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.

Pain Clinic Treatment a “Mandatory” Item Under ICBC’s Part 7 Benefits

August 31st, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether ICBC’s no-fault benefits cover payment for treatment at a pain clinic.  In short the Court found they do.

In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  At trial future care costs were awarded including $8,500 for treatments from a pain clinic.  The Defenant argued that these damages should be deducted as ICBC must cover the cost under the Plaintiff’s no fault beneifts.  In agreeing with this submission and finding such treatments are included in ICBC’s no-fault coverage Mr. Justice Fitch provided the following reasons:

[44]         …The narrow issue before me is whether a pain clinic that is focussed on “necessary physical therapy” is a mandatory benefit as contemplated by s. 88(1).

[45]         The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.”  The law must take cognizance of our growing awareness of the intersection between physical and mental therapy.  Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation.  Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result.  Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program.  Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

[46]         As is evident from the foregoing, I favour the result reached on this point in Klonarakis.  In the result, I am of the view that a pain clinic focused on “necessary physical therapy” is a mandatory benefit; one that shall be paid by ICBC even in circumstances where it is anticipated that psychological issues may arise in the implementation of the program.

[47]         As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:

As a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is not a matter of discretion under s. 88(2) where entitlement depends “on the opinion of the corporation’s medical adviser”. The risk in deducting too much from the tort award for discretionary benefits is that I.C.B.C. may ultimately refuse to pay on items which although found to be compensable in the tort claim were deducted on the assumption that they would be paid as a no fault benefit. In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys a windfall. But here the class of future expense is obligatory, not discretionary, and so the plaintiff does not stand to lose anything by the deduction. It is only in circumstances where the classification of the future cost is unclear or an issue arises whether the item is covered by Part 7 at all, that some caution is required.

[48]         As I am satisfied in this case that the pain clinic is a mandatory benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable expenses associated with her attendance at the clinic, there is no uncertainty as to whether this benefit will be paid.


Chronic Regional Myofascial Pain Syndrome Leads to $125,000 Non-Pecuniary Assessment

August 28th, 2015

Reasons for judgement were released today assessing damages following chronic injuries sustained in a collision.

In today’s case (Kam v. Van Keith) the Plaintiff was injured in a 2011 rear end collision.  The Defendant admitted fault.  The Plaintiff complained of” injuries to her neck, upper and lower back, shoulders, she suffers from depression, sleep disturbance, fatigue, headaches and has chronic pain”.  These were ultimately diagnoses as a chronic regional myofascial pain syndrome and the Plaintiff’s symptoms were not expected to make meaningful improvement.  In assessing non-pecuniary damages at $125,000 Mr. Justice Cole provided the following reasons:

[15]        Dr. Apel does not state the plaintiff has fibromyalgia but does find she has some symptoms of fibromyalgia. She makes a conclusive diagnosis of chronic regional myofascial pain syndrome which is unchallenged by the other experts…

[24]        I was impressed with Dr. Apel. She saw the plaintiff on two occasions. Her report was thorough and detailed as was her examination. I am satisfied that the kinesiologist that worked with the plaintiff (which I assume was in response to Dr. Piper’s recommendation in his first report) between November 2013 and April 2, 2014 along with her continual rigorous workout program that she had continued to do following his recommendation of a kinesiologist has not improved her condition and I am satisfied that it is unlikely her symptoms will improve in any significant way. In my view she had tried everything possible. She has applied herself in a rigorous discipline fashion and four years after the accident she still has chronic lower back pain…

[25]        Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal refused, 2006 SCC 100. Any assessment of damages of course must be fair to both parties, and must be decided on the facts of the particular case.

[26]        The plaintiff is still relatively young, being born in November 1975. The nature of her injuries are significant and they have subsisted at least in the lower back for four years. The plaintiff has suffered emotionally and her life has been impaired. It has also adversely affected her family, her marital relationship and her social relationships. She is incapable of doing practically all the sporting activities that was a vital and vibrant part of her personality and her relationship with her husband, her family and friends. Although she only took three days off work purely because she is stoic is not a reason to generally penalize the plaintiff…

[31]        I am satisfied, considering all of the evidence that the proper award is the amount of $125,000.


“Reprehensible” Conduct Results in Special Costs Order Against Plaintiff Following Injury Trial

August 27th, 2015

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay ICBC special costs following ‘reprehensible‘ conduct.

In today’s case (Tambosso v. Holmes) the Plaintiff was injured in two collisions and sued for damages.  Prior to trial the Plaintiff received $36,895 in tort advances from ICBC.  After a largely unsuccessful prosecution the trial damages awarded were slightly less than this resulting in a ‘zero judgement’  award.   As a result the Plaintiff was ordered to pay the Defendant costs.

The Court went further, however, and ordered that the costs be increased to special costs as a result of the Plaintiff’s conduct.  In reaching this decision Mr. Justice Jenkins provided the following reasons:

[33]         Commencing at para. 52 of my reasons for judgment in this matter, I embarked upon my findings related to the credibility of the plaintiff. Previously in those reasons I had come to a conclusion that the plaintiff’s evidence regarding the “triggering event” causing her alleged PTSD and other psychological concerns had not happened. To be clear, the event in which the plaintiff claimed she feared for her life and had to jump out of the way of the vehicle driven by the defendant Holmes, as per her evidence that “his eyes are imprinted on my mind” and “I thought he was going to kill me, drive over me…” did not occur. Her evidence in this respect was contradicted by the independent witness who stated she had not exited her vehicle, as well as by the evidence of the plaintiff’s friend and passenger that the plaintiff had exited her vehicle but had taken only a few steps before jumping back into their vehicle before the Holmes vehicle came up the hill and passed the plaintiff’s vehicle. I found it most likely the plaintiff learned of the look in Mr. Holmes eyes from the independent witness, Jeremy Leal, who was in close proximity to Mr. Holmes immediately after the accident.

[34]         The plaintiff repeated her false version of the events of the 2008 accident to several of the expert witnesses who testified at trial which led those experts to come to opinions as to the plaintiff suffering PTSD and other cognitive damage as a result of the interaction with Mr. Holmes. The deception by the plaintiff continued for several years up to and including the trial.

[35]         In addition, my reasons for judgment at trial referred to clear conflicts between the evidence of the plaintiff and the video surveillance recorded by the defence, her evidence that she was not able to drive after the 2008 accident which conflicted with her driving of a rental car within days of the accident for several months, her Facebook postings, and her evidence at trial which was selective, inconsistent, completely uncooperative, non-responsive and simply false. The plaintiff’s evidence on cross-examination resulted in me coming to a conclusion that she had deliberately lied to her disability insurer, to Community Futures where she was paid for attempting a business development plan, to Canada Pension Plan staff and more, all of which resulted in her maintaining an income from the time of the 2008 accident up to trial in 2014. The plaintiff would declare in one instance that she was disabled from the 2008 accident and when convenient to keep funds coming her way would declare she was not disabled by that accident.

[36]         The conduct of the plaintiff which must be considered most outrageous and reprehensible for the purposes of a special costs award were the circumstances under which her former friend, Rebecca Aldous, came to be a witness at trial for the defence. Those circumstances are described commencing at para. 188 of my reasons for judgment, which included reference to a voice mail message left by the plaintiff two days before Ms. Aldous was to testify. That message can only be interpreted as an attempt to intimidate Ms. Aldous from testifying. Why the plaintiff would leave a voice mail message of that nature which could and did come back to haunt her is a mystery; however, it is reflective of the behaviour of the plaintiff throughout the trial.

[37]         I have no doubt that the actions of the plaintiff at trial and outside the courtroom have amounted to an ongoing effort to deceive the court which conduct deserves rebuke.

[38]         I agree with the principles in awarding special costs listed by Madam Justice Gropper in Westsea Construction Ltd. A court must show restraint and must be satisfied of special circumstances to justify the award. The conduct rationalizing an award of special costs must also be “reprehensible”. Those principles are present in this case and are supported by the conduct of the plaintiff detailed in the reasons for judgment for the trial and earlier in these reasons.

[39]         The defence is entitled to special costs to be taxed by the registrar, such costs as incurred by the defence from the commencement of each action until the conclusion of the trial.


$70,000 Non-Pecuniary Assessment for Chronic Back and Knee Injury

August 26th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back and knee injury sustained in a collision.

In today’s case (Ali v. Fineblit) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The injuries included a low back and knee injury which remained symptomatic at trial and had a poor prognosis.  In assessing non-pecuniary damages at $70,000 Madam Justice Gerow provided the following reasons:

[82]         As indicated above, Ms. Fineblit concedes that Mr. Ali suffered a soft tissue injury to his back and an injury to his left knee in the accident.

[83]         It is clear from Mr. Ali’s evidence, as well as the evidence of his family, treating health care professionals and the medical experts that he is suffering from ongoing symptoms in his left knee and low back.

[84]         Prior to the accident Mr. Ali did not have any problems with his left knee or low back. The evidence is that Mr. Ali’s knee injury has impacted all areas of his life, including his work. The evidence is that he was very physically active, and ran and hiked on a regular basis to offset the sitting demands of his job. Since the accident, he has not been able to return to many of his pre-accident activities, such as running, snowboarding and hiking. As well, Mr. Ali’s ongoing left knee symptoms prevent him from doing some of the household chores, and his wife has taken on more of the household duties and cleaning. Mr. Ali’s wife and sister testified that his mood had changed since the accident and he does not have the easy going nature he did prior to the accident.

[85]         The evidence is that the symptoms from his left knee and back injury have all impacted his work. Mr. Ali travelled by plane frequently for his work prior to the accident. Since the accident, Mr. Ali had limited his air travel because he has trouble sitting on long flights. Mr. Ali testified that he experiences increased pain in his knee after sitting on flights. As well, Mr. Ali has increased back and knee symptoms from sitting at his desk or standing for long periods of time.

[86]         As noted earlier, while there maybe some improvement to Mr. Ali’s left knee and back symptoms over time with a supervised exercise program, there is a likelihood that his left knee injury will cause limitations and pain indefinitely and he will suffer from ongoing flare ups of back pain. I find that as a result of the accident, Mr. Ali has been left with ongoing chronic pain in his left knee which is unlikely to resolve, and intermittent pain in his back. Dr. Fuller and Dr. Stewart agree it is likely Mr. Ali will have some symptom improvement with further physiotherapy and/or active rehabilitation.

[87]         I have reviewed the cases provided. Each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are individual in nature. The cases provided by Mr. Ali are to some extent predicated on his submissions that the accident exacerbated his headaches, which as stated above, is not supported by the evidence. The cases provided by Ms. Fineblit are to some extent predicated on her submissions that Mr. Ali’s back improved within four weeks of the accident which were rejected.

[88]         In summary, the accident caused injuries to Mr. Ali’s left knee and back which have been slow to resolve. There is a likelihood that the symptoms and restrictions of the left knee are permanent, and he will continue to suffer from intermittent back pain as a result of the accident. Having considered the evidence, and the cases provided by counsel, it is my view that an award of non-pecuniary damages in the amount $70,000 is appropriate.


$90,000 Non-Pecuniary Assessment For Chronic Migraine Headaches

August 20th, 2015

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic migraine headaches along with a low back injury caused by a collision.

In today’s case (MacDonald v. Joseph) the Plaintiff was injured in a 2011 head on collision caused by the Defendant.  The Plaintiff suffered a variety of injuries, some of which recovered but was left with a legacy of chronic migraine headaches and low back pain.  In assessing non-pecuniary damages at $90,000 Madam Justice Dillon provided the following reasons:

[21]         The plaintiff had substantially recovered from the accident after 18 months but he continued to suffer and continues to suffer accident caused symptoms related to migraine headaches, lower back pain and occasional neck pain. The headaches suffered as a result of the accident are of a different nature and consistency than any headaches before the accident which dated back to 2009 and were not medically treated. The treatment for chronic headache related to head and neck trauma is difficult and often unhelpful, according to Dr. Robinson who considered that the plaintiff was not a candidate for preventative medications. He expected the plaintiff to have recurring headaches for the next three to five years with a definite risk for persisting headaches indefinitely. These would not be expected to be a “substantial impediment” in continuing with the plaintiff’s janitorial career.

[22]         Decisions in similar cases presented by counsel suggest a range for the non-pecuniary damages suffered by the plaintiff from $55,000 to $100,000. In my view, the plaintiff here suffers headaches more frequently at present than the plaintiff in Sandhu v. Gabri, 2014 BCSC 2283. The nature of his job doing heavy physical work places him in a more precarious position at work than the plaintiff in Rutledge v. Jimmie, 2014 BCSC 41. The plaintiff was off work for a considerably longer period than the plaintiff in Wepryk v. Juraschka, 2012 BCSC 974. At the same time, the plaintiff is not in constant pain as was the plaintiff in Smith v. Fremlin, 2013 BCSC 800 and has not developed psychological or pain disorders as a result of the accident as the plaintiff did in Roth v. Hes, 2015 BCSC 161. Nonetheless, the plaintiff’s prognosis of persisting debilitative headaches into the future with unresolved low back and neck pain more than four years after the accident place him at the higher end of the range. Non-pecuniary damages are awarded in the amount of $90,000.


Low Velocity Impact Engineering Evidence Found to be Unhelpful

August 14th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, assessing the ‘low velocity impact’ defence.

In this week’s case (Pitcher v. Brown) the Plaintiff was involved in a 2004 collision and sued for damages.  The impact was a modest one.  The Court rejected much of the Plaintiff’s claim following credibility/reliability concerns in her testimony.  The Court was equally dismissive of the defence strategy of calling engineering evidence to discuss the modest forces of the collision.  The Court concluded, as have many previous judgments, that demonstrating forces are modest alone is no defence to an injury claim.  In rejecting the LVI aspect of the defence Mr. Justice Betton provided the following comments –

[106]     As to the forces involved and the probability of injuries resulting, the defence relies upon the opinion of two experts. Dr. Craig Good has a degree and Masters in Applied Science-Mechanical Engineering and a doctor in Philosophy in Mechanical Engineering. He opined that it is “highly unlikely that Ms. Pitcher sustained an acute Mild Traumatic Brain Injury at the time of the subject collision when her head contacted the head restraint.”

[107]     Gerald Sdoutz is a professional engineer who provided opinion evidence about the impact severity in the collision and compared it with activities such as sitting down in a low back office chair, coughing or sneezing or being jostled in a crowd.

[108]     While that expert evidence provides some insight I find its utility to be limited. It puts in perspective that the forces involved in the collision were modest. It does not preclude the conclusion that the plaintiff did receive injuries in this collision. In that regard I look to the expert medical evidence and the evidence of the participants in the collision. I will, in subsequent portions of this decision, address specifically my findings in relation to the plaintiff’s injuries.


How Much is it Worth if You Can’t Drive Your Ferrari?

August 10th, 2015

If you own a Ferrari and really want to drive it but can’t because of another’s actions, how much is that worth?  $15,000 according to reasons for judgement released today by the BC Supreme Court.

In today’s case (Miller v. Brian Ross Motorsports Corp.) the Plaintiff’s Ferrari was damaged while being serviced at the Defendant dealership.  The Plaintiff sued for damages arguing he should be entitled to $80,000 for the period which he could not use the vehicle.  The Court found the Defendant’s conduct did indeed wrongfully deprive the plaintiff of use of this vehicle for a period of approximately 9 months.  In assessing damages at $15,000 Madam Justice Dardi provided the following reasons –

[59]        In assessing the appropriate quantum of damages for the loss of use, I have considered the following factors:

  • The plaintiff derives great pleasure from driving his Ferrari and he was deprived of driving it for many months including through the summer months of 2013.
  • During the Material Period, the plaintiff had an alternative vehicle, the Acura, available for transportation purposes.
  • Although the plaintiff endeavoured to drive his Ferrari as frequently as possible, he would not have driven it on a daily basis throughout the Material Period. On his own testimony, he did not drive the Ferrari in the rain, or for work purposes. The Ferrari was insured for “pleasure” and could only be utilized for work purposes a maximum of six days per month.
  • The plaintiff travelled away from Vancouver for work and for pleasure during the Material Period.
  • Although the plaintiff adduced evidence of a rental rate from Mr. Stirrat of the Vancouver Car Club for a substitute Ferrari, he did not take steps to rent such a vehicle. The defendant challenges the reliability of Mr. Stirrat’s evidence on the rental rate. The rate the plaintiff urges this court to apply is the advertised price and notably, Mr. Stirrat was unable to confirm if any vehicle had, in fact, been rented at that price. In addition, the advertised vehicle is not the same model or year as the Ferrari. Further, although the plaintiff calculated the annual rate by extrapolating the monthly rate, no evidence was provided regarding whether the price would differ for long term renters. Overall, I found the evidence regarding the advertised rental rates to be of limited assistance.

[60]        The plaintiff points out that if he had rented a replacement Ferrari, he would have been entitled to special damages for incurring that cost. However the plain fact is that he did not rent a replacement vehicle. Here, the plaintiff’s claim is for general or non-pecuniary damages for loss of use. The doctrinal underpinnings related to general damages are distinct from special damages. Special damages are awarded to compensate a plaintiff for out-of-pocket expenses and generally are calculable monetary losses. In contrast, an award of general or non-pecuniary damages is intended to compensate the plaintiff for more intangible losses and is not a matter of precise arithmetical calculation.

[61]        Finally, in assessing general damages, the court must, on a balanced consideration of the evidence, endeavour to tailor an award that is reasonable and fair as between the parties: Kates v. Hall, 53 B.C.L.R. (2d) 322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at 314.

[62]        On a balanced consideration of the relevant factors, I assess the plaintiff’s damages for loss of use of the Ferrari during the Material Period as $15,000.


Bare Assertion of Contemplated Litigation Does Not “Cloak Investigation” In Privilege

August 7th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing the merits of a claim for litigation privilege.

In today’s case (Buettner v. Gatto) the Plaintiff was injured in a collision and advanced a claim for damages.  The Plaintiff retained counsel.  Liability was initially admitted and then denied by ICBC.  The Plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once Plaintiff counsel was assigned.

The Court rejected this finding this position was based on little more than a bare assertion.  In ordering production of the requested documents Master Caldwell provided the following reasons:

[31]         If this argument is correct, all that any or all adjusters must do in any or all motor vehicle cases is determine, at the instant that the incident is reported, that he or she is going to deny liability and/or the presence of damages without the need to show any basis or accountability for such decision. Having done so, that will virtually ensure that litigation will be required to resolve any claim for loss. Thereafter, having created the virtual certainty of litigation, the defence will be able to reasonably argue that any and all investigations done from the instant that the incident is reported is for the dominant purpose of the conduct of the litigation which they ensured by the arbitrary denial of fault or damage.

[32]         In my respectful view this circular argument runs counter to the letter and spirit of the Hamalainen case, the numerous cases which were cited in and followed by Hamalainen and the numerous cases which have cited and have followed Hamalainen. It runs counter to the stated object of our Supreme Court Civil Rules, B.C. Reg. 168/2009, the securing of the just, speedy and inexpensive determination of every proceeding on its merits. It runs counter to the Supreme Court of Canada decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 and its findings at paras. 60 and 61 where it comments in affirming the dominant purpose test and the role of litigation privilege, that:

The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.

And,

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client

And finally,

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[33]         Inherent in the reasonable prospect/dominant purpose test must be the expectation or requirement that there be at least some evidence of bona fides, due diligence or accountability on the part of the party seeking to rely on the prospect of litigation, which was created by their own actions, to support their claim of litigation privilege. Absent such requirement the test itself becomes meaningless. This is particularly of concern where, as here, the same insurer provides coverage for both parties and, presumably, owes each a duty of some form of meaningful investigation and determination of facts before reaching a decision on an issue as important as fault or liability for a motor vehicle accident.

[34]         I find that there is no evidentiary basis provided to support the decision of Ms. Hilliam to deny liability. Her unsupported decision cannot be used as justification for her to conduct a proper investigation into the facts of this motor vehicle accident while cloaking that investigation in a claim of litigation privilege. The time line and analysis of the court in Hamalainen is applicable to this case and to the evidence here, save as to the assertions of Ms. Hilliam which I reject. As in Hamalainen, the claim of litigation privilege regarding documents 4.7 to 4.12 inclusive, which documents were created prior to the June 17, 2013 form letter communicating the denial of liability, fails and all such documents are ordered produced forthwith and unredacted.


$67,500 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Depression

August 4th, 2015

Reasons for judgement were released today assessing damages for chronic soft tissue injuries with secondary depression following a collision.

In today’s case (Dhanji v. Holland) the Plaintiff pedestrian was struck in a marked cross walk by a vehicle driven by the Defendant.  The Defendant admitted fault for the collision.

The Plaintiff suffered a variety of soft tissue injuries, some of which were chronic in nature and developed depression secondary to this.  In assessing non-pecuniary damages at $67,500 (a figure which was arrived at following a 10% deduction in damages for the Plaintiff’s failure to mitigate damages by refusing to attend recommended counselling) Mr. Justice Pearlman provided the following reasons:

[108]     The plaintiff is 39 years old.  As a result of the soft tissue injuries she sustained in the accident, Ms. Dhanji has experienced constant back pain, usually of mild to moderate intensity, but at times severe.  While her low back pain had substantially resolved within 14 months of the accident, she continues to suffer from neck pain, which at times is severe.  According to Dr. O’Connor, whose opinion I accept, the plaintiff will probably experience mild to occasionally moderate mid back pain indefinitely.  If she is able to maintain an active exercise regime, and improve her mood through the treatment of her depression, she may realize some reduction in pain.  There is however a very real chance that if her mood and conditioning do not improve, her pain may persist in the moderate to occasionally severe range.  It is more probable than not that Ms. Dhanji will have to cope with mild to occasionally moderate chronic mid back pain throughout her life.

[109]      As a result of her chronic pain, the plaintiff has experienced persistent mild to moderate depression since the accident.  With the benefit of psychological counselling there will likely be some improvement in the plaintiff’s mood, and her ability to manage her pain.  However, given the persistence of her symptoms of depression over the past three and a half years, there is a real possibility that she will experience intermittent bouts of depression or low mood indefinitely.  

[110]     The pain and discomfort the plaintiff experiences during prolonged periods of sitting required her to undertake a graduated return to work over a six-month period. Ms. Dhanji is capable of working full-time with the accommodations available to her at the forensic lab.  Through the use of an ergonomic chair, the application of heat, and taking short breaks during long periods of sitting, she is able to manage the pain and discomfort she experiences during the workday. However, by the end of the week she is fatigued and requires the weekends to recover.  Ms. Dhanji is resilient and dedicated to her work.  However, the pain and discomfort she experiences during the work day have diminished her enjoyment of her work.

[111]     While the plaintiff’s contact with some of her friends has reduced as a result of changes in their lives, I find Ms. Dhanji’s chronic mid back and neck pain has also impaired her social life.  As a result of her fatigue, she tends to stay at home more on the weekends.  Her friends, Ms. Woodall, Ms. Hutchinson and Ms. Ostenall all corroborated Ms. Dhanji’s evidence that she has been less outgoing since the accident.  Although she continues to host dinners from time to time, and to travel with her friends, she does so at a diminished level.

[112]     With respect to physical activities, she is capable of exercising but her tolerance for repetitive activities involving the use of her shoulders and arms is reduced.  Her recreational activities are restricted.  Ms. Dhanji no longer hikes.  She found that activity aggravated her back pain…

[124]     Taking into account the plaintiff’s particular circumstances; all of the Stapley factors, including the probability that the plaintiff will live with chronic mid back pain indefinitely; my finding that her depression is largely but not entirely caused by the defendant’s negligence; and after considering all of the authorities cited by counsel, I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the amount of $75,000.  I reduce that amount by 10% for the plaintiff’s failure to mitigate and award Ms. Dhanji non-pecuniary damages of $67,500.


$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

July 24th, 2015

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.

In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.