ICBC Law

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for motor vehicle related injuries.

In yesterday’s case (Kardum v. Asadi-Moghadam) the Plaintiff was involved in 2 collisions.  He was not at fault for either.   The Plaintiff’s physicians provided evidence that he suffered from chronic soft tissue injuries as a result of these crashes.  ICBC’s expert (Dr. Grypma) provided evidence minimizing the Plaintiff’s injuries.  Mr. Justice Armstrong preferred the Plaintiff’s physicians and concluded that the collisions were responsible for the Plaintiff’s ongoing pain.  In assessing non-pecuniary damages at $70,000 the Court made the following findings:

[112] I conclude that Mr. Kardum suffered a chronic soft tissue injury to his neck, shoulder, and upper back region caused in the accidents of 2007 and 2009. In addition to those injuries Mr. Kardum suffers ongoing chronic headaches and disrupted sleep secondary to his neck pain. His prognosis is guarded and it is unlikely that he will become symptom free. The intensity of these symptoms will vary over time and he will likely achieve some improvement over the next one to two years. The measure of that improvement is unknown but may be a function of his efforts in pursuing the recommendations of Dr. Caillier…

[161] I conclude that Mr. Kardum suffers from chronic pain involving his left posterior lateral neck, his posterior shoulder, and upper back region. He continually has headaches and disrupted sleep secondary to the pain involving his neck. He has some prospect of improvement in symptoms but will likely have a measure of pain or discomfort for the balance of his life…

[173] I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.

[174] I conclude that Mr. Kardum is entitled to non-pecuniary damages of $70,000.

This decision is also worth reviewing for the Court’s comments on the various expert witnesses that testified.  In rejecting ICBC’s independent medical examiner Mr. Justice Armstrong provided the following reasons:

[111] Dr. Grypma is an orthopaedic surgeon. He is not a specialist in rehabilitation medicine. His opportunity to observe and examine Mr. Kardum was restricted to a single 1.5 hour examination on January 31, 2011. He confirmed that Mr. Kardum did not demonstrate any nonorganic symptoms. He was not aware of the amount of damage to the defendant’s vehicle in the first accident. He did not make the same observations of Mr. Kardum’s physical symptoms noted by Drs. Caillier and Schukett. Where there are conflicts between his opinions and the evidence of Drs. Caillier and Schukett, I accept the opinions of the latter two doctors.

If two or more events cause a single “indivisible injury” a Defendant who in part contributes to the injury can be held accountable for the entire loss.  This legal principle was concisely summarized in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Estable v. New) the Plaintiff was injured in a 2003 motor vehicle collision.  She suffered previous and subsequent trauma.  The Court found that while not the sole cause, the collision was a cause of the Plaintiff’s various soft tissue injuries.  The Plaintiff was compensated for these and in doing so Madam Justice Gropper provided the following short and helpful summary of the law of indivisible injury compensation:

[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.

[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant. This was discussed in Bradley at para. 33:

[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[emphasis in original]

[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court made the following findings with respect to her injuries:

[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.

[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him…

[77] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga…

[81] I assess Ms. Estable’s non-pecuniary damages at $30,000.

The value of a personal injury case has little to do with the number of doctor visits a Plaintiff has.  I’ve discussed this topic previously.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, further addressing this matter.

In today’s case, (Tarzwell v. Ewashina) the Plaintiff was injured in a 2007 motor vehicle collision.  She suffered from chronic soft tissue injuries affecting her trapezius muscles and low back.   The injuries were on-going at the time of trial and the Court accepted that the symptoms would linger into the future.  Non-Pecuniary damages of $60,000 were awarded.  Prior to arriving at this assessment Mr. Justice Dley provided the following comments making it clear that the number of doctor visits does not measure the quantum of a personal injury claim:

[67] If a plaintiff’s claim was to be measured by the number of doctors seen or by the number of medical consultations attended, then that would unjustly marginalize victims such as Ms. Tarzwell. She has chosen not to burden the medical system with unnecessary visits to physicians who would give her no further advice than what she had already been provided and followed. She should not be penalized for that.

This case is also worth reviewing for the Court’s comments to the lawyers involved in the litigation for their efficient use of Court time.  Illustrating that meaningful claims can be litigated with little Court time Mr. Justice Dley provided the following compliments:

[5] This case was presented with uncompromising efficiency. Counsel were meticulous in focusing on those matters that were actually in dispute.

[6] The evidence was concluded in a day along with an additional half day for argument.

[7] The medical evidence consisted of two reports. There was no wasted expense by tendering marginal evidence that would have done little to assist the Court.

[8] A case that takes little time to present does not mean that damages are nominal. It is the quality and substance of the evidence that matters. Style should never trump substance.

[9] If an example of proportionality needed a model case, counsel have succeeded here in illustrating how litigation can be conducted.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.

In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision.  The Plaintiff suffered from chronic pre-existing pain.  The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury.   Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’.  In doing so the Court provided the following reasons:

[42] In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed, [2001] S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.  Red Deer College v. Michaels(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.  In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

[43] In his very thorough report, Dr. Armstrong gave treatment recommendations.  Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court.  Those recommendations included (1) a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2) minimizing passive therapies; (3) supervised stretching and posture improvement under the guidance of a physiotherapist; (4) a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5) counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7) time off work to pursue rehabilitation.

[44] The plaintiff has largely not followed these recommendations.  There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance.  She did not embark on a progressive program to strengthen core muscles.  There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management.  Hsu did not take time off work to pursue rehabilitation.  Hsu also continued with, and seeks compensation for, continuing passive therapies.

[45] For example, Hsu claims as special damages acupuncture treatments covering a period from March 2007 to June 5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed “rehabilitation treatments” ($760); and various prescription medications ($194.72).

[46] Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

[47] The importance of carrying out those recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

For more recent BC case summaries addressing failure to mitigate you can click here to access my archived posts and here for more recent case summaries addressing pain and suffering awards for sacroiliac joint injuries.

I’ve written about this topic too many times to give a lengthy introduction other than to say it is clear that the “Low Velocity Impact” Defence is not a legal principle.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, yet again demonstrating this.

In today’s case (Cariglino v. Okuda) the Plaintiff was involved in a 2008 collision.  She was a passenger in a vehicle that was rear-ended.  Fault was admitted.  She suffered various soft tissue injuries.  The vehicle sustained $724 in damage and the Defendant advanced the classic LVI defence arguing that this little damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”.

Mr. Justice McKinnon rejected this argument and in doing so provided the following comments:

[33] No medical opinions were proffered by the defence, rather defence submitted that the plaintiff’s evidence is “unreliable” as she downplays the role of significant family stressors in her life, fixating on the collision as the sole cause of all of her problems, both before and after the collision. Curiously, defence accepts that the plaintiff is credible but not reliable. That seems to me to be a distinction without a difference.

[34] I found the plaintiff to be generally credible and, for the most part, a reliable historian. Certainly she had stresses in her life that created difficulties but she was able to manage these much more easily before the collision. A defendant takes a plaintiff as he finds her. Here the defendant has caused injury to the plaintiff who was in a somewhat fragile state, given her many family issues.

[35] The defendant contends that the very minor nature of the collision would render “improbable” the nature and extent of the injuries the plaintiff contends she suffers. I was not provided with opinion evidence to support that contention and thus am unable to accept the bald proposition that minor damage equals minor injury.

The Court accepted that the Plaintiff suffered various soft tissue injuries which largely improved in the first year following the crash and with further therapy should fully recover.  Non-Pecuniary damages were assessed at $35,000.

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, assessing damages for chronic headaches and an aggravation of a low back injury caused by a motor vehicle collision.

In last week’s case (Drodge v. Kozak) the Plaintiff was injured in a 2006 two-vehicle collision on Vancouver Island.  ICBC admitted the crash was the fault of the other motorist.  Following the collision the Plaintiff suffered various injuries including chronic post-traumatic headaches.  The Plaintiff argued that these were caused by a traumatic brain injury sustained in the crash.  Madam Justice Dardi rejected this argument finding that the Plaintiff did not suffer a brain injury.  The Court did, however, find that the headaches were causally linked to trauma sustained in the collision.  In assessing non-pecuniary damages at $85,000 the Court made the following findings:

[106] I have concluded that the constellation of symptoms that Dr. Smart bases his concussion diagnosis upon are not sufficiently specific to be diagnostic. I prefer Dr. Teal’s opinion that it is unlikely that Mr. Drodge sustained a mild traumatic brain injury. I find that the headache, cognitive, and other symptoms attributed by Dr. Smart to post-concussion syndrome are non-specific symptoms. I accept Dr. Teal’s evidence that there are “multiple reasons for dizziness, for headaches, for sleep disturbances, for mood disturbance … they are not necessarily post-concussional symptoms.” Further, the expert evidence establishes that cognitive difficulties including poor concentration and mood disturbances can develop as a consequence of severe headaches.

[107] In summary on this issue, I have concluded that on balance the preponderance of the evidence does not support a finding that Mr. Drodge suffered either a mild traumatic brain injury or concussion/post-concussion syndrome.

[108] Although I have concluded that the evidence falls short of establishing a diagnosis of concussion/post-concussion syndrome, I do accept that Mr. Drodge has suffered chronic headaches and associated cognitive symptoms for some four and a half years since the accident…

[120] In the end the question of Mr. Drodge’s prognosis is difficult. Taking into account all of the opinion evidence of the experts which conflicted on this point, I have concluded that Mr. Drodge is not likely to make a full recovery. While Mr. Drodge may be able to develop better coping strategies to manage his pain more effectively, and may experience some corresponding improvement in his headache symptoms as well as his back symptoms, there is only a small chance that he will improve to the degree that he will be employable…

[143] While the authorities are instructive I do not propose to review them in detail as they only provide general guidelines. I have reviewed all of the authorities provided by both counsel, and considering Mr. Drodge’s particular circumstances, and compensating him only for the increase in the exacerbation of his low back symptoms and not for the effects of his pre-existing back condition that he would have experienced in any case, I conclude a fair and reasonable reward for non-pecuniary damages is $85,000.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder and low back injury caused by a motor vehicle collision.

In this week’s case (Juraski v. Beek) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a chronic shoulder injury which remained symptomatic at the time of trial.  Her prognosis for complete recovery was poor.  She also had mechanical back pain.  In assessing the Plaintiff’s non-pecuniary damages at $75,000 Madam Justice Humphries provided the following reasons:

[42] Dr. Regan, an orthopaedic surgeon, diagnosed myofascial pain in the plaintiff’s left trapezius and cervical spine, anterior left shoulder pain, and chronic left mechanical low back pain.  His report is dated November 26, 2010.

[43] He testified that Ms. Juraski has supraspinus tendonosis, a chronic condition of the shoulder tendon.  He said a tear was possible but upon seeing the MRI of March 31, 2011, agreed it did not support that suggestion.  He agreed with Dr. Nobel (see below) that pain block injections would allow more accurate diagnosis, but in view of the passage of time, he did not foresee the shoulder pain settling…

[77] The accident occurred 4 years ago.  I accept that the plaintiff now lives with chronic pain in her shoulder and lower back and will continue to do so, although exercise and strengthening may alleviate her symptoms to some degree, particularly in her back.  On a consideration of the medical evidence, including that of Dr. Leith, there is a difference of opinion about the mechanisms causing Ms. Juraski’s pain.  However, there is no question but that the chronic pain in her shoulder area and lower back are caused by the accident.

[78] The plaintiff is obviously a determined and energetic person who will do what is required to make ends meet.  However, I am satisfied the quality of her life has been altered by the pain she copes with daily.  She is unable to keep up the high standards of housework and household accomplishments she maintained before the accident.  To some extent, her ability to live her life as she did is affected by her unenviable work schedule - without that she would probably be able to devote more time to housework and her garden, but she would still have to cope with chronic pain as she did it.  Her symptoms are not incapacitating - she works hard and long hours- but her enjoyment of life is considerably curtailed.  She admitted on discovery that her sleep is back to normal.

[79] However, given the time that has passed, the doctors, while recommending strengthening exercises and other treatments, are guarded in their prognosis for improvement in pain and discomfort in the future, especially with her shoulder.  On the whole, while some improvement in symptoms might be forthcoming through exercise and core strengthening, the medical practitioners suggest she will have to learn to live with and manage chronic pain.

[80] The defendant did not argue that the plaintiff has failed to mitigate her damages.  She has followed the treatment recommendations offered to her, although her busy work schedule interferes with her ability to exercise and stretch.

[81] While there are some parallels between the facts here and those outlined in the cases cited to me, those submitted by the plaintiff tend to describe situations where there were other important effects from the accident in addition to chronic pain - for instance, depression, ongoing inability to sleep, post traumatic stress disorder, inability to work, significant reduction in energy, need for significant rehabilitation and counselling.  The cases cited by the defendant tend to deal with less severe or pre-existing symptoms, symptoms that resolved after a period of time or were improving, or symptoms localized to one area - either back or shoulder, but not both.

[82] It is clear that awards for non-pecuniary damages in cases of chronic pain vary fairly widely, and of course the symptoms and effects on each plaintiff’s life are individual.  Taking Ms. Juraski’s situation in the context of all of the cases referred to me, I conclude that an appropriate award for non-pecuniary damages is $75,000.

Adding to this site’s ICBC claims pain and suffering database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a moderate soft tissue injury.

In today’s case (Olianka v. Spagnol) the Plaintiff was injured in a 2008 collision.  Fault was admitted.   The evidence was not particularly contested and the trial proceeded summarily.  The Court found the Plaintiff suffered moderate soft tissue injuries that were temporarily disabling with symptoms that were expected to linger into the future.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 Mr. Justice Blair provided the following reasons:

[28] Based on the authorities and the unique evidence found in this case, I find that the appropriate award for Mr. Olianka’s non-pecuniary damages is $30,000, taking into account all contingencies, given the extent of the soft tissue injuries to his neck and back, the disability period of 27 months post-collision, as well as the lingering and ongoing aspect of his injuries, the limitations that the injuries imposed, not just on his ability to work, but also on his ability to partake in those physical activities which occupied his life prior to the collision and which he has only recently been able to resume albeit to a limited extent.

Reasons for judgement were released yesterday by the BC Supreme Court, assessing damges for non-pecuniary loss (pain and suffering and loss of enjoyment of life) for an L4-5 disk herniation.

In yesterday’s case (Doho v. Melnikova) the Plaintiff was involved in two seperate collisions.  Fault was admitted in both actions leaving the Court to assess damages.  The first collision caused a disk injury at the 4-5 level of the Plaintiff’s lower spine.  The second collision resulted in a minor aggravation of this.

The prognosis for recovery was poor and the Plaintiff was expected to experience ongoing pain and discomfort in his lower back as a result of the first collision.  In assessing non-pecuniary damages at $80,000 for the first collision Mr. Justice Rogers provided the following reasons:

[38] The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.

[39] I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.

This case is also worth reviewing for the Court’s discussion of the principle of ‘failure to mitigate‘ at 49-53.

Reasons for judgement were released this week dealing with damages for soft tissue injuries imposed on pre-existing symptomatic injuries.

In this recent case, (Hosking v. Mahoney), the Plaintiff was injured in a 2004 motor vehicle collision.  She had pre-existing injuries from previous collisions and as a result had some on-going symptoms.  Mr. Justice Warren found that the new injuries would likely continue well into the future and assessed non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 then reduced this award by 25% to account for the Plaintiff’s pre-existing injuries.  In reaching this result the Court provided the following reasons:

[178] I find that the plaintiff suffered a mild to moderate soft tissue injury to her cervical and upper thoracic areas as a result of the February 2004 accident.  This was superimposed on her already symptomatic condition caused by the earlier accidents and although she had started to make the expected recovery, the process was interrupted by her falls.  Normally, these would not have affected the plaintiff but she was more vulnerable as a result of the three accidents.  There is no orthopaedic or neurological cause.  It is probable that these complaints will continue well into the future but can be managed and alleviated by an appropriate exercise programme (as recommended by her medical advisors as early as Dr. Parhar in March 2003) and by such passive therapies as may, from time to time, help alleviate her symptoms.

[179] Using the authorities relied upon by counsel as a template, for each case depends on its own unique features, I assess the plaintiff’s general damages at $80,000 which I reduce by 25% as attributable to or an apportionment for her pre-existing symptomatic injuries and her intervening falls.