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This Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.
Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.
Archive for the ‘ICBC Soft Tissue Injury Cases’ Category
May 11th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Espinoza v. Espinoza) the Plaintiff was injured in a 2011 single vehicle collision. He was a passenger in a vehicle that lost control and struck a lamp post. The driver admitted fault. The Plaintiff alleged the collision caused a traumatic thoracic outlet syndrome. The Court did not accept this claim and found that the Plaintiff had “at times exaggerated his injury“. Despite this the Court accepted the collision caused chronic soft tissue injuries and in assessing non-pecuniary damages at $55,000 Mr. Justice Grauer provided the following reasons:
 Nevertheless, I am satisfied that Mr. Espinoza was indeed injured in the motor vehicle accident, and the defendant does not contest this. I find that he sustained soft tissue injuries to the neck and back, and that these indeed have become chronic, though not as disabling as he would suggest. In this regard, I rely most upon the evidence of Dr. Vinnitsky, whose examinations disclosed at least some objective symptoms and who had the opportunity to assess Mr. Espinoza over a period of time both before and after the accident. I found the evidence of Dr. le Nobel and Dr. Salvian less helpful on this issue given their total reliance on Mr. Espinoza’s reports, and my concerns with the reliability of Mr. Espinoza as a historian. As indicated, the evidence as a whole leads me to conclude that Mr. Espinoza has at times exaggerated his injury, attributing more to the motor vehicle accident than the evidence other than his own can support. I do accept, however, the reality of the problem of chronic pain as a syndrome, a reality rejected by Dr. McPherson.
 I do not accept that Mr. Espinoza has suffered traumatic thoracic outlet syndrome as a result of the accident, as opined by Dr. Salvian. The best evidence of his course after the accident, being the reports of Dr. Vinnitsky, is inconsistent with what Mr. Espinoza reported to Dr. Salvian, and does not support such a diagnosis. Mr. Espinoza submits that Dr. Vinnitsky’s finding on March 8, 2012, of pain in the left wrist and “volar aspect of the left forearm” could properly be interpreted as due to numbness and tingling consistent with a developing post-traumatic thoracic outlet syndrome. Dr. Salvian suggested as much. I disagree. It is clear that Dr. Vinnitsky related this to a sprained wrist. I find that Mr. Espinoza has failed to demonstrate, on a balance of probabilities, that he suffered a thoracic outlet injury at all, or that, if he did, it relates to the accident…
 I consider the Rutledge case to be much closer to this one, as it involved a chronic pain situation where a diagnosis of thoracic outlet syndrome was rejected. Considering all of the necessary factors, and taking into account the evidentiary difficulties, I assess the plaintiff’s non-pecuniary damages at $55,000.
April 20th, 2015
Sensible reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, confirming that the standard of proof does not change for a tort claim based on subjective soft tissue injuries.
In last week’s case (Rabiee v. Rendleman) the Plaintiff was involved in a 2008 rear end collision. The Defendant admitted fault but disputed injury pointing in part to the fact that the collision was minor. In accepting the Plaintiff sustained soft tissue injuries and assessing non-pecuniary damages at $40,000 Madam Justice Sharma provided the following comments about the standard of proof in low velocity impact prosecutions:
 Given the findings of fact above, I am satisfied that the plaintiff has established on a balance of probabilities that the accident caused soft tissue injuries. The accident was clearly “a cause” of the soft tissue injuries…
 The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock,  B.C.J. No. 31 (B.C.S.C.) 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” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”
 I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock,  B.C.J. No. 1490 (B.C.C.A.) clarified: “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”
 The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors…
71] Taking into account all of the cases and my conclusions about the evidence in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary damages.
April 7th, 2015
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Dhaliwal v. Pillay) the Plaintiff was involved in two collisions, the first in 2010, the second in 2011. The Defendants admitted fault for both crashes. Prior to the collisions the plaintiff fell off a ladder and injured his neck and back and had ongoing symptoms from this injury. The Court found the collisions aggravated these pre-existing injuries. In assessing non-pecuniary damages at $50,000 Mr. Justice Truscott provided the following reasons:
 I am completely satisfied from the medical evidence that Mr. Dhaliwal hurt his back and neck in the 2008 ladder fall and it caused him significant continuing pain right up to and including to the time of the first motor vehicle accident.
 It is my conclusion the two motor vehicle accidents only aggravated or exacerbated his existing active back and neck pain that preceded the first accident.
 The applicable law has been set out by the Supreme Court of Canada in Athey v. Leonati,  3 S.C.R. 458 where Mr. Justice Major, writing for the Court, said this at p. 473:
The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.
 Mr. Dhaliwal has pre-existing active back and neck pain which was due to degenerative changes in his spine and injury from the ladder fall, as well as arthritis in his hands and knees, and with Mr. Dhaliwal having only aggravated his back and neck pain in the two motor vehicle accidents and sustained headaches and right groin pain and right ankle pain, I consider an appropriate award for pain and suffering to be $50,000.
April 2nd, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain condition stemming from collision related soft tissue injuries.
In today’s case (Karim v. Li) the Plaintiff was injured in a 2011 collision. The defendant accepted fault for the crash. The Plaintiff suffered various soft tissue injuries which, coupled with psychological consequences, resulted in an ongoing chronic pain condition. In assessing non-pecuniary damages at $100,000 Mr. Justice Abrioux provided the following reasons:
(a) prior to the Accident, Mr. Karim was a hard-working and industrious man who had overcome significant obstacles in his past. He was satisfied with his life both personally and professionally;
(b) Mr. Karim’s “original position” included a significant difficulty with stuttering which, although considerably improved from what it had been in the past, was in a fragile or vulnerable state. Had the Accident not occurred, regression was likely were he faced with stressful conditions either in his personal or vocational life;
(c) although I found the plaintiff generally to be credible, he has embellished certain events. For example, he advised Dr. Nader that the defendants’ vehicle was travelling at approximately 80 kph when it struck him. Common sense leads to the conclusion that his vehicle would not have been drivable after the Accident had this been the case and that emergency vehicles would have attended the Accident scene, neither of which occurred. There are also examples of embellishment in his work and educational history;
(d) the plaintiff has a tendency to see things in their worst light. Dr. Gouws characterized this as “pain catastrophization”. This has resulted in the perception that he is much more disabled from a pain and functioning perspective than he is in reality;
(e) the plaintiff sustained moderate to moderately-severe soft tissue injuries in the Accident. He was essentially totally incapacitated from a physical perspective for a period of approximately one year and at intermittent times thereafter. As such, his condition, which includes psychological factors, does satisfy the criteria for “chronic pain” being pain that persists for more than six months. The psychological factors have had a significant negative effect on his ability to recover;
(f) despite the plaintiff’s presentation and the history he has provided to the various professionals who have assessed him, he is capable of much more than what he perceives. I accept Dr. Gouws evidence in cross-examination to that effect;
(g) a component of the plaintiff’s perception of his inability to function may be his psychological makeup. He has, however, demonstrated the ability to overcome disability through his own resources or willpower. An example is his ability to control his stuttering to which I have referred above;
(h) with appropriate professional assistance including a further intensive course at Columbia together with a 16 session cognitive behavioural therapy program as recommended by Dr. Riar, Mr. Karim will largely return to his level of personal and professional functioning experienced prior to the Accident; and
(i) in that regard, I accept Dr. Gouws’ and Dr. Paramonoff’s opinions which identified “catastrophization” and “confounding factors” as the main limitation to Mr. Karim’s recovery. This is the basis for their recommendation that he obtain psychological assistance….
 Based on my findings of fact, I am satisfied that Mr. Karim, who was 25 years old at the time of the accident, suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. I also find that the consequences of the Accident were instrumental in the termination of his relationship with Ms. Azimi which resulted in an increase in his stress and greatly affected his quality of life for a period of time.
 I have also found that with an appropriate course of treatment both physical and psychological that Mr. Karim should largely return to his pre-Accident level of functioning. Thereafter, there will still, in my view, be some occasions in the future when the consequences of the Accident will affect the plaintiff both professionally and personally.
 I conclude that the authorities referred to by the defendants in particular Andrusko resemble more closely the plaintiff’s circumstances. But that award of $80,000, in my view, should be increased to reflect the contribution that the Accident had on the plaintiff’s relationship with Ms. Azimi. The award should also reflect that although I have concluded that the plaintiff does have the ability to overcome his negative perceptions of how the Accident has affected his life this will take some real effort on his part.
 I award the plaintiff $100,000 under this heading.
March 25th, 2015
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.
In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC. The Defendant admitted fault. The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve. In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:
 The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder. She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder. She has suffered from headaches since the accident, some of which are debilitating…
 The plaintiff is a young woman. More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches. Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.
 The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.
 She has become more withdrawn. Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.
 She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.
 In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.
February 24th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by two collisions.
In today’s case (Larsen v. Moffett) the Plaintiff was injured in two collisions, the first in 2010, the second in 2012. ICBC admitted fault on behalf of the defendants in both cases. The crashes caused soft tissue injuries to the Plaintiff’s neck and back which continued to the time of trial and interfered with his ability to work as a painter and drywaller. His symptoms were not expected to improve. In assessing non-pecuniary damages at $70,000 Mr. Justice Steeves provided the following reasons:
 In summary this 44 year old man has suffered two soft tissue injuries to his neck and back and he has developed related headaches. These injuries cause ongoing and severe pain and they limit his daily activities, including his social life and work. With respect to the former, the plaintiff’s pain contributed significantly to the breakup of a potentially long-term relationship he started with Ms. Briere. Prior to the 2010 and 2012 injuries the plaintiff took over his father’s contracting business and, despite some personal difficulties and problems with record keeping, he was able to feel confident that he had a business that would look after him, as it did his father. That is now in significant doubt.
 All of this has had a negative effect on the plaintiff’s sense of self-worth and emotional well-being. The experts are unanimous that this situation will continue into the future. The defendants’ expert suggests that there may be future improvement but this is put in very guarded terms.
 Taking this into account with the authorities cited to me I assess the non-pecuniary damages in this case to be $70,000.
February 17th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff who had the misfortune of being involved in 7 collisions.
In today’s case (Sediqi v. Simpson) the Plaintiff was involved in seven collisions from 2010-2013. He was not at fault for any of these. He suffered a variety of injuries, some of which lingered to the time of trial. In assessing non-pecuniary damages at $80,000 Madam Justice Fisher made the following findings and provided the below reasons:
 I find that the plaintiff suffered soft tissue injuries in his neck, right upper back and shoulder and lower back as a result of these accidents (with the exception of accident #4, which appears to have been limited to the neck and upper back or shoulder). He had a pre-existing rotator cuff tear in his right shoulder that was aggravated by each successive accident, as well as pre-existing carpal tunnel syndrome (aggravated by accidents #5 and 6) and a degenerative spine condition (aggravated by accidents #6 and 7). He also suffered from headaches from accidents #1, 4, 5 and 7, and the pain resulting from all of these injuries has affected his mood and contributed to his feelings of sadness. He was unable to work for a week after accident #4, for about four weeks after accident #5 as well as a month of reduced hours, for about three weeks after accident #6 as well as further weeks of reduced hours, and for three weeks after the last accident followed by several months of reduced hours.
 The plaintiff is a 51 year old man who prides himself as a person who works hard for his family. He has been the unfortunate victim of seven accidents, which caused injuries that have affected him cumulatively. I consider the cumulative effect of these injuries to be an important factor.
 The plaintiff continues to experience pain symptoms more a year following the last accident, particularly in his right shoulder and the right side of his back. He has problems sleeping and experiences low moods and feelings of sadness. He has changed from a good natured, positive individual to one who is less jovial, less patient of others, and at times argumentative. He has had some limitations in his physical activities at home and at work. Evidence from his wife and from Mr. Poirier and Mr. Murray confirms this. He does little at home and has difficulty carrying heavy objects at work.
 The plaintiff has tried physiotherapy, exercise and various kinds of pain medication but he is not a physically active person. His prognosis is guarded. Considering how long he has been in pain, it is likely to continue. However, his symptoms should improve to some extent with proper management, which includes physical exercise…
 In general, I found the cases cited by Mr. Wilson to involve injuries less severe than those in this case, either due to shorter periods of pain symptoms or reductions due to contingencies that do not apply here. Not surprisingly, none of the cases cited by either counsel involved plaintiffs suffering the cumulative effect of injuries from seven accidents. In my view, general damages appropriate in a case like this range from $50,000 to $90,000. Taking into account the plaintiff’s pre-existing conditions (which as I said before do not require a significant reduction), I would assess a fair award here to be $80,000.
February 6th, 2015
Adding to this site’s archived cases addressing non-pecuniary damages for chronic pain, reasons for judgement were released today dealing with such a condition following a motor vehicle collision.
In today’s case (Roth v. Hes) the Plaintiff was involved in a 2011 collision. The Defendant admitted fault. The Plaintiff sustained soft tissue injuries which led to a chronic pain condition. In assessing non-pecuniary damages at $90,000 Mr. Justice Bowden provided the following reasons:
 The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred.
 The plaintiff’s lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband’s hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff’s condition will improve and she will gradually return to some of her hobbies around her property.
 I do not accept the plaintiff’s argument that the garden and animals cared for by her and her husband were more than a hobby. It matters not that the garden and animals provided some food for them. The use of their property by the plaintiff and her husband was simply a hobby and I so find.
 Before the accident the plaintiff enjoyed a number of outdoor activities. Since the accident she has not been able to participate in physically demanding activities like motorcycle riding, archery and hiking. There is the prospect that she may find less physically demanding but enjoyable hobbies.
 The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident.
 Both parties provided me with a number of cases dealing with similar facts that supported the amount of damages that they consider to be appropriate. In the end however, each case must be decided on its own facts.
 Considering the factors enumerated in Stapley, I find $90,000 to be an appropriate award of non-pecuniary damages.
February 2nd, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and plateaued soft tissue injuries.
In today’s case (Mothe v. Silva) the Plaintiff was rear-ended by a tractor-trailer operated by the Defendant. Fault was admitted. The Plaintiff suffered soft tissue injuries to his neck and shoulder and his symptoms persisted to the time of trial and were expected to continue. The Plaintiff suffered other symptoms which cased some hardship in his life but the court found these were unrelated to the collision. In assessing non-pecuniary damages at $40,000 Madam Justice Ross provided the following reasons:
 I agree with the submission of the defendants that the functional limitations described in Mr. Shew’s analysis are either in whole or in large part the consequence of the chronic left wrist problems stemming from the Workplace Injury or the consequence of the C7 radiculopathy. I have found that the motor vehicle accident did not cause or contribute to this condition. However, Mr. Mothe does suffer neck and shoulder pain and headaches as a consequence of the motor vehicle accident. With respect to these injuries, his recovery has plateaued and the condition is chronic. These injuries have not, with the modest exception discussed below, prevented Mr. Mothe from working but he does so in pain. These injuries have contributed to fatigue and a discouraged, pessimistic outlook. They have reduced his enjoyment of recreational activities and his family life.
 In all of the circumstances, I award $40,000 for non-pecuniary loss.
January 30th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic myofascial pain symptoms following a collision.
In today’s case (Camilleri v. Bergen) the Plaintiff was injured in a 2011 collision. The Defendant admitted fault. The Plaintiff suffered from chronic myofascial pain symptoms which were not expected to improve. In assessing non-pecuniary damages at $90,000 Madam Justice Loo provided the following reasons:
 As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms. I can do no better than to summarize her symptoms as set out in Dr. Dost’s report. She complains of:
1. Constant cervical or neck pain that radiates to the interscapular region, left shoulder and diffusely down her arm to her third and fifth fingers;
2. Constant thoracolumbar or back pain, without radicular symptoms, but with numbness and tingling;
3. Headaches almost daily. About four days a week she has a dull headache, occipital pressure, and some nausea. Three days a week her headaches are quite severe and radiate to her left eye with pressure, pounding, nausea, and light and noise sensitivity;
4. Sleep disruption secondary to pain;
5. Altered mood;
6. Light-headedness (a faint-like sensation that occurs early in the morning);
7. Increased tinnitus;
8. Increased blurred vision requiring stronger prescription glasses; and
9. Difficulties with memory, processing speed, multitasking, attention and recall.
 Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.
 Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money. She could easily have made more money in private practice but she was committed to helping those who could not afford private care. She was so committed to her work that she increased her hours of work after the accident so that her patients would continue to have treatment despite the toll it has taken on her physical and emotional health.
 Ms. Camilleri said that it has been emotionally challenging for her to be forced to step back into what she considers a lesser role in the treatment of the eating disordered. She enjoyed her volunteer positions, she enjoyed teaching, she enjoyed the continuing education opportunities with other health professionals, and she enjoyed research. Those are things she can no longer enjoy.
 She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy. She no longer even travels.
 I have no reason to doubt Ms. Camilleri’s evidence. There is no suggestion that she is anything other than a credible, straightforward witness who keeps doing her best in situations where others likely would have given up. But she has been forced to give up many of the things in life that she enjoyed…
 I conclude that an appropriate award in this case for non-pecuniary damages is $90,000.