ICBC Law

Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.

In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.

The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000.  In arriving at this figure Mr. Justice Grist provided the following reasons:

[38] It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…

[47] On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix’s personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.

It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim.  Despite this, the case still has value as a precedent for non-pecuniary damage assessments for chronic pain following a motor vehicle collision.

Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.

In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:

[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…

[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.

This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:

[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

As recently discussed, in appropriate circumstances witnesses to the consequences of a BC collision can sue for damages for “nervous shock“.  There are some limits on these claims and one of these relates to whether the shocking event is “sudden and unexpected“.  If not, a claim for damages for nervous shock will fail.  This topic was addressed in reasons for judgement released today by the BC Court of Appeal.

In today’s case (Toukaev v. ICBC) the Plaintiff’s spouse was seriously injured in a motor vehicle collision.  He was notified of the crash and saw his wife shortly afterwards in the hospital.  He claimed he suffered damages after seeing his wife “in a very bad state at hospital” and sued for compensation.  His claim was dismissed and he appealed.  The Appeal was dismissed.  In doing so the BC Court of Appeal provided the following reasons addressing the need for nervous shock claims to develop as a result of ‘sudden and unexpected‘ events:

[21]         Chief Justice McEachern went on to state that while the Court was in part bound by Rhodes, he did not consider Rhodes as standing for the proposition that for a claim for nervous shock to be found, psychological injury must have occurred at the scene of the accident.  He stated that in certain cases it could be extended to the events at the hospital immediately after the accident.  At paras. 75 - 77, the Chief Justice concluded:

[75]      The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[76]      The nature of the experience by which an injury is alleged to have been suffered is one of the “controlling mechanisms” that serve to limit the reach of liability for nervous shock in this province. It seems to me that the principle shock suffered by the plaintiffs was in learning of Yasmin’s death; after that, grief, sorrow and regret would follow immediately, and would continue for an unlimited period. The experience of viewing the body, however, cannot be equated to the shock and horror that would be experienced, for example, at the scene of an accident witnessed by the plaintiffs because the features of surprise, shock, horror and even fear are absent in a hospital setting. As already mentioned, it might have been different if Yasmin’s body had been horribly mutilated or if she had died in the presence of her family. That was the case in Cox v. Fleming (1993), 13 C.C.L.T. (2d) 305 (B.C.S.C.) where the plaintiff succeeded. That would be a different case and one that I need not attempt to decide.

[77]      While I consider myself free to agree with many eminent judges who have extended the immediate aftermath of a casualty to the hospital in circumstances such as these, I am constrained by authorities binding upon me to decide that the experience the plaintiffs endured, grievous as it must have been for them, was not one that falls within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock.

[22]         Here, Mr. Toukaev learned of Ms. Toukaeva’s injuries before he saw her, and while her condition must have been upsetting to him when he saw her, it could not be said to have been unexpected.  As was the case for Yasmin Devji’s family, the Chambers Judge here concluded that a claim by Mr. Toukaev would not fall within the requirements of the law relating to the circumstances in which persons who are not physically injured are entitled to damages for nervous shock, and I conclude that that aspect of his appeal lacks the degree of merit necessary to justify a finding of indigent status.

If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages.  There are, however, restrictions on when these claims can succeed.  Reasons for judgement were released today addressing this area of law.

In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001.  At the time the Plaintiff was working on Highway 97 near Bear Lake, BC.  The Plaintiff was installing rumble strips on the side of the highway.  The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby.  The Defendant lost control of a pickup truck and collided with the grinder.  The Plaintiff witnessed the crash and was concerned for his friend.  Fortunately Mr. Lance “was not seriously injured“.

The Plaintiff claimed the incident caused PTSD and sued for damages.  The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable.  Madam Justice Gerow agreed and dismissed the lawsuit.  In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:

[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.

[30]         Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.

[31]         Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $340,000 in total damages as a result of injuries and loss from a BC car crash.

In today’s case (Smusz v. Wolf Chevrolet Ltd.) the Plaintiff was involved in a Highway crash near Kamloops BC in 2006.  Fault was admitted by the offending motorist.  The trial dealt with the value of the plaintiff’s claim.  She suffered various injuries including a disc herniation/protrusion in her neck.  In valuing the Plaintiff’s non-pecuniary damages at $100,000 Madam Justice Russell highlighted the following facts:

[87] The plaintiff was 43 years old at the time of this accident.  She suffered injuries which, although not requiring more than a brief visit to the hospital, were nonetheless significant.  The medical evidence was mostly consistent:  her physical injuries include moderate right paracentral disc herniation at C3-4 on the right side and moderate paracentral disc protrusion at C6-7 on the left causing irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which result in chronic left-sided neck, arm and low back pain, dizziness and headaches.  She suffered from PTSD, now substantially resolved, but still suffers from insomnia, occasional nightmares, depression and chronic pain some three years after the accident.

[88] The chronic pain caused by the injuries received in the accident has resulted in depression, no doubt complicated by her difficult financial situation, but the plaintiff was happy and energetic before the accident notwithstanding the fact that she had very little money.

[89] She was able to work in a job which did not require great skill and which did not pay well but in which she could have continued for the indefinite future.  It gave her some income and gave her the sense of participating in her family’s finances.

[90] The evidence of her friends and family support the substantial change she has undergone as a result of the accident.  From a positive, lively person who enjoyed participating in her community, she has become somewhat reclusive and quiet and it appears she may even lose her romantic relationship because her physical limitations interfere with the activities she used to enjoy with her boyfriend.

[91] While she had suffered brief episodes of depression in the past, I am satisfied they were reactive depressions and were fully resolved at the time of the accident.  I have no doubt that because she has suffered depression in the past, she was vulnerable to depression, but she is the thin-skulled plaintiff here rather than a crumbling skull plaintiff.  However, I find that the depression which followed the accident and her chronic pain means that she is at risk of developing an even more severe depression in the future.

[92] Immediately following the accident, the plaintiff also had chest bruising and abrasions which resolved quickly.  Her knee injury troubled her for about six months but is now resolved.

[93] There is a possibility she will require surgery in the future to address the herniation at C6-7 since the conservative treatment measures employed so far have not provided the plaintiff with any relief.  She has resisted this surgery because, even if it is successful, she will be left with continuing neck pain so resort to surgery would only be a desperate measure if she begins to suffer nerve damage which follows from the herniation or if her chronic pain worsens.

[94] The plaintiff’s anxiety is worsened by the possibility she will need surgery in the future.

[95] The plaintiff is also less able to perform her household work than she was and has received assistance from her children.  When she does do her housework, she does it more slowly and with some pain.  This is a substantial change from the enthusiastic homemaker she was before the accident.

[96] I have considered the plaintiff’s loss of housekeeping capacity and the help she has been given and will continue to receive from her children under this head of damages and would assess the loss at $10,000.

[97] Considering the factors listed above, and upon reviewing the case law provided by both counsel, I find that an appropriate award of non-pecuniary damages is $100,000.00, including the loss of housekeeping capacity.

Another noteworthy aspect of this case was the Court’s discussion of one of the defence experts.  Dr. Davis is a psychiatrist who prepared an expert report for the Defendant.  His opinion differed from the Plaintiff’s experts with respect to her accident related injuries.  He was cross-examined in open court and ultimately his evidence was not accepted.  In reaching this decision Madam Justice Russell made the following critical comments:

[81] Dr. Davis’ report differed substantially from those of all other experts.  It is his opinion that none of the plaintiff’s current emotional difficulties stems from the motor vehicle accident.  He is firmly of the view that her depression is solely attributable to her financial problems, her lack of a supporting husband and her limited skills in English.

[82] To support his position, Dr. Davis pointed to the two reactive depressions which had affected the plaintiff before the accident as establishing an “ongoing depression” and therefore her current symptoms were not causally related to the motor vehicle accident of October 2006.

[83] I note that when he wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of appointments with the plaintiff one week following the accident which recorded the occurrence of nightmares and acute anxiety.  Dr. Davis stated that these symptoms were important but appeared to minimize them by indicating they would only be a problem caused by the accident in the first six months or so, at the same time as her soft tissue injuries should have been resolving.

[84] I have reviewed Dr. Davis’ testimony and find it to be argumentative, unyielding and seriously at odds with what I view to be the preponderance of other and more credible medical evidence.  I do not accept his findings.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $300,000 in total damages as a result of injuries and loss sustained in 2 BC Car Crashes.

In today’s case (Roberts v. Scribner) the Plaintiff was involved in two collisions, the first in 2005, the second in 2006.  She was not at fault for either crash.  The trial focused solely on the issue of the value of the Plaintiff’s ICBC Injury Claims.

The Plaintiff’s injuries affected her neck, mid back, low back, left shoulder collar bone and caused headaches.  She also suffered from depression and PTSD.

In assessing non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Bruce made the following findings about the Plaintiff’s injuries:

[173] I am satisfied that the soft tissues injuries Ms. Roberts suffered to her back, and to a lesser extent, her neck, have caused her substantial pain and disability since November 2005 when the first accident occurred. After the second accident she further aggravated her physical injuries, which developed into a chronic pain condition. In addition, Ms. Roberts’ psychological illnesses have aggravated her physical pain and suffering and have clearly contributed to the cycle of continuing pain. I note parenthetically that there is no dispute that Ms. Roberts’ PTSD symptoms and depression stem from the trauma of the accidents. Even the defence specialist, Dr. Smith, was of this view. At p. 5 of his report Dr. Smith says:

The most common sequel of motor vehicle accidents, particularly rear-end-type accidents, is the development of soft tissue injuries. If the soft tissue injury pain goes on for a number of months, individuals develop poor sleep and then are at risk for depression. I believe this is exactly what has happened with Ms. Roberts as a result of the two accidents.

[174] All of the specialists who examined Ms. Roberts have guarded prognosis for her complete recovery from the soft tissue injuries given the length of time they have persisted despite her tremendous efforts to rehabilitate herself. While Dr. Shah opined that some improvement could be expected in the future, he was unable to say at what point this might occur and to what extent Ms. Roberts’ condition would improve. Certainly there is some hope that different therapies may assist Ms. Roberts; however, her physical condition has plateaued since mid 2006 and she has not improved substantially since that time…

[177] The injuries caused by the accidents have also adversely affected Ms. Roberts’ ability to enjoy the recreational activities she loved to do before the collisions. She has attempted to return to snowboarding, but has not been able to tolerate more than one or two hours before the pain makes her stop for the day. Ms. Roberts has given up competitive horseback riding and the other sports she enjoyed before the accidents. Hiking and camping are also activities that she now finds too difficult to do because of the back pain she experiences when walking on an incline and sleeping on the ground. The physical and psychological injuries have also affected her social life; she is not able to sit for long periods at friends’ homes or in a movie theatre and thus spends most of her time at home seeking out a comfortable position. Her sleeplessness has affected her relationship with Mr. Harvey. They now have to sleep in separate rooms.

[178] Ms. Roberts has also undergone a complete personality change due to the injuries caused by the accident. The collateral witnesses testified about how fun- loving and comical Ms. Roberts was before the accidents and how depressed, sad and serious she has become since these events occurred. She does not enjoy life anymore and appears to function physically like a far older woman, moving slowly and stiffly and constantly attempting to find a comfortable position.

[179] Mr. Pakulak tested Ms. Roberts’ functional capacity overall, and in respect of several different movements that may be required for work, household chores, and recreational activities. There is no doubt that Ms. Roberts in many respects is functioning at a high level. However, it is also apparent that she has a reduced capacity in several functions, some of which are critical in her line of work. While the fact that she is unable to lift over 30 lbs does not render her disabled from performing the work of a graphic designer, Ms. Roberts’ reduced capacity for sitting and other movements related to working at a computer desk adversely affect her ability to carry out these duties efficiently and over an extended period. It is also important to consider that while Ms. Roberts may appear to be able bodied compared to many people, it is the changes in her life that are relevant to an assessment of damages. Before the accidents, Ms. Roberts was a youthful, extremely fit and active woman who had no difficulty whatsoever managing a full-time job, a busy social life, and an active recreational and exercise program. The functional limitations that now govern Ms. Roberts’ activities clearly represent a substantial change for her. Thus the impact on her ability to enjoy life cannot be underestimated. Moreover, in light of the guarded medical prognosis for her complete recovery, it is likely that these functional restrictions may, to some extent, continue to govern her life for the foreseeable future….

[181] Turning to the issue of quantum, it is well established that each case must be decided on its own facts. The authorities cited by the parties are useful as a guide in regard  to quantum; however, each particular case has unique factors that must be considered when awarding damages for pain and suffering and loss of enjoyment of life. In this regard, I found the authorities cited by Ms. Roberts, and in particular, the circumstances in Gosal, more closely mirror the facts in this case than the authorities cited by the defendants. Given my conclusions regarding the nature of Ms. Roberts’ injuries, the impact these injuries have had on her life, the length of time she has continued to suffer, and the guarded prognosis for her complete recovery, I find an award of $95,000 is appropriate in the circumstances.

An interesting side note to this judgement was the Court’s critical commentary of Dr. Sovio.  ICBC hired this doctor to conduct an ‘independent medical examination‘ of the Plaintiff.  As I’ve previously pointed out there are a handful of doctors who do a lot of these independent examinations for ICBC and it is not unusual for some of the reports generated by some of these physicians to contradict the opinions of treating doctors.  That indeed was the case in today’s judgement and Madam Justice Bruce pointed this out and gave ‘little weight‘ to Dr. Sovio’s opinions.  The Court made the following critical comments:

[131] Bearing in mind the anomaly of Dr. Sovio’s report, his lack of independent recollection of the interview, and the failure to cross examine Ms. Roberts on what is recorded in his report, I find little weight can be placed on his recorded history of her complaints and symptoms. It is also important to note that Dr. Sovio did not record Ms. Roberts’ exact words. Thus there may be errors of interpretation in his assessment of her pain levels, as well as her history of past and current symptoms…

While Dr. Sovio has come to a conclusion that Ms. Roberts is no longer suffering from her soft tissue injuries, I find his opinion is clearly inconsistent with the considered opinions of a variety of different specialists. As such, I find little weight should be placed on his assessment.

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.

In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ’statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

Reasons for judgment were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $142,000 in total damages as a result of a 2005 BC Car Crash.

In today’s case (Quinlan v. Quaiscer) the Plaintiff suffered various injuries including PTSD and a Chronic Pain Disorder.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000 Mr. Justice Cole summarized the Plaintiff’s injuries and their effect on her life as follows:

[61] There is evidence that the plaintiff has suffered from depression off and on since 1994, including post-partum depression after the births of her children. Additionally, the plaintiff has had a tumultuous relationship with her now ex-husband, which has certainly affected her emotional state. There is evidence, however, that the plaintiff’s prescription for depression medication a few months prior to the Accident was not filled. Dr. Pirolli stated in her report that the plaintiff’s current emotional problems include PTSD and low mood. The PTSD, as I have stated above, is a consequence of the Accident. Regarding the plaintiff’s low mood, Dr. Pirolli stated that it could not “be directly attributed to the accident itself. There is the possibility, however, that any psychological issues present at the time of the accident may have been exacerbated by the accident and its sequelae”. In my view, the plaintiff’s depression prior to the Accident was not significant, and I find that the plaintiff was not suffering from debilitating depression at the time of the Accident.

[62] As mentioned above, the plaintiff’s cuts and bruises resolved within three to six months after the Accident. She is left with a permanent one-inch scar on her elbow, a three and a half inch c-shaped scar on her left knee, and a dark scar on her left shin. Her nose was broken and she had dizziness and headaches. As described in the medical evidence above, the plaintiff’s right wrist pain, right shoulder and right chest area injuries have persisted. Though Dr. Travlos was of the view that the plaintiff would continue to improve over the next 18 months (from his report of April 2007), he stated: “To what extent she recovers is difficult to say at this time and a definitive prognosis cannot be made”. The plaintiff’s problems have not improved to any great extent over the course of the 18 months following that report.

[63] Dr. Travlos was of the view that the plaintiff’s problems of chronic pain syndrome related to the diffused soft-tissue pain that the plaintiff suffered in the right arm and shoulder. In cross-examination he stated that it was unlikely that the plaintiff will fully recover and there is no guarantee that participation in treatment recommendations will result in improvements of those symptoms. The plaintiff’s injuries restrict her ability to participate in physical activities that she formerly enjoyed, such as skiing and baseball. I believe, however, that part of the reason the plaintiff does not participate in these sports is because of a lack of financial resources.

[64] I am satisfied that taking into consideration the plaintiff’s PTSD and her multiple injuries, an appropriate award for non-pecuniary general damages would be $90,000.

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.