ICBC Law

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.

In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes.  Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).

The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries.   These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett.   Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21]         Dr. Shuckett examined Ms. Deiter in December 2008.  Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1.               Cervicogenic headaches.

2.               Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility.  She may very well have zygapophyseal joint capsular injury of the neck.

3a.     Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b.     Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3.               Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22]         Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses.  As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident.  Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain.  I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict.  However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion.  In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28]         The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization.  I found her to be very clear and objective in her evidence which she was well qualified to give.  I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature.  The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29]         This submission is what is known as a back‑handed compliment.  It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence.  It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases.  This cynical submission is outrageous and unduly partisan.

[30]         This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries.  These are persons who are entitled to damages under the common law of this country if their claims are proven.  These are persons who may be suffering greatly from their injuries.  This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31]         Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty.  Coming to court to testify and to face cross‑examination may be the last thing a busy physician wants to do, faced with the burdens of practice.  Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim.  This court is extremely appreciative of the role physicians play in giving evidence.  I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases.  It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

With the Canucks losing game 6 and the series to the Blackhawks I figured its a fitting time to write about Pain and Suffering Claims in BC.

In the first case, Chan v. Kao, the Plaintiff suffered a left shoulder injury as a result of a 2006 motor vehicle collision.   Mr. Justice Verhoeven had credibility concerns with respect to some aspects of the Plaintiff’s testimony.  Despite this he concluded that “I have no difficulty in finding that Mr. Chan did in fact injure his left shoulder in the motor vehicle accident“.

In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering) at $22,000 the court summarized his injuries and prognosis as follows:

[65]            I accept that Mr. Chan has continued to have shoulder problems and pain since the accident.  The extent to which this has affected his work is impossible to gauge, in view of the unreliability of his evidence.  It seems likely that Mr. Chan has worked at various times and places since the accident, but has chosen not to testify about that work…

72]            In summary, I accept that the plaintiff’s left shoulder was injured in the motor vehicle accident, and that he continues to suffer, to some extent, from shoulder difficulties initially caused by the accident.  The evidence as to the extent to which the ongoing shoulder problem causes the plaintiff ongoing difficulty and disability with respect to his ability to work is subject to considerable doubt, due to the unreliability of the plaintiff’s evidence in this respect, and the lack of corroborating evidence.

[73]            While Dr. Lui’s prognosis of permanent disability is overly pessimistic, both orthopaedic surgeons are of the view that there are ongoing problems in the shoulder which require treatment.  In my view, treatment options have not been adequately explored.

In addition to referencing several cases dealing with pain and suffering values in BC for shoulder injuries this claim is worth reviewing to see how Mr. Justice Verhoeven dealt with his concerns regarding the credibility of certain aspects of the Plaintiff’s evidence.

The second ICBC Pain and Suffering Claim released today (Mattu v. Fust) involved a 2004 collision.  The Plaintiff was 39 years old at the time.  His vehicle was rear-ended with enough force to push it into the vehicle ahead of him.

The Plaintiff suffered various soft tissue injuries leading to chronic pain and headaches.  The court found that the effects of these would likely be permanent.  Madam Justice Brown summarized the medical evidence of the Plaintiff’s treating family physician as follows:

[31]            Dr. Parhar has been Mr. Mattu’s family physician since April 2004. He provided three reports to the court. In his first report of November 1, 2004, he diagnosed Mr. Mattu with paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches.  He had received ice, heat, rest, exercises, massage therapy, kinesiology, acupuncture, herbal medicine and medications: anti-inflamatories, analgesics and muscle relaxants.  With respect to prognosis and recommendations, Dr. Parhar was impressed by Mr. Mattu’s motivation to recover and try different treatments, but was concerned that he may be trying too many modalities.  He recommended limiting treatment to massage and physiotherapy and increasing active modalities such as swimming and exercises.  He anticipated further treatment and improvement.

[32]            In his report of May 26, 2006, Dr. Parhar found that Mr. Mattu continued to have decreased range of motion in the cervical spine, tenderness in the paracervical and paralumbar regions.  He found muscle spasm in the paracervical and paralumbar regions.  His diagnosis remained the same.  His prognosis for full recovery had worsened.  Mr. Mattu had tried a variety of treatments with minimal success.  Dr. Parhar’s recommendations were unchanged, but he thought that Mr. Mattu’s condition had plateaued.

[33]            In his final report of September 16, 2008, Dr. Parhar considered the MRIs of Mr. Mattu’s spine taken September 19, 2006, and July 28, 2008, and concluded that Mr. Mattu’s injuries included cervical and thoracic disc herniations.  He said: “… it is unclear if the cervical and thoracic disc herniations were caused by the motor vehicle accident … but certainly, this motor vehicle accident made these spinal lesions symptomatic.”  He commented on Mr. Mattu’s efforts to recover: “… pursued many more modalities of treatment than most patients would have. Despite all of these modalities his pain symptoms persist.”  He concluded that the prognosis for a full recovery was poor, that Mr. Mattu’s condition had plateaued and further improvement in his functioning or symptomatology was unlikely  

In awarding $60,000 for the Plaintiff’s non-pecuniary loss injuries and their effect on the Plaintiff’s life the court accepted the family physicians evidence and stated as follows  

[61]            I have considered the cases which counsel have provided to me.  In my view, an appropriate award for non-pecuniary loss is $60,000.

(Please note the past wage loss award in the case discussed below was varied slightly on appeal.  The BC Court of Appeal Judgement can be found here)

Here is the latest in my effort to continue to grow this online database of ICBC and other BC Personal Injury Cases addressing damages for pain and suffering.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Bradshaw v. Matwick) awarding a Plaintiff $268,389 in total damages as a result of injuries and losses suffered in a 2006 motor vehicle collision.

The crash was a rear end collision which occurred in Port Coquitlam.  Liability (fault) was admitted focusing the trial on quantum of damages (value of the injuries).

The Plaintiff was a 41 year old metal fabricator.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000  Mr. Justice Groves summarized the Plaintiff’s injuries as follows:

[32] By the time of trial, the plaintiff’s injuries were close to three years old.  I accept the plaintiff’s evidence that he continues to suffer from some level of disability resulting from the accident—he continues to suffer pain and he continues to have a disability which prohibits heavy lifting, prolonged standing, neck flexion, and sustained and repetitive reaching.  I accept the plaintiff’s evidence that at present, he continues to put all of his physical energies towards his work.  When he is not at work, he is resting and preparing for the next day of work.  The effect of the injuries caused by the accident have created a significantly lower quality of life for the plaintiff.

[33] As for the knee injury, the plaintiff continued to walk with a significant limp in court.  This is consistent with what is reported by:  his spouse, Sandra Bennett; his co-workers Rune Akerbakk and Ron Philbrook; and by his less than sympathetic employer, Rob Charland.  The evidence is suggestive that the medial tear may be repairable by surgery.  Of note, it took considerable time, despite the plaintiff’s desire early on for a MRI, to have the MRI performed.  There is no evidence before me as to when or if surgery to repair this knee is possible or scheduled…

[43] The plaintiff suffered injuries to his back, neck, shoulder and left knee.  He was unable to return to work for over three months after the April 26, 2006 accident, and then only with difficulty and on reduced hours.  Close to three years after the accident, the plaintiff continues to experience considerable pain in his neck and shoulder, back and knee.  The evidence is clear that his job as a metal fabricator involves physically demanding tasks which exacerbate these injuries.  He has not been able to return to his pre-accident performance levels at work.

[44] Two of the expert witnesses, Dr. Spooner and Dr. Vaisler, testified that the plaintiff may have a permanent disability as a result of the accident injuries.  The injuries and the corresponding pain levels have significantly affected the plaintiff’s quality of life and his relationship with his family, as he has little energy or ability to remain active outside of work hours and is frequently irritable and short-tempered as a result of the pain.

[45] The plaintiff’s lifestyle has been dramatically affected by the injuries he suffered in the accident.  The plaintiff, prior to the accident, was an active outdoorsman who regularly went fly fishing with his daughter at remote locations around the Lower Mainland and in southern British Columbia.  Since the accident he has completely curtailed this activity and his relationship with his daughter has suffered.  Prior to the accident, he was an active father with his young son, enjoying activities with his son in the yard, and in the home.  Since the accident his relationship with his son has resorted to playing video games or other activities which involved sitting and lying down, with no physical exertion.

[46] Ms. Bennett describes the plaintiff, prior to the accident, as a “fabulous 100% dad”.  She described that her daughter viewed him as “her god”.  Now the daughter does not want to hang around with her father any longer.

[47] The evidence suggests yard work and snow removal is simply left undone, as the plaintiff can no longer do it.

[48] Ms. Bennett describes her relationship with the plaintiff as “hell”.  She says that when the plaintiff is at home, the family is “walking on eggshells”.  The plaintiff is in near constant pain.  He has to immediately lie down after work.  His interaction with the family is minimal.  He is completed affected by the pain.

[49] His relationship with his wife, Ms. Bennett, who testified, has become tenuous at best.  Prior to the accident they enjoyed an active sex life—they no longer do.  For close to 2½ years, because of his injuries, the plaintiff slept on the living room floor rather than with his wife.  Prior to the accident, the plaintiff vacuumed, did dishes, and cleaned up around the house and was completely responsible for outside yard activities.  The plaintiff and his wife purchased a home on a quarter acre lot.  The home was, to use the vernacular, a “fixer upper”.  The home was repaired by considerable efforts of the plaintiff and the quarter-acre yard was completely landscaped by the efforts of the plaintiff.  Since the accident he has been unable to participate in home repairs or landscaping work.

In ICBC Injury Claims that proceed to trial there are often 2 competing medical theories with respect to the cause and extent of injury.  Typically Plaintiff’s rely on the opinions of their treating physicans and sometimes the opinions of Indepmendent Medical Examiners. ICBC, on behalf of the Defendant, usually rely on the opinions of an independent physician who examines the Plaintiff pursuant to Rule 30 of the BC Supreme Court Rules.

When the conflicting expert evidence is presented at trial the lawyers can cross examine the opposing expert(s) opinion.  This process can be a powerful tool in helping the judge or jury decide whose opinion should be preferred and given more weight.  What happens if the expert is not cross-examined?  Does that experts opinion carry more weight with the court? Reasons for judgement were released today by the BC Supreme Court (Yip v. Chin) dealing with this issue.

In today’s case the Plaintiff sued for injuries cuased in a 2006 Car Crash which took place in Vancouver, BC.  The Plaintiff suffered from a pre-existing degenerative condition and suffered soft tissue injuries in the crash.  One of the key issues at trial was whether the Car Crash had any effect on the Plaintiff’s pre-existing degenerative arthritis.

The Plaintiff’s physicain feld that this pre-existing condition was aggravated by the car crash.  The doctor hired by the Defendant, Dr. Schweigel, disagreed.  Dr. Schweigel’s report was intorduced into evidence unchallenged by the Plaintiff.  Ulimately the Court preferred Dr. Schweigel’s opinion on this narrow issue.  Mr. Justice Voith summarized and applied the law as follows with respect to the failure to cross-examine an expert witness at trial:

[30]            The evidence of both Dr. Lui and Dr. Schweigel was consistent in concluding that at the time of the Accident Mr. Yip suffered from some degenerative arthritis of the cervical spine.  The two experts differed, however, on the significance of this pre-existing condition and on whether the Accident caused this condition to be aggravated.

[31]            The plaintiff chose not to cross-examine Dr. Schweigel.  This decision places different parts of Dr. Schweigel’s reports in different categories and requires different treatment by the court.  Some portions of Dr. Schweigel’s reports stand uncontradicted in that no part of the evidence led by the plaintiff takes issue with the opinions expressed by Dr. Schweigel.  Other portions of his reports are inconsistent, for example, with the report of Dr. Lui or with the evidence of Dr. Lui and Dr. Leung.

[32]            For lay witnesses, the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) provides well understood guidance on the consequences that flow from the failure of a party to cross-examine on a given issue or to put given propositions to a witness.  The rule arising from that case is one which is designed to ensure that witnesses and the parties are treated fairly.

[33]            Failure to cross-examine an expert on a contested issue gives rise to additional concerns or difficulty.  The very object of proffering expert evidence is to assist the trier of fact with the necessary scientific basis upon which to assess evidence.  Inherent in the fact that evidence has been tendered by an expert, is the proposition that the trier of fact is generally neither conversant nor familiar with the subject matter of the evidence and lacks the independent means by which to weigh or measure the merits of two competing views.

[34]            In this instance, for example, Dr. Lui expressed the view that Mr. Yip’s ongoing degenerative problems of the spine were likely aggravated by the Accident.  This conclusion is apparently based on differences that exist in an initial x-ray taken in July 2006 which showed degenerative changes at C6-7 only and a subsequent CT scan performed on October 2007 which showed degenerative changes involving C3-4, C4-5, and C5-6 as well.

[35]            Dr. Schweigel’s report, conversely, expresses the view that these changes are attributable to the additional sophistication of the CT scan.  In Dr. Schweigel’s view, a CT scan will routinely pick up abnormalities which are missed by an x-ray.  Dr. Lui, in his cross-examination, firmly disagreed with this conclusion.  The court did not have benefit of any further explanation from Dr. Schweigel.  The trier of fact is thus left with two competing views, one of which, though contradicted, remains unchallenged by cross-examination.

[36]            No inflexible rule can be established as to the significance of a party failing to cross-examine an expert.  Sometimes a party will be aware that the expert will not resile from his position and cross-examination would be futile.  Thus, in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 49, the Court said in relation to a notional cross-examination, “It may be a mere show.  The law of evidence does not require counsel to engage in a charade”.

[37]            In this instance, I believe it is appropriate to attach some weight or significance to the fact that Dr. Schweigel’s report was introduced without any part of its contents being tested further.  This is not a case of a party failing to cross-examine on a particular portion of the report.  This is an instance of the plaintiff deciding to leave untested all of the various opinions which are offered in relation to a number of issues, notwithstanding the fact that such opinions are often at odds with the evidence tendered by the plaintiff.

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 yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.

The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.

Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims - the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.

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.

In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.

The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision.  Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.

In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145]        Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas.  I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time.  To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities.  The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health.  The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146]        Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine.  Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery.  Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147]        Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148]        Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident.  This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident.  At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident.  I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149]        There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder.  I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150]        With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154]        Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve.  I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake.  Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches.  Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier.  I bear in mind as well that she has suffered a right frozen shoulder, but  that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155]        The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident.  In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.

Reasons for judgment were released today awarding a Plaintiff just over $73,000 in total damages as a result of injuries and loss sustained in a 2005 BC vehicle collision.

The Plaintiff’s vehicle was rear-ended.  The collision was significant with enough force to brake the seat assembly in her vehicle.  She was 59 years old at the time of impact. The Plaintiff suffered injuries to her neck, shoulder, wrists, knee and elbow. Most of her injuries healed in short order.  The Plaintiff’s neck and shoulder injuries did not and she testified that those areas were painful everyday  some 3 years after the collision.

The Plaintiff’s injuries and their effect are summarized well at paragraph 14 of the judgment which I reproduce below:

[14]            The main complaints of the plaintiff are that she has suffered significant, ongoing, chronic and permanent left neck and shoulder pain, and continuing anxiety, all caused by the motor vehicle accident.  She has kept working throughout, for the most part.  She has continued to work long hours, and at the same time has, on the advice of her doctor, tried a number of different kinds of therapy.  She has gone for two different kinds of physiotherapy, massage therapy, acupuncture, and has sought the services of a kinesiologist, a certified personal trainer.  She also went once for counselling to a psychologist with regard to her anxiety.  She applies ice and heat to alleviate her pain, and uses medications, with apparently limited results.

The Plaintiff called her husband to give ‘before and after’ evidence along with her treating chiropractor and family physician.  The defence called no evidence which is somewhat unusual in a contested injury claim.  In most ICBC injury claims that proceed to trial the court hears from both Plaintiff and Defence expert medical witnesses who provide opinion evidence as to the extent of injury and its relationship to the trauma in question.  It appears here that the defence was content to simply rely on their cross examination of the Plaintiff’s physicians.

The court found that the Plaintiff and her husband were ‘extremely credible’.   The court accepted that the Plaintiff’s ongoing complaints were caused by the collision.  In justifying an award of $60,000 for pain and suffering Madam Justice Morrison made the following comments:

[58]            In my view, there has been a significant loss of enjoyment of life for this plaintiff.  She suffers the pain and discomfort that she has described while working, and particularly while sitting at a computer, which involves much of her day.  She will continue to work.  Perhaps even more significantly, she has and will continue to suffer the loss of enjoyment of life that has occurred in her life beyond work.  There has been a significant and negative change in the lifestyle of Mrs. Larlee, ranging from her day-to-day household activities, her passion for gardening, her lifelong involvement with the piano and the accordion, and an active lifestyle which involved vacations and other activities.  Her pain is chronic and ongoing.