ICBC Law

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.

In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.”

ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.

Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.

Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.

In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.

The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:

The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.

In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

After what appears to be a hard fought trial, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just over $536,000 in total damages as a result of injuries and loss as a result of a 2001 BC Car Crash.

In today’s case (Zhang v. Law) the Plaintiff was injured when she was a passenger in a vehicle that was T-boned on the driver’s side by another vehicle.  As a result of this collision she suffered various injuries including a Mild Traumatic Brain Injury (MTBI), Chronic Pain and Depression.

The Court heard a lot of evidence about the potential causes for the Plaintiff’s Depression.  The Defendants argued that the Plaintiff’s ongoing problems and depression was not caused by the accident, but rather by a series of unfortunate events that followed including a miscarriage and serious health problems suffered by her husband.

In navigating this evidence Mr. Justice Sewell did a good job discussing the law of ‘causation’ in BC personal injury claims.  In awarding $125,000 for the Plaintiff’s Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court concluded as follows about the Plaintiff’s injuries, their cause, and their effect on her life:

In summary I find that Ms. Zhang did experience a decline in her cognitive abilities after the accident.  I have already found that this decline was due in part to the MTBI.  I now turn to a consideration of the extent to which depression contribute to these difficulties and to the etiology of that depression…

I conclude that Ms. Zhang continues to suffer depressive symptoms, pain and fatigue.  I find that there has been cognitive impairment caused by the MTBI and the depressive symptoms.  I also find that the chance of any significant improvement in her condition in the future is remote….

In my view this case is governed by the principles enunciated in the Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  On the issue of causation I have already found that the injuries suffered in the motor vehicle accident were a necessary cause of the depression.  To paraphrase paragraph 41 of Athey, I have found that it was necessary to have both the injuries from the accident and the non-tortious causes for the depression to occur.  As in Athey, I have concluded that it was the combination of the accident, the effect of Mr. Chen’s illness, the loss of the foetus and the termination of the second pregnancy which caused the major and continuing depression.  The depression and continuing depressive symptoms are, in my opinion, an indivisible injury.  The other sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of course entirely attributable to the accident…

The analysis of damage does not end with causation.  It is still necessary to consider whether there was some realistic chance that the depression would have occurred without the motor vehicle accident.  This does not go to the issue of causation but rather to the question of assessing damages which will restore Ms. Zhang to her original position.  If her original position included a realistic chance that she would have suffered a depression in any event, the principles of compensation  require some reduction in the damages awarded to avoid putting her in a better position than she would have been in had she not received compensation for the accident.  It goes without saying that “better” does not mean better in fact but better notionally because she will have received adequate monetary compensation for the damages caused by the defendants’ negligence.

In this case the analysis is further complicated.  Of the three causes of Ms. Zhang’s ongoing problems, pain, MTBI, and depression, only depression could be said to have been a realistic chance in the absence of the accident.  On the evidence before me I find that, although the accident was a necessary cause of the depression, there was never the less a realistic chance that Ms. Zhang would have suffered a major depression in any event.  That realistic chance must be taken into account in assessing damages…

Given my findings as to the extent of Ms. Zhang’s injuries from the accident a substantial award for non-pecuniary damages is appropriate. As I have already indicated, my task is to make an award of damages which, so far as money is able, will restore Ms. Zhang to her original position.  The evidence before me is that before the accident Ms. Zhang was an outgoing and intelligent person with a positive attitude to life.  She was able to combine long hours of work with numerous activities which gave her pleasure.  She enjoyed walking and socializing with friends.  She and her husband went to movies and went ballroom dancing.  She enjoyed music.  Ms. Zhang and Mr. Chen also had fulfilling marital relations.

All of the above activities have been profoundly affected by the injuries Ms. Zhang suffered in the accident.  Ms. Zhang is no longer outgoing but reclusive.  Most of her energy is devoted to working her shift at Safeway.  At the end of each shift the combination of pain and fatigue preclude her from engaging in social activities.  She can no longer tolerate music.   The couple no longer goes to movies or dancing.  There has been a significant decline in marital relations.  While some of these outcomes are undoubtedly related to Ms. Zhang’s ongoing depressive symptoms, they are largely the result of the other injuries suffered in the accident.  Taking into account the impact of these injuries on Ms. Zhang’s life while at the same time recognizing the realistic chance that Ms. Zhang would have had to cope with depression in any event, I award non-pecuniary damages of $125,000.

One other interesting part of this case is the Court’s discussion of the various experts called at trial.  Many expert physicians testified for the Plaintiff and the Defence with substantially differing views of the cause and extent of the Plaintiff’s injuries.  This is often the case in serious ICBC injury claims.

When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted, ‘independent’ medical examinations can be a lucrative trade for doctors.   When experts are retained to testify at trial, however, their duty is to the court to give fair and impartial evidence, not to advocate for the side that hired them.  Occasionally expert witnesses stray from this duty and give ‘partisan’ evidence.

This duty has been recognized in the common law and now the New BC Supreme Court Rules have been amended to require doctors to certify that they understand this duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness

(1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2) If an expert is appointed under this Part by one or more parties or by the court, the  expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr. Tessler, was found to be ‘advocating for the defence’ when testifying.  Specifically the Court said as follows about his evidence at trial:

Dr. Tessler was somewhat dismissive of Ms. Zhang’s symptoms after the accident.  He described them as being the “mildest of the mild”.  I found this comment, as well as certain remarks he made during his evidence, as being indicative of an attitude on his part that Ms. Zhang’s complaints should not be taken too seriously.  I was particularly troubled by a comment made by Dr. Tessler in cross examination to the effect that Ms. Zhang’s symptoms may settle after litigation.  Apart from the fact that Dr. Tessler was not qualified as an expert in psychiatry or psychology, the comment was gratuitous.  On the whole I formed the impression was Dr. Tessler was straying into the area of advocating for the defence point of view in his evidence.   I do not think he was doing so deliberately but he did seem to show a lack of balance and perspective in his evidence.

(Note: The below case was varied slightly on Appeal. Click here to access the BC Court of Appeal’s reasons)

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.3 million in total damages as a result of serious and disabling psychological injuries.

While today’s case (Hussack v. School District No. 33) is not an ICBC claim or even a motor vehicle claim it is a case that is worth reviewing as it is only one of a handful of cases addressing serious psychological injuries that proceed to trial in any given year in BC.

In today’s case the Plaintiff sustained a concussion when struck in the head with a field hockey stick as he approached another player.  He was a student in grade 7 at the time and the game was being supervised by a PE teacher.  Madam Justice Boyd of the BC Supreme Court held that the School District was responsible for this event because the teacher permitted the Plaintiff to play before he “learned any of the basic skills or even how to play the game” and that doing so breached the standard of care that the school should have exercised.

The Plaintiff developed serious psychological issues following his concussion.  In awarding $125,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court summarized the injuries as follows:

[194]     For much the same reasons as I noted earlier in addressing the causation issue, I am unable to isolate the symptoms directly related to the mild concussion injury from the somatic symptoms which followed.  As Dr. Foti noted, even in the immediate post-accident phase, it is difficult here to unravel the post-concussion symptoms from the somatic symptoms since they are essentially intertwined.  As I have chronicled earlier in these reasons, the immediate mild headache evolved and morphed over a brief period to include continuing headaches, head pain, photophobia, shaking and tremours, temperature control issues, and generalized joint pain.

[195]     As I have already noted earlier, I reject the notion that Devon’s somatic complaints all pre-dated the accident, and that regardless of the injuries suffered in the accident Devon would have developed the somatoform disorder from which he now suffers.  In my view he is entitled to full compensation for same.

[196]     While Devon returned to school following the accident, he was unable to cope in a regular Grade 8 setting and attempted to complete his studies first in a Hospital Homebound program and later by way of distance education.  Despite his obvious intellectual abilities he has never progressed beyond a Grade 9 or 10 schooling level.

[197]     While he initially ventured outside the home to meet with friends, he has gradually become more and more isolated and for the last several years has spent the majority of his time at home, primarily on the second floor of the house where a large den/games room has been set up to meet his needs.  As Dr. O’Shaughnessy describes in his report of June 12, 2008, Devon lives a lifestyle which is entirely antithetical to what one would hope for an individual managing chronic pain:

He basically has no structure or set pattern to his day.  He will never rise or go to bed at any set pattern and eating habits are variable day to day.  He engages in virtually no activity or exercise.  His only exercise appears to be going on the treadmill once every two weeks for anywhere from two to ten minutes duration.  He rarely leaves the home and claims that even walking up the block is too demanding.  At this point, his father quite literally waits on him 24 hours a day to the degree where his father does all the cooking, cleaning, shopping, etc and prepares (Devon’s) food and brings it to him.  Father and son indicate this pattern has been going on for some time as they feel (Devon’s) joints get too sore when he climbs down stairs to obtain food and/or his tremor limits him from carrying any liquids or pouring liquids etc.  …He has become extremely deconditioned which by itself could lead to some of the complaints of pain described…..

[198]     Since Devon’s situation has continued for approximately 10 years, the experts all agree Devon’s prognosis is very guarded and that his present situation “will not easily change”  (Dr. O’Shaughnessy report, Exhibit 20, Tab 15) unless there is intensive, prolonged intervention.  Dr. Nairne Stewart has opined that even with prolonged and intensive treatment, there is only a “minor hope that (Devon) might again become functional”.  Even assuming such intervention, Dr. Krywaniuk believes it is possible that following the removal of his present support structure (ie. the belief that he is indeed brain damaged and has suffered true physical injuries), Devon may become significantly depressed and perhaps even suicidal.

[199]     In these circumstances and relying upon previous case authorities where awards in the range of $75,000–$100,000 have been made in the case of individuals suffering somatoform disorders, the plaintiff submits an appropriate award would be $135,000, thus accounting for Devon’s youth and the fact that he effectively faces a lifelong, life-altering disability (Edwards v. Marsden; Samuel v. Levi; Yoshikawa).

[200]     I agree that in the circumstances of this case, considering that Devon has been substantially disabled since the age of 13, and now faces a bleak prognosis, struggling to achieve any measure of a mentally and physically healthy life, the appropriate award ought to exceed that made in Edwards, Samuel, or Yoshikawa.  In the circumstances, I award the sum of $125,000 for non pecuniary damages.

The reasons delivered by Madam Justice Boyd go on for over 250 paragraphs but are worth reading in their entirety for anyone interested in psychological injury cases in BC.  The Court deals extensively with the law of causation, the thin skull principle, the crumbling skull principle, foreseeability, intervening causative forces and other interesting and sometimes complex issues that often come up in psychological injury litigation.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for serious injuries and losses as a result of a 2001 Car Accident in Mission, BC.

What was interesting about this case (Polovnikoff v. Banks) was the very unique injuries the Plaintiff suffered as a result of this collision.  Madam Justice Bruce found that the Plaintiff sustained a Mild Traumatic Brain Injury and a Psychotic Disorder as a result of this crash.  While accident related brain injury cases are not all that uncommon it is quite rare to see a claim with an alleged accident related psychotic disorder to proceed to trial.

Madam Justice Bruce awarded $50,000 in non-pecuniary damages (pain and suffering) for the Plaintiff’s brain injury and related cognitive deficits.  In doing so she noted that the Plaintiff suffered from a ‘persistent cognitive impairment with predominant problems with his attention, concentration, ability to hold information, and being in the present with memory difficulties, short term and longer term memory problems‘.

The court then assessed the Plaintiff’s psychotic disorder separately and in valuing this non-pecuniary loss at $220,000 the court noted the following:

[377] Superimposed upon the plaintiff’s cognitive impairment is a completely disabling psychotic disorder. The plaintiff’s mental state has significantly interfered with his ability to function normally in every aspect of his life. His psychotic features adversely affect his ability to think and reason, impair his judgment, cause him to neglect personal hygiene, enhance the adverse impact of his cognitive impairments, including his ability to concentrate and short and long term memory, and make him apathetic about his life and others around him. The plaintiff is plagued by sleeplessness, anxiety, irritability, aggressive or violent feelings, lack of insight, verbal and physical inhibition, and recklessness. Mr. Stanus concluded that the plaintiff was completely unemployable in a competitive market due to his psychotic disorder.

[378] Clearly the plaintiff has undergone a catastrophic loss of enjoyment of life. While there is some doubt about how successful Festival Foods was as a going concern, it is apparent from both the plaintiff’s testimony and the collateral witnesses called by the plaintiff that he really enjoyed running the company and that he had significant skills and talents that have been lost entirely as a result of this disabling mental illness. The plaintiff requires constant supervision and is unable to carry out the simplest tasks. He no longer pays any attention to his physical care and hygiene and has lost interest in all of his pre-accident physical and recreational activities. Based on these factors I award the plaintiff $220,000 for non-pecuniary damages arising out of the psychotic disorder.

Madam Justice Bruce then went on to reduce this award significantly to $68,200 to account for the many other factors that played a potential role in the development of a psychotic disorder in the absence of this accident.  This made for a lengthy judgement almost 500 paragraphs in length.  Below are the highlights of the courts discussion reducing the award for damages for the Plaintiff’s psychotic disorder:

C.        Reductions from Non-Pecuniary Damage Award for Psychotic Disorder

[379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff’s alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff’s clinical presentation.

[380] Turning to the other accidents and subsequent events, it is apparent from the medical reports of Dr. Hunt and the clinical notes of Dr. Yokoyama that the December 2000 accident was the beginning of the plaintiff’s emotional distress albeit his major psychiatric symptoms appeared after the 2001 accident. Both Dr. Gopinath and Dr. Hunt attribute the plaintiff’s “superimposed psychological and psychiatric disturbances” to the injuries he suffered in both the December 2000 and the July 2001 accidents. Only Dr. Smith ruled out any causal relationship between any of the other accidents and the plaintiff’s current psychiatric illness: December 31, 2008 report at p. 19. This accident also appears to be the most seriously disabling for the plaintiff next to the July 2001 accident. Thus I would allocate to this accident 10% responsibility for the damages awarded to the plaintiff for the mental illness he suffers from.

[381] The accident witnessed by the plaintiff in January 2002 caused him to have a panic attack and increased his anxiety level for a brief period. The clinical notes of Dr. Yokoyama indicate the anxiety was improving after only a few days. In addition, this is clearly a non-tortious cause that does not reduce the defendants’ liability. The accident that occurred on October 21, 2002 was also fairly minor and nothing in Dr. Yokoyama’s clinical records indicates the plaintiff suffered any lasting emotional trauma as a result of this event. Accordingly, I attribute no responsibility for loss to the defendant in that case.

[382] The plaintiff was involved in an accident on September 24, 2003. He was a passenger in a vehicle driven by his father when this accident occurred. The van driven by Mr. Polovnikoff became hooked to the rear of a truck and this caused the van to be swung in a circular motion causing damage to the front bumper and two broken windows. When Dr. Hunt saw the plaintiff on November 27, 2003, he was confused, irrational, and having abnormal mental thoughts. The plaintiff disclosed that he was too frightened to drive or be a passenger in a vehicle because of the possibility of another accident. Dr. Hunt was so concerned about the plaintiff’s mental stability that he considered having him committed to hospital for acute psychiatric care.

[383] While the plaintiff appeared much more disturbed than in previous assessments, Dr. Hunt had already seen psychiatric problems developing in June 2003 before this accident had occurred. In addition, there is no follow up visit with Dr. Yokoyama, which was unusual for plaintiff, to indicate that this state of high anxiety continued for an extended period. Indeed, the next visit to Dr. Yokoyama was on February 24, 2004 after another accident had occurred. Thus, although it is apparent this accident caused some deterioration in the plaintiff’s condition, I am unable to find that it was either substantial or long term in its effect. The accident on February 18, 2004, which Dr. Yokoyama concluded had aggravated the plaintiff’s agitation level, was also short lived in effect. During the next visit to Dr. Yokoyama on March 17, 2004 there is no reference to any aggravation of his ongoing concussion symptoms. Thus I reduce the award for both these events by a nominal 2%.

[384] The accident on May 30, 2004 in the parking lot of the Astoria hotel seemed significant to Ms. Lustado. She considered this to be a turning point in their relationship because of the noticeable deterioration in the plaintiff’s emotional demeanour. Dr. Yokoyama’s clinical notes on June 2, 2004 indicate that the plaintiff developed anxiety and tension after this accident in addition to an aggravation of his soft tissue injuries. On August 30, 2004 there is also a reference in Dr. Yokoyama’s clinical records to “regression – post concussion syndrome” which I interpret as some deterioration in the plaintiff’s mental state. Accordingly, I reduce the award by 5% to reflect the damage caused by this defendant’s negligence.

[385] The accidents that occurred on November 18, 2004, March 22, 2005, and November 29, 2006 do not appear to have aggravated to any measurable degree the psychotic disorder suffered by the plaintiff. By November 2004 his symptoms were well developed and the visits with Dr. Yokoyama after these accidents indicate the major concern in each case was an aggravation of the soft tissue injuries.

[386] Finally, the plaintiff was involved in an assault in or about July 2006 which I find exacerbated his emotional problems and led to deterioration in his mental health. Dr. Gopinath reported that following this assault the plaintiff was clearly more paranoid in general and in regard to the police in particular. Dr. Gopinath believed the plaintiff had been “badly shaken up” by this experience and developed symptoms of post traumatic stress disorder. He was having sleep difficulties, waking up with nightmares, and panic attacks. Dr. Gopinath’s December 16, 2008 report also features this assault as significant in the plaintiff’s clinical presentation and he acknowledged in his testimony that the plaintiff’s psychotic symptoms worsened after this event. It was also partly due to this assault that Mr. Polovnikoff moved his son and Ms. Lustado to Keremeos. They wanted to get away from the police and the other stressors in the plaintiff’s life.

[387] While this event is significant, it must be acknowledged that the plaintiff’s psychotic symptoms were well entrenched at this time and his inability to function normally in all aspects of his life had already been a reality for some time. Dr. Gopinath had observed severe psychotic symptoms as early as October 2005 when the plaintiff first came to him for treatment. Accordingly, I find the award should be reduced by a further 5% as a result of this tortious intervening event.

[388] In summary, the non-pecuniary award arising from the psychiatric illness suffered by the plaintiff in the amount of $220,000 must be reduced by a total of 69%. The reduced award is therefore $68,200. The total award for non-pecuniary damages is $118,200 ($50,000 plus $68,200).

Imagine being injured as a result of the carelessness of another in a BC Car Crash.  You advance an ICBC tort claim for compensation for your injuries and loss.   You are able to come to an agreement with ICBC with respect to the value of your injuries and losses but then ICBC wants to reduce the the pain and suffering settlement by 25% to account for a pre-existing medical condition that you have.  Is this fair?

The answer depends on the nature and severity of the pre-existing condition.  BC Courts generally categorize pre-existing conditions affected by traumatic injury in 2 ways: the ‘thin skull‘ category and the ‘crumbling skull‘ category.  In a thin skull situation a Plaintiff has a pre-existing condition that makes them susceptible to injury however the condition would not otherwise become symptomatic absent the trauma.  In thin skull situations the pre-existing condition does not reduce the value of the claim.  The thin skull principle is sometimes referred to as the ‘you take your victim as you find them‘ principle meaning it is no defence to an injury claim to say that a healthier victimn with no pre-existing condition would have suffered less injury.

This can be contrasted with the ‘crumbling skull’ situation where the Plaintiff has a pre-existing condition which is active or likely to become active even without the trauma.  In crumbling skull situations the value of the injuries and losses must be reduced to reflect the fact that a Plaintiff would have likely had some problems in any event.

Reasons for judgement (Gohringer v. Hernandez-Lazo) were released today by the BC Supreme Court explaining and applying these principles.

In today’s case the Plaintiff was injured when her car was struck head on by a street sweeper in April, 2005.  As a result of this significant BC Car Crash she suffered various injuries.  The Plaintiff did, however, have pre-existing back and neck injuries.  In valuing the Plaintiff’s pain and suffering at $75,000 Madam Justice Russell explained and applied the law of thin skull v. crumbling skull as follows:

Pre-existing condition and independent intervening event

[90]            It is trite law that the general purpose in assessing damages is to restore the plaintiff to their original, or pre-accident, position.  Through an award of damages a plaintiff is entitled to be restored to his or her original position, but they are not entitled to be placed in a better position:  Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32, 140 D.L.R. (4th) 235.   Generally speaking, this requires the court to determine the plaintiff’s original position and position subsequent to the negligent act, and award damages to reflect the difference:  Athey at para. 32; Barnes v. Richardson, 2008 BCSC 1349 at para. 84.  In situations where the plaintiff has a pre-existing condition the thin skull or crumbling skull rule must inform the court’s assessment of damages.  

[91]            In a thin skull situation, the plaintiff’s pre-existing condition has not manifested, or in other words is not active or symptomatic, prior to the event in question.  As the tortfeasor takes his or her victim as they find them, the tortfeasor is liable for all injuries even if the injuries are “unexpectedly severe owing to a pre-existing condition”, as a result of their actions:  Athey at para. 34. 

[92]            In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”:  Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35. 

[93]            In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff.  An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured.  The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96.  Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32.  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94]            I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages:  A. (T.W.N.) at paras. 36-37; Barnes at para. 90. 

[95]            In this case the defendant does not contest that the plaintiff suffered injuries as a result of the Accident.  The defendant does however contest the severity of those injuries and the impact that those subsequently had on the plaintiff’s physical and emotional health, as well as her employment situation. 

[96]            The plaintiff had pre-existing back and neck injuries and suffered a knee injury subsequent to the Accident.  At issue is the impact of such injuries on the plaintiff’s ability to continue her position as a skating instructor, or whether the injuries resulting from the Accident were responsible for causing her to change positions.

[97]            The pre-existing conditions and knee injury caused the plaintiff to miss a number of months of work when they occurred.  I accept the evidence contained in Dr. MacIntosh’s report (January 26, 2005) that the plaintiff’s pre-existing neck and back injuries would have materially impacted the plaintiff’s ability to continue working as a skating instructor, given the physical demands of that position.  Likewise, I find the knee injury would have further impacted her ability to continue that job into the future.  Prior to the Accident, the plaintiff had complained, of neck pain resulting from teaching four classes in one day.  Further, the plaintiff left her position at Sportsplex soon after she returned to work following her knee injury as she was not able to perform her duties to the same level as previously.

[98]            I accept however, that the injuries from the Accident also impacted the plaintiff at work.  The evidence indicated that a number of her duties at Sportsplex aggravated the injuries suffered in the Accident.  While the evidence did not demonstrate that those injuries alone caused the plaintiff’s departure from Sportsplex, the evidence did show that the plaintiff’s abilities to perform her job duties were adversely affected as a result.

[99]            I conclude there was a real and significant chance that the plaintiff’s pre-existing injuries and the injury suffered after the Accident would have shortened the plaintiff’s career as a skating instructor, regardless of the injuries from the Accident.  These injuries ultimately affect the plaintiff’s original position and must be taken into account in the assessment of damages.  The risk that these injuries would have reduced the plaintiff’s chosen career will be taken into account based on its relative likelihood in determining the overall assessment of damages:  McKelvie v. Ng, 2001 BCCA 341, 90 B.C.L.R. (3rd) 62 at para. 17.  Accordingly, non-pecuniary damages should be reduced by 10% to reflect such a risk. 

[100]        In assessing all of the relevant evidence, I conclude the injuries continue to adversely affect the plaintiff in a number of ways and award $75,000 for non-pecuniary damages.  I will deduct 10% as a contingency to reflect the plaintiff’s pre-existing condition and the effect of the subsequent knee injury.

Reasons for judgement were released this week by the BC Supreme Court (Atwater v. Reese) awarding a Plaintiff just over $63,000 in total damages as a result of a 2006 motor vehicle collision.

The Plaintiff was a pedestrian who sustained injuries when struck by a car.  In my experience ICBC often denies liability in these circumstances with a hope of having the court find the pedestrian at least partially at fault for not keeping a proper lookout.  In this case the ICBC Defence Lawyer argued that while the motorist was at fault the Pedestrian was contributorily negligent.  The first part of the judgement deals with this allegation and in finding the driver 100% responsible Mr. Justice Macaulay stated as follows:

[16]            I do not accept that the plaintiff was negligent in failing to watch the car as she walked in front of it.  Nor do I accept that she could have avoided the accelerating car if she had been watching.  Once in front of the car, the pedestrians were within a foot or so of the car.  There is no evidence to support the contention that the plaintiff, who was walking ahead of her sister, could have avoided the impact in the circumstances.

[17]            The impact occurred because the defendant was going through the motions of driving without actually paying any attention to what was there by way of pedestrian hazard.  I find that the defendant is entirely responsible for the accident.

In assessing the Plaintiff’s non-pecuniary damages at $50,000, Mr. Justice Macaulay made the following findings with respect to her injuries and prognosis:

[38]            I am satisfied that the plaintiff suffers from chronic pain but I share the view of the various professionals that her condition is still amenable to improvement provided she increases her tolerance for recreational activity.  She gave up too easily and must try harder so that she can avoid the physical and emotional downward spiral associated with inactivity.  I am also, however, satisfied that the plaintiff’s pain experience is real and not otherwise subject to conscious psychological control.

[39]            There is, accordingly, a risk that the pain will continue albeit, hopefully, at a lesser level with appropriate rehabilitation.  I do not expect her general pain level to increase nor is the plaintiff at risk of harming herself by increasing her activity level.

[40]            To the plaintiff’s credit, she missed minimal time from work after the accident.  This may have unwittingly contributed to her slow recovery and certainly affected her ability to participate in non-work activities.  She now has moved to more sedentary office work and is not waitressing as much.  The continuing waitressing she does now is of a lighter variety than before.  These changes should help over time, as well.

[41]            In my view, the plaintiff sustained a lower moderate soft tissue injury that has resulted in chronic pain and mild anxiety.  She is capable of achieving greater recovery than she has to date in spite of the time that has passed since the accident.

When trying to value your Non-Pecuniary Damages (pain and suffering) in an ICBC Injury Claim it is important to find cases with similar injuries and a similar prognosis to help establish a range of potential damages.  I intend to keep reporting non-pecuniary damages highlights in ICBC Injury Claims and look forward to growing this database.  As always, any feedback from my readers is welcome!

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:

[101]        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.  

[102]        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:

[6]                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 7^th 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.

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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:

[127]        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.

[128]        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’.

[129]        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.

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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:

[112]        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. 

[113]        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.

[114]        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. 

[115]        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.

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland. 

I am still in trial still and only have time for bare bones reporting.  In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome.  The court’s key analysis of injuries is set out below:

[73]                  I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74]                  Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory.  There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome.  Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75]                  That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76]                  Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition.  He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period.  I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77]                  Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy.  I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy.  There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept.  In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78]                  I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome.  This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features.  None of the pre-accident investigations demonstrated any facet joint issues.

[79]                  I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur.  There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80]                  That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence.  This brings me to the issue of his credibility.  In general, I found the plaintiff to be a believable witness.  I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81]                  As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf.  Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability.  There were no non-organic findings.  I found Ms. Fischer to be a compelling witness.

[82]                  In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83]                  There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident.  Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point.  I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future.  There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself.  As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind.  No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D.        CONCLUSION

[127]              I find the defendant 100% liable for the plaintiff’s damages.  Those damages are assessed as follows:

non-pecuniary damages:                                   $70,000.00

past loss of income:                                          $67,500.00

loss of income earning capacity:                     $120,000.00

future care costs:                                               $17,317.00

special damages:                                                $1,687.46

Total:                                                               $276,504.46