ICBC Law

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.

In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:

[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.

Not all injuries have the same course of recovery.  Some soft tissue injuries never heal.  Sometimes they cause constant chronic pain.  Other times these injuries largely recover but ‘wax and wane’ with activity.   What is the fair value of a soft tissue injury with symptoms that come and go over the years?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.

In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision.  The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.

The Plaintiff suffered soft tissue injuries.  These affected her neck and upper back and caused headaches.  her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime.   Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000.  In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:

[78]         Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.

[79]         They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….

[96]         At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.

[97]         Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.

[98]         It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.

[99]         As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…

[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.

One common question I’m asked by people advancing ICBC injury claims is “how often should I see my doctor?“.  The short answer is “as often as necessary to properly diagnose and treat your injuries“.  Recovery should always be the main reason behind physicians visits, not litigation.

There is no magic number of times you need to see a doctor in order to be properly compensated for your injuries.  A person who sees their doctor 100 times prior to settling may receive less than a person who only receives medical attention a handful of times.  The severity and duration of injuries are some of the most important factors when valuing loss, not the number of medical treatments.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting this.

In today’s case (Co v. Watson) the Plaintiff was involved in a “T-Bone” collision in 2006.  Fault was admitted by the offending motorist.  The trial focused on the value of the Plaintiff’s ICBC claim.   Mr. Justice Burnyeat found that the Plaintiff suffered from shoulder pain, back pain, neck pain and some sleep disturbance.  Some of the injuries improved prior to trial while other symptoms continued to bother the Plaintiff.

The Defendant argued that since the Plaintiff did not “regularly” attend to be treated by her GP that the Court should be weary of the Plaintiff’s credibility.  Mr. Justice Burnyeat rejected this argument and went on to award the Plaintiff $27,500 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In addressing the topic of frequency of medical treatment the Court stated as follows:

[26]         Ms. Co did not regularly attend to be treated by Dr. Porten.  The credibility of Ms. Co was put in questions by Mr. Watson as a result.  In this regard, I adopt the following statement made in Mayenburg, supra, where Myers J. stated:

The defendants challenge the credibility of Ms. Mayenburg. They point to the limited number of times she visited physicians to complain about her pain. They also refer to the fact that she did not raise the issue of her injuries when she visited Dr. Ducholke on several occasions for other unrelated matters.

I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholke testified how her time with patients was limited.

In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

(at paras. 36-38).

[27]         Taking into account the injuries suffered by Ms. Co as a result of the accident and the duration of the suffering relating to those injuries, I assess the general damages of Ms. Co at $27,500.00.

Special damages are out of pocket expenses incurred as a result of the intentional or negligent actions of others.  In personal injury lawsuits the most common special damages relate to medical treatments such as physiotherapy, massage therapy, medications and similar expenses.

When a Plaintiff pays their own special damages and succeeds at trial they are entitled to be reimbursed for these expenses along with a modest amount of interest under the Court Order Interest Act.  What about expenses that were not paid before trial where the medical providers charge interest on the unpaid accounts?  Can a plaintiff recover damages for these additional expenses?  Reasons for judgement were released today by the BC Supreme Court considering this issue.

In today’s case (Bortnik v. Gutierrez) the Plaintiff sued for injuries sustained as a result of a 2007 BC motor vehicle collision.  Mr. Justice Myers found that the Plaintiff had “exaggerated his injuries“.  Despite this finding the Court concluded that the Plaintiff suffered “some minor whiplash injuries as a result of the accident” and awarded the Plaintiff $20,000 for his non-pecuniary damages.

The Plaintiff also was awarded damages to account for the expenses related to some of his post accident chiropractic treatments.  The plaintiff did not pay these accounts before trial and the chiropractor charged interest on the unpaid accounts.  The Plaintiff asked the court to award damages to account for this interest.

Mr. Justice Myers refused to make this award finding as follows:

[54]    It appears to me that the plaintiff acted reasonably in seeking chiropractic treatment.  I would allow the expenses until December 31, 2009, when he was largely recovered.

[55]    With respect to interest, while counsel have found some authority dealing with interest on disbursements, counsel advise they have not found any case dealing with interest on special damages.  I therefore approach the matter on first principles.

[56]    If the plaintiff had paid the chiropractor, he would have been limited to interest as provided by the Court Order Interest Act, R.S.B.C. 1996, c. 79.  Assuming that interest on special costs may in some instances be recoverable as damages – something which I need not decide – it follows from my finding that the plaintiff has not proved a past wage loss that he cannot hold the defendants responsible for his inability or failure to pay the bills as they became due and owing.  He therefore is not entitled to claim interest as damages.

The BC Supreme Court has recently allowed interest on disbursements levied by service providers to be recovered in a personal injury case.  In that decision the Plaintiff’s ability to pay for the disbursement was also a relevant factor.  Today’s case leaves the door open for a similar result in appropriate circumstances for unpaid special damages.

As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.

In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.

This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.

In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.

Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft‑tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non‑pecuniary damages in this case is $45,000.

As I’ve previously written, the exact same injuries can be valued differently by a Court when ICBC Claims go to trial.  When a judge or jury awards money for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the award isn’t made by following a chart or a mathematical calculation, instead the award is made by ‘assessing‘ damages.

An assessment is just as flexible as it sounds.  There is no right award for pain and suffering.  While past cases (what lawyers call precedents) are instructive, they only serve to provide a ‘range‘ of acceptable awards.  So long as a trial award falls within the acceptable range of damages it will not be interefered with if challenged on appeal.

In practice this means that two people with similar injuries can be awarded different amounts for their claims and both outcomes can be correct in law.  Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, discussing the ranges of damages in BC personal injury lawsuits.

In today’s case (Anderson v. Cejka) the Plaintiff was involved in a 2006 rear-end crash in Parksville, BC.  Fault for the crash was admitted.  The Court was asked to value the Plaintiff’s claim for pain and suffering.

Mr. Justice Halfyard found that the Plaintiff suffered from a Grade 2 Whiplash Disorder which took a long time to recover.  The Plaintiff sought an award between $40,000 - $50,000, ICBC submitted that an award of $15,000 - $25,000 was more appropriate.  The Court went on to award the Plaintiff $20,000 for his non-pecuniary damages and in doing so the Mr. Justice Halfyard made the following comments about ranges of damages:

[84]         In my opinion, previously-decided cases, even where there are some similarities with the case at bar, can only assist in establishing a general range of damages which may apply to a particular case. This is because no two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. Moreover, the injuries (or combination of injuries) sustained by one plaintiff will never be the same as those incurred by another, in kind or severity. Additionally, the reaction of any two persons to the pain of a similar injury or to particular treatments will rarely if ever be the same. Other differentiating features may be the apparent length of the recovery period and, if the plaintiff has not recovered, the kind and extent of residual effects remaining from the injury at the time of trial, and whether any of the effects will be permanent.

[85]         I have reviewed the cases cited by counsel, in light of the facts which I have found. Due to significant differences, I see no useful purpose in discussing them. There is no legal formula which can be used to measure the amount of pain and suffering and loss of enjoyment of life that a plaintiff has experienced as a result of an injury caused by the defendant. In my opinion, the range of damages for non-pecuniary loss in this case is the range suggested by Mr. Dreyer, namely, $15,000 to $25,000.

[86]         The pain suffered by the plaintiff was never serious. He himself consistently described its severity as being one or two on a scale of ten. Within a few months after the accident, the symptoms became intermittent. Eventually, they became few and far between. The plaintiff was never disabled by the pain, to any significant extent. I must be careful not to penalize the plaintiff for being stoical in the face of pain. But I do not find that this is the case here. I award $20,000 for this head of damages.

When trying to determine how much your personal injury claim is worth the best thing you can do is read as many cases as you can dealing with similar injuries so you can determine a realistic range for your injuries.

One principle that has become clear in BC injury lawsuits is that ICBC’s LVI Policy of denying tort compensation in minimal vehicle damage accidents has no legal merit.  Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.

In today’s case (Mendoza-Flores v. Haigh) the Plaintiff was involved in 2 separate motor vehicle collisions.  She was injured in both.   ICBC accepted that the second accident caused some injuries but argued that the first crash “was incapable of causing the injuries complained of (by) the Plaintiff“.  Mr. Justice Harvey rejected this argument with the following useful comments:

[54] Regarding as the relationship between the damage to the two vehicles and the resultant claim for injuries suffered by one of the occupants, it is trite law that the fact that the damage to the plaintiff’s vehicle was minor does not lead to a conclusion that the resultant injuries are also minor: Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.).

The Court went on to award the Plaintiff damages for her injuries and loss including $40,000 for her non-pecuniary damages.   In reaching this figure Mr. Justice Harvey made the following findings:

[61]        In the result, I find that the plaintiff has experienced a moderate soft tissue injury which continues to cause both discomfort and poses problems in her employment to the present time.

[62]        The plaintiff never fully recovered from the effects of the first accident although it would seem, from the evidence, she was heading toward a complete resolution of her symptoms. Her symptoms just before the second accident were appreciably better than they are presently…

[67]        While unresolved to some extent, I do not view the evidence as proving the plaintiff’s injuries as permanent. Both from an investigative and treatment standpoint it appears there were, and are, further steps available to the plaintiff.

[68]        Reviewing her injuries and comparing them to the authorities I have been referred to, I conclude that $40,000 represents a proper global assessment of the plaintiff’s general damages arising from the two accidents.

You can click here to read my archived posts discussing other BC Court cases dealing with so-called Low Velocity Impacts.

Reasons for judgement were released today addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for 2 plaintiffs who suffered soft tissue injuries in a 2006 BC car crash.  I summarize the Court’s key findings in my continued effort to grow this public data base of damage awards in BC injury claims

In today’s case (Morrison v. Peng) the Plaintiffs (husband and wife) were rear-ended by a vehicle driven by the Defendant.  Fault was admitted leaving the Court to value the Plaintiffs’ injury claims.  Both suffered soft tissue injuries which lasted approximately one year.  In assessing the Plaintiffs non-pecuniary damages at $9,000 and $18,000 respectively Mr. Justice Masuhara summarized the injuries as follows:

[23] Having considered the evidence, I am of the view that Mr. Morrison suffered soft tissue injuries to his neck and back which can be characterized as mild, and that his symptoms resolved within a year.  Given my assessment of Mr. Morrison and the facts, my view is that he was able to do more than what he stated…

[26] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $9,000.

________________________________________________________________________

[42] Ms. Jabs’ condition is somewhat complicated by the several conditions that she has identified in the report.  Based on the foregoing medical opinion, I find that that she suffered soft tissue injuries to her neck, upper and lower back and that the symptoms she experienced resulting from the accident had a duration somewhat beyond one year of the accident.  Her chiropractic and massage treatments end at this point for about one year.  I would characterize her injuries as mild to moderate in severity. ..

[46] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $18,000.

Feel free to visit the soft-tissue injury archives of this site to review other BC cases addressing non-pecuniary damages for soft tissue injuries.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of a BC car crash resulting in whiplash claim with a likely zygapophyseal joint injury.

Zygapophyseal joints (also known as facet joints) are the interconnecting joints joining vertebral bodies to one another and it is not uncommon for injury to occur to these joints in motor vehicle collisions.

In this week’s case (Lamont v. Stead) the Plaintiff was involved in a rear end collision caused by the Defendant in Burnaby, BC.  Fault was admitted leaving the Court to deal with the extent and value of the injury claim.   The Defendant accepted he injured the Plaintiff however argued that these injuries substantially resolved within 9 months.  The Plaintiff disagreed giving evidence that her neck injury symptoms were ongoing through trial.

In support of her case the Plaintiff advanced evidence from Dr. Rhonda Shuckett, a well respected BC rheumatologist.  Dr. Shuckett testified that the Plaintiff likely had permanent injuries explaining as follows:

I suspect her left neck injury since the MVA is mainly attributable to soft tissue and perhaps zygapophyseal joint injury…It is already approaching two years since the subject MVA and she remains symptomatic. I think there is a good chance that she is going to continue with her current level of pain. She is not disabled but is impaired to some degree…

Mr. Justice Bernard accepted this evidence and awarded the Plaintiff damages accordingly.  In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering and loss of enjoyment of life) at $60,000 the Court made the following findings:

[30] The evidence establishes that the plaintiff’s prospects for any significant improvement in her neck pain are poor. As a consequence, she faces a considerably altered future; particularly as it relates to her life outside the workplace. Her chronic pain deprives her of much of the enjoyment she found in being physically active, in attending to her family, and in participating in family activities…

[35] In summary, I am satisfied that the plaintiff’s pain is chronic, partially disabling, and likely permanent. Similarly, I am satisfied that the evidence establishes that the plaintiff’s neck pain was caused by the defendant’s negligence, in the sense that it directly caused or materially contributed to it. There is a substantial connection between the plaintiff’s chronic neck pain and the collision, and the plaintiff has shown, on a balance of probabilities, that but for the negligence of the defendant, she would not have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[40]        The loss of enjoyment of life due to chronic neck pain is undoubtedly greater for Ms. Lamont than it would be for a person who has led a more sedentary lifestyle. Ms. Lamont has been actively engaged in strenuous sport throughout her adult life, and this has been a significant feature of life with her husband and children. It is, understandably, a source of great frustration and sadness to her that she has been deprived of the capacity to engage in most of the activities she loved, and to experience them with her family.

[41]        Given the relatively profound nature of the loss to this plaintiff (including compromised household management and parenting), the chronic pain which she must endure, the age of the plaintiff, and the very poor prospects for significant improvement, and, having regard to the similarities between the cases cited by the parties and the case at bar, I assess the non-pecuniary losses of the plaintiff at $60,000.