February 28th, 2009
As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court. In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.
The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC. This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.
All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages. The Court made the following findings with respect to the Plaintiff’s injuries:
(a) That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;
(b) That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;
(c) That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;
(d) That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;
(e) That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;
(f) That when the trapezius muscles in the neck are overworked they become stiff and painful;
(g) That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;
(h) That torn ligaments do not spontaneously heal; and,
(i) That prior to the collision Mr. Jacobsen did not suffer from neck pain.
In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:
 In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.
 Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days. He is a fit and healthy senior citizen who clearly anticipates living many more years. The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep. He begins his days feeling weary and drained rather than rested and energetic. This compromised start affects all aspects of his daily life. It has taken the lustre off his so-called golden years.
 In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.
The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005. The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:
 At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back. There are no objective findings with respect to her injuries.
 I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination.
 While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location. She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….
 I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident. The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program. While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony.
 She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active. While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing. One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.
On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.
The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005. The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial. The court summarized the injuries as follows:
 I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back. He has testified to these injuries and much of what he says is supported by other testimony. Several practitioners found objective signs upon palpitation. Two found his body type susceptible to such injuries. I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery. I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.
 I am satisfied that he is now able to perform the tasks necessary for a gas fitter. I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic. While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….
 Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.