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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 Dizziness Cases’ Category
February 3rd, 2012
Visual Vestibular Mismatch is a medical condition which can result in dizziness, imbalance and nausea. The consequences of these symptoms can be severe and disabling. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing a claim for damages arising from VVM resulting from a motor vehicle collision.
In last week’s case (Moukhine v. Collins) the Plaintiff was injured in a 2007 rear-end collision in Vancouver, BC. Fault was admitted by the rear motorist. The Court heard competing medical evidence as the consequences of the collision and ultimately accepted that the Plaintiff suffered from a visual vestibular mismatch as a result of the crash.
The prognosis was poor with the symptoms expected to plague the Plaintiff indefinitely. The Plaintiff worked as a senior application developer and following the collision was never able to resume full time hours. In assessing non-pecuniary damages at $90,000 Mr. Justice Watchuk provided the following reasons:
 I find Mr. Moukhine to be a credible witness. I accept that his descriptions of heaviness or fog or, sometimes, mist in the head describe what is to the doctors a form of dizziness. I accept that this feeling and the inability to concentrate or “think through” prevents him from working at his job as a computer programmer for more time than he describes that he is now able to work…
 I conclude on the evidence as a whole that the Mr. Moukhine has proven that as a result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which has not resolved.
 I accept Dr. Longridge’s opinion that it is unlikely that there will be further significant improvements to Mr. Moukhine’s condition or symptoms.
 As has been described above, this injury has had a significant effect on Mr. Moukhine. It has resulted in continuing dizziness, primarily when he works on the computer. He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.
 Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.
 The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.
 I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.
 At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating…
 Each case is to be assessed on its particular facts. Considering all of the circumstances in this case including Mr. Moukhine’s age, the effects of the injuries sustained in the accident and Dr. Longridge’s opinion that the vestibular injury is likely permanent, I assess non-pecuniary damages at $90,000.
September 14th, 2009
When involved in an ICBC Injury Claim it is natural to want to know what the trial experience can be like. The best way to experience what the Court process is like is to actually attend a live trial and watch the evidence play out before you. This is easy enough to do, particularly in larger centres around the Province, like in Vancouver or New Westminster, as an injury trial is occurring on almost any given day.
If you can’t do this you can read past court judgements to get a feel for the ways these claims can proceed at trial. While this is not nearly as enlightening as witnessing a live trial some useful insight can still be gleaned. If you are looking for a court judgement giving insight into the court process Reasons for judgement were released today reproducing extensive portions of a Plaintiff’s cross examination in an ICBC Brain Injury Claim that are worth reviewing in full.
In today’s case (Trevitt v. Tobin) the Plaintiff was injured in a 2004 Motorcycle Accident in Surrey, BC. The Defendant pulled into the Plaintiff’s line of travel while making a left hand turn. The Defendant ultimately conceded the issue of fault.
The trial focused on the injuries the Plaintiff had the the appropriate award for compensation. The Plaintiff alleged that he suffered a traumatic brain injury and as a result would suffer a serious ongoing disability. The Plaintiff sought over $1.5 million dollars in total damages.
The Plaintiff’s claim with respect to his injuries and the extent of disability was largely rejected with Mr. Justice McEwan finding that “the physical evidence does not account for a head injury or concussion“. In the end the Court found that the Plaintiff suffered from “general bruising and shaking up in the accident” and following a setback in his career ambitions he suffered from “ongoing difficulties with headaches, tinnitus and some balance issues“. The Court found that these issues were ongoing by the time of trial (some 5 years later). The Plaintiff’s non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) was valued at $60,000.
The Court heard from many very qualified physicians who gave opinion evidence with respect to the Plaintiff’s medical condition. As is often the case in ICBC Injury Claims the court heard competing expert evidence from physicians called by the Plaintiff and the Defendant. In determining which experts had the more useful evidence Mr. Justice McEwan pointed out that “what any given doctor ‘believes’ is only helpful to the extent taht the underlying information is plausible by the standards of the court“.
To this end, the The Plaintiff’s credibility and reliability were put squarely at issue in this trial. The Defence lawyer argued that credibility was central to this case and engaged in an extensive cross examination relating to the Plaintiff’s credibility as a witness. Portions of this cross examination are set out in paragraphs 15-18 and these give good insight into what cross-examination can be like in Injury Litigation. Ultimately Mr. Justice McEwan held that the plaintiff gave some “unusual” and “inconsistent” evidence and that “he quite clearly cannot be relied upon for the accuracy of his observations about his condition“.
March 14th, 2009
On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision. In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:
 The trial occurred about five years following the accident. Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities. He is stoic and is inclined to push through pain until it becomes intolerable. He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers. He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.
 The evidence demonstrated on a balance of probabilities that these problems were caused by the accident. Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods. All the problems had resolved prior to the accident. The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.
A highlight of this decision for me was the court’s discussion of credibility. One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff. That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:
 The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain. I quote portions of pages 397-399 of those reasons for judgment:
The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.
Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …
In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:
I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.
Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.
The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC. The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome. Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue. The Plaintiff was found 60% at fault for the collision.
In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:
 I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back. Further, I am satisfied that she developed and continues to suffer chronic pain as a result. I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.
 I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:
…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.
 Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail. He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.
The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC. The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches. In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:
 The issue of causation in this case is determined by applying the factors in Athey. Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event. I disagree. I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident. Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35.
 Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation. In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch. The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future. The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication. Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004. I accept that he has tried every mode in an effort to alleviate his symptoms. In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help. I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.
 Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness. These are frustrating and to some extent debilitating. He also has jaw, or temporal mandibular joint arthralgia and myofascial pain. He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue.
 It is understandable that these conditions have affected him emotionally. The opinion of Mr. Koch corroborates the plaintiff’s evidence. I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms.
I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims. As always, I welcome any feedback from all my visitors.
October 1st, 2008
Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck. The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’. The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted. The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:
General damages – non-pecuniary
Past loss of income
Future loss of income earning capacity
Loss of opportunity
Costs of future care
Management and Tax Gross up
(to be determined)
This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury. Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:
 The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006. He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs. As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination. The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.
 I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering. As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression. Indeed the literature presented to Dr. Sovio at trial echoed that warning. In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation. He accepted the following summary at the outset of that article:
Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding. Isolated signs should not be overinterpreted. Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered. …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity. They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment. Behavioural signs are not on their own a test of credibility or faking.
Of course, as I will later note, in early 2006 the plaintiff was significantly depressed. I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected. However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.
July 3rd, 2008
In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.
The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.
The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’
The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.
As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.
No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.
The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.
The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:
 There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.
The court awarded $80,000 for ‘general damages’ (pain and suffering).
The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.
This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.
In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.
Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“
This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.
The court summarized the law of ‘failure to mitigate’ as follows:
 To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito,  1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein,  1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill,  B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk,  B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).
The court rejected ICBC’s failure to mitigate arguments.
This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.
June 25th, 2008
With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.
If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.
The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.
The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.
The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work‘
Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed
a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.
She went on to state that:
(the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.
The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’
This doctor made some interesting comments about chronic pain, namely that:
Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.
The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:
 I accept that as a result of the motor vehicle accident Mr. Niloufari suffered moderate strains to his neck and back which have caused him substantial pain and suffering over the two years and several months since the accident. I find these injuries have disabled him from any activities, including his work. As it stands now, more than two years have passed since the date of the accident with little hint of improvement in his pain and suffering or capacity to work.
 I am satisfied that the plaintiff suffers chronic pain with both physical and psychological components. I am not entirely satisfied that he has done his best to mitigate his loss by exercising and seeking psychiatric and/or psychological advice and treatment. I am not satisfied based on the medical evidence, that Mr. Niloufari should expect to be permanently disabled or disabled at all after a few years from now with diligent attention to his rehabilitation. I would expect him to gradually recover, as Dr. Hill suggested, over the next three or four years, with the expectation he could return to work in a limited capacity within one year.
The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.
The non-pecuniary damage award (pain and suffering) was $63,000.
This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.
May 29th, 2008
Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.
The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.
A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.
Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.
With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.
The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:
Athey v. Leonati
Resurfice Corp. v. Hanke
The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.
The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.
For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”
For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.
The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).
If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.
Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.
April 17th, 2008
In reasons for judgement released today from a Rule 66 “fast-track” trial, Mr. Justice Masuhara awarded a Plaintiff a total of $27,427.67 in compensation as a result of a September, 2004 rear-end accident which occurred in Coquitlam, BC.
The Plaintiff, a 33 year old female at the time of the accident, suffered soft tissue injuries including headaches, dizziness, nausea, sleep disturbance, and various soft tissue injuries.
The majority of the Plaintiff’s pain resolved by the time of trial with the exception of pain in her shoulder girdle and mid back.
The Plaintiff’s family physician testified that she suffered from “soft tissue injuries to her neck and upper back as a result of the accident.” Treatments included trigger-point injections to the Plaintiff’s right shoulder blade muscles.
A physiatrist also gave expert opinion evidence that the accident caused neck injuries that had resolved and further had caused “injuries to her right posterior shoulder girdle region and mid back”. He expected the Plaintiff to make a good or very good recovery but his prognosis of a complete resolution was guarded.
The ICBC lawyer defending the case called an orthopaedic surgeon who had examined the Plaintiff on behalf of the defence. He testified that the Plainitff “suffered a mild to moderate soft tissue injury to her neck and upper back areas“, that he “would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the accident ” and that the “ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the accident“.
The court accepted the evidence of the Plaintiff’s physicians and found that the Plaintiff’s “persisting symptoms in the area of her right shoulder blade are as result of the accident”.
Damages were awarded as follows:
1. Non-pecuniary (pain and suffering): $25,000
2. Past Wage Loss: $974.67
3. Special Damages (out of pocket expenses) $1,453
Mr. Justice Masuhara deals with some common arguments often advanced by ICBC lawyers defending these types of claims including attacks on the Plaintiff’s credibility. His findings were favourable to the Plaintiff and a quick read of this judgement reveals some of the accusations Plaintiff’s often face whem advancing ICBC claims.
April 9th, 2008
In reasons for judgement released today, the Honourable Madam Justice Newbury of the British Columbia Court of Appeal increased the pain and suffering award for a BC auto accident victim from $15,000 to $42,000.
The Plaintiff was a 70 year old female. At trial in the British Columbia Supreme Court, the trial judge found that the Plaintiff suffered a soft tissue injury, namely a muscle strain to the trapezius area but concluded that “the evidence was not sufficient to establish a causal connection between the accident and the increase in frequency and intensity of (the Plaintiff’s) dizziness“.
On appeal, counsel for the Plaintiff argued that the trial judge was simply wrong in saying there was ‘no medical evidence’ that supported the causal connection between the accident and the Plaintiff’s increase in frequency and intensity of dizziness.
At trial an ENT specialist testified that “in my opinion the increased dizziness (experienced by the Plaintiff )subsequent to the accident in 2004 is probably from the accident in 2004“. Given this evidence the BC Court of Appeal agreed with the submission of Plaintiff’s counsel and concluded that the appeal must be allowed.
Normally when an appeal is allowed a new trial is ordered. Running a second trial is obviously time consuming and costly. Fortunately for the Plaintiff, the trial judge stated that he would have awarded between $40,000 and $45,000 for pain and suffering had he found that the Plaintiff’s dizziness was related to the 2004 car accident. Given this helpful finding, and to save the parties from the expense of another trial, the BC Court of Appeal exercised their discretion to substitute the higher award of $42,000 for pain and suffering.