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.

Archive for September, 2014

$13,500 Assessment For Soft Tissue Injury Aggravation Of “a Number of Months”

September 30th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of a pre-existing soft tissue injury.

In today’s case (Bains v. Park) the Plaintiff was involved in a relatively modest collision caused by the Defendant.  The Plaintiff had pre-existing injuries and the  Court found that these were aggravated for ‘a number of months’ following the collision.  In assessing non-pecuniary damages at $13,500 Mr. Justice Joyce provided the following reasons:

[35]         It is Dr. Choo’s opinion that Ms. Bains suffered an aggravation of pre-existing injuries and that her pre-existing condition likely made her recovery from this collision slower than it would otherwise have been.

[36]         It is my opinion that there was a real risk that even if she had not been involved in the collision on May 18, 2010, Ms. Bains would have experienced some neck and pain discomfort from time to time. I am satisfied that the collision aggravated her condition and resulted in persistent pain and discomfort for a number of months, beyond the period of time that one might normally expect given the circumstances of the collision.

[37]         As a result of the injuries, Ms. Bains’ ability to perform her usual household chores was curtailed for a few months and her ability to fully enjoy time with her children and other leisure activities was curtailed for five or six months. She was off work until about mid-June 2010, then was able to return on a graduated return to work program that was supported by her employer.

[38]         I am satisfied that Ms. Bains had likely recovered to her pre-accident state by the fall 2010 or by February 2011, at the latest…

[41]         As the plaintiff recognizes, each case must be decided on its own particular facts and other cases can, at best, provide general assistance in determining what is just and fair compensation for this plaintiff, given her injuries and the manner in which they have affected her enjoyment of life. It appears to me that each of the cases cited by the plaintiff involve somewhat more serious injury and loss than the present case.

[42]         In addition, as I have found, the plaintiff’s pre-accident condition was such that there was a risk that she would have experienced some neck and back pain, on-and-off, even if she had not been involved in the collision on May 18, 2010, in the same way she had experienced on-and-off pain prior to that collision.

[43]         Having read and considered the cases referred to by counsel and having regard to the nature of the injuries, their duration and their effect on the plaintiff’s day-to-day activities, I am of the opinion that an award of $15,000 would be appropriate, but for her pre-existing condition and the risk that she would have experienced on-and-off symptoms even without the aggravating injuries. I will reduce that amount by10% on account of the plaintiff’s pre-existing condition.

[44]         In conclusion with regard to this head of damages, I am of the opinion that an award of $13,500 will provide Ms. Bains with fair and reasonable compensation for her pain, suffering and loss of amenities, as a result of the collision of May 18, 2010.


$110,000 Non-Pecunairy Assessment For Chronic Rotator Cuff Injury

September 29th, 2014

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic rotator cuff injury.

In today’s case (Pistruga v. Garcia) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a rotator cuff injury which underwent arthroscopic surgery which did little to improve the plaintiff’s chronic symptoms.  In addition to this the Plaintiff suffered from a major depressive disorder attributed to the consequences of this crash.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyeat provided the following reasons:

[100]     Mr. Pistruga is now 50.  I find that he has suffered and continues to suffer both physically and emotionally as a result of the negligence of Mr. Garcia.  I am also satisfied that his pain and suffering has resulted in an impairment of his family life – a restriction of his household duties and a deterioration of his relationship with his wife and son.  I find that Mr. Pistruga suffered severe pain for about three months after the First Accident and for about four months after the shoulder surgery.  Mr. Pistruga has had and continues to have pain in his shoulder.  As a result of the First Accident and the operation that was necessary as a result of the injuries suffered in the First Accident, he continues to suffer and I find that he will continue to suffer emotionally from the injuries caused by the First Accident and that his symptoms can only be partially lessened by prescription and non-prescription medicine.  While medication appears to have eased his mood swings, I find that he remains suspicious and moody from time to time as well as being subject to panic attacks.

[101]     As a result of the First Accident and the necessary operation, Mr. Pistruga has seen an impairment of his recreational activities as well.  Regarding his physical situation, I accept the opinion of Dr. Vorobeychik that the prognosis is “guarded”.  Regarding the emotional health of Mr. Pistruga, I accept the opinion of Dr. Levin that the prognosis for full recovery relating to his chronic major depression disorder “remains guarded and he most likely will require ongoing maintenance psychopharmacological treatment”.

[102]     In the circumstances, I am satisfied that non-pecuniary damages of $110,000 should be awarded.


$20,000 Non-Pecuniary Assessment For Minor Yet Lingering Soft Tissue Injuries

September 26th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for minor, chronic soft tissue injuries.

In today’s case (Rosso v. Balubal) the Plaintiff was injured in a 2011 sideswipe collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from a variety of health complaints following the crash and attributed these to the collision although the Court found that the majority of the Plaintiff’s ailments were unrelated to the incident.  The Court did find that the Plaintiff suffered soft tissue injuries which disabled him from work for 9 months and further had some modest lingering limitations.  In assessing non-pecuniary damages at $20,000 Madam Justice Griffin provided the following reasons:

[91]         The overall impression I formed of the plaintiff’s evidence, after considering it in the context of the whole of the evidence and particularly the medical evidence, was that he tended to think very negatively and to have an exaggerated view of his physical limitations and symptoms following the accident. 

[92]         I therefore unfortunately find that Mr. Rosso’s perception of his abilities, or rather disabilities, is unreliable. 

[93]         I agree with the defendants that there is no credible or reliable evidence to support a conclusion that the accident caused the broader range of symptoms reported by Mr. Rosso.

[94]         Despite this, I do accept the plaintiff’s evidence that he has continued to experience some neck and back pain since the accident.  There is abundant medical evidence which supports the conclusion that Mr. Rosso suffered some soft tissue injuries as a result of the accident and I so find.  I accept the conclusion of the majority of the medical experts that if the pain has not gone away by now, it is likely he will continue to experience some ongoing pain in the future. ..

[99]         I am persuaded on the totality of the evidence that the motor vehicle accident caused the plaintiff to suffer ongoing symptoms of mild neck and back pain, which are symptoms likely to continue into the future to some extent but which can be managed with regular exercise.  The evidence also supports the conclusion that immediately after the accident for a short period the plaintiff did have some associated minor headaches and anxiety in relation to driving which was caused by the accident. ..

158]     Here I find that the injuries are minor and have had a minor impact on Mr. Rosso’s life, especially in comparison to other circumstances in his life, such as the death of a close friend and his inability to become a commercially successful rock musician.  I conclude that a fair and reasonable assessment of non-pecuniary damages is $20,000. 


$140,000 Non-Pecuniary Assessment for ACL Injury With Chronic Depression

September 24th, 2014

Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.

In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010.  The Defendants were found fully liable.  The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution.  He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician.  In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:

[188]     There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident.  With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,

·                 the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;

·                 despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;

·                 as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;

·                 the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;

·                 there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;

·                 the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and

·                 the plaintiff will encounter significant future functional difficulties and related educational and employment disability.  

[189]     I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future.  I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking.  These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties.  All of this is attributable to the accident.

[190]     I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming).  While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…

[198]     I have read each of these cases and have noted both the similarities and dissimilarities with the present case.  Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.  


“Wholly Inadequate” Stop Sign Placement Leads to Liability for Collision

September 23rd, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a construction company largely at fault for the ‘wholly inadequate‘ placement of a temporary stop sign in a construction zone.

This week’s case (Richmond v. Channa) involved a two vehicle collision where the Channa vehicle failed to stop at a stop sign controlled intersection and collided with the Richmond vehicle.  While the Court found Channa 25% to blame for the crash the Court held the lion’s share of fault rested with a construction company who blocked visibility to the intersection’s stop sign and placed an inadequate temporary sign in its place.  In reaching this apportionment Mr. Justice Skolrood provided the following reasons:

[110]     In the case at bar, I find that Tien Sher bears primary responsibility for the accident. It is clear from the evidence that the temporary stop sign, which again was in fact a flag person’s paddle, was placed on the construction fence at a point where the line of the fence had already started to curve to the right or to the north. As such, it was not visible to vehicles travelling west on 107A Avenue until just before those vehicles actually enter the intersection with Ring Road.

[111]     Further, the size and placement of the temporary stop sign was wholly inadequate. As noted, it was much smaller than a normal or permanent stop sign. Moreover, its placement on the fence at an awkward downward pointing angle would not necessarily signal to drivers that it was intended to function as a regular stop sign and to control west bound traffic on 107A Avenue.

[112]     It is particularly telling that Mr. Pereira and Mr. Mossey, employees of the City, both identified the temporary stop sign as a safety hazard.

[113]     Tien Sher’s failure to ensure proper placement and size of the temporary stop sign was compounded by its failure to provide drivers with advance warning of the sign. Such advance warning would have been a reasonable and prudent measure in the circumstances, given that the temporary sign was located well away from where the permanent stop sign was situated and, again, was obscured to drivers.

[114]     In the circumstances, I find that Tien Sher’s conduct created an objectively unreasonable risk of harm to drivers of vehicles proceeding west on 107A Avenue towards the intersection (Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 28). I find further that Tien Sher’s negligence caused the accident in that but for its conduct, the accident would not have occurred (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14; Resurfice Corp. v. Hanke, [2007] 1. S.C.R. 333 at paras. 21 – 23 and Clements v. Clements, [2012] 2 S.C.R. 181 at para. 8). In this regard, I accept Ms. Channa’s evidence that had she seen a stop sign, she would have stopped before entering the intersection…

[124]     I have already found that Tien Sher bears primary responsibility for the accident. It’s failure to comply with the minimum standards set out in the Manual, due in large measure to the fact that its designated safety officer did not even know of the Manual’s existence, its failure to erect adequate, or any, warning signs, and its wholly inadequate placement and sizing of the temporary stop sign demonstrates a disregard for the safety of drivers using 107A Avenue and constitutes conduct that is significantly more blameworthy than that of Ms. Channa.

[125]     I apportion liability 75% against Tien Sher and 25% against Ms. Channa.


Motorist Liable for Collision After Blanketing Other Vehicle in Snow

September 22nd, 2014

Update December 16, 2015the reasoning in the below decison was upheld by the BC Court of Appeal today.

Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for a single vehicle collision.

In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

In finding the passing vehicle was fully at fault for passing when it was unsafe to do so Mr. Justice Ball provided the following reasons:

[17]         To determine whether the driver of the SUV was negligent, the Court must follow the analysis outlined in Crocker and Rowe. The driver of the SUV, as the driver of a vehicle overtaking another vehicle on the highway, owed a duty of care to the plaintiff. That duty is statutorily mandated in ss. 157-159 of the MVA.

[18]         Those sections also outline the required standard of care. Section 157 requires that the driver of an overtaking vehicle may only pass another vehicle on the left side “at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle”. Section 159 states that “a driver of a vehicle must not drive to the left side of roadway when overtaking and passing another vehicle unless the driver can do so safely.”

[19]         In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have – or should have – appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.

[20]         There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.

[21]         Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.

[22]         No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.

[23]         In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.


“Miscontruction of the Facts” Leads to Expert Opinion Rejection

September 18th, 2014

Earlier this month I discussed the “Garbage In Garbage Out” Principle which basically means an expert opinion based on flawed facts is of little value to the Court.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry demonstrating that an opinion based on misconstrued facts is not helpful.

In today’s case (Gillespie v. Yellow Cab Company Ltd.) the Plaintiff was involved in two collisions and sustained a head injury.  He suffered from ongoing cognitive problems at the time of trial and damages of $85,000 were assessed for his non-pecuniary loss.

The Defendants argued that the Plaintiff did not sustain a head injury but instead suffered from a “metabolic syndrome” unrelated to the crash.  In rejecting this opinion the Court noted that the Defendant’s expert’s report was based on flawed facts and provided the following reasons:

202]     Dr. Eisen’s report described both accidents as being “of a mild nature”.

[203]     He did not view photographs of the plaintiff’s car in the first accident until after he presented his report. He was not aware his car was a total loss or that there was $4,900 damage to the taxi and $6,900 damage to the cube van. Although the doctor described the plaintiff’s windshield as “shattered” he did not know where he obtained that information.

[204]     Although the second accident was evidently quite minor, in my view, Dr. Eisen was clearly in error in describing the December 2009 accident this way. Although no questions were asked to clarify “mild” “moderate” or “severe” the evidence points to the first accident being in the range of two moderate collisions involving two impacts. Dr. Eisen did not view the photographs of the damage to the three vehicles nor understand the force of impact that led to Mr. Gillespie striking his head. The apparent damage to all three vehicles, the blow to his head, and the description of the impacts during the accident are inconsistent with Dr. Eisen’s conclusion that this was a mild impact collision.

[205]     In this regard I conclude that Dr. Eisen’s opinion was based on a clear misapprehension of the accident and the injury mechanism. This factor alone diminishes the weight of his report.

[206]     The evidence is uncontroversial that Mr. Gillespie’s head struck and shattered the windshield in spite of the airbag deploying.

[207]     I observed that Dr. David concluded that Mr. Gillespie’s inner ear dysfunction occurred because of direct impact, acoustic trauma from airbag deployment, and the explosive forces associated with airbag deployment.

[208]     Dr. Eisen formed his opinion that Mr. Gillespie’s ongoing cognitive symptoms following the accident are the product of metabolic syndrome based on his assumptions that Gillespie’s past and ongoing health included evidence that he was diabetic and had impaired glucose function, was obese, had untreated hypertension, and had impaired lipid metabolism. He described his condition of metabolic syndrome on the basis of those four factors…

[211]     Not only was the expert’s opinion based on a clear misapprehension of the accident and the initial injury mechanism but also, in the end, Dr. Eisen’s analysis of the underlying data was so flawed that his opinion that the plaintiff suffered from metabolic syndrome is markedly unreliable…

[217]     However, Dr. Eisen seems to have ignored that Dr. Levis, Fraser Health Concussion Clinic and Dr. Foti recorded the plaintiff’s complaints of short-term memory loss, reversing numbers, headaches, dizziness, and difficulty word-finding from December 21, 2009 until October 2011. Clearly, his cognitive problems persisted throughout the months after the accident without abatement; they did not re-emerge 11 -12 months later as assumed by Dr. Eisen. This error by Dr. Eisen relating to his ongoing cognitive impairment would likely have affected his opinion if he had relied on more accurate information.

[218]     Dr. Eisen’s misconstruction of the facts leading to his conclusion that the plaintiff did not suffer a head injury in December 2009 is a significant flaw in his opinion. Further, his opinion that Mr. Gillespie developed unrelated cognitive problems in 2011 because he was experiencing metabolic syndrome is not supported by the facts or his own opinion that some of the indications of Mr. Gillespie’s altered state of mind in the interval after the accident were indications of an accident related to mild traumatic brain injury.

[219]     … I treat his report with little to no weight…


Disbursements and “Purchasing the Cadillac When the Buick Will Do”

September 16th, 2014

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, upholding a finding that expert reports from a treating physiotherapist were an unnecessary luxury in a personal injury prosecution.

In today’s case (Salsman v. Planes) a variety of disbursements were at issue following the settlement of a personal injury claim.  One of the challenged disbursements dealt with expert reports from physiotherapists.  In disallowing these disbursements the Court noted that “these reports are an example of the plaintiff purchasing the Cadillac when the so-called Buick would serve the required purpose.“.  In upholding this decision on appeal Mr. Justice MacKenzie provided the following reasons:

[17]         The plaintiff obtained three physiotherapists’ reports. The first was Ms. Cuttiford’s report of September 23, 2010, approximately five weeks after the motor vehicle accident.

[18]         The second report was a neuro-physiotherapy report prepared on September 25, 2010, by Ms. Koshman, a vestibular physiotherapist. A third report was prepared by Ms. Koshman in December 2012, approximately 18 months after the plaintiff returned to work.

[19]         After noting the position of both the plaintiff and defendant, the Registrar observed that plaintiff’s counsel acknowledged the reports of Ms. Koshman could not be relied on to provide an opinion on causation, prognosis or treatment, thereby necessitating a report from another expert, a Dr. Longridge. It is to be noted that the defendant also contested the necessity of Dr. Longridge’s report. The Registrar, however, agreed with the plaintiff that this report was necessary and allowed this disbursement in its entirety. On the other hand, the Registrar concluded the reports of Ms. Koshman were not necessary. In addition, the Registrar noted the defendant’s argument that as the plaintiff had returned to work and counsel was aware the plaintiff’s symptoms had largely resolved by the time the second report was requested, this report from Ms. Koshman was not necessary or proper. The Registrar agreed with the defendant on this point and disallowed the cost of Ms. Koshman’s second report.

[20]         In addition, as far as all three reports are concerned, the Registrar stated at para. 39 of her decision that:

[39]      However, in my respectful view, these reports are an example of the plaintiff purchasing the Cadillac when the so-called Buick would serve the required purpose. The Buick in this case is the therapists’ clinical records. It is those documents which record the contemporaneous symptoms during assessment and provide records of treatment and outcome. Given that the plaintiff was being followed by a family doctor, a rehabilitation consultant and eventually various specialists, I see no need or propriety in commissioning reports from the physiotherapists. Accordingly, these disbursements are disallowed…

[29]         In my view, the Registrar adequately addressed these issues and provided sufficient reasons when exercising her discretion to disallow these very early physiotherapy reports. I am unable to say she was clearly wrong or erred in principle in reaching this decision.

[30]         Given the relevant circumstances, the second Koshman report of December 29, 2012 is even more problematic for the plaintiff. In this report, Ms. Koshman states that she saw the plaintiff for 14 treatment sessions between September of 2010 and March 24, 2011, before he returned to work in April of 2011. For the purposes of preparing the December of 2012 report, she reassessed the plaintiff on November 30, 2012, some 20 months after the plaintiff’s last treatment. Trial counsel deposed as to why these reports were ordered. However, it is not sufficient for the plaintiff to merely demonstrate that these reports and expenses were “very useful in this case”. As such, I do not find that the Registrar was merely second-guessing competent counsel. Given all of her reasons, I find the Registrar turned her mind to all the relevant factors and principles in reaching her decision.

[31]         As a result, I am not satisfied the plaintiff has established that the Registrar was clearly wrong or erred in principle in concluding that Ms. Koshman’s second report was unnecessary and extravagant. This aspect of the plaintiff’s appeal is also dismissed.

[21]         As a result, the disbursements for these three reports were disallowed.


Mitigation of Damages – “The Law Does Not Encourage Indolence”

September 15th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s pain and suffering award by 20% for failure to take reasonable steps to mitigate damages.

In today’s case (Rasmussen v. Blower) the Plaintiff was involved in a 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered “whiplash type injuries” with some symptoms persisting to the time of trial.  The Court found that the Plaintiff failed to follow reasonable treatments recommended to him.  In reducing his non-pecuniary damages by 20% as a result of this Mr. Justice Funt provided the following reasons:

[38]         The law does not encourage indolence.  An injured party has a duty to mitigate:  see Graham v. Rogers, 2001 BCCA 432, at para. 35.  In this type of case, the plaintiff must seek and follow the advice of his or her physician with the goal of overall improvement and recovery.

[39]         Regarding lack of mitigation, plaintiff’s counsel submits that the plaintiff did not follow the recommended treatment of physiotherapy and massage, stating that the two sessions that he did attend were painful, that he was constantly travelling, and that he could not afford the treatments.

[40]         The Court rejects the plaintiff’s reasons for failure to mitigate.  Realistically speaking, perseverance is often the key to allowing medical treatments a chance to work.  During the approximately three months for which the plaintiff claims past wage loss, he could have attended physiotherapy and massage sessions.  The Court is satisfied that he had sufficient funds or, as noted by defence counsel, he could have claimed Part 7 benefits (Insurance (Vehicle) Regulation, B.C. Reg. 447/83, Part 7).

[41]         The defendant did not argue that, if the plaintiff had followed the medical advice he received, the plaintiff’s injuries would have resolved within “6 months to a year or so”:  Price, supra.  The defendant stated that the plaintiff’s non-pecuniary award should be reduced by 10%-20% in order to take into account the plaintiff’s failure to mitigate.  The defendant has satisfied the two-pronged test in Chiu v. Chiu, 2002 BCCA 618, set forth by the late Mr. Justice Low, writing for our Court of Appeal:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[42]         The Court will reduce the non-pecuniary award it would otherwise have ordered by 20%.  The plaintiff failed to mitigate by not following the reasonable treatments recommended to him.  He also consumed alcohol in quantity which, pragmatically viewed, probably reduced or nullified the effectiveness of the prescribed medications.


Speculation No Reason for Second Defence Medical Exam

September 12th, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, confirming that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.

In the recent case (Litt v. Guo) the Plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the Plaintiff consented to a defence medical exam with a physician that addressed the Plaintiff’s injuries.  As trial neared the Defense applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer report” and the Defendant wished to respond to this anticipated development.  In noting that both arguments were insufficient for a Court ordered second defense medical exam Madam Justice Fenlon provided the following reasons:

[10]         The second ground raised by the defendants, and the ground that Mr. McHale referred to as the primary basis supporting the application for another IME by a different specialist, is that the most recent report of Dr. Bishop will be two years old at the date of trial in October 2014. The defendants fear that the plaintiff might file a newer report before the August 4 deadline for delivery of such reports, and the defendants say they would then be at a disadvantage because the plaintiffs will have a fresher report, a report based on a more recent assessment of the plaintiff.

[11]         The defendants submit that they would wish to put before the Court the best evidence, the evidence of an examination of the plaintiff at a time more recent than October 2012. There are, in my respectful view, two weaknesses with that submission. The first is that it anticipates what has not yet occurred.  If the plaintiff does submit a report prepared by one of her experts based on a recent examination of the plaintiff and if something new comes out of that report, then presumably Dr. Bishop could be invited to comment on it and the defendants would be in a position to file a rebuttal report. There is nothing in the record before me to suggest that he would not be able to comment on such a report or that there would be a need for further examination should he, in fact, be faced with such a report.

[12]         The second weakness is that passage of time alone is not a basis for ordering a second medical examination of a plaintiff. Dr. Bishop’s report is very clear in terms of his diagnosis, prognosis and his description of the pattern of symptoms Ms. Litt will experience into the future. He describes a likely aggravation of symptoms on activity, which it seems is exactly what is reflected in the medical reports which initially led to this application.

[13]         In short, despite Mr. McHale’s able submissions, I cannot find that a further examination is necessary to ensure reasonable equality of the parties in preparing for this trial.