ICBC Law

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and back injury sustained in a collision.

In this week’s case (Buttar v. Brennan) the Plaintiff was injured in a 2008 collision.  He was employed as a framer.  He suffered from pre-existing back pain.  This condition was aggravated by the collision.  The Plaintiff also suffered a cartilage injury to his right knee causing patello femoral symptoms (knee pain).

These injuries, while not totally disabling, were expected to be ongoing and to compromise the Plaintiff in his vocation.  In assessing non-pecuniary damages at $60,000 Mr. Justice Abrioux provided the following reasons:

[34] I have found that the plaintiff was a hard-working individual.  I have also concluded he has made a greater recovery from his injuries than he may believe or say to be the case.  He is left, however, with an ongoing low back condition which affects his life from a functional perspective to a greater degree than was the case prior to the Accident.  He also has a minor yet permanent ongoing injury to his right knee which was entirely caused by the Accident…

[37] Taking into account the plaintiff’s original position and the measurable risk which I have found the plaintiff’s pre-Accident condition would have had on his life in any event, I award non-pecuniary damages of $60,000.

Reasons for judgement were released earlier this month assessing damages for a knee injury caused in a 2007 collision.

In the recent case (Dulay v. Lachance) the Plaintiff was injured in a broadside collision. Fault for the crash was admitted by the offending motorist. The Plaintiff suffered from chronic knee pain and dysfunction following the crash. The trial focused largely on whether the collision was responsible for this.

Investigation following the collision revealed that the Plaintiff had pre-existing arthritis in his knee. As is often the case, this condition was asymptomatic prior to the crash.

The plaintiff presented medical evidence suggesting the collision was responsible for the onset of pain. The defendant argued the collision was coincidental to the onset of symptoms. The court preferred the Plaintiff’s evidence. In assessing non-pecuniary damages at $75,000 Madam Justice Maisonville applied the ‘golden years‘ doctrine and provided the following reasons:

[78] Dr. McLeod had described the contusion to the right medial femoral condyle and medial tibial plateau (very simply put – the area where the femur meets the lower leg bones) as mild, but as noted he separated this injury from the triggering of the arthritis as clarified in his second report. I accept his evidence on this point and find that his attribution of “mild” to the injury did not mean to incorporate the onset of symptoms of osteoarthritis.

[79] Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.

[96] The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.

[97] The plaintiff relies on the report of Dr. Grover who wrote:

It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.

As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident…

[106] There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident…

[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[124] I find Griffin J.’s reasoning apt here in Mr. Dulay’s case where he is nearing retirement and has lost the ability to function in a way that has altered how he lives.

[125] Additionally, Mr. Dulay continues to work and perform everything he can. He has not asked for his employer to accommodate him. He is a team player and endeavours to do everything he can even though he must stop, take medication, and bear much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet, 2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:

Stoicism of the plaintiff should not reduce the award.

[126] In all the circumstances of the case I award the plaintiff $75,000 in non-pecuniary damages.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple, complex, orthopaedic injuries caused by a motor vehicle collision.

In last week’s case (Tompkins v. Bruce) the Plaintiff was injured in a serious 2006 collision which was caused when the Defendant, who had been drinking and was driving while over the legal limit, crossed the centre line and collided with the Plaintiff’s vehicle.  The Defendant was found fully at fault for the crash.

The Plaintiff suffered multiple injuries including rib fractures with a collapsed lung, a left hip fracture, a fractured femur and a fractured patella.  These injuries required surgical intervention.  The Plaintiff had a total hip replacement and likely needed a total knee replacement in the future.

The Plaintiff was a plumber and gas fitter and was rendered totally, permanently disabled from his own occupation.  He was left with a minimal residual earning capacity.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Mr. Justice Curtis provided the following reasons:

[47] Wayne Tompkins was 50 years old, living in Pemberton and happily employed as a tradesman when the June 3, 2006 collision occurred.  As a result of the injuries suffered by Mr. Tompkins which were caused by the negligent and criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has been permanently and very significantly altered.

[48] He has lost his ability to work in his trade at employment he enjoyed.  He has lost a great deal of his mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he once did.  He cannot stand or sit for long periods of time.  His mood is depressed and his anger harms his relationship with other people − particularly in the case of Nancy Larkin, his romantic partner after the accident who left him largely because of his anger and irritability.  In addition, Mr. Tompkins now faces the prospect of further surgeries, such as two knee replacements, another hip replacement, the prospect that the condition of his knees and hip may get worse − and that each surgery comes with a risk of loss of function, dangerous embolisms, scar tissue, long recovery periods and possible poor results.

[49] On the other hand, Mr. Tompkins is an intelligent man whose depression and anger can quite likely be treated and improved.  He now has his own home in Chilliwack where he lives with his dog close to his sons and grandson.  He is capable of driving his car, at least as far as Chilliwack to Whistler.  There is a good chance that continued physical training will maintain his strength and may well improve his mobility and flexibility − he has been capable of walking without a cane in the past, and even of lifting Nancy Larkin who weighs 115 pounds from her wheelchair into a car and it is not unlikely that his condition may again reach that level.  He did own and operate a boat after the accident and could again, and fishing is still possible.  While his trade work as he once did it is no longer open to him, there is the possibility he may find rewarding employment in some other field…

[53] Mr. Tompkins has been particularly unfortunate in having three major joints − both knees and his left hip damaged in the collision.  Those injuries are permanent and the condition of those joints likely to get worse.  Considering that and his altered mood and other injuries, I find the sum of $200,000 a fair and reasonable amount for non pecuniary damages.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic knee and jaw injury sustained in a motor vehicle collision.

In this yesterday’s case (Daitol v. Chan) the Plaintiff was involved in a “serious” collision when the defendant dozed off and crashed into the Plaintiff’s vehicle.  Fault was admitted by the Defendant at the start of trial.

The Plaintiff suffered various injuries, the most serious of which was a meniscal tear in her left knee.  The Plaintiff’s family doctor summarized the following collision related injuries which the Court accepted:

[35] It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol during the motor vehicle accident were:

· New-onset neck-, mid-and-upper back, lower back, right shoulder and right hip area pain: soft tissue (muscular and connective tissue).  Pain in this area is largely resolved with some intermittent neck and back pain.

· Bilateral TMJ (jaw) pain, right side more than left.

· Pre-patellar bursitis of the left knee due to direct trauma to the knee.  This explained the initial swelling of the left knee patellar area, which resolved after a few months.

· Left knee PFS (patellofemoral syndrome) which is a condition of direct damage to the kneecap cartilage, causing pain with squatting, deep knee bending and climbing stairs.

· Left knee medial meniscus tear. This is consistent with the mechanism of injury of the MVA (direct knee impact), supported by direct pain upon palpation of the joint line, the MRI findings and the longstanding duration of symptoms.  This is still symptomatic today.

In assessing non-pecuniary damages at $60,000 Madam Justice Griffin provided the following reasons:

[53] In considering all of the medical evidence, and Ms. Daitol’s testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol is likely to have long-term continuing TMJ problems and left knee pain problems, as well as some right knee problems well into the future, and that these injuries were caused by the accident. ..

[67] I find as a fact that Ms. Daitol’s greatest discomfort in the years since the accident, and likely in the future, and greatest interference with her enjoyment of life, is due and will continue to be due to the pain in her left knee.  She continuously is required to use a left knee brace.  For a lengthy period of time, she was on crutches.  She limits her physical movements and hence her recreational activities due to the limits of her left knee as she does not want to set herself back…

[69] I find that she has suffered severe restrictions in walking and will continue to do so in the future and likely for the rest of her life.  I conclude that there is no readily apparent alternative exercise for Ms. Daitol at this stage of her life, other than walking.  As a 36 year old woman, the permanent impairment of her ability to walk any measurable distance or for any measureable period of time, without suffering extreme pain, is a significant loss.  While she still will have plenty of enjoyment in life, she will frequently suffer pain, both in her recreational pursuits and at work when she is required to move around to retrieve files or do other light tasks. ..

[74] In this case, I find it very significant that the one physical activity Ms. Daitol used to enjoy, walking, has essentially been lost to her.  While she can still walk somewhat, it is clear that she is no longer going to enjoy it, it is going to very limited in duration, and she is always going to fear and suffer the aftermath of increased pain.  Walking is essential to most of daily life, and is not a luxury that if lost, will not be missed.  For someone who has never had a natural inclination to pursue a range of physical activities, this is an even more significant loss as she is unlikely to have the natural athletic ability that will allow her to generate some other replacement activity.  While I find that the range suggested by the plaintiff may be high in these circumstances, I find the range suggested by the defendant to be far too low.

[75] I find that an appropriate award for general damages in the circumstances of this case, taking into account the left knee damage, the fact that it is causing some problems with the right knee, and the ongoing TMJ complaints, all caused by the accident, is $60,000.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for an aggravation of a pre-existing knee injury.

In yesterday’s case (Everett v. Solvason) the Plaintiff “blew out his left knee” while playing softball in the summer of 2008.  The following month he was involved in a motor vehicle collision.  The crash aggravated his knee pain.  Following the crash the plaintiff had an MRI which revealed “a complex tear to the medial meniscus and a probable partial tear of the ACL”

At trial the main issue was what relationship the collision had to these injuries.  The Court ultimately found that these injuries were caused by the softball injury but sustained a “minor aggravation” in the collision.  In awarding damages of $15,000 Mr. Justice Jenkins provided the following reasons:

[21] The defence called Dr. Brian Day, an orthopaedic surgeon, who never did examine Mr. Everett but did review a great many reports and other documents including medical records which were in evidence at this trial. He concluded that the softball injury of July 30, 2009 was responsible for the injury to the left anterior cruciate and medial meniscus, i.e. the left knee injuries. In cross examination Dr. Day was clear that the accident of September 3, 2009 was not the cause of the knee injuries, in that he said that these kind of knee injuries are the result of a significant rotational movement in which the knee pops, swells, bleeds and would be the main complaint of the injured party. According to Dr. Day, the plaintiff having planted his left foot in anticipation of the impact from the vehicle behind would not likely have caused these injuries. The nature of the left knee injury is, however, consistent with the plaintiff’s description of the softball incident. It is clear to me, especially from Dr. Day’s evidence, that the cause of the knee injury was the softball incident. However, he did say that the accident could have resulted in a further tear of the medial meniscus originally torn in the softball incident. In the circumstances, I find that the plaintiff likely suffered a minor aggravation to the knee injury as a result of the September 3, 2009 accident…

[39] …I find a reasonable award for general damages for pain and suffering is in the amount of $15,000.

In my ongoing effort to create a searchable UMP Claims database, I summarize a 2009 UMP Decision dealing with an assessment of damages for serious injuries, including a partial spinal cord injury leading to temporary paralysis, following a head on crash.

In the 2009 decision (EH v. ICBC) the 10 year old Claimant sustained serious injuries when she was involved in a head-on collision on the Malahat Highway.  The Claimant’s injuries were severe and her right leg was completely paralyzed following the collision.  She fortunately went on to make an “excellent” recovery, however was expected to suffer from long term problems as a result of her injuries.

The at-fault driver was an “underinsured” motorist and the parties agreed to have the quantum of the claim assessed via UMP arbitration.  Arbitrator Yule assessed the Claimant’s non-pecuniary damages at $140,000 and in doing so provided the following reasons:

76.  At age 10 the Claimant sustained serious, multiple injuries in the Accident.  The three most serious injuries were:

a.  A Brown-Sequard partial cervical spinal cord injury

b.  Bony cervical spine injuries including compression fractures at C-7, T-1 amd T-2, facet subluxation at C-7 - T-1 and avulsion of the C-7 spinous process; and

c.  an anterior tibial spine avulsion injury in her right knee (anterior cruciate ligament avulsion and grade 2 medial collateral ligament strain)

77.  At the outset, her right leg was completely paralyzed.  She:

a.  spent 50 days in three different hospitals

b.  experienced neuropathic pain (excruciating pain to mere touch) for 20 days;

c.  required her neck immobilized in sandbags when in bed;

d.  at all other times wore a Minerva brace for 60 days;

e.  wore an extreme right knee brace for 75 days; and

f.  wore a plastic boot on her right foot for foot drop for approximately 5 weeks.

As of August, 2006, approximately five months post-accident she:

a.  had received 70 physiotherapy treatments; and

b.  40 occupational therapy treatments.

The Accident and the acute treatment phase was a wholly frightening experience for a young child.  For par of her hospitalization she was in isolation.

78.  The Claimant sustained a number of permanent disabilities as follows:

a.  right leg limp

b.  weakness, fatigue and reduced endurance in the right leg;

c.  loss of sensitivity of the left leg exposing her to the risk of burns or frostbite

…

87.  …having in mind the Claimant’s initial complete right leg paraplegia, the extreme neuropathic pain which lasted for 20 days, the significant permanent restrictions resulting from weakness, fatigue and decreased endurance of the right leg, the impending surgical repair of right knee ligament damage and the early onset of symptomatic degenerative spinal arthritis I assess damages at $140,000.

Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims.  Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.

In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist.  Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000.  The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500.  Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1.  In deducting 50% of these benefits the Arbitrator provided the following reasons:

165.  In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments.  The onus of proof that these payments will continue is on the Respondent (ICBC).  While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.

166.  That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.

This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries.  In assessing this loss at $175,000 the Arbitrator made the following findings:

23  ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.

74.  …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain.  He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities.  I find that his present disability is entirely related to the motor vehicle accident…

77.  After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.

Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.

In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.

The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:

[270] Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271] In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.

Sections 148.1 - 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   The law requires all UMP decisions from 2007 onward to be published on ICBC’s website.  These cases, unfortunately, are published in PDF Format and they are not search friendly.  To remedy this I’ve decided to include UMP case summaries on this blog.  With that in mind here is the first in a series of UMP cases summaries.

The first UMP judgement published was RAH v. ICBC.  In RAH the Claimant was injured in a 2002 motor vehicle collision.   Fault was admitted.  It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.

The Claimant suffered a comminuted fracture of the left medial and tibial plateaus.  These required surgical correction.   Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“.   The prognosis was for gradual worsening with a likelihood of a total knee replacement.   It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons:

The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee.  He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware.  He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later.  He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done.  He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion.   He cannot return to his former occupation as industrial nurse/medic.  He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain.   He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain.   He continues to use a cane.  Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required.  The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping.  These activities except in a most limited and superficial manner, are now foreclosed to him…

…I assess the non-pecuniary damages at $95,000.

I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an accident related knee injury.

In this week’s case (Battagliola v. Wal-Mart Canada Corp.) the Plaintiff was shopping in Wal-Mart in 2005 when a metal shelf struck her right knee.  Wal-Mart accepted that they were liable for the incident leaving only quantum of damages (value of the claim) at issue.

The Plaintiff suffered pain and discomfort in her knee following the incident and was diagnosed with patellofemoral pain (knee joint pain).  The symptoms lasted up until the time of trial but were expected to “slowly resolve over time“.

The Court accepted the injury was caused by the incident although expressed concerns that “the negative impacts are not quite as debilitating as asserted” and further that the Plaintiff’s “current limitations are not as severe as her personal account suggests“.  Non-Pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $28,000.  In reaching this assessment Mr. Justice Masuhara provided the following reasons:

[19] Dr. Pisesky opined in his report that Ms. Battagliola suffers from patellofemoral syndrome of the right knee and that the pain associated was brought about directly by the contusion to her right knee on February 15, 2005….

[22] He opined that Ms. Battagliola “will likely have some degree of discomfort in [her right] leg and findings associated with this of patellofemoral irritation indefinitely.” …

[25] The report of Dr. White concluded that upon his examination, Ms. Battagliola “probably had a blow and bruise to the right patella area in the indeterminate past.”  Based on the information he had as of the date of his report, he stated that Ms. Battagliola’s knee injury “should slowly resolve over time but may take a while yet.”…

[33] In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.