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 April, 2018

ICBC “Minor Injury” Tribunal Designed To Be Unfair

April 27th, 2018

This week the BC Government is debating amendments to laws creating the Civil Resolution Tribunal to expand their powers to have mandatory jurisdiction over “minor” injury litigation.

As previously discussed, the word “minor” is being used to mislead the public.  The Government has defined the word to include many serious and disabling injuries including

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

In any event, the Civil Resolution Tribunal Amendment Act which may pass into law as early as next week takes away the right of British Columbians injured by careless drivers on our roadways to go to court.  Instead this law requires you to go to a Tribunal that will decide whether you have a “minor” injury and your level of compensation which will also be capped.

In debate this week the Government admits that their purpose in funnelling claims here is to create an unfair landscape.  They expressly state they hope to discourage the injured party from hiring a lawyer and to have you face an ICBC “specialist” in the dispute.

Here is our Attorney General expressly stating the intent of the legislation is to discourage people from hiring a lawyer when they are forced to litigate an injury claim:

The intent is to have this tribunal operate in most cases without counsel. You’ll see, in this section that we’re talking about, that we’re making an exception, saying: 

“Look, if you really want to bring a lawyer here, given the amount of money that you’re going to pay in legal fees and the amount that’s under dispute, which by definition under this act, is less than $50,000…. If you really want to bring a lawyer, you can bring a lawyer. But the amount of money that you’re going to spend on your lawyer is going to eat up a lot of your award, so it’s probably not to your interest.”

So, the Government has created a system where they don’t want you to have a lawyer.  And who do they want you to face in the Tribunal?  An ICBC “specialist.“.

Again, from our Attorney General

The intention is currently that an ICBC adjuster would attend. ICBC would be the respondent to the claim. So when someone who has been in an accident doesn’t agree with what the adjuster has said their claim is worth…. they can go to the civil resolution tribunal to have that dispute heard. There has to be someone on the other side saying here’s what we think the claim is worth. Currently, ICBC’s thinking is…. that that person would be an adjuster….They are specialists in determining the value of claims.

So those people would be attending the hearing, making representations to the tribunal about what their position is — what the claim is worth. The person who was in the accident makes representation, with their medical records and their costs and so on, to the tribunal about what they think the claim is worth. Then the tribunal would make a decision

So there you have it.  The purpose of the government’s new law is to reduce your right to compensation when injured by a distracted or impaired driver and if you don’t like it to have your dispute heard, without a lawyer, facing an insurance company paid for “specialist”.

 


New Bill Looks to Give ICBC Immunity From the Courts

April 26th, 2018

This week the BC Government introduced two bills that look to give ICBC more power at the expense of British Columbians.  The Insurance (Vehicle) Amendment Act and the Civil Resolution Tribunal Amendment Act.

As previously discussed, the first Bill looks to label almost every injury suffered by collision victims as “minor” stripping people’s right to compensation.  Included in the Government’s definition of ‘minor’ injury are:

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

The government is trying to sell this to the public by arguing it is fair to strip the rights of collision victims with the above injuries in order to give all people injured in collisions (including the at fault motorist) more generous rehabilitation benefits.  The Devil is in the details however and included in the proposed legal reforms is ICBC judicial immunity.

If ICBC refuses to pay these so-called more generous benefits the law gives them judicial immunity.  Division 7 of the Civil Resolution Tribunal Amendment Act takes away the public’s right to challenge ICBC’s denial of accident benefits in court and instead requires “the determination of entitlement to benefits paid or payable” to go through a Tribunal not run by judges but instead Government appointed bureaucrats.

Before the Government passes these changes  into law a fundamental question is do you trust ICBC so much that they should be granted judicial immunity?  If not, please speak up to your MLA immediately as the window to do so is short.


Canadian Bar Association Comes Out Swinging Against Proposed Law Stripping Judicial Access For British Columbians

April 25th, 2018

The current BC Government talks tough about impaired and distracted driving.  Instead of taking action against poor drivers, however, the Government has inexplicably introduced a Bill targeting the rights of those injured by negligent drivers.  Not only does the Bill take away the judicial rights of British Columbians, it also takes away their common law compensatory rights.

In a move that is medically baffling the proposed law calls a host serious medical conditions including major depression, PTSD, Anxiety Disorders and Chronic Pain Symptoms “minor injuries“.

The BC Branch of the Canadian Bar Association is the latest to speak against this proposed law.  In a press release issued today the CBABC raises the following concerns.  Hopefully the Government is listening.

CBABC President Bill Veenstra calls on Attorney General David Eby and Premier John Horgan to withdraw provisions in proposed new legislation introduced yesterday that restrict the rights of citizens to receive full and fair compensation and create new, exclusive resolution processes for disputes outside of the Courts.

“The approach that the government is taking punishes victims of negligence and does not reflect the many ways that our members and others have identified as data-driven, innovative solutions to address the Corporation’s multiple years of over-extending its liabilities while providing profits to government,” said President Veenstra.

“ICBC for many years was extremely profitable, resulting in government taking funds out of ICBC that never should have been taken out. The shift from very profitable to very unprofitable has many reasons beyond an increased number of collisions. ICBC will not be moved to a profitable or self-sustaining model without addressing these systemic reasons.”

“Of significant concern are the proposed changes to the ability of an insured person to resolve disputes about what is fair and adequate for their injuries through the courts. The Civil Resolution Tribunal is a relatively new organization with very little experience in personal injury matters. Its adjudicators have short tenures and thus limited independence from government, and the Tribunal is responsible to the same Minister as ICBC,” said Veenstra. “The proposed threshold of $50,000 is substantially greater than the CRT’s current threshold of $5,000 for small claims. Our courts do a good job of resolving disputes fairly, and trial dates are available within a few months for those plaintiffs who have straightforward claims and whose injuries have resolved. The government’s emphasis on speedy resolution through the CRT fails to account for the importance of ensuring that injuries have resolved before any decision is made on compensation.”

“There is no question that change needs to happen at ICBC, to make it accountable and ensure that its business management decisions are made in a transparent way. Providing the Corporation with an open avenue to limit how much someone can receive to cope with the impact of their injuries only punishes BC citizens without any consequences for the Corporation not improving its own management practices. The people of BC deserve better from their insurer, and from their Government,” said Veenstra.

 


NDP Introduces ICBC Bill Saying “Psychiatric Conditions” Are “Minor Injuries”

April 23rd, 2018

Today the BC Government introduced their so called ‘minor’ injury Bill strippng the judicial rights of collision victims.

Despite their media soundbites to the contrary, the Government is calling many serious injuries “minor” even those that can have permanent consequences.

Included in their open ended list of “minor injuries” are “Psychological Conditions, Psychiatric Conditions and Pain Syndromes“.  Pain Syndromes by definition are long lasting and debilitating mental health conditions.

On its plain reading this definition of “minor” captures

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

The Bill, if passed into law, will strip the judicial and compensatory rights to everyone in BC who suffers a “minor injury” at the hands of a careless driver after April 1 2019.  All this so careless drivers can pay less for their insurance.   Below is the government’s open-ended list of everyone who will be captured by this bill designed to beef up ICBC’s bottom line.  Note they can grow it whenever they want by ‘prescribing’ more injuries to the list and by prescribing criteria to call even permanent injuries minor –

“minor injury” means a physical or mental injury, whether or not chronic, that

(a) subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b) is one of the following:

(i) an abrasion, a contusion, a laceration, a sprain or a strain;

(ii) a pain syndrome;

(iii) a psychological or psychiatric condition;

(iv) a prescribed injury or an injury in a prescribed type or class of injury;

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a) is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b) meets prescribed criteria.

(2) Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a) the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b) the injury

(i) results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii) develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3) An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4) For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

 


$75,000 Non-Pecuniary Assessment for Onset of Symptoms in Pre Existing Scoliosis

April 21st, 2018

Reasons for judgment were published this week by the BC Supreme Court, Kelowna Registry, assessing damages for a collision causing the onset of symptoms in pre-existing asymptomatic scoliosis.

In the recent case (Cyryl v. George) the Plaintiff was injured in a collision when she was 17 years old.  Liability was admitted by the at fault motorist. The collision resulted in several injuries including pain in her previously asymptomatic spine.  The Plaintiff alleged that the collision went on to cause a chronic pain syndrome but the Court rejected this assertion.  In assessing non-pecuniary damages at $75,000 Mr. Justice Weatherill provided the following reasons:

[104]     I find, on the whole of the evidence, the plaintiff had an asymptomatic scoliosis condition as well as a 1.5 cm leg length discrepancy that became activated and aggravated by the Collision.  I find that the Collision caused the plaintiff to suffer the following injuries: several contusions, abrasions and lacerations to her face, headaches, a bitten tongue and soft tissue injuries to her jaw, neck and back. 

[105]     I also find that for approximately two months immediately following the Collision, the plaintiff continued to suffer considerable pain and discomfort in her neck, jaw and back as well as headaches.  I find that, while some pain and discomfort has persisted since then, it is not as prevalent and debilitating as the plaintiff has suggested.  Rather, I find that her pain symptoms flare up from time to time depending upon levels of activity and that she is able to tolerate her symptoms and cope well with the use of over-the-counter pain medication such as Advil.  I find that the only restrictions on the plaintiff’s activities are related to her symptom tolerance.

[106]     On the whole of the evidence, I am unable to find that the plaintiff has demonstrated a loss in cognitive function as a result of the Collision or that her ongoing symptoms have developed into Chronic Pain Syndrome…

[114]     In my view, the appropriate award of non-pecuniary damages in this case is $75,000.


BC Court of Appeal – “Costs Thrown Away” Should Routinely Be Ordered For Late Adjournments

April 17th, 2018

Reasons for judgement were published today by the BC Court of Appeal finding that ‘costs thrown away’ should ordinarily be ordered against a party obtaining a late trial adjournment.

In today’s case (Bolin v. Lylick) the Plaintiff sued for damages from personal injuries.  6 weeks prior to trial she successfully applied to adjourn it after having switched lawyers.  The Court of Appeal noted there was nothing wrong with this however found that the adjournment was prejudicial to the Defendants and this should have been remedied with an order of costs thrown away.  In discussing this norm the BC Court of Appeal provided the following reasons:

[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.


$200,000 and $50,000 Non-Pecuniary Assessments for Carbon Monoxide Poisoning

April 16th, 2018

Reasons for judgment were published today by the BC Supreme Court, Vancouver REgistry, assessing damages for carbon monoxide poisoning that aggravated pre-existing brain abnormalities.

In today’s case (Edwards v. Parkinson’s Heating Ltd.) the Plaintiffs were a married couple who were exposed to carbon monoxide emissions from their living room fireplace.  The Court found that this exposure was caused by a Defendant’s negligent servicing of the fireplace.

Both Plaintiff’s had pre-existing brain abnormalities but the Court found the poisoning aggravated these.  In assessing non-pecuniary damages at $200,000 and $50,000 for the Plaintiffs Mr. Justice Hinkson provided the following reasons:

[466]     A summary of my key findings is as follows:

  1. Kenorah owed the plaintiffs a duty of care with respect to the 2008 reinstallation of the fireplace. Parkinson’s owed the plaintiffs duties of care with respect to both the 2008 reinstallation and the subsequent servicing of the fireplace;
  2. The standard of care for installing and servicing the fireplace required the following:

(a)   Reasonably inspect the fireplace to ensure it was:

(i)   operating in accordance with the manufacturer’s specifications (per s. 57 of the Gas Safety Regulations); and

(ii)  was venting in a safe and proper manner (per s. 57 of the Gas Safety Regulations);

(b)   Reasonably test for CO emissions using a suitable CO detector;

(c)   Repair or remediate any defects or problems that would interfere with the safe operation and venting of the fireplace.

  1. Kenorah did not breach the standard of care with respect to the 2008 reinstallation. Parkinson’s breached the standard of care with respect to subsequent servicing of the fireplace. The breaches occurred on February 10, 2009, and November 13, 2009;
  2. As a result of Parkinson’s breach that occurred on November 13, 2009, the plaintiffs were exposed to CO in their residence, from that date until January 4, 2010, at levels above 50 ppm but less that 1000 ppm;
  3. Prior to the CO exposure, Dr. Pinel had brain abnormalities, which included hippocampal atrophy and white matter changes. He also had behavioural and cognitive problems, such as forgetfulness, fatigue, and mild depression;
  4. Prior to the CO exposure, Ms. Edwards had brain abnormalities, which included hippocampal atrophy and white matter changes. She also had anxiety, depression, and mood disorders, and cognitive problems involving verbal and visual learning.
  5. As a result of the CO exposure, both Dr. Pinel’s and Ms. Edwards’s hippocampal atrophies were accelerated. The CO exposure caused Dr. Pinel’s depression to worsen, and Ms. Edwards’s depression, anxiety, and mood disorders to worsen.

[467]     The damages awarded to the plaintiffs are as follows:

a. Non-pecuniary damages (Ms. Edwards) $  50,000.00
b. Non-pecuniary damages (Dr. Pinel) $ 200,000.00
c. Special damages $5,792.00
d. Cost of care $ 53,000.00
e. HCCRA award $ 2,624,57

$175,000 Non-Pecuniary Assessment for Concussion With Permanently Disabling Consquences

April 11th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a fall causing a permanent head injury.

In today’s case (Harrison v. Loblaws, Inc.) the Plaintiff was shopping in the Defendant’s store when she slipped on a large pool of liquid laundry detergent which was on the floor.  She struck her head on the floor and suffered a concussive injury from which she did not recover.

The Defendant denied fault but the Court found the Defendant failed to establish that they followed their protocols to ensure the store was in reasonably safe condition for customers.

The Court accepted that the Plaintiff  developed symptoms “consistent with post-traumatic brain injury syndromes or post-concussion syndromes” and that these were permanently disabling.  In assessing non-pecuniary damages at $175,000 Mr. Justice Basran provided the following reasons:

[89]         The evidence of Ms. Harrison, and those who knew and worked with her both before and after her accident, is that she sustained injuries that have dramatically impacted every aspect of her life.  Whereas before the accident she was independent, active and optimistic, she is now a mere shadow of her former self.  She is unable to work or enjoy any of the activities she used to do before the accident, including walking, swimming, and travelling.  She is dependent on her son and is far less socially engaged than she once was. 

[90]         Her prognosis is poor and any further improvement in her condition is unlikely.  Taking into account the variety and longevity of these symptoms, her enjoyment of life has been dramatically reduced. ..

[96]         Ms. Harrison was 48 at the time of the accident.  She suffered a significant head injury and to this day, suffers from serious headaches and other symptoms which I have detailed.  She has a permanent disability and she has suffered from a loss of confidence and a loss of enjoyment of life as a result of her accident.  Her physical and mental abilities have clearly been impaired.  As described earlier, she is no longer able to walk long distances nor is she able to swim.  Her sensitivities to light, sound, and motion have dramatically affected her.  She has clearly experienced a serious diminishment in the quality and enjoyment of her life.  I note that Ms. Harrison retains a certain degree of optimism about the future and throughout this ordeal, she has taken significant steps to try to improve her circumstances.

[97]         Having found Ms. Harrison to be competitively unemployable and suffering from symptoms that appear to be permanent, I must make an award that addresses her particular condition and recognizes the nature and extent of her loss.  On that basis, I conclude that an award of $175,000 satisfies those principles.


Court Critical of Doctor’s “Self Diagnosed” Personal Injury Claim

April 10th, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, making critical findings in a personal injury claim.

In today’s case (Nagaria v. Dhaliwal) the Plaintiff, a physician, was injured in a 2014 rear end collision.  The Defendant admitted fault.  The Plaintiff received little medical care following the crash instead relying largely on self diagnosis and self treatment.  The Court rejected the severity of the Plaintiff’s advanced claim finding “the plaintiff is not a reliable witness nor a competent historian. There is considerable exaggeration in his evidence.”

The Court criticized the Plaintiff’s self-treatment and credibility with the following comments:

[42]         The plaintiff repeatedly testified that he chose not to follow the course of medical treatment against the advice of Dr. Strovski because he said that it would leave his patients wanting for his medical care. Leaving aside prescribed medication entirely, I find this explanation to be inconsistent with the policy of the College of Physicians on “Treating Self” and contrary to the simple skills of organization that following the prescribed treatment regime would have required.

[43]         The “Treating Self” policy is clear that self-treatment may affect the objectivity of the medical treatment which a doctor provides. Exceptions, according to the policy, may be made when “the medical condition is minor or emergent; and no other physician is readily available.” Curiously, when this passage was read to the plaintiff during cross-examination, he ignored the above quoted lines and spoke only about self-prescribing narcotic medications which had nothing to do with the case at bar. The plaintiff was evasive in failing to respond to the fact he had self-diagnosed a soft tissue injury and self-prescribed a course of treatment. The circumstances did not involve an emergent situation. The alleged medical condition was not minor; as had it been a minor condition, this action would not have been commenced in this Court. I do not accept the explanation that following the advice of Dr. Strovski would have left the plaintiff unable to practice medicine or otherwise provide services to his patients.

[46]         In this case, the plaintiff did not follow the policy of his profession as he failed to record any of his own symptoms, their occurrence, development, or resolution. Further, he refused a prescribed treatment regime in favour of self-treatment. As noted above, the explanation for self-treatment by the plaintiff lacks objectivity, the very flaw recognized by the College of Physicians and Surgeons.

Mr. Justice Ball found the Plaintiff suffered only minor soft tissue injury and assessed damages at $19,000.  In reaching this assessment the Court provided the following reasons:

[81]         The plaintiff was not a reliable nor a credible witness for the reasons which I have outlined above. The prognosis of Dr. Rickards — if the prescribed treatment plan were followed — expected the reduction or resolution of the symptoms of the plaintiff within a two to four month period. On the evidence before this Court, I am satisfied that the injury caused by the accident, which has been proven on a balance of probabilities, was a minor soft tissue injury. Had the prescribed treatment regime — initially prescribed by Dr. Strovski in 2011 — been followed by the plaintiff, the injury and its symptoms would have resolved in the two to four month period suggested by Dr. Rickards. The failure of the plaintiff to follow the prescribed treatment regime was unreasonable as found above, and constitutes a failure to mitigate.

[82]         The soft tissue injury did not interfere with the ability of the plaintiff to continue his medical practice six days a week or otherwise interfere with his chosen medical speciality. The activities of the plaintiff outside of his practice — sporting activities in particular — have been reduced to some degree, but it is not possible to speculate how those activities have been affected by the soft tissue injury given the lack of evidence on this topic. Further, without completion of the prescribed treatment regime by the plaintiff, the extent and duration of the reduction of activities cannot be predicted and has not been proven.

[83]          In these circumstance, and after a review of the authorities cited above and by counsel, the award of non-pecuniary damages in this case is $19,000. The failure of the plaintiff to mitigate his loss will result in a reduction of that award by ten per cent (10%). The total award for non-pecuniary damages is therefore $17,100. Based on my findings above, the claim for special damages has not been made out and there will accordingly be no award of special damages in this case.


$175,000 Non-Pecuniary Assessment for Brain Injury Leading to Early Onset Dementia

April 5th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver REgistry, assessing damages for a traumatic brain injury.

In today’s case (Weaver v. Pollock) the Plaintiff was injured in a 2010 collision that the Defendants accepted responsibility for.  The Plaintiff suffered a traumatic brain injury and ultimately was diagnosed with early onset dementia linked to this injury.  In assessing non-pecuniary damages at $175,000 Mr. Justice Burnyeat provided the following reasons:

[100]     I am satisfied that it is now established that mild traumatic brain injury or subdural haematoma can lead to Alzheimer’s disease, frontotemporal dementia, or an increased risk of dementia.

[101]     In his December 1, 2010 statement to ICBC, Mr. Weaver indicated that he had lost consciousness after the Collision. In his report, Dr. O’Shaughnessy assumes that Mr. Weaver lost consciousness but does not indicate how he arrived at that conclusion. On the other hand but without attribution, the notes of Dr. Burtt and Ms. Hubbard indicate no loss of consciousness.

[102]     I find that Mr. Weaver has proven on a balance of probabilities that he was unconscious for more than a several seconds as a result of the Collision. In this regard, I am satisfied that what Ms. Cotton observed when she came to the side of his truck is accurate and that Mr. Weaver was “kind of like waking”. I am satisfied that what Ms. Cotton observed was Mr. Weaver regaining consciousness.

[103]     Even if I am found to be incorrect in arriving at the conclusion that Mr. Weaver lost consciousness for a short period, I am satisfied that he did suffer a traumatic brain injury. In this regard, I adopt the indicia set out by Dr. Kiraly that a traumatically induced psychological disruption of brain function (a traumatic brain injury) can be manifested by “at least one” of any period of loss of consciousness, of loss of memory for events immediately before or after the Collison, and of alteration in mental state at the time of the Collision. I find that Mr. Weave manifested all three of those factors.

[104]     Taking into account the age of Mr. Weaver, I give very little weight to the decisions in Nahal, Goguen, and Watkins relied upon by the Defendants. I find that the decision in Wong, supra, most closely represents the facts presented by the effects of the collision on Mr. Weaver even though there was finding in Wong that the accident accelerated the onset of dementia. Here, I could find that there was no pre-disposition to dementia so that an award of non-pecuniary damages here should take that into account but not the advanced age of Ms. Wong.

[105]     Taking into account the increased risk factors in the future as set out in the opinion of Dr. Kiraly, the severity and duration of the pain at the back of his head, his shoulder and his chest, the impairment of his life, the impairment of his mental abilities, the loss of his lifestyle, the failure of his memory and ability to concentrate, the susceptibility and greater risk associated with Stage Four dementia, the impairment of his social, occupational, recreational function, and his age, I am satisfied that an assessment of non-pecuniary damages of $175,000 should be made.