jones continues to be significantly affected by persistent episodes of low back pain triggered by heavier physical exertion. Mr. Jones struck me as a somewhat stoic individual, inclined to understate the impact of his condition. He is the sole breadwinner of his young family, and he seems determined not to let his symptoms substantially interfere with his life. That having been said there have been some restrictions imposed on his physical activities and his enjoyment of life has been negatively impacted, to a relatively minor though not insignificant extent, and his relationships with family members has been adversely affected….

[39]         Exercise – or the lack thereof – has been and will be a key component in his recovery. I am struck by Dr. Helper’s opinion that Mr. Jones has a “good probability of maintaining his low back symptoms at a mild degree of severity with a dedication to fitness…”. I am not, contrary to the submission of the defence, going to reduce Mr. Jones’ damages award for a failure to mitigate by reason of him not having undertaken a regular exercise program; the strains of coping with a young family and with changes in his employment have, in my view understandably, led to him not making exercise a priority. However Dr. Helper’s assessment has brought home how critical exercise will be. Mr. Jones, with a young family to care for her, would appear to be strongly motivated to dedicate himself to exercise recovery program that will, as Dr. Helper says, maintain his symptoms at a mild degree of severity.

[40]         There is, of course, a risk that he will not do so, but in that eventuality any worsening of his symptoms would, going forward, substantially arise from his own failure to mitigate, limiting the defendant’s responsibility…

[50]         I assessed his general damages in the amount of $45,000.


Defamatory Facebook Post Leads to $65,000 Damage Award

April 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay $65,000 in damages following a defamatory Facebook post.

In today’s case (Pritchard v. Van Nes) were neighbors who had “tensions” between them.   The Defendant published some troubling posts on Facebook that “in their natural meaning and by innuendo, bore the meaning that the plaintiff was a paedophile“.   The court found that these suggestions “were completely false and unjustified“.

The Plaintiff successfully sued the Defendant for defamation.  In awarding $50,000 in general damages and a further $15,000 in punitive damages Mr. Justice Saunders provided the following reasons:

[122]     The seriousness of Ms. Van Nes’ defamatory Facebook post, her replies, and the comments of her “friends” cannot be overstated. An accusation of paedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity. The identity of Mr. Pritchard is especially relevant in this case. Through his engagement in extra-curricular activities he occupies a position of trust as a music teacher for children. Through hard work and dedication to his students, he had earned the community’s respect and admiration, as clearly established on the evidence. I find that he now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point.

[123]     The vehicle through which Ms. Van Nes chose to publicize her defamatory accusations provided the court with further evidence of the damage to his reputation; that there were individual replies from 37 of Ms. Van Nes’ Facebook “friends” within less than 24 hours clearly documents the quick degradation of Mr. Pritchard’s estimation in the eyes of others..

[131]     I do not find that the claim of malice has been made out. Taken in its entirety, the evidence of the defendant’s actions – her self-centred, unneighbourly conduct; her failure to respond reasonably to the plaintiff’s various complaints, particularly regarding her dog; and her thoughtless Facebook posts – point just as much to narcissism as to animosity. Her belief that the decorative mirror hung on the exterior of the plaintiff’s house was some sort of surveillance device was simply ridiculous, speaking, to be blunt, more of stupidity than malice.

[132]     The defendant, as I see it, appears to have thoughtlessly taken to a social medium to give vent to her feelings, making reckless statements without any regard to the consequences. She certainly ought to have anticipated the potential impact of her remarks; whether she actually did so has not been proven.

[133]     The defendant’s subsequent actions bear none of the indicia of malice discussed at para. 191 of Hill: she removed the posts relatively quickly, probably when the gravity of the situation became apparent to her through the police presence at the plaintiff’s home; she did not seek to publicize the proceedings, giving rise to further dissemination of the defamation; she did not file a defence.

[134]     Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135]     I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, a punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publically denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.

[136]     I award the plaintiff additional punitive damages of $15,000.


“Legitimate Cause for Concern” When Defendant Offer Fails To Include Full Costs and Disbursements

April 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, depriving a Defendant of double costs that they otherwise would have been awarded where their formal settlement offers failed to include separate costs and disbursements.

In today’s case (Lanz v. Silver Lady Limousine Services Ltd.) the Plaintiff was involved in two separate collisions and sued for damages.  A jury dismissed both lawsuits.

Prior to trial ICBC provided a formal settlement offer of $50,000 and 50% of costs and disbursements.  This was later withdrawn and replaced with a settlement offer of $70,000 inclusive of costs and disbursements and finally one of $80,000’new money’.  The Plaintiff rejected all of these offers.

The Plaintiff conceded the Defendants were entitled to costs for being on the winning end of the lawsuit but argued no double costs should be awarded as the offers ought not to have reasonably been accepted.  In depriving the Defendant of double costs Madam Justice Sharma expressed concern about the Defendant’s reluctance to include full costs in their offers and noted as follows:

[22]         The defendants first offered $50,000 plus only 50% of costs; their last offer was $80,000 “new money” inclusive of costs and disbursements. In my view, there is a legitimate cause for concern when a defendant’s offer does not include costs and disbursements in a personal injury case where liability and damages are at issue. It could be seen as a tactic discouraging the plaintiff from gathering evidence to substantiate her claim in the first place. Plaintiffs carry the evidentiary burden to prove their case and they are obliged to bring forward expert medical evidence. In this case, the defendant’s offer was made more than a year after the plaintiff’s original offer, when presumably significant costs may already have been incurred with no indication from the defendants that settlement was a possibility.

[23]         In the context of this case, I do not find the defendants’ offers to be ones the plaintiff ought to have accepted because they did not include costs and disbursements as discrete items. I see nothing about this case that justifies penalizing the plaintiff for failing to correctly guess the jury would not accept her claims. I conclude that awarding double costs amount to imposing a heavy penalty on a plaintiff that was forced to endure the unpredictability of a jury trial. I find the day before trial, she had reasonable basis to pursue her case at trial. The defendants’ offers were devoid of discrete recognition of costs and, in my view, that was a disincentive to settle.

[24]         The defendants’ application for double costs is dismissed


$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

April 19th, 2016

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

In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011.  Fault was admitted on behalf of the rear driver.  The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police.  The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.

In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:

 

[119]     The plaintiff is 39 years old. 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.  This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

[132]     After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.


$45,000 Non-Pecuniary Assessment for Persistent but Not Disabling Soft Tissue Injuries

April 12th, 2016

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

In today’s case (Matharu v. Gill) the Plaintiff was involved in a collision which the Defendant was found liable for.  She suffered moderate soft tissue injuries to her neck and shoulder which persisted to the time of trial and were expected to linger for sometime after although the ultimate prognosis was generally favorable.  In assessing non-pecuniary damages at $45,000 Mr. Justice Butler provided the following reasons:

[30]         When I consider the medical opinions and the evidence regarding the nature and duration of Ms. Matharu’s symptoms, I arrive at the following conclusions:

a)       Ms. Matharu suffered a moderate soft tissue strain to her neck and shoulders. She also suffered a mild low back strain.

b)       Ms. Matharu’s pre-existing conditions have affected the length of time it has taken and will take for her to recover from the injuries. In particular, the inflammatory polyarthropathy made her more susceptible to persistent soft tissue pain. Her mild anxiety condition has also had some impact on the persistence of her symptoms.

c)       In spite of persistent pain for three years, Ms. Matharu has continued with most activities at home and at work. She has managed to do this with the assistance of family, friends and work colleagues. She can fairly be described as somewhat stoic.

d)       Ms. Matharu did not follow Dr. Sanghera’s recommendations to continue with physiotherapy and active rehabilitation for about 12 months. Similarly, prior to the accident, she did not take part in recommended regular exercise. Her failure to do so for a period of time after the accident has likely resulted in some prolongation of symptoms. However, it is unlikely her symptoms would have resolved by trial, even if she had continued with the recommended therapy.

f)        Ms. Matharu continues to experience symptoms related to the injuries suffered in the accident. The symptoms will continue to resolve and there is a good chance they will fully resolve within the next one to two years.

[37]         When I examine the circumstances in this case and the factors highlighted in Stapley, the important factors here are the length of time Ms. Matharu has suffered ongoing soft tissue pain, the extent of that pain, and the impact it has had on her ongoing activities. In that regard, I accept that she is stoic and has continued to do most things. However, I also find that she was frail and somewhat limited in what she could do before the accident. Accordingly, the injuries have imposed a limitation on her activities and lifestyle which has impacted her more than such injuries would have done to someone who was more vigorous and did not suffer from inflammatory polyarthropathy.

[38]         In all of the circumstances, I conclude that a fair award for non-pecuniary damages is $45,000. However, that does not end the matter. Ms. Matharu did not follow Dr. Sanghera’s recommendations and I have accepted his evidence that had she done so she would likely have had some improvement in her symptoms. Accordingly, I find the defendant has satisfied the onus to prove that Ms. Matharu failed to mitigate her loss. I would accordingly reduce the non-pecuniary damage award by 10%.


$95,000 Non-Pecuniary Assessment for Chronic Pain and Somatic Symptom Disorder

April 11th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $95,000 for a plaintiff suffering from chronic pain and a somatic symptom disorder following a vehicle collision.

In today’s case (Dabu v. Schwab) the Plaintiff was involved in a 2011 collision the Defendant admitted fault for.  The Plaintiff injured her neck back and shoulder and developed chronic pain syndrome along with a somatic symptom disorder with a relatively poor prognosis.  In assessing non-pecuniary damages at $95,000 Mr. Justice Steeves provided the following reasons:

[51]         Overall, there are findings of physical limitations and an undisputed psychological disorder that are related to the 2011 accident. These continue and they affect the life and work of the plaintiff. I note that Dr. Shane opines that the prognosis is that the plaintiff’s psychological functioning will remain stable. From his previous comments about the persistence of somatic symptom disorder and chronic pain syndrome I take his meaning to be that these conditions will continue. This is generally consistent with the prognosis given by Dr. Misri that the prognosis is poor, if not guarded (based on different diagnoses). There is also evidence that the plaintiff’s symptoms are slowly improving and her specialist in physical medicine and rehabilitation believes she can increase her activities and she should do so…

[53]         In the subject case the plaintiff has managed to work full time and this brings her considerable satisfaction and contributes positively to her emotional well-being. However, she is not able to work at the same level as before the accident and her home life has become reduced in a significant way so she can recover from and rest for work. She also has limitations in what she can now do at work. This is discussed in more detail below under loss of future earning capacity. As a matter of non-pecuniary damages it is enough to say that the plaintiff has not lost the enjoyment that her work gives to her but there has been a related loss because of the limitations her pain and suffering have placed on her home life.

[54]         As above, the defendant relies on prior decisions for her position that the range for non-pecuniary damages in this case is $40-50,000. For example, in the Matias decision non-pecuniary damages were assessed at $50,000. However, in that case bilateral frozen shoulders were found to be very significant for the plaintiff’s disability but they were found to be unrelated to the accident in dispute. In Chen, a decision from 2004 where non-pecuniary damages of $35,000 were awarded, there were soft tissue injuries somewhat similar analogous to the ones in the subject case but the psychological diagnoses related to pain were absent. The Rabiee judgment can be similarly distinguished.

[55]         With respect to the authorities relied on by the plaintiff for her range of $128,000 to $135,000, in Poirier an award of $100,000 for non-pecuniary damages was given but the plaintiff’s condition was likely permanent and the prospect for improvement was guarded. In Hosseinzadeh there was significant pain to the point of rendering the plaintiff immobile for days at a time (at para. 103) and damages of $125,000 were awarded. Damages of $130,000 were given for non-pecuniary damages in S.R., where the trial judge accepted an expert opinion that the plaintiff would not fully recover to her former self despite completion of a pain program (at para. 169) and her ability to participate in one of her most passionate goals in life, her faith, was limited (at para. 172). Finally, in Morlan, the plaintiff could no longer work in her pre-accident work which brought her considerable satisfaction. The Court of Appeal considered non-pecuniary damages of $125,000 to be generous but not excessive.

[56]         In the subject case the plaintiff’s own expert believes she can increase her activities at home and at work and she continues in her work which brings her considerable satisfaction and enjoyment.

[57]         With the above in mind I conclude that an appropriate amount of non-pecuniary damages in this case is $95,000.00.


$175,000 Non-Pecuniary Assessment for Mild Traumatic Brain Injury and Chronic Pain

April 6th, 2016

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain.

In today’s case (Mayer v. Umabao) the Plaintiff was involved in a 2012 collision.  Liability was disputed but the Court found the Defendant fully at fault for the collision.

The Plaintiff sustained a mild traumatic brain injury and suffered from cognitive dysfunction.  The court found some of this dysfunction was due to the head injury and the rest due to chronic pain and other factors also linked to the crash.  In assessing non-pecuniary damages at $175,000 Madam Justice Young provided the following reasons:

[246]     I am satisfied on the basis of Dr. Chahal’s evidence and Dr. Krywaniuk’s evidence that Mr. Mayer did suffer some trauma to the left side of his head resulting in vestibular difficulties and symptoms of a mTBI. The trauma may have been caused by an acceleration/ deceleration trauma or it may have been caused by a blow to the left side of his head. I find most convincing Dr. Krywaniuk’s evidence. If there was damage to the left vestibular apparatus at the accident then it is likely that the adjacent area of the brain also suffered some trauma. The adjacent area of the brain is the area of the brain that moderates receptive language input where Mr. Mayer reports he has difficulty.

[247]     Having said that, however, I find that the brain injury was quite mild and only affected higher level speech and executive functioning or the ability to multitask. I come to this conclusion because I believe that if the mTBI symptoms were more than very mild, they would have been picked up by Dr. Koss who I find to be a very thorough and careful practitioner who has special training in the area of concussions. The symptoms of brain injury became apparent at work and when judging wine. The irritability, personality changes and memory loss are more likely caused by the long term effects of pain, sleeplessness, anxiety and Mr. Mayer’s somatoform disorder…

[253]     On balance of all of the evidence, I find that the vestibular injury, mTBI and somatoform disorder were caused by the accident and all of them are compensable…

[270]     There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.


Reasonable Disbursements – What’s Good for the Goose is Good for the Gander

April 5th, 2016

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, ordering a Defendant to disclose the cost of their medico-legal reports where they were contesting the reasonableness of the Plaintiff’s disbursements.

In the recent case (Sturdy v. Dhadda) the Plaintiff was injured in a collision and sued for damages.  The claim was eventually settled for $300,000 plus costs and disbursements.  The Defendant disputed the reasonableness of the costs of some the plaintiff’s expert reports.  The Plaintiff applied for and was granted an order for the Defendant to disclose the cost of their expert reports.  In finding this was fair District Registrar Nielsen provided the following reasons:

[18]         What these cases demonstrate is that a comparison of the same or like expert within the same litigation is relevant. By allowing the party who challenges the reasonableness of the assessments charged by the assessing party’s experts to cherry pick what accounts they will or will not disclose leads to selective and inconsistent disclosure. If disclosure suggests the other party’s accounts are too high, they are readily disclosed for that purpose. On the other hand, if they do not, those records, for strategic reasons, are simply not produced. In my view, this leads to an imbalance which requires the levelling of the playing field…

[29]         The onus of proving the reasonableness of the plaintiff’s expert’s charges clearly rests upon the shoulders of the plaintiff who is the assessing party. The accounts of the plaintiff’s experts have been disclosed and scrutinized by the defendants, following which the defendants have alleged those charges are unreasonable within the context of Supreme Court Civil Rule 14-1(5).

[30]         In these circumstances, where the defendants have served their expert reports upon the plaintiff, the amounts paid by the defendants to their experts in the same specialities, involving the same patient, with the same clinical history, will be relevant. While a comparison of fees and charges would not be determinative and is only a single factor in the analysis, it is a matter properly considered in the context of this case, where the defendants are directly challenging the reasonableness of the plaintiff’s experts’ accounts.

[31]         The plaintiff’s application is allowed with respect to Dr. Pullmer and Dr. Dost. The plaintiff’s application with respect to Dr. Grypma is dismissed. I am not satisfied that the evidence before me provides a sufficient basis to establish the relevance of the invoices of Dr. Grypma, orthopedic surgeon, to those of Dr. Adrian, physiatrist.

[32]         Since the plaintiff has been substantially successful, they are entitled to the costs of their application.


$90,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

March 31st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.

In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012.  The Defendants admitted fault for both.  As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future.  The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice.  In reaching this assessment Madam Justice Baker provided the following reasons:

[147]     I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident.  The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident.  She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain.  These complaints resolved within a short time.  Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.

[148]     I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident.   She did not miss work as a security guard after the first accident.  She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months.  She was sufficiently recovered to travel to India three months after the accident and remained there for about two months.  On her return from India she resumed working as a security guard and doing janitorial work.  She attempted to return to the Sears job but was not re-hired.

[149]     Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial.  Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.

[150]     The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.

[151]     I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial.  Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time.  I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength.  I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…

[194]     Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted.  I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500. 


$25,000 Non-Pecuniary Assessment for 18 Month Aggravation of Pre-Existing Injuries

March 24th, 2016

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages of $25,000 for the aggravation of chronic pre-existing injuries.

In this week’s case (Dorsey v. Bhindi) the Plaintiff was involved in a 2013 rear end collision.  Liability was not at issue.  The court voiced some credibility concerns regarding the plaintiff and did not accept her claim in its entirety.  The Court did accept, however, that the collision caused an 18 month aggravation of pre-existing symptoms.  In assessing non-pecuniary damages at $25,000 for these injuries Madam Justice Warren provided the following reasons:

[108]     In summary, I make the following findings on causation:

  • Ms. Dorsey injured her shoulders in the slip at work, but did not exacerbate that injury in the accident.  She currently suffers from frozen shoulder on the left side, but I am not persuaded that the accident caused or materially contributed to that condition.
  • The accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months, and by late September 2014 Ms. Dorsey’s condition had returned to its pre-accident state.
  • Ms. Dorsey has suffered from some anxiety and depressive symptoms but I am not persuaded that the accident caused or materially contributed to those conditions.

[117]     Of the authorities cited by the defendants, Kearns v. Marples, 2009 BCSC 802, bears the most similarity to this case.  In that case damages were assessed on the basis that the 51-year-old plaintiff had suffered injuries to her shoulders, right elbow, and neck that largely resolved within about eight months, but for the right shoulder which remained injured and was predisposed to further injury which occurred in two subsequent motor vehicle accidents.  These injuries were superimposed on pre-existing conditions.  Non-pecuniary damages of $25,000 were awarded. In that case, Justice Verhoeven referred to Job v. Van Blankers, 2009 BCSC 230, where Justice Ker awarded non-pecuniary damages of $25,000 to a plaintiff who had suffered a mild to moderate soft tissue injury that resulted in sustained disability, pain and suffering, and interfered with the plaintiff’s life for about 14 months: Kearns at para. 134.

[118]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  I have found that the accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months.  The exacerbation was not so significant as to materially interfere with her ability to work.  There is very little evidence of any material impairment of her physical abilities or significant loss of lifestyle.  Considering the principles discussed in the cases referred to me and the criteria considered in the assessment of damages in Stapley, I assess Ms. Dorsey’s non-pecuniary damages at $25,000.