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 October, 2015

Liberal Use of Discovery Transcripts Granted in Case of Indivisible Injuries

October 27th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, considering whether defendants in separate actions could use each others examination for discovery transcripts of the Plaintiff in trial.

In today’s case (Elworthy v. Tillit) the Plaintiff alleged personal injury from two separate matters.  Both parties agreed the separate lawsuits should be heard together given overlapping injury but could not agree if both defendants could use the Plaintiff’s examination for discovery transcripts from the separate actions.  In finding they could Master Bouck provided the following reasons:

6]             The defendant Stewart led the submissions on the law with references to several common law authorities including Gill v. Gill, 2013 BCSC 2365. In that case, the court decided that the implied undertaking rule could be waived so that a transcript of the plaintiff’s examination for discovery in a Part 7 action could be used in the plaintiff’s tort action, and vice versa.

[7]             Although not precisely the same factual matrix as the case at bar, I find that the legal analysis and result in Gill v. Gill should be followed here. The same concerns raised by the plaintiff in this case were considered and rejected by the court in Gill. Here, the issues of causation and indivisible injuries provide the commonality between the actions.

[8]             The defendants differ on the language to be used in this particular case plan order. In my view, the appropriate language is that found in Peel v. Western Delta, 2003 BCSC 784 at para. 30. The order pronounced is that the evidence that is otherwise admissible and relevant, obtained at the examination for discovery in Victoria Registry action no.14-0946 (either concluded or future) will be admissible both in that action and in Victoria Registry action no. 15-2263 as if the evidence had been obtained in the other action.

Failing to Overtake Traffic “As Quickly and as Reasonably As Possible” Found Negligent

October 22nd, 2015

Update July 20, 2016 – the below decision was overturned today by the BC Court of Appeal.


Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that it is negligent for a motorist to not drive ‘as quickly and as reasonably as possible‘ when overtaking another vehicle on a highway.

In today’s case (Borgiford v. Thue) the Plaintiff vehicle was in the left hand lane of a highway overtaking tractor-trailers who were travelling at a low rate of speed as they ascended a steep hill.  The Plaintiff vehicle’s motorist was a ‘timid’ driver and was overtaking the slow moving vehicles at a speed of 85 kmph despite a speed limit of 110 kmph.  At the same time a Suburban approached the vehicles at a high rate of speed, clipped one of the slow moving tractor-trailers and lost control resulting in apparent profound injuries to his passengers.

The Court found the speeding motorist clearly negligent but went on to find the slow passing plaintiff vehicle was also negligent for not passing the tractor trailers as quickly as possible.  In reaching this finding Mr. Justice Rogers provided the following reasons:

[99]         In my view, the standard of care owed by a reasonable and prudent driver in Mrs. Boizard’s situation required that hypothetical driver to overtake Mr. Einarson’s unit as quickly as reasonably possible. I find that is the standard because the speed limit on the highway was 110 kph and any reasonable operator on that road would have known that motorists often go faster, sometimes much faster, than the speed limit. A reasonable driver in Mrs. Boizard’s situation would have known that for so long as he was in the left-most lane the entire width of the highway was occupied by relatively slow moving traffic. A motorist approaching from the rear and traveling at 110 kph would find his way blocked by the slower vehicle in the left-most lane.

[100]     I must therefore ask myself: was Mrs. Boizard overtaking Mr. Einarson as quickly as reasonably possible? Here Mr. Fiorin’s opinion does not really help Mrs. Boizard. That is because the key element of Mr. Foirin’s opinion is that operators of large vehicles are entitled to take steps to keep up the momentum of their units as they ascend a hill. That may be true, but it does not apply to Mrs. Boizard. That is because on Mrs. Boizard’s own evidence the pickup truck she was driving was capable of going up Larson Hill faster than 85 kph. This was not a case of the Boizard truck struggling to keep up its speed of 80 to 85 kph. This was a case of Mrs. Boizard making a conscious and deliberate decision to not go faster than 85 kph.

[101]     I do not doubt Mrs. Boizard’s sincerity when she testifies that she felt that it was safer to go 85 kph while passing Mr. Einarson. However, her subjective opinion cannot carry the day. The real question is whether a reasonable and prudent motorist in her situation could have and would have overtaken Mr. Einarson more quickly. The evidence does not satisfy me that a higher speed for the camper while passing would, in fact, have created an unsafe circumstance for either the Boizards or Mr. Einarson. I am thoroughly satisfied, however, that clearing the left-most lane would have created a safer circumstance for other motorists approaching from the rear. Put another way, the less time that Mrs. Boizard stayed in the left-most lane, the safer it would be for other, faster traveling, motorists who also wished to overtake Mr. Einarson’s unit.

[102]     In short, I find that Mrs. Boizard was a timid driver – she could have driven her camper faster and could have overtaken Mr. Einarson’s tractor-trailer more quickly. Instead, Mrs. Boizard chose to drive at a relatively leisurely pace and in so doing, she blocked the left-most lane for a longer period of time than was reasonably necessary. I find that Mrs. Boizard’s decision to drive as slowly as she did and to occupy the overtaking lane for as long as she did fell below the standard of care that she owed to other users of the highway. I find that she was negligent in that regard.

[103]     The question now arises whether either of Mrs. Boizard’s negligent acts was a cause of the accident. As we know from Athey it is not necessary that Mrs. Boizard’s negligence be the sole cause of the accident. The law is also clear that causation is not determined by which of the defendants had the last clear chance to avoid the mishap. All that is necessary is for Mrs. Boizard’s negligence to be a cause; that is to say, but for her negligence, the accident would not have happened.

[104]     In my view, the link between Mrs. Boizard’s negligence in changing lanes as she did is too weak to support a finding that that particular act caused the accident. I have come to that conclusion because the Thue Suburban was not in sight when Mrs. Boizard changed lanes. The Suburban came around the first curve on Larson Hill after Mrs. Boizard was in the left-most lane. The lane change itself did not put Mr. Thue and his passengers in jeopardy.

[105]     However, had Mrs. Boizard accelerated her camper to a reasonable overtaking speed, she would have blocked the overtaking lane for a shorter period of time. Given that when the accident happened the camper was at the junction between Mr. Einarson’s tractor and trailer, it would not have taken much more speed on Mrs. Boizard’s part to have gotten past Mr. Einarson ahead of Mr. Thue’s arrival. In my opinion, there is a sufficient causal link between Mrs. Boizard’s decision to overtake at a leisurely pace and the accident to support a finding that but for that decision, the accident may not have happened. Put another way, in order for the accident to have happened the way it did, it was necessary for Mrs. Boizard to have blocked the overtaking lane.

$50,000 Non-Pecuniary Assessment for Mild Soft Tissue Injuries With Somatic Disorder

October 20th, 2015

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for soft tissue injuries with psychological overlay caused by a collision.

In today’s case (Zaluski v. Verth) the Plaintiff was involved in a 2011 collision caused by the Defendant.  Fault was admitted.  The Court did not accept all of the Plaintiff’s evidence but did accept the collision caused soft tissue injuries with a somatic disorder.  In assessing non-pecuniary damages at $50,000 Mr. Justice Tindale provided the following reasons:

142]     Based on all of the evidence I do however accept that the plaintiff did receive a mild soft tissue injury to her neck which affected her shoulders and back. I also accept Dr. Riar’s evidence that the plaintiff as a result of the MVA as suffered a somatic symptom disorder as well as anxiety and depression. I do not accept that the plaintiff has been disabled for any lengthy period from working as a result of these injuries. She was able to work significant hours at the Phoenix Medical Imaging well after the MVA. She only missed one day of work from the Nechako Medical Clinic as a result of the MVA.

[143]     In my view the plaintiff has exaggerated the severity and duration of her physical symptoms. I do not accept that her psychological condition disabled her from working.

[144]     The plaintiff does not suffer from disorders such as fibromyalgia, Post Traumatic Stress Disorder or severe and prolonged headaches. The cases that the plaintiff relies upon are of individuals who are much more seriously injured than the plaintiff in this case and have many of the above noted disorders…

[147]     In my view given the nature and duration of both the plaintiff’s physical and psychological injuries and considering the factors in Stapley the appropriate amount for non-pecuniary damages is $50,000.

Indivisible Injuries Cannot Get Around the Worker/Worker Defence to Recovery

October 19th, 2015

Update May 16, 2016 – the below decision was apparently appealed and a settlement was reached prior to judicial disposition.  For a case calling the below reasoning “highly debatable” you can click here.


Adding to this site’s archives addressing the law of indivisible injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether the principle of indivisible injury allows a claimant to collect damages for a claim that is otherwise barred by the Workers Compensation Act.  In short the Court ruled that this cannot be done.

In today’s case (Pinch v. Hofstee) the Plaintiff was injured in a 2010 collision and sued for damages.  In 2013 the Plaintiff was involved in a second collision which proceeded through WorkSafeBC as both motorists were in the course of their employment at the time.

At the trial for the first collision the Court found that both crashes resulted in indivisible injury.  The general rule with indivisible injuries from two non at-fault events is that the Plaintiff can seek full compensation for these from a single tortfeasor.  In finding this general rule does not apply in the case of indivisible injuries contributed to by an event caught by the worker/worker bar Mr. Justice Burnyeat provided the following reasons:

[53]         Having concluded that the injuries suffered were indivisible, the question that arises is whether Mr. Pinch is in a position to claim against Mr. Hofstee for the injuries suffered by him in MVA #2.  Despite my conclusion that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 were indivisible, I nevertheless conclude that Mr. Pinch is not in a position to claim damages against Mr. Hofstee arising out of the injuries that were incurred as a result of MVA #2.  I am satisfied that the effect of s. 10 of the Act precludes seeking damages arising from what are said to be indivisible damages.

[54]         Section 10(1) of the Act makes it clear that the provisions of that Part of the Act are “…in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any cause of action…”  [emphasis added].  Therefore, s.10(1) refers not only to “rights of action” but “any right…founded on a breach of duty of care or any other cause of action…”  I am satisfied that the “right” to claim for recovery for indivisible damages is a right that is precluded by s. 10(1) of the Act, being a right which is separate and distinct from a right to commence an action.  In this regard, s. 10(1) provides not only that the provision of the Part of the Act is in lieu of “any right and rights of action…” founded on the breach of duty of care that Mr. Pinch may have against an employee or an employer but also that “no action in respect of it lies” and that “any right…founded in a breach of duty of care” is precluded.  I am satisfied that this precludes any right that Mr. Pinch may have which is founded on a breach of duty of care by Mr. Hofstee.

[55]         The purpose of this section of the Act is to remove from the jurisdiction of the court the ability to deal with the rights of employees such as Mr. Pinch and the liability of employers when personal injuries are suffered in the course of employment. In this regard see DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445 (H.C.) and Mitrunen v. Anthes Equipment Ltd. (1984) 57 B.C.L.R. 287.  In Mitrunen, Gould J. dealt with an action against Dominion Construction Company Limited which was an employer and Anthes Equipment Ltd. that was not.  After citing with approval the decision in DiCarlo, supra, in deciding that he was not bound by the unreported decision in Middleton v. Chen (C810663‑October 25, 1982), Gould J. determined that the Act governed and that it relieved the non‑employer defendant for liability for damages caused by the fault of the employer defendant.  On appeal, (1985) 17 D.L.R. (4th) 567, Seaton J.A., on behalf of the Court made this statement:

Section 10 first, in s-s (1), takes away the plaintiffs right of action against his employer and against co-employees. Subsections (2) to (5) deal with compensation and the bringing of an action against others. Subsection (6) talks about the worker, his dependant or the board bringing an action against some person other than an employer or worker. Subsection (6) thus leads logically to s-s (7) which, in its beginning words, clearly encompasses actions against those not employers or fellow workers. What it then says is that in that action if it is found that the death was due partly to a breach of duty of the employer or worker, then no damages are recoverable for the portion of the loss or damage caused by the negligence of the employer or worker. It does not say no damages are recoverable against the employer or worker; it is simply no damages are recoverable. On the face of it that must mean against anyone. The subsection, as I have mentioned, deals with an action brought against some person other than an employer or worker and it deals with actions brought by workers, dependants or by the board. It does not appear to deal with actions against employers or workers; they are covered by s-s (1).

(at para. 14)

[56]         The statement of Seaton J.A. is clear – “No damages are recoverable”.  I am satisfied that the decisions in Mitrunen, supra, relieve a non‑employer defendant such as Mr. Hofstee from liability for damages caused by his or her fault.

[57]         Section 10(2) reinforces this interpretation as it describes the ability of Mr. Pinch to “claim compensation” or “bring an action”.  I cannot conclude that the ability to “claim compensation” expands the right of Mr. Pinch to claim against Mr. Hofstee that which he could not claim directly against the driver of the vehicle involved in MVA #2.

[58]         Section 10(7) of the Act also re-enforces this interpretation of s. 10(1) of the Act as it is clear that “no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker…”  If no “damages, contributions or indemnity” are recoverable by Mr. Pinch against the other driver involved in MVA #2, I cannot conclude that the indivisible damages caused by the negligence of the individual who caused MVA #2 would be recoverable against Mr. Hofstee.

[59]         Section 10(7) of the Act is broad enough to exclude the ability of the Mr. Hofstee to claim contribution or indemnity against the driver involved in MVA #2: Storey v. Canada Post Corp. (2006) 55 B.C.L.R. (4th) 131 (C.A.) at paras. 42‑45.  It could not have been intended by the Legislature that there be an exception to the general rule that no damages were recoverable and that a claim for contribution was not available, but that the full amount of the damages from MVA #1 and MVA #2 would be available against Mr. Hofstee despite the fact that he would not be in a position to look to the driver involved in MVA #2 for contribution.  I conclude that the effect of s. 10(7) of the Act was intended by the Legislature to protect not only those who were immune from suit under the scheme created by the Act from exposure to joint liability but also those who were not in a position to call upon another tortfeasor for contribution.

[60]         I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred.  In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[61]         I propose to deal with the damages suffered by Mr. Pinch as a result of MVA #1 as if MVA #2 had not occurred.  However, despite finding that the damages suffered in the two accidents were indivisible, I will then assess separately those damages which I can attribute only to MVA #2.  I do so in order to comply with s.10(7) of the Act which requires that I determine “…the portion of the loss or damages caused by…[the negligence of the driver in MVA #2]…although the…worker is not a party to the action”.  While it may seem inappropriate to determine the loss or damage caused by the driver involved in MVA #2 where a determination has been made that the damages arising out of MVA #1 and MVA #2 are indivisible, where the driver involved in MVA #2 is not a party to these proceedings, and where there has been no finding of liability for MVA #2, I will nevertheless do so because that is what is required under s. 10(7) of the Act.

“All Actual Instructions Received by the Expert” Required by BC Rules of Court

October 19th, 2015

Reasons for judgement were released today (Pinch v. Hofstee) addressing the scope of expert instructions that need to be disclosed to make expert evidence admissible.  In short the Court noted that a “paraphrased summary of instructions” was insufficient.

In noting what Rule 11-6(1)(c) requires Mr. Justice Burnyeat provided the following reasons:

[1]             The parties presented a number of expert reports.  While some of the expert reports attached the instructions that were provided to the expert by counsel, some of the expert reports merely provided a paraphrased summary of instructions.

[2]             Rule 11‑6 of the Supreme Court Civil Rules provides that, for an expert report to be tendered in evidence, it must set out a number of matters including “the instructions provided to the expert in relation to the proceeding” [Rule 11‑6(1)(c)].

[3]             In order to meet the requirement of Rule 11‑6(1)(c), all actual instructions received by the expert should be appended to the expert report that is to be tendered into evidence.  It is not sufficient to satisfy Rule 11‑6(1)(c) to have the expert either to paraphrase the instructions received or to include some but not all of the instructions received.

[4]             The parties will be at liberty to file affidavits setting out the instructions that were provided to the experts who have provided reports which have now been tendered into evidence.

Court Rejects Request to Produce Settlement Documents From Previous Injury Claim

October 16th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a request to produce documents relating to the settlement of a previous personal injury claim in the prosecution of a subsequent claim.

In today’s case (Gamble v. Brown) the Plaintiff was injured in a 2009 collision, brought a claim for damages and ultimately settled.  She was then injured in a 2011 collision.  In the current lawsuit the Defendant requested broad production of the previous file information including “any mediation brief, settlement letter, file memo, communication or similar document” .  The Plaintiff agreed to produce relevant medical records but not all records captured in the broad request.  The Defendant applied to court for an order to produce these documents but this was dismissed.  In finding the sought order was inappropriate Master Taylor provided the following reasons:

[29]         In the case at bar, the first accident occurred on March 19, 2009. The subject accident occurred on September 1, 2011. By account of some of her physicians, and at least one expert report prepared for the defendant, the plaintiff was doing well and not suffering any effects from the 2009 accident well before the occurrence of the 2011 accident.

[30]         As well, the plaintiff has offered the defendant a letter from her previous solicitor confirming the terms of the settlement she received for the injuries she sustained in the 2009 accident, together with medical-legal documents from the previous accident.

[31]         In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.

[32]         The final question becomes whether or not the plaintiff should place any terms on the production and disclosure of the documents she has provided to the defendant. In my view that is a matter for the trial judge to determine at the outset of the trial and in the absence of the jury, aside from the issue of the plaintiff maintaining her solicitor-client privilege with Mr. Wytrychowski, which should be preserved in any event.

[33]         In conclusion, I determine that the defendant has not satisfied me that I should order breach of the settlement privilege attached to the documents prepared by the plaintiff’s previous counsel for the plaintiff in the 2009 Alberta case. Accordingly, the defendant’s application is dismissed with costs to the plaintiff.


Court Critical of ICBC Practices Following Hit and Run Collisions

October 14th, 2015

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, with critical comments aimed at ICBC for their practices in dealing with hit and run claims.

In today’s case (Fitger v. John Doe) the Plaintiff was injured by the actions of an unidentified motorist.  The Plaintiff contacted ICBC shortly after the collision and “essentially took the actions suggested by his ICBC claim adjuster“.   In the lawsuit for damages ICBC then raised the standard s. 24 defence arguing the Plaintiff did not take all reasonable steps to identify the at fault motorist.  The Plaintiff argued the defense should be struck as he relied on ICBC’s guidance.  The court, while critical of ICBC’s practices, noted their actions did not go so far as to strip them of the protections of the statutory defense.  In addressing ICBC’s practices Mr. Justice Meiklem commented as follows:

[10]         Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[16]         While the doctrine of estoppel can, as a general proposition, be applied in respect of interfering with statutory rights, s. 24(5) of the Act is as much about creating an obligation on the courts to enforce an obligation on a class of claimants in the cause of preventing fraudulent claims as it is about providing a defence to ICBC.

[17]         In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).

Plaintiff Awarded Full Costs and Disbursements Despite 25/75 Liability Split

October 14th, 2015

Helpful reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs and disbursements despite a split of liability.

In today’s case (Ekman v. Cook) the Plaintiff suffered serious injuries in a collision for which fault was disputed.  Liability and quantum were severed and at the liability trial the Court found that the Plaintiff was 75% responsible for the crash with the Defendant bearing the balance of blame.

The parties eventually settled for $135,000 plus taxable costs and disbursements but then could not agree on what these were.  ICBC argued the Plaintiff is only entitled to 25% of these on the basis of the liability split.  Mr. Justice Weatherill disagreed and in awarding full costs to the Plaintiff provided the following reasons:

[7]             Section 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333, sets out what is often referred to as the “usual rule.”  It provides as follows:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss….

28]         In my view, an award to the plaintiff of only 25 percent of his taxable costs and disbursements in this case will result in an injustice.  The defendants forced the plaintiff to trial and to have to incur 100 percent of those costs and disbursements in order to obtain any relief whatsoever. 

[29]         An award of only 25 percent of the plaintiff’s costs when 100 percent of his costs were required to be incurred to achieve the result that he did would have a profound effect on his overall recovery.  In my view, it is appropriate that the defendants be liable to pay those costs.

[30]         Here, the plaintiff achieved substantial success, that, as I have said, would be defeated if costs were awarded in accordance with the usual rule. 

[31]         Accordingly, I am exercising my discretion in favour of the plaintiff, and I am awarding him 100 percent of his taxable costs and disbursements in this matter.

[32]         Had the plaintiff taken the position that he was not contributorily negligent to a significant degree, or had the defendants conceded the possibility of some negligence on their part, it is possible that I would have exercised my discretion in a different fashion.  The plaintiff is entitled to his costs of this application.

[33]         I do want to thank both counsel for their very thorough and helpful submissions.

$14,000 Non-Pecuniary Assessment Following “Mild to Moderate” Soft Tissue Injuries

October 9th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for relatively modest injuries sustained in a collision.

In today’s case (Zhibawi v. Anslow) the Plaintiff was involved in a minor collision caused by the Defendant.  The Defendant acknowledged fault but argued the collision was so minor no injury could have been sustained.  The Court rejected this argument.  The court did, however, have some difficulties with the Plaintiff’s privately retained expert witness noting his opinions “did not comply with the duty” owed to the Court.  Mr. Justice Williams did conclude that the Plaintiff suffered ‘mild to moderate’ soft tissue injuries.  In assessing non-pecuniary damages at $14,000 the Court provided the following reasons:

40]        With all that said, I have reached certain findings concerning the injuries that were sustained by the plaintiff and the effect that they have had upon her. I conclude that she sustained a mild to moderate soft tissue injury. That resulted in some neck and back discomfort. Within approximately two weeks, she was able to return to work.

[41]        The injuries had a limiting effect upon her activities for a time, including her running and housework. I find that, within a few months, their impact on her ability to work at her job was manageable and modest.

[42]        There were complaints of headache following the accident, but it is in my view quite relevant that Ms. Zhibawi had been experiencing significant headaches as part of a long-established neurological condition that also included fainting and light-headedness. While the plaintiff sought to draw a distinction between the pre-accident headaches and those she had after, I find that the headaches that are attributable to the defendant’s negligence are modest.

[43]        I conclude the bulk of the plaintiffs discomfort resulting from the motor vehicle accident was substantially resolved within six to nine months.

[44]        I do not accept that the injuries she sustained have continued in any meaningful way to the time of trial, and I find no basis to conclude that she will suffer any effects into the future…

[50]        I conclude that a fit and appropriate award of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life is $14,000.

$131,250 Non Pecuniary Assessment for Chronic TMJ Injury

October 2nd, 2015

Reasons for judgement were released today assessing damages for a severe jaw injury sustained in a vehicle collision.

In today’s case (Williams v. Gallagher) the Plaintiff, who was 20 at the time, was involved in a 2010 vehicle collision caused by the Defendant.  The Plaintiff suffered a variety of injuries the most serious of which was an injury to the temporomandibular (TM) joints in his jaw.  This required surgical intervention which did not cure his pain and the Plaintiff  was expected to have chronic lingering problems.  In assessing non-pecuniary damages at just over $130,000 after factoring in some contingencies Madam Justice Warren provided the following reasons:

80]     For the past five years, Mr. Williams has suffered from very severe, debilitating pain. The ongoing neck, back and shoulder pain is significant but the jaw pain is excruciating. He testified that he wakes up in pain every morning. He takes 10 to 12 Percocet each day which reduces the pain but does not eliminate it. The Percocet leaves him feeling foggy and impairs his ability to focus. If he does not take the Percocet, the pain is unbearable. He has attended at the emergency department of the hospital on several occasions because he cannot bear its intensity. He testified that he feels trapped in his jaw pain and it controls his life.

[181]     Dr. Courtemanche explained that facial pain is qualitatively different from pain in other parts of the body. As he put it, people think of themselves as living in their heads. A person may be able to distance or dissociate themselves from pain in an extremity, such as foot, but may find it impossible to do the same with pain in the head or face. Also, unlike an injured knee or hip, it is almost impossible for a patient not to use an injured jaw, which is engaged each time the patient speaks or eats. Dr. Courtemanche explained that injured TM joints often result in severe muscle spasm, which he has observed repeatedly when examining Mr. Williams, and this prevents the joint from finding any comfortable rest place.

[182]     Mr. Williams has undergone extensive, invasive, painful orthodontic treatment including two surgeries. In addition to the neck, back and shoulder pain, which alone is significant, and the excruciating jaw pain, he now suffers from significant psychological conditions that are debilitating.

[183]     Mr. Williams testified that as each jaw treatment failed, he became more anxious and his feelings of hopelessness increased. He has spent his savings on living expenses and medical treatments. He is overwhelmed by worry about his inability to work. On several occasions when his testimony turned to his future, he broke down in sobs.

[184]     Dr. Courtemanche agreed, at trial, that the surgery he is now recommending is rarely indicated but, in the circumstances of this case, he continues to be of the view that it is worth trying. However, he said that, at best, the surgery will temporarily alleviate the pain, that Mr. Williams will likely continue to suffer TMJ pain for the rest of his life, and that his TMJ disorder cannot be cured. He also said that, eventually, Mr. Williams will probably require a TM joint replacement, which is likely to last 15 years, after which the replacement would have to be repeated.

[185]     Mr. Williams testified that the prospect of living with no hope of pain relief causes him such despair that he wishes to end his life. He said he hides the severity of his symptoms from his mother because he does not want her to know that her son would rather die than live with the pain.

[186]     Mr. Williams’ symptoms have very significantly affected all aspects of his life. He can no longer play soccer. He has no interest in going to movies or sporting events. He is restricted in what he can eat. His personality has been affected. He has become isolated and socially withdrawn. He now spends most of his time alone at home or going for drives. He does still go out with friends for meals or drinks, as often as once a week, but sometimes he does not socialize at all for several weeks in a row. Mr. Webber and Mr. Kreklewetz testified that sometimes they go to Mr. Williams’ house and force him to go out.

[187]     The injuries Mr. Williams suffered have prevented him from working. He has suffered financial consequences as a result which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. He has had to live with the likelihood that his injuries will preclude him from working in any physical job, which has caused him to despair about his future. Given his limited academic success to date, and now limited functionality, he fears that his options for more sedentary work are few even if he manages to develop strategies for dealing with the pain. It is apparent that this reality has weighed very heavily on him, and is a significant contributing cause of his psychological conditions.

[188]     Mr. Williams has been transformed from a happy, social young man with an optimistic future, who was focussed on his work and was well on his way to achieving his life goals, into an anxious, fearful and isolated young man who is barely managing to get through each day and who is tormented by virtually constant, intense pain.

[189]     I accept the evidence of Dr. Adrian, Dr. Courtemanche and Dr. Smith concerning Mr. Williams’ prognosis. Mr. Williams’ neck, back and shoulder injuries are most likely permanent. The TMJ disorder cannot be cured. Even if Mr. Williams undergoes the surgery recommended by Dr. Courtemanche, the best case scenario is that he will experience some temporary alleviation of the pain. He faces the prospect of more than one jaw replacement surgery in his lifetime and the prospect of many years of ongoing pain and compromised lifestyle. Even if the pain improves, it is unlikely he will experience a full remission of the depressive and anxiety symptoms and he will remain vulnerable to developing those kinds of symptoms in times of stress…

[203]     On balance, I think an appropriate assessment, for non-pecuniary damages is $175,000, less:

·       a reduction of 10%, or $17,500, to account for the contingency that Mr. Williams would have undergone the orthodontic treatment in any event and, as a result, would have suffered some pain associated with the treatment itself;

·       10%, or $17,500, to account for the contingency that if he underwent the orthodontic treatment, it would have triggered chronic TMJ disorder in any event; and

·       5%, or $8,750, to account for the contingency that if he underwent the orthodontic treatment and if that treatment triggered the chronic TMJ disorder, the resulting pain and disability would have in turn triggered the psychological conditions.

After accounting for those contingencies I award non-pecuniary damages to Mr. Williams of $131,250. To be clear, this award reflects the positive contingency that Mr. Williams’ functionality and quality of life may improve, even if his pain does not, if he follows the recommendations of his physicians.