ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims 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 ICBC injury 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

$75,000 Non-Pecuniary Assessment for Persistent Neck and Back Injuries

November 27th, 2016

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for persistent back and neck injuries.

In the recent case (Lally v. He) the Plaintiff was involved in a 2011 intersection collision that the Defendant accepted fault for.  The collision resulted in soft tissue injuries and symptoms persisted to the time of trial.  The Court assessed non-pecuniary damages at $75,000 but reduced these by 10% for the Plaintiff’s failure to follow through with an active rehab program that could have helped improve the symptoms.  In reaching this assessment Madam Justice Warren provided the following reasons:

[93]         I have concluded that as a result of the accident, Ms. Lally has suffered pain and a loss of enjoyment of life, and that will continue to some extent, into the foreseeable future.

[94]         As a result of the injuries she sustained in the accident, Ms. Lally suffered from severe pain in her neck, back and shoulder for several months.  The neck pain triggered headaches that, at times, were severe.  Although the pain gradually improved, she has been left with less severe but persistent neck and shoulder pain as well as occasional low back pain.  While she is likely to experience improvement in her symptoms with active rehabilitation, particularly with respect to the low back and shoulder, even with sustained, active rehabilitation, she will likely continue to suffer from occasional pain in her neck and, to a lesser extent, her low back and shoulder.

[95]         Ms. Lally’s pain is exacerbated by repetitive activities, heavy lifting or working at a level higher than her shoulders.  She cannot sit still for long.  When driving she has difficulty moving her head from side to side.  When she watches television, reads or uses a computer she has to move her neck or it becomes stiff.  Household chores and physical duties at work exacerbate the pain and when the neck pain is particularly bad it develops into a headache.  This happens between two and five times a week and the headache lasts up to eight or nine hours.  The neck pain disturbs her sleep.

[96]         The pain has affected Ms. Lally’s mood.  Before the accident, her mood was good and she enjoyed spending time with her family.  For the first few months after the accident she was quiet and spent most of her time resting because of the pain.  She continues to spend much of her non-working time resting at home using a massager and heat pad.

[97]         Ms. Lally used to do the majority of the housework before the accident.  Since the accident she has been limited to light housework such as cooking and doing dishes.  She did not testify about any other impacts on her lifestyle…

[100]     Having considered all the authorities and the factors discussed in Stapley, I assess Ms. Lally’s non-pecuniary damages at $75,000, prior to any adjustment for her failure to mitigate.  For the reasons already expressed, I reduce that amount by 10% to reflect her failure to have participated in a regular, sustained program of active rehabilitation.


$65,000 Non-Pecuniary Assessment for Lingering but Non Disabling Soft Tissue Injury

November 1st, 2016

In the latest addition to this site’s soft tissue injury assessment database, reasons for judgement were released today by the BC Supreme Court, assessing damages for a lingering but not disabling neck and upper back soft tissue injury.

In today’s case (Dhaliwal v. Randhawa) the Plaintiff was involved in a 2011 collision that the Defendant was found wholly responsible for.  The Plaintiff suffered an upper back and neck soft tissue injury that, while somewhat improved, continued to cause persistent symptoms to the time of trial.  Despite the long lasting lingering symptoms the injuries were not expected to be disabling.  In assessing non-pecuniary damages at $65,000 Mr. Justice Butler provided the following reasons:

[48]         When I examine all of the evidence, I reach the following conclusions about the nature and extent of Mr. Dhaliwal’s injuries and symptoms. He suffered a soft tissue injury to his upper back and the base of his neck. He may have suffered a minor soft tissue injury to his lower back but this was resolved within six weeks of the accident. The upper back, shoulder and neck symptoms persisted for more than two years. However, by September 2013, the symptoms were significantly less serious. While the symptoms have persisted up to the present time, they do not inhibit his ability to work or carry on with activities of daily life…

[58]         When I apply the considerations to the facts I have found, I conclude that a fair award in all of the circumstances of this case is $65,000. In arriving at that assessment, it is particularly significant that Mr. Dhaliwal is young and will suffer continuing, but manageable and non-disabling discomfort in his neck, shoulders and upper back. In other words, his discomfort may continue for a long time. At the same time, the more severe neck, shoulder and upper back pain was of limited duration. Further, any lower back pain after 2011 was not related to the accident. In addition, outside the 6 to 12 months following the accident, he has not experienced a significant impairment in his lifestyle and daily activities…

[61]         Of the cases the parties cite, Jiwani is the most similar to Mr. Dhaliwal’s circumstances. There the court found that the plaintiff suffered from back pain which had persisted for four-and-a-half years and was likely to continue. At para. 46, Sigurdson J. set out his conclusions which are similar in important respects to those which I have arrived at here:

… While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[62]         In a similar vein, I have concluded that Mr. Dhaliwal still suffers upper back pain but I have not accepted that the pain is as serious as he contends or that the low back pain was caused by the accident. As in Jiwani, Mr. Dhaliwal continues to suffer pain which is of “a type that causes modest discomfort”. He will continue to be able to take part in all of his recreational, home and work activities. He will need to have occasional manipulations or massages to assist with management of his symptoms.


$85,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

August 15th, 2016

Adding to this site’s soft tissue injury non-pecuniary damage database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries with associated headaches.

In this week’s case (Picton v. Fredericks) the Plaintiff was involved in a 2008 vehicle collision that the Defendant admitted responsibility for.  The Plaintiff suffered various injuries which were ongoing at the time of trial and expected to linger into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Williams made the following findings:

[37]         I conclude that Ms. Picton did sustain injuries in the course of the motor vehicle accident and that substantial discomfort has persisted for her. I am not minded to accept that all of the discomfort and all of the lost time is attributable to the accident. I also conclude that, while there was not insignificant discomfort, its effect upon her ability to do her usual activities and to engage in physical activities was significant but not to the extent she seemed to suggest. For example, I am inclined to accept that, from time to time, she engaged in activities such as golfing and snowboarding. I also believe that she continued to pursue her fitness regime, although in a somewhat diminished way.

[38]         I am satisfied that Ms. Picton sustained soft tissue injuries in the accident, resulting in neck, shoulder, and back pain and headaches. The neck, shoulder, and back pain have not resolved but continue, albeit less intensely. I am satisfied that she continues to deal with headaches; the frequency may not be as great as she contends, but I accept that she does occasionally experience very significant discomfort from those headaches. I also accept the evidence before me that the Botox treatments she receives are substantially effective in enabling her to deal with the discomfort of those headaches…

[51]         In summary, I conclude that Ms. Picton has suffered pain and discomfort from the accident, that it has impacted upon various aspects of her life, and that those effects continue. I am also satisfied that the ongoing Botox treatment is a meaningful contributor to mitigating the discomfort she experiences. I accept that the effects of the accident impacted upon her work and social life.

[52]         That said, I also recognize that there were other factors at play, including the psychological distress that she has experienced separate and apart from the accident. I find no basis to attribute that to the defendant’s conduct, and, accordingly, the effect of that cannot be included in the analysis of what award of damages will properly compensate the plaintiff for her pain, suffering, and loss of enjoyment of life as resulting from the defendant’s negligence…

[58]         As stated above, my conclusion is that the injuries resulting from the accident had a moderately serious impact upon Ms. Picton’s life. She has experienced pain and suffering, and her enjoyment of life has been compromised in a number of ways. I also conclude that the effects of the collision are not the sole cause for her difficulties; her pre-existing psychological problems have had a real role in causing those. Ms. Picton’s situation is in keeping with the “crumbling skull” rule as noted in Athey v. Leonati, [1996] 3 SCR 458, at paras. 34–35. The damages that this Court awards must reflect that distinction. The defendant should not be required to compensate Ms. Picton for effects she would have experienced anyway.

[59]         As well, my award is informed by my view that she has, fortunately, by availing herself of the Botox treatment program, been able to find a way to substantially overcome the discomfort of headache. I intend to provide an award of damages for her future care that will provide for that relief, going forward. Accordingly, I expect that her discomfort will be quite significantly relieved.

[60]         In the result, I find that a fit and appropriate award of damages under this head is $85,000.


$50,000 Non-Pecuniary Assessment for “Lingering” Soft Tissue Injury

July 19th, 2016

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court,  Vancouver Registry, valuing a claim dealing with a ‘lingering‘ neck and shoulder soft tissue injury.

In today’s case (Lal v. Le) the Plaintiff was involved in a 2011 rear-end collision that the Defendant accepted blame for.  The Plaintiff suffered various soft tissue injuries the most serious of which involved his neck and shoulder and symptoms lingered to the time of trial.  Some long term symptoms were anticipated.  In assessing non-pecuniary damages at $50,000 Madam Justice Adair provided the following reasons:

[102]     Accordingly, I find that, as a result of the accident, Mr. Lal sustained soft tissue injuries to his neck, back, chest, elbow, leg and shin areas.  He also sustained ulnar nerve irritation symptoms, and experienced headaches as a result of his injuries.  Most of these injuries resolved over a few months.  However, the most serious injuries, a moderate soft tissue injury to his neck, and a moderate muscular strain in his right middle and lower back, did not.  As of April 2014, there continued to be objective signs of injury.  I find that, by April 2014, Mr. Lal had improved to the point that he was pain-free at times, although, with heavier and awkward work, he experienced symptoms in his neck and back, and also occasional headaches.  I find that these symptoms resulted from the injuries he suffered in the accident.  By October 2015, Mr. Lal’s mid-back injury had resolved.  However, I find that, as of trial, Mr. Lal continued to experience symptoms as a result of the injuries suffered in the accident, particularly symptoms in his neck.  He is likely to have some lingering neck and shoulder pain long-term, although the prognosis is more favourable that his back pain will fully resolve over the next year.

[103]     I find further that, as a result of the injuries Mr. Lal suffered in the accident, there is a risk that he will be unable long-term to work as a boilermaker, although he should be able to work full-time as an armored car driver.  In addition, I find that, as a result of the injuries suffered in the accident, Mr. Lal will be at increased risk of a work-related neck or back injury.  Given the physical nature of his employment, this is a real risk…

[110]     Considering Mr. Lal’s age and the other factors described above, and the cases cited to me, I conclude that an appropriate award for non-pecuniary damages is $50,000.


$50,000 Non-Pecuniary Assessment for “Persistent” Soft Tissue Injuries

July 6th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for ‘persistent’ soft tissue injuries.

In today’s case (Smith v. Evashkevich) the Plaintiff was involved in a 2010 rear end collision that the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries to his neck and shoulder which persisted at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $50,000 Mr. Justice Steeves provide the following reasons:

[74]         Considering the expert evidence summarized above with the evidence at trial, I conclude that the plaintiff continues to have complaints of pain and stiffness in his neck, shoulders and back as a result of the June 2010 accident. This is supported by medical findings of tenderness on palpation. The plaintiff, his family and close friends also describe the plaintiff’s discomfort with his neck and shoulders.

[75]         These have always been soft-tissue symptoms, albeit persistent ones. The plaintiff was prescribed with a muscle relaxant on July 5, 2010 for the accident injuries. After that he has used over the counter medication.

[84]         In summary the plaintiff continues to suffer from soft tissue injuries in the neck, shoulder and back that can be causally related to the 2010 accident. While there are flare-ups he manages the symptoms well and he does not miss work as a result of them. He does not golf or snowboard like he did before the accident and he is more withdrawn in his relationships. There is some general anxiety as a result of the chronic nature of the plaintiff’s symptoms but anything more is related to his feeling of being overwhelmed at work.

[85]         In these circumstances I conclude an award of $50,000 for non-pecuniary damages is appropriate.


$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

June 23rd, 2016

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.

In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.

In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.


Plaintiff Facebook Photos Help Undermine Personal Injury Claim

June 9th, 2016

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, largely rejecting claimed damages in a personal injury lawsuit due in part to concerns with the Plaintiff’s credibility and further due to Facebook photos entered as evidence at trial.

In the recent case (Brennan v. Colinders) the Plaintiff was involved in a 2012 collision.  The Defendants admitted fault.  The Plaintiff alleged the collision caused chronic problems which continued up to the time of trial.  The Court rejected this finding the collision related consequences had resolved.  In awarding $20,000 in non-pecuniary damages Madam Justice Baker provided the following critical comments regarding the Plaintiff’s credibility along with noting the impact of Facebook photos:

[11]        I found, in general, that Mr. Brennan is not a credible witness.  He proved to be a very poor historian.  While some of the problems with his testimony could perhaps be considered the result of poor memory or carelessness, there were also instances of what I consider to be a failure to respond honestly and truthfully to questions asked; and a tendency, often demonstrated, to shade or colour his testimony in a way he perceived to be helpful to his case.  Some of his testimony was contradicted not only by the testimony of defence witnesses, but also by other witnesses called on behalf of the plaintiff.  While testifying, Mr. Brennan frequently contradicted himself.  He gave different versions of the same events at different times….

[103]     Since March 2012, Mr. Brennan has acquired a new hobby, which, judging by the numerous photographs he has posted on his Facebook page, provides him with considerable satisfaction.  Mr. Brennan testified that he obtained a firearms permit and a friend purchased a handgun for him.  He has posted numerous photographs of himself in various poses with this weapon.

[104]     Mr. Brennan testified he had attempted camping on one occasion but after one night found sleeping on the ground too uncomfortable.  Again, the timing of this attempt was unclear.

[105]     I am prepared to accept that for a short time after the March 2012 accident, Mr. Brennan would have found his usual recreational and social activities less enjoyable than before the accident injuries exacerbated his chronic condition, but that within six months post-accident he was not prevented from participating in the activities to the same extent he had prior to the accident.

[106]     Counsel provided the Court with various authorities:  George v. Doe, 2015 BCSC 442; Dhaliwal v. Pillay, 2015 BCSC 509; Graydon v. Harris, 2013 BCSC 182; Kahle v. Ritter, 2002 BCSC 199; Lamong v. Stead, 2010 BCSC 432; Zvatora v. Liberman, 2000 BCSC 306, Friesen v. Fiddler, 2003 BCSC 1955; Dymond v. Wilson, 2001 BCSC 244;Boyd v. Shortreed, 2009 BCSC 1468; and Ryan v. Kakowich, 2011 BCSC 835.  None of these authorities deals precisely with the situation of a plaintiff who was already largely incapacitated prior to an accident involving a minor exacerbation of pre-existing debilitating symptoms.  I find the range of awards in the cases cited by defendants’ counsel to more closely reflect the facts in this case.

[107]     I award the sum of $20,000 for non-pecuniary damages.


$75,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

June 7th, 2016

Adding to this site’s soft tissue injury case archives, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic low back and neck soft tissue injuries.

In today’s case (Lampkin v. Walls) the Plaintiff was involved in a 2009 rear-end collision caused by the Defendant.  The Defendant admitted fault.  The Plaintiff suffered injuries to his neck and back which remained symptomatic at trial, were expected to carry on to the future and resulted in a permanent partial disability.  I assessing non-pecuniary damages at $75,000 Madam Justice Watchuk provided the following reasons:

[129]     I substantially agree with the application by Mr. Lampkin of the factors as set out in Stapley v. Hejslet. I accept the following facts with respect to these factors:

(a)  Age of the Plaintiff:  Mr. Lampkin is currently 46 years old. Both he and his wife are involved in raising their two children, Lexxus and Nathaniel. Prior to the accident, Mr. Lampkin enjoyed taking Lexxus to the park and playing soccer with him. As a family, they enjoyed going to the beach for barbeques and attending festivals. A great deal of this enjoyment has not been possible since the accident. Given his age, Mr. Lampkin has less opportunity to heal or find alternative ways to enjoy recreational activities.

(b)  Nature of the Injury:  Mr. Lampkin has been experiencing pain primarily in his neck and back for over 6 years. He reported those and other injuries immediately following the accident, and he continues to experience them although in lesser degrees. The pain affects his work and his day-to-day activities including driving, playing sports and playing with his children. At the end of a work day, Mr. Lampkin’s injuries are aggravated leaving him with little energy or patience to pursue his usual after work activities.

(c)  Severity and duration of the pain:  Mr. Lampkin’s injuries tend to vary depending on his activities. When he has had time to rest, the severity of his pain is manageable. However, after a work day, Mr. Lampkin requires pain medication to manage the pain. His symptoms are focused in his neck and back. The medical evidence supports that, in particular, Mr. Lampkin’s low-back symptoms are unlikely to resolve.

(d)  Disability:  Mr. Lampkin is partially restricted in many of his activities and has not been able to return to cricket. He is careful not to aggravate his neck or back. He now takes much longer to do things than he used to and is frustrated by his lack of energy.

(e)  Emotional suffering:  There is no doubt that Mr. Lampkin is clearly frustrated by his injuries. Ms. Rouse explained that Mr. Lampkin is much more irritable than he used to be.

(f)    Impairment of life:  Mr. Lampkin no longer plays cricket and is less interested in hobbies such as attending festivals, going to the beach or playing soccer. Doing too much tends to aggravate his symptoms.

(g)  Impairment of family, marital and social relationships:  Although Mr. Lampkin and Ms. Rouse have reconciled since the accident, Mr. Rouse has noted a significant change in Mr. Lampkin. He often does not have energy or is in too much pain to play with Lexxus. He is also much more irritable than he used to be.

(h)  Impairment of physical and mental abilities:  The injuries to his neck and back have directly impacted his ability to play soccer, basketball and cricket. Mr. Lampkin used to enjoy staying active but is now concerned that these activities will aggravate his symptoms.

(i)    Loss of lifestyle:  Mr. Lampkin and Ms. Rouse were carefree people. They now have to deal with their continued loss of income, particularly with raising a young family. Mr. Lampkin is also worried about his ability to partake in his sons’ lives and wants to be able to play sports with them.

(j)    The plaintiff’s stoicism:  Mr. Lampkin is resilient and hardworking. He takes pride in his ability to provide for his family and his skills. Despite the continued pain, Mr. Lampkin has continued to work in physical jobs, working as many as seven days per week. He was fortunate to have two employers in landscaping who made accommodations to assist him.

[140]     It is necessary to consider each case individually and I find that all of the cases relied on by the plaintiff have important differences with the plaintiff’s circumstances here. However, I find that those cases are informative for circumstances where the plaintiff has somewhat similar injuries and is limited to varying degrees in both their jobs and recreational pursuits. Mr. Lampkin is no longer able to perform the heavy tasks that he has relied upon to learn a living. In addition, he had excelled in cricket for his entire life and is no longer able to play this sport that was central to his identity both in St. Vincent and Canada. Considering all of the factors, I find that an appropriate award for non-pecuniary damages is $75,000.


$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

May 5th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.

In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.

In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:

63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…

[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.


$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

April 19th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.

In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011.  Fault was admitted on behalf of the rear driver.  The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police.  The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.

In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:

 

[119]     The plaintiff is 39 years old. 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.  This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

[132]     After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.