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This Blog is authored by British Columbia personal injury 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 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 the ‘ICBC Back Injury (soft tissue) Cases’ Category
June 27th, 2014
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries following multiple collisions.
In today’s case (Jiwani v. Borodi) the Plaintiff was involved in four collisions. ¬†He was not at fault for any of these. ¬†The initial collision caused soft tissue injuries to his neck and back. ¬†The back injury was aggravated by some of the subsequent collisions and his symptoms lingered to the time of trial. ¬†In assessing non-pecuniary damages at $65,000 Mr. Justice Sigurdson provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I conclude that the neck problems and the headaches resolved within about six months of the first accident, and that the back pain continues to some degree now five years after the first and most significant accident.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that the back pain is soft-tissue related and has affected the plaintiff‚Äôs mood, his ability to sleep, and to some degree, his disposition and in turn his relationship with his family and friends, including his nephew. ¬†I think that the accident has had an impact on the plaintiff‚Äôs family and social life and restricted the pleasure he had received from his friends and family in the past.¬† The burden is on the plaintiff to prove the extent of his injuries.¬† While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends. ¬†The plaintiff‚Äôs soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†That said, I am not persuaded that the plaintiff is completely pain free.¬† I think that the plaintiff would benefit, as suggested by Dr.¬†Grypma, from an active rehabilitation program. ..
52]¬†¬†¬†¬†¬†¬†¬†¬†¬†Given my findings and after considering the authorities relied upon by the parties and the factors mentioned in¬†Stapley, the plaintiff is entitled to the sum of $65,000 for non- pecuniary damages.
January 7th, 2014
Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury with a pre-existing complicating factor.
In the recent case (MacIntosh v. Davison) the Plaintiff was involved in a rear end collision in 2009. ¬†He had injuries from previous collisions which were recovered. ¬†He also underwent back surgery many years prior. ¬†Although he had no symptoms related to this his back was at risk of suffering exacerbation of back injuries. ¬†The Court assessed non-pecuniary damages at $90,000 but then reduced these by 20% to account for the plaintiff’s original position. ¬†In reaching this conclusion Mr. Justice Davies provided the following reasons:
On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh‚Äôs ‚Äúoriginal‚ÄĚ position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants‚Äô negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his ‚Äúoriginal‚ÄĚ and his ‚Äúinjured‚ÄĚ condition…
1)¬†¬†¬†¬†Mr. MacIntosh‚Äôs testimony and that of the medical and lay witnesses establishes that although injuries arising from the collision other than his low back injuries were largely resolved within one year, the low back injuries suffered in the collision have continued with only limited and sporadic abatement over time.
2)¬†¬†¬†¬†I accept the opinions of Drs. Kates, Quirke and O‚ÄôConnor that Mr.¬†MacIntosh‚Äôs condition has now ‚Äúplateaued‚ÄĚ and will not likely deteriorate further, except for occasional flare-up of more intense and debilitating pain.
3)¬†¬†¬†¬†However, the ‚Äúplateau‚ÄĚ which Mr. MacIntosh has reached renders him a far different person than the one he was prior to the collision.
4)¬†¬†¬†¬†Mr. MacIntosh‚Äôs life in the four years since the collision has been dominated by the effects of the collision as he has followed all of the medical advice he has received to attempt to regain his health.
5)¬†¬†¬†¬†While he has continued to golf regularly, his enjoyment of the game is much lessened. He also now golfs at significant rehabilitative cost and discomfort requiring much ongoing physical therapy.
6)¬†¬†¬†¬†In that regard, while I note Dr. MacPherson‚Äôs opinion that the golfing exacerbates Mr. MacIntosh‚Äôs condition, I also note that his treating physicians have encouraged him to attempt to golf and undertake therapy as necessary to alleviate more acute symptomology related to it.
7)¬†¬†¬†¬†I accept that to be a reasonable course of both advice and treatment because if Mr. MacIntosh had to restrict his golfing more than he has done, the result would be a larger award for non-pecuniary losses related to his ability to enjoy that which he previously enjoyed before the collision.
8)¬†¬†¬†¬†The medical ‚Äúplateau‚ÄĚ at which Mr. MacIntosh now finds himself and which will likely endure for the balance of his active life also includes an inability to exercise as rigorously as he once did or hike with the enjoyment he once had. He is also far more irritable due to sleep deprivation caused by his injuries. That has an impact on his social life as he has become more reclusive than before.
9)¬†¬†¬†¬†All of those aspects of his present life significantly negatively impact his overall enjoyment of life not only physically but also socially and emotionally. Coping with and trying to ameliorate the lasting effects of those injuries now are the focus of his daily life in place of the healthy and well-rounded physical, emotional and social life he previously enjoyed.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his ‚Äúoriginal‚ÄĚ position that arises from the defendants‚Äô negligence, I award Mr.¬†MacIntosh $72,000 to compensate him for his non-pecuniary losses.
November 29th, 2013
Reasons for judgement were released earlier this month by the BC Supreme Court, ¬†New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010. ¬†She sustained soft tissue injuries to her low back and sacroiliac region. ¬† These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms. Hatch continues to have back pain.¬† She finds it particularly bothersome after physical exercise and towards the end of the work week.¬† She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy.¬† Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse.¬† The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is now more than three years since the Accident.¬† Ms. Hatch has reached a plateau in her recovery.¬† Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012.¬† This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time.¬† The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time.¬† The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times.¬† As such, there is no mitigation issue.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury.¬† The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores.¬† The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. ..
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages.¬†
June 25th, 2013
Short and to the point reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for a chronic low back injury.
In the recent case (Wong v. Robillo) the Plaintiff was involved in a 2010 collision which resulted in a “severe” impact. ¬†Liability was admitted. ¬†The Plaintiff suffered a neck injury which largely improved and a lower back soft tissue injury which became chronic and posed ongoing, intermittent difficulties by the time of trial. ¬†In assessing non-pecuniary damages at $50,000 Mr. Justice Wong provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff still has chronic intermittent lower back pain which affects his endurance and prolonged walking or sitting.¬† Although he is able to carry out most household chores, it is with discomfort.¬† He has dramatically improved, but he has had to live with chronic intermittent pain, anxiety, and uncertainty for almost three years.¬† I would assess his pain and loss of personal amenities past and future at $50,000.
June 4th, 2013
Adding to this site’s case-law archives dealing with ICBC soft tissue injury cases, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a moderate soft tissue injury.
In this week’s case (Aubin v. Ball) the Plaintiff was injured in a 2009 collision. ¬†Fault was admitted by the Defendant. ¬†The Plaintiff suffered a moderate soft tissue injury that was “substantially recovered” by the time of trial. ¬† She continue to have some symptoms, however, and these were expected to be “here to stay“. ¬†Despite finding that the Plaintiff ¬†“is likely exaggerating her present difficulties to some degree” the court concluded the Plaintiff had genuine ongoing symptoms. ¬†In assessing non-pecuniary damages at $75,000 Mr. Justice Baird provided the following reasons:
¬†¬†¬†¬†¬†I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.
¬†¬†¬†¬†¬†There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade¬†II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.
¬†¬†¬†¬†¬†In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle…
¬†¬†¬†¬†¬†With some reluctance I find that Ms.¬†Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.
¬†¬†¬†¬†¬†However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms.¬†Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr.¬†Njalsson may be ‚Äúhere to stay‚ÄĚ…
¬†¬†¬†¬†¬†In recognition of the fact that Ms.¬†Aubin was not as active in approaching recovery as she could have been, but without penalizing her for not being as robust as some plaintiffs, a just, fair and reasonable award in this case is $75,000. The defendant must take his victim as he finds her, and in this case, the accident caused a young woman who was on track in pursuing her ambitions and goals to go off course and lose some very good years of her life. This is no trivial matter.
May 9th, 2013
Adding to this site’s archived soft tissue injury caselaw assessments, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic soft tissue injury with an ultimately good prognosis.
In the recent case (Chingcuangco v. Herback) the Plaintiff was involved in a 2008 collision for which she was not at fault. ¬†She suffered soft tissue injuries to her neck and back which¬†continued¬†to pose problems at the time of trial. ¬†Despite their long duration the¬†prognosis¬†for full symptom recovery was good with the Court finding they would resolve within a further 5 years. ¬†In assessing non-pecuniary damages at $45,000 Mr. Justice Weatherill provided the following reasons:
¬†¬†¬†¬†¬†The plaintiff felt some immediate pain in her chest and right toe after the accident.¬† She had no loss of consciousness.¬† X-rays taken at the hospital shortly after the accident were negative.¬† As the days and weeks progressed, she developed debilitating pain in her neck and lower back, with resulting headaches.¬† She had bruising on her chest and abdomen.¬† She was unable to go to work at CRA for two weeks.
¬†¬†¬†¬†¬†The bruises and the pain she suffered in her chest and right toe pain resolved completely within six weeks.¬† Although she thought her lower back pain had resolved by the end of 2009, she has since experienced severe flare-ups several times since then.
¬†¬†¬†¬†¬†The plaintiff has tried various modalities of treatment.¬† They have provided temporary but not permanent relief.¬† The plaintiff continues to experience persistent pain and muscle spasms.¬† She will continue to have episodic flare-ups of pain in her lower back and cervical spine with associated headaches.¬† I am satisfied that such episodes have been and will continue to be the result of the injuries she suffered during the September 15, 2008 accident…
¬†¬†¬†¬†¬†I find that the plaintiff suffered a Grade II whiplash injury as a result of the September 15, 2008 accident.¬† She also suffered contusion injuries to her chest and lower abdomen, chest wall strain and a chipped tooth.¬† Over four years have passed since the accident and she still suffers from intermittent neck and lower back pain and tension headaches as a result of the accident.
¬†¬†¬†¬†¬†I find that it is reasonable to expect the plaintiff will be fully recovered within five years.¬† In part, I make this finding on the basis that the plaintiff is an achiever.¬† Dr. Mergens gave evidence that she might still suffer some muscle tension headaches for an indefinite period.¬† He did say these symptoms may dissipate with time and conditioning.¬† However, there is no reasonable prospect of permanent impact upon her capabilities.
¬†¬†¬†¬†¬†After considering all of the evidence, the submissions of counsel and the case authorities, I find that an appropriate award for non-pecuniary damages in this case is $45,000.
May 8th, 2013
In my¬†continued¬†effort to highlight judicial scrutiny of expert witnesses, reason for judgement were released last week by the BC Supreme Court, Kamloops Registry,¬†rejecting¬†an¬†expert¬†psychiatric opinion.
In last week’s case (Moritz v. Schmitz) the Plaintiff was injured in a 2007 collision. ¬†She was 17 years old at the tine and “was a healthy teenager“. ¬†The collision caused chronic soft tissue injuries along with a worsening of pre-existing psychological difficulties. ¬†The Court awarded $80,000 for the Plaintiff’s non-pecuniary damages.
In the course of trial the Defendant called a psychiatrist who provided an opinion that the collision was not the cause of the Plaintiff’s aggravated pscyhological difficulties. ¬†In rejecting this opinion Madam Justice Gropper provided the following critical comments:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. Solomons goes on to suggest that, in his opinion, it is ‚Äúmost likely that the course of her psychiatric difficulties after the accident was related to stressors unrelated to the accident‚ÄĚ, referring to matters that occurred prior to the motor vehicle accident. He then concludes that the plaintiff would have experienced the same symptoms even if the accident had not occurred. Again, Dr. Solomons does not provide a foundation for his opinion that the problems Ms. Mortiz faced before the accident are of greater significance than those she faced because of the accident. He was aware that the plaintiff suffered from physical injuries but he does not turn his mind to whether those injuries may have affected her psychiatric functioning.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. Solomons does not explain his emphasis on pre-accident events. This same observation in respect of Dr. Solomon‚Äôs emphasis on pre-accident events was made by Mr. Justice Willcock in¬†Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at para 135:
Further, there is no reason, in my view,¬†to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I also note that Dr. Solomons‚Äô final paragraph under the ‚ÄúOpinion‚ÄĚ section of his report is based on ‚Äúfacts‚ÄĚ that are wrong. He says Ms. Moritz was ‚Äúpsychiatrically disabled before the accident and was not working at the time of the accident.‚ÄĚ He fails to note that she was 17 years old and in grade 12 at the time of the accident. She was not psychiatrically disabled from working. He says that ‚Äú[s]he had no psychiatric requirement for time off work as a result of the accident since she was already on long term psychiatric disability ‚Ä¶ .‚ÄĚ Again, she was not off work because of her psychiatric disability before the accident; nor was she on long-term psychiatric disability. In all of the circumstances, I am unable to accept Dr. Solomons‚Äô opinion.
May 2nd, 2013
Adding to this ever growing database of case comments criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, rejecting the evidence of an orthopaedic surgeon hired by ICBC and providing critical comments about his courtroom testimony.
In this week’s case (Devilliers v. McMurchy) the Plaintiff was involved in a 2008 collision. ¬†She sustained “a significant back injury leading to significant pain that has become chronic and likely permanent“. ¬†The Plaintiff was awarded non-pecuniary damages of $75,000. ¬†In the course of trial the Defendant called an orthopaedic surgeon who minimized the connection between the plaintiff’s symptoms and the collision. ¬†In rejecting this opinion Mr. Justice Saunders provided the following critical comments:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am not persuaded by the alternative theories Dr.¬†Grypma put forward. In attributing Ms.¬†De Villiers‚Äô continuing symptoms in part to deconditioning, Dr.¬†Grypma completely overlooked Ms.¬†De Villiers‚Äô ongoing exercise routine, which has led to a 90-pound weight loss. He also gave no explanation as to how the relatively mild degenerative changes seen in the MRI study could account for Ms.¬†De Villiers‚Äô chronic pain and its resistance to the various treatments she has undertaken, without the accident having been a critical factor in the onset of her complaints. To accept his changed opinion, I would have to find that the emergence of symptoms of back pain in proximity to the accident was mere coincidence. I am not prepared to make that finding.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Furthermore, Dr.¬†Grypma‚Äôs interpretation of Dr.¬†Schuurman‚Äôs CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the fact that Dr.¬†Schuurman clearly found it to be a Grade II injury; the second page of the CL-19 form has a ticked box next to the description of a Grade II injury:
Dr.¬†Grypma initially maintained on cross-examination that a Grade II injury classification requires¬†both¬†decreased range of motion, and point tenderness. However, he conceded that the Qu√©bec Task Force Grade II classification uses point tenderness as a clinical sign, distinguishing this injury from a Grade I injury in which there are no clinical signs. Attempting to defend his position that this was not a Grade II injury, Dr.¬†Grypma then asserted that Ms.¬†De Villiers‚Äô injury could be viewed as a ‚ÄúGrade 1.5‚ÄĚ. There is no evidence of such a classification being recognized. I was not impressed by this testimony.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr.¬†Grypma contended that as patients waiting for hip replacements usually have chronic pain over two to three years prior to having surgery, and the vast majority of these patients eventually recover, there is every reason to believe that Ms.¬†De Villiers will also recover from her chronic low back pain. I found this analogy facile and argumentative. Dr.¬†Grypma did not claim any expertise in the field of chronic pain treatment.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Overall I found Dr.¬†Grypma‚Äôs evaluation of Ms.¬†De Villiers to be ill-considered and superficial, and I give no weight to his evidence.
February 25th, 2013
Adding to this site’s¬†archives¬†of soft tissue injury non-pecuniary awards, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic ‘moderate’ low back injury.
In last week’s case (Schafer v. Whitely) the plaintiff was involved in a 2010 collision. ¬†Although liability was disputed the defendant was found fully at fault at trial. ¬†The plaintiff suffered various injuries¬†which improved by the time of trial with the exception of a low back injury of moderate severity which continued to pose problems. ¬†In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:
¬†¬†¬†¬†¬†There is no dispute about the nature of the injuries sustained by the plaintiff as a result of the accident. She suffered minor injuries to her left knee and to her face, and experienced some headaches. These injuries, and the headaches, had resolved within a month or so after the accident.
¬†¬†¬†¬†¬†I find that the plaintiff sustained injury to the soft tissues of the musculoskeletal structures of her neck and lower back. The injury to these structures has caused pain in the plaintiff‚Äôs neck and low back. By the time of trial, the plaintiff‚Äôs neck pain symptoms had resolved, but she continues to experience pain in her low back on an intermittent basis.
¬†¬†¬†¬†¬†I find that the impact of the collision was violent and that the forces exerted on the plaintiff‚Äôs body were capable of causing, and did cause significant injury. Although the medical experts did not offer an opinion as to the severity of the injury, I find that the injury was at least moderate in severity…
¬†¬†¬†¬†¬†In my opinion, having regard to the facts I have found, a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount under this head of loss.
January 11th, 2013
As discussed on numerous occasions, a Plaintiff who fails to take reasonable steps to aid in their own recovery can have their damages reduced for a ‘failure to mitigate’. ¬†In considering weather a Plaintiff’s failure to seek¬†treatment¬†is reasonable their personal circumstances are taken into account. ¬†It is well established that lack of funding can reasonably excuse a course of otherwise helpful¬†therapy.¬† ¬†Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further demonstrating this principle.
In this week’s case (Rozendaal v. Landingin) the Plaintiff was injured in two collisions. ¬†She was faultless for both. ¬†She suffered soft tissue injuries to her neck, shoulders and upper back which continued to the time of trial and were expected to carry on in the future. ¬†Non-Pecuniary damages of $40,000 were awarded.
The¬†Defendant¬†argued that the Plaintiff’s damages should be reduced due to her failure to carry on with physiotherapy. ¬†Madam Justice Holmes found that greater therapy indeed would have made a difference but given the Plaintiff’s circumstances her failure to attend was not¬†unreasonable. ¬† In dismissing the defendant’s arguments the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†On the medical evidence, I find that Ms.¬†Rozendaal likely could have improved to a greater extent and more quickly had she undertaken a focussed course of strengthening and conditioning therapy or training designed for her particular injuries, such as Dr.¬†O‚ÄôConnor outlined in his second report.¬† The various forms of massage Ms.¬†Rozendaal undertook gave her relief from her pain, but, as Dr.¬†O‚ÄôConnor explained, passive therapies did not help rehabilitate the muscles which, ultimately, were causing that pain.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The question is whether Ms.¬†Rozendaal acted unreasonably by failing to undertake the recommended therapies or programs.¬† I find that in her particular personal circumstances, she did not. ¬†..
¬†¬†¬†¬†¬†¬†¬†¬†¬†As I find, Ms.¬†Rozendaal‚Äôs life circumstances left her unable to fund any form of ongoing treatment or therapy.¬†¬† From their early days together, she and Mr.¬†Landingin have worked extremely hard to educate themselves for careers and to provide financial support and loving care for their young family.¬† It is clear from the evidence that life was not easy for them.¬† I have no difficulty accepting that other financial priorities displaced ongoing physiotherapy or active rehabilitation for Ms.¬†Rozendaal, particularly since it seemed to her that massages from Mr.¬†Landingin and exercises she did at home were just as helpful.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†As I find, Ms.¬†Rozendaal was mistaken in this assessment.¬† However, it was only when Dr.¬†O‚ÄôConnor saw Ms.¬†Rozendaal before preparing his second report (of January 18, 2012), and asked her to demonstrate the exercises she had been doing since he had seen her six months earlier, that he realized that he had not given his instructions specifically enough:¬† Ms.¬†Rozendaal was doing light aerobic work and some gentle neck exercises, but no real strengthening.¬† Dr.¬†O‚ÄôConnor testified that because Ms.¬†Rozendaal had evidently misunderstood his recommendation in the previous report, he described the recommended conditioning more explicitly in the second report.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The law does not require perfection in the pursuit of rehabilitation.¬† It requires instead that a plaintiff make efforts which are reasonable and sincere in the plaintiff‚Äôs own personal circumstances:¬†¬†Gilbert¬†at para.¬†203.
¬†¬†¬†¬†¬†¬†¬†¬†¬†On this basis, in¬†Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras.¬†227-30, varied on other grounds 2012 BCCA 239, the Court found no failure to mitigate where the plaintiff was unable to pursue the recommended treatments because of life circumstances that included a pregnancy, the care of small children at home, and her inability to perform the recommended exercises properly without the help of a personal trainer.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find similarly that Ms.¬†Rozendaal‚Äôs efforts at rehabilitation were reasonable and sincere in her own personal circumstances.