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

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Archive for April, 2015

Court Critiques Defence Doctor’s Opinion Following “Flawed” Investigation

April 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with critical comments regarding a medico-legal opinion.

In today’s case (Chenier v. Szili) the Plaintiff was involved in a 2010 rear end collision caused by the Defendant.  The collision resulted in significant injuries.  In the course of the lawsuit the Defendant had the Plaintiff examined by a physician who provided evidence minimizing the connection between some of the plaintiff’s symptoms and the collision.  In rejecting this evidence where it differed from the Plaintiff’s neurosurgeon Mr. Justice Armstrong provided the following comments:

[154]     Dr. O’Farrell is a retired orthopaedic surgeon. He has not done any spinal surgery for 10 years. He stopped doing spinal surgery to allow room for younger, more skilled people to provide that service. His last scientific paper was published in 1996 and his last involvement in research was in 2003. He continues to see patients with back pain.

[155]     Dr. O’Farrell paid no regard to the plaintiff’s upper back injury and resulting symptoms. He recorded no complaints from the plaintiff regarding his upper back sensations of numbness and tingling in his right and left arms. He recalled that the plaintiff’s left arm improved but there were residual symptoms in his right arm.

[156]     Dr. O’Farrell did not recall performing an upper extremity examination of the plaintiff. He said it was possible he had not examined the plaintiff in that region.

[157]     He was asked about Dr. Lee, Dr. Watt and Dr. Sahjpaul identifying brisk reflexes in their examinations of the plaintiff. He was provided the notes from Dr. Lee, Dr. Watt and Dr. Sahjpaul. Dr. O’Farrell agreed that increased tone is evidence of spinal cord compression but said he did not find any indication of that condition in his examination. It was clear that if one accepted Dr. Sahjpaul’s findings, this would have been confirmatory evidence of a spinal cord compression.

[158]     There were other anomalies in Dr. O’Farrell’s examination and reporting of his findings concerning the plaintiff. These include:

(a)      He considered Mr. Chenier’s symptoms as mild because he thought Mr. Chenier was continuing to do his pre-accident heavy work with minor complaints. On this point he is simply wrong;

(b)      His written record reported Mr. Chenier complaining of pain when lifting or bending, but Dr. Farrell used the phrase discomfort in his report. Dr. O’Farrell did not adequately explain why he transposed pain into discomfort in his report;

(c)      He neglected to record that the plaintiff was involved in a double impact accident which would have indicated a more significant collision;

(d)      He reviewed notes indicating that the plaintiff went to a walk-in clinic on the day of the car accident and was observed to have right and left neck spasm and lumbar spasm, but these facts were omitted in his report. This was significant because evidence of right and left neck spasm and lumbar spasm was significant in respect to his diagnosis. They confirm the immediate post-accident onset of pain;

(e)      The doctor reported the plaintiff had previous chiropractic treatments but he did not ascertain the number of those treatments or the purpose of those treatments. The symptoms giving rise to those treatments and the number of treatments would have been relevant. He described his omission of any reference to this treatment as a possible “oversight”. Dr. O’Farrell conceded that the earlier chiropractic treatments could have been related to a pulled muscle rather than a symptomatic disc disease and he did not recall why he had not noted the frequency or reasons for the treatments;

(f)       He did not make any note of the plaintiff’s complaints of arm numbness and tingling in his fingers but insisted he would have inquired about them. The doctor said “it was not a major issue” for the plaintiff and he did not investigate this region further;

(g)      He observed that the plaintiff had a positive response indicating spinal pathology in the lower back. He said he did not find any evidence of increased tone then he would agree there was evidence of spinal cord compression;

(h)      He said he would have done a neurological exam of the plaintiff but it was not documented. He later said he may not have done an upper extremity neurological exam due to an oversight. It is likely he did not do such an examination;

(i)       He said the results of the lower extremity neurological exam were normal. Though Dr. Watt had earlier found deep tendon brisk reflexes, he believes these reflexes might not be abnormal.

[159]     Dr. O’Farrell conceded that Dr. Sahjpaul’s diagnosis of the C5/6 and C6/7 degeneration was persuasive and that he would defer to Dr. Sahjpaul in regard to that opinion.

[160]     I have concluded that Dr. O’Farrell’s investigation of the plaintiff, his clinical notes taken during his examination of the plaintiff and the differences between his notes and underlying facts in the report were flawed. Most significantly, he did not do an upper body examination of Mr. Chenier and did not observe other symptoms that confirmed a spinal cord compression.

[161]     Dr. O’Farrell’s recent professional activity, in contrast with Dr. Sahjpaul’s practice, persuades me that the opinion of the latter is to be given more weight. Dr. Sahjpaul, as a neurologist, has more current expertise that is focused on the type of spinal injuries suffered by the plaintiff.

[162]     Dr. O’Farrell also confirmed that he would defer to Dr. Sahjpaul’s opinions concerning the plaintiff’s upper spine injury.

[163]     Thus, I conclude that Dr. O’Farrell’s opinions regarding the plaintiff’s low back injury and his upper spine injuries and their connection to his pre-existing degenerative disc condition are not persuasive. Where his opinion conflicts with that of Dr. Sahjpaul, I prefer Dr. Sahjpaul’s opinion.


Nurse Found Liable for “Negligent Walking”

April 28th, 2015

There is no reason why the principles of negligence can’t apply to a situation where one pedestrian negligently walks into another causing injury.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Faircrest v. Buchanan) the “unintentionally bumped into (the plaintiff) while leaving her office to attend to a patient”.  The Plaintiff fell down and suffered a fractured hip.

The Defendant argued that no liability should flow stating that “a person of ordinary fortitude would not have fallen as a result of the Collision“.  The Court disagreed and found liability could flow from negligent walking.  In doing so Mr. Justice Erhcke provided the following reasons:

[57]         The parties are in agreement that there are four elements to be proved by the plaintiff in an action for negligence, as set out in para. 3 of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27:

[3]        A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach. I shall examine each of these elements of negligence in turn. As I will explain, Mr. Mustapha’s claim fails because he has failed to establish that his damage was caused in law by the defendant’s negligence. In other words, his damage are too remote to allow recovery.

[58]         The first and the third elements are not in issue, since Fraser Health acknowledges that Nurse Buchanan owed the plaintiff a duty of care and that the plaintiff was injured in the Collision. Fraser Health also acknowledges that it is vicariously liable if Nurse Buchanan is found to have been negligent.

[59]         As to the fourth element, Fraser Health contends that even if the plaintiff’s injuries were in fact caused by the Collision, they were too remote to warrant damages, and therefore, legal causation has not been established. Fraser Health submits that a person of ordinary fortitude would not have fallen as a result of the Collision, or if she did, she would not have sustained injury.

[60]         I do not agree. There is no evidence that Ms. Faircrest’s arthritis, age, or stature had anything to do with her sustaining injuries in the Collision. Although she may have walked more slowly than others, that was not a relevant factor in the outcome. It was reasonably foreseeable that if Nurse Buchanan, who weighed 185 lbs., while not watching where she was walking, collided with a female volunteer, that volunteer might fall and suffer physical injuries. The injuries are not too remote to warrant damages, if the standard of care was breached.

[61]         We come then to the third element, breach of the standard of care. The standard of care in the case of collisions between pedestrians was described in this way by Dhillon J. in Mills v. Moberg (1996), 27 B.C.L.R. (3d) 277 (S.C.) at para. 6:

The duty of pedestrians to one another is to act as an ordinary person would in the circumstances, using the degree of care and vigilance which the circumstances and the interests of others using the walkway demand.

[62]         In that case, Dhillon J. found a delivery driver liable in negligence for having knocked over another pedestrian as he walked around the corner of his truck in a mall parking lot, causing the 76-year-old plaintiff to fall and break her hip. She wrote at para. 6:

In this case, the defendant, Moberg, failed to consider the possibility of other pedestrians in the parking lot despite the configuration of the lot which necessitated pedestrians to cross the lot to reach the shops. Given the proximity of the mall to long term care and rehabilitation facilities and given Moberg’s regular presence at the mall, Moberg should have been alert to the presence of pedestrians including disabled persons in the vicinity. He did not look to his right as he quickly rounded the rear of his delivery van to reach the driver’s door. His failure to look for other pedestrians was the cause of the collision.

[63]         In the present case, it is, of course, relevant that Connolly Lodge is a residential mental health facility and that Nurse Buchanan had a duty to react quickly to the disturbance caused by one of the patients. Nevertheless, her quick reaction was no reason to be heedless of other persons standing or walking in the Lodge who might be in her path as she proceeded to attend to the patient. Her failure to notice the presence of the plaintiff in her path caused the Collision.

[64]         I therefore find that Nurse Buchanan was negligent, and that Fraser Health is vicariously liable for her negligence.


“Walk Away” Offer Results in Double Costs After Plaintiff Claim Dismissed

April 27th, 2015

Reasons for judgement were released today ordering a Plaintiff to pay costs and post offer double costs after having his personal injury claim dismissed at trial.

In today’s case (Johnson v. Jamiesen) the Plaintiff was involved in a 2010 collision.  Fault was disputed.  In the course of the litigation the Defendant made an offer to settle the claim for $0 with both parties bearing their own costs to date.  The Plaintiff proceeded to trial and the claim was dismissed.  In finding that the ‘walk away’ offer ought to have been accepted and awarding double costs Mr. Justice Brown provided the following reasons:

[14]         The plaintiff had in hand the defendant driver’s witness statement when he received the offer to settle. Six months later, the parties conducted examinations for discovery. The only witness called by the plaintiff was his girlfriend. He should have been aware of the reliability and shortcomings in her evidence by then. Further, following examinations for discovery, the plaintiff was positioned to see the perils of his position on liability.

[15]         The defendants characterize their offer as a “walk-a-way” offer. While a nuisance offer may bear no real relationship to a plaintiff’s claim and not constitute an offer reasonably capable of acceptance, the court has recognized a walk-a-away offer may bear a realistic relationship to the plaintiff’s claim, reasonably capable of acceptance and, if rejected, justify an award of double costs, Riley, v. Riley, 2010 BCSC 822. In Riley, the court found the plaintiff possessed all the information the defendant intended to rely on at trial, which in this case, would be the evidence of the defendant driver. There were some potential accident witnesses at the scene potentially available to the plaintiff, but he could not call them because he and his girlfriend chose not to obtain any contact information from them, electing to go to a pub for a beer and to watch the hockey game.

[16]         The weaknesses of the plaintiff’s case on liability were quite apparent, his testimony rife with inconsistencies and improbabilities. I agree with the defendants that the plaintiff should have readily recognized the high risk of dismissal that he faced. I note the offer was open for acceptance any time before 4:00 p.m. on the last business day before commencement of the first day of trial. The long period between the tender of the offer and trial afforded ample time to consider the offer, which I find was one reasonably capable of acceptance.

[17]         See, besides Riley: Henry v. Bennett, 2014 BCSC 1963 at paras. 29 and 30; Houston v. O’Connor, 2011 BCSC 509 at para. 59; Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 [“Catalyst”]; Brooks v. Gilchrist, 2011 BCSC 56 at para. 16; and Bay v. Pasieka, 2014 BCSC 809 at para. 20.

[18]         In Catalyst, Hall J. A. made this useful comment at para. 16:

[16]      It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.

[19]         I am not aware of any particular financial considerations. The plaintiff has not made submissions on costs.

[20]         Accordingly, the defendants have an order for all costs of the proceedings at Scale B, up to and including May 15, 2012. For all the steps they took in the proceeding after the October 9, 2012 examinations for discovery, they are entitled to double costs.


Visual Vestibular Mismatch Leads to $90,000 Non-Pecuniary Assessment

April 21st, 2015

Adding to this site’s archived cases addressing visual vestibular mismatch following a vehicle collision, reasons for judgement were released today by the Supreme Court, assessing damages for such an injury.

In today’s case (Miolla v. Fick) the Plaintiff was involved in a modest 2013 rear end collision.  The Defendant admitted fault but argued that given the minor nature of the crash the Plaintiff was not injured.  The Court rejected this argument and concluded the plaintiff suffered from soft tissue injuries and a visual vestibular mismatch which caused a chronic balance problem which largely interfered with the Plaintiff’s ability to work.  In assessing non-pecuniary damages at $90,000 Mr. Justice Myers provided the following reasons:

[30]    Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch.  In his direct evidence he briefly described that as disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo.  A longer explanation was provided in his report:

Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. Complaints of dizziness caused by checkered floors, busy carpets or patterned tiles is seen. Dislike of elevators and escalators, which caused dizziness is common. Busy television programs, such as car chases and hockey games cause dizziness. Scrolling a computer causes dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation.

[31]    He concluded that this was caused by the accident:

Onset of dizziness subsequent to the accident means, in my opinion, that the accident is the [probable] cause. There are measured abnormalities on balance tests. She has an abnormal result on Computerized Dynamic Posturography (CDP), compatible with a disturbance involving the balance system of the inner ear. This is an objective test. She has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with an abnormality on the left side. This is an objective test. OVEMP measure the macula of the utricle, one of the gravity detecting organs of the inner ear…

[42]    …I accept Dr. Longridge’s report and conclusion.

[61]    A closer case – in fact one remarkably similar to the one at bar – is Moukhine v. Collins, 2012 BSCS 118.  In that case, the 53-year-old plaintiff also suffered visual-vestibular mismatch.  That impaired his ability to work as a computer programmer by 50%.  His previous activity level was curtailed, as was the nature and extent of his outdoor activity level.  Damages were assessed at $90,000.  Based on that, I assess general damages at $90,000.


“The Standard of Proof Does Not Change” For Subjective Soft Tissue Injuries

April 20th, 2015

Sensible reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, confirming that the standard of proof does not change for a tort claim based on subjective soft tissue injuries.

In last week’s case (Rabiee v. Rendleman) the Plaintiff was involved in a 2008 rear end collision.  The Defendant admitted fault but disputed injury pointing in part to the fact that the collision was minor.  In accepting the Plaintiff sustained soft tissue injuries and assessing non-pecuniary damages at $40,000 Madam Justice Sharma provided the following comments about the standard of proof in low velocity impact prosecutions:

[62]         Given the findings of fact above, I am satisfied that the plaintiff has established on a balance of probabilities that the accident caused soft tissue injuries. The accident was clearly “a cause” of the soft tissue injuries…

[64]         The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock, [1981] B.C.J. No. 31 (B.C.S.C.) that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”

[65]         I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock, [1983] B.C.J. No. 1490 (B.C.C.A.) clarified:  “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”

[66]         The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors…

71]         Taking into account all of the cases and my conclusions about the evidence in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary damages.


65/35 Fault Split Following Vehicle / Bicycle Collision

April 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry addressing fault for an intersection collision between a motorist and a cyclist.

Blanca and Drummond

In today’s case (Matkin v. Hogg) the Plaintiff was travelling on a bicycle Northbound on Blanca Street in Vancouver.  At the same time the Defendant was operating a vehicle travelling in the same direction.  While the Defendant was turning at a stop sign controlled intersection the Plaintiff drove past the vehicle and both collided.  The Defendant did not signal his intended turn and the Plaintiff failed to appreciate there was a stop sign at the intersection.  In finding the cyclist 65% at fault with the motorist shouldering 35% of the blame Mr. Justice Kent provided the following reasons:

[63]         Adopting a robust and pragmatic approach to the evidence and to the circumstances of the collision, I find as a fact that the following sequence of events occurred:

•           Mr. Hogg’s vehicle was parked on the eastside of the road approximately halfway down the block between 2nd Street and Drummond Drive;

•           While it was not completely dark, it was dusk and the street lights were on;

•           Mr. Hogg started his vehicle, thereby illuminating his running lights, and also turned on his headlights and checked his mirrors before pulling out onto the road;

•           When he checked his mirrors he did not see any of the cyclists further up Blanca Street;

•           He travelled north, slowed at the stop sign, likely performed a rolling stop in the absence of any visible traffic from any other direction and once in the intersection started to make a turn to the left in order to complete his intended turn-around maneuver;

•           In the meantime the plaintiff was proceeding northbound down the hill on the Blanca Street towards the intersection and towards Mr. Hogg’s car at approximately 20 km/hr;

•           She was unaware of the existence of a stop sign at the intersection and had not noticed the “stop sign ahead” sign posted further up Blanca Street;

•           Thinking there was no traffic around him, Mr. Hogg did not activate his left turn signal before starting his u-turn maneuver;

•           As she approached the intersection on her bike, the plaintiff formed the impression that the Hogg vehicle ahead of her was going to continue through the intersection in a northbound direction on Blanca Street;

•           At the time she was travelling faster than the Hogg vehicle and the distance between them was closing rapidly;

•           She did not see the stop signal, did not in fact stop or brake, but simply continued to ride over the putative stop line and into the intersection intending to travel north beside or close behind the Hogg vehicle;

•           When the Hogg vehicle started its left turn maneuver in the intersection, the plaintiff simply had no time to take any effective evasive maneuvers and her bike collided with the front left fender of the Hogg vehicle in the vicinity of the wheel well, launching her from her bike and onto the road; and

•           Mr. Hogg either did not check his mirrors at the stop sign and before commencing his turn, or did so and simply failed to see the plaintiff on her bike travelling behind him, but either way there was sufficient illumination from the diminishing daylight and the illuminated street lamps for her to have been visible to Mr. Hogg.

[64]         It follows from these findings of facts that the collision was caused by the actions of both the plaintiff and the defendant. What remains is the manner in which fault should be ascribed and allocated between the two…

[74]         In terms of assessing the relative degrees of fault of the parties, I conclude that the plaintiff’s conduct attracts more blame than that of the defendant’s. Both had similar duties of care vis-à-vis each other but the plaintiff was particularly careless of her own safety. Riding a bike at night on city streets without a light and without a helmet creates a grave risk indeed. It was also deliberate rather than accidental conduct on her part. Further, since she was behind the Hogg vehicle for some period of time before the actual collision, she had a greater opportunity to prevent the accident.

[75]         Pursuant to s. 6 of the Negligence Act the determination of degrees of fault is a question of fact. Based on the totality of the evidence and the considerations referred to above, I find as a fact that the fault for causing this accident rests 35% with the defendant and 65% with the plaintiff herself. Whether that allocation of fault to the plaintiff should be further increased (and the defendant’s liability to make good plaintiff’s loss should be further reduced) by further conduct on her part which increased the extent of loss or injury arising from the accident, e.g. the failure to wear a helmet, is a matter the parties have agreed will be determined at the trial of the damages portion of the case.


$95,000 Non-Pecuniary Assessment for Chronic Wrist Injury

April 13th, 2015

Adding to this site’s archived case summaries of non-pecuniary awards for wrist injuries, reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic wrist injury.

In today’s case (Ozeer v. Young) the Plaintiff was riding as a passenger in a vehicle that ran head on into a hydro pole.  He suffered some soft tissue injuries which resolved without issue.  He also suffered a wrist injury which required multiple surgeries and continued to pose problems.  In assessing non-pecuniary damages at $95,000 Mr. Justice Saunders provided the following reasons:

[22]         In short, in addition to relatively mild or mild-to-moderate soft tissue injuries, Mr. Ozeer has sustained a severe wrist injury resulting in significant restriction in the use of his dominant hand that will be permanent. He has undergone two surgeries directly attributable to the accident, with an extended recovery period, and will probably have to undergo another surgery to fuse the wrist. He has continued to suffer pain and discomfort to varying degrees. I infer the pain and discomfort will likely only worsen due to the onset of arthritis…

[27]         Of the cases cited, the facts in Ferguson bear the closest resemblance to the present case. The 37-year-old plaintiff in Ferguson suffered injuries to his neck, back and left wrist. His neck and back problems resolved within weeks, but his wrist injury persisted, requiring three surgeries. A report prepared by an orthopaedic and hand surgeon concluded that the plaintiff would be left with permanent weakness in his left hand and he would require job retraining as the injury would probably permanently prevent him from returning to his job as a heavy duty mechanic. Madam Justice Gill awarded the plaintiff $75,000 in non-pecuniary damages.

[28]         I award Mr. Ozeer non-pecuniary damages of $95,000.


$50,000 Non-Pecuniary Assessment for Aggravation of “Active Back and Neck Pain”

April 7th, 2015

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

In today’s case (Dhaliwal v. Pillay) the Plaintiff was involved in two collisions, the first in 2010, the second in 2011.  The Defendants admitted fault for both crashes.  Prior to the collisions the plaintiff fell off a ladder and injured his neck and back and had ongoing symptoms from this injury.  The Court found the collisions aggravated these pre-existing injuries.  In assessing non-pecuniary damages at $50,000 Mr. Justice Truscott provided the following reasons:

[223]     I am completely satisfied from the medical evidence that Mr. Dhaliwal hurt his back and neck in the 2008 ladder fall and it caused him significant continuing pain right up to and including to the time of the first motor vehicle accident.

[224]     It is my conclusion the two motor vehicle accidents only aggravated or exacerbated his existing active back and neck pain that preceded the first accident.

[225]     The applicable law has been set out by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458 where Mr. Justice Major, writing for the Court, said this at p. 473:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[226]     Mr. Dhaliwal has pre-existing active back and neck pain which was due to degenerative changes in his spine and injury from the ladder fall, as well as arthritis in his hands and knees, and with Mr. Dhaliwal having only aggravated his back and neck pain in the two motor vehicle accidents and sustained headaches and right groin pain and right ankle pain, I consider an appropriate award for pain and suffering to be $50,000.


$100,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Psychological Component

April 2nd, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain condition stemming from collision related soft tissue injuries.

In today’s case (Karim v. Li) the Plaintiff was injured in a 2011 collision.  The defendant accepted fault for the crash.  The Plaintiff suffered various soft tissue injuries which, coupled with psychological consequences, resulted in an ongoing chronic pain condition.  In assessing non-pecuniary damages at $100,000 Mr. Justice Abrioux provided the following reasons:

(a) prior to the Accident, Mr. Karim was a hard-working and industrious man who had overcome significant obstacles in his past. He was satisfied with his life both personally and professionally;

(b) Mr. Karim’s “original position” included a significant difficulty with stuttering which, although considerably improved from what it had been in the past, was in a fragile or vulnerable state. Had the Accident not occurred, regression was likely were he faced with stressful conditions either in his personal or vocational life;

(c) although I found the plaintiff generally to be credible, he has embellished certain events. For example, he advised Dr. Nader that the defendants’ vehicle was travelling at approximately 80 kph when it struck him. Common sense leads to the conclusion that his vehicle would not have been drivable after the Accident had this been the case and that emergency vehicles would have attended the Accident scene, neither of which occurred. There are also examples of embellishment in his work and educational history;

(d) the plaintiff has a tendency to see things in their worst light. Dr. Gouws characterized this as “pain catastrophization”. This has resulted in the perception that he is much more disabled from a pain and functioning perspective than he is in reality;

(e) the plaintiff sustained moderate to moderately-severe soft tissue injuries in the Accident. He was essentially totally incapacitated from a physical perspective for a period of approximately one year and at intermittent times thereafter. As such, his condition, which includes psychological factors, does satisfy the criteria for “chronic pain” being pain that persists for more than six months. The psychological factors have had a significant negative effect on his ability to recover;

(f) despite the plaintiff’s presentation and the history he has provided to the various professionals who have assessed him, he is capable of much more than what he perceives. I accept Dr. Gouws evidence in cross-examination to that effect;

(g) a component of the plaintiff’s perception of his inability to function may be his psychological makeup. He has, however, demonstrated the ability to overcome disability through his own resources or willpower. An example is his ability to control his stuttering to which I have referred above;

(h) with appropriate professional assistance including a further intensive course at Columbia together with a 16 session cognitive behavioural therapy program as recommended by Dr. Riar, Mr. Karim will largely return to his level of personal and professional functioning experienced prior to the Accident; and

(i) in that regard, I accept Dr. Gouws’ and Dr. Paramonoff’s opinions which identified “catastrophization” and “confounding factors” as the main limitation to Mr. Karim’s recovery. This is the basis for their recommendation that he obtain psychological assistance….

[126]     Based on my findings of fact, I am satisfied that Mr. Karim, who was 25 years old at the time of the accident, suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. I also find that the consequences of the Accident were instrumental in the termination of his relationship with Ms. Azimi which resulted in an increase in his stress and greatly affected his quality of life for a period of time.

[127]     I have also found that with an appropriate course of treatment both physical and psychological that Mr. Karim should largely return to his pre-Accident level of functioning. Thereafter, there will still, in my view, be some occasions in the future when the consequences of the Accident will affect the plaintiff both professionally and personally.

[128]     I conclude that the authorities referred to by the defendants in particular Andrusko resemble more closely the plaintiff’s circumstances. But that award of $80,000, in my view, should be increased to reflect the contribution that the Accident had on the plaintiff’s relationship with Ms. Azimi. The award should also reflect that although I have concluded that the plaintiff does have the ability to overcome his negative perceptions of how the Accident has affected his life this will take some real effort on his part.

[129]     I award the plaintiff $100,000 under this heading.


$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

April 1st, 2015

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, Nanaimo Registry, assessing damages for a chronic shoulder injury caused by a collision.

In today’s case (Gaudrealt v. Gobeil) the Plaintiff was involved in a ‘forceful‘ rear-end collision in 2009.  He suffered various injuries the most serious of which was a chronic shoulder pain.  In assessing non-pecuniary damages at $75,000 Mr. Justice Thompson provided the following reasons:

[15]        I find that most of the right shoulder abnormalities shown by the X-ray and MRI imaging pre-date the MVA. I conclude that the superficial tearing of the bursal surface of the supraspinatus tendon and the biceps tendinitis is a direct result of the MVA. The other right shoulder changes were pre-existing, albeit asymptomatic and rendered symptomatic by the MVA.

[16]        The medical evidence firmly supports the conclusion that the MVA has put the plaintiff in a position where he ought not to do physical construction work. However, I do find that if the MVA had not happened, there is a measurable risk that the asymptomatic pre-existing right shoulder abnormalities would have progressed and at some point interfered with the plaintiff’s ability to do this heavy type of work. Doing the best I can with the evidence available, I think this contingency to be on the order of a 50% risk within ten years.

[17]        There is a chance that Mr. Gaudreault will need rotator cuff surgery to repair MVA-related damage, but I think this is unlikely. He seems disinclined to that alternative. If he continues to stay away from heavy physical work, I think it is highly likely that he will avoid surgery…

[22]        The proper approach to the assessment of non-pecuniary damages is well-settled and is encapsulated in the often-cited passage at paras. 45-46 in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46. The plaintiff urges an award of $125,000, emphasizing the expected permanency of his partial disability, the chance that shoulder surgery will be necessary, the interruption of his ability to work without restriction, and the impact on his enjoyment of golf and tennis. The defendants submit that $40,000 would be proper compensation. They emphasize that shoulder problems may have emerged in any event of the MVA. They submit that the plaintiff has taken no therapy treatment in the past two years, he has taken no pain medications since the year following the MVA, and he no longer sees his family doctor for his MVA-related complaints — all of which indicate that the plaintiff is not in a great deal of pain. They contend that there has been little in the way of lifestyle interruption, pointing to the plaintiff’s ability to continue to referee soccer and the plaintiff’s admission that it is unlikely that he would have spent much time golfing or playing tennis in the busy years since the accident.

[23]        The plaintiff cites White v. Wiens, 2015 BCSC 188 ($100,000); Ostrikoff v. Oliveira, 2014 BCSC 531 ($105,000); Morlan v. Barrett, 2012 BCCA 66 ($125,000); Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455 ($125,000); and Power v. White, 2010 BCSC 1084 ($135,000). The defendants cite Jordan v. Lowe, 2012 BCSC 1482 ($35,000); McKenzie v. Mills, 2013 BCSC 1505 ($40,000); Bissonnette v. Horn, 2012 BCSC 518 ($50,000); Jorgensen v. Coonce, 2013 BCSC 158 ($60,000); and Bansi v. Pye, 2012 BCSC 556 ($75,000).

[24]        There is no question that Mr. Gaudreault has suffered a permanent partial disability that interferes with his work capacity, but he is not experiencing the degree of pain, emotional disturbance and interference with his lifestyle featured in the cases cited by his counsel. I fix the plaintiff’s non-pecuniary damages at $75,000.