ICBC Law

When a Plaintiff suffers injuries by the fault of another but the evidence establishes that the person would have likely suffered the same symptoms of pain because of a pre-existing condition the Plaintiff’s award of damages can be reduced to reflect this reality.  This principle of personal injury law is known as the “crumbling skull” doctrine.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, dealing with this area of law.

In this week’s case (Booth v. Gartner) the Plaintiff was injured in a 2007 BC car crash.  The Defendant struck the Plaintiff’s vehicle when he entered an intersection against a red light.  ICBC admitted fault on behalf of the Defendant but disputed the extent of the accident related injuries.

At trial Mr. Justice Cole found that the accident caused a variety of injuries.  One of the most significant was low back pain which continued to the time of trial.  The Plaintiff did not have back pain before the car crash however she had severe pre-existing (although asymptomatic) facet arthritis in her low back.  The accident caused this condition to become painful.  The Court was persuaded that this condition had a likelihood of developing pain in the future even without the accident.  As a result of this finding the Court reduced the Plaintiff’s non-pecuniary damages by 25%.  In reaching this result Mr. Justice Cole reasoned as follows:

[23] I accept Dr. Vallentyne’s opinion that the degeneration in her lower back is severe at two levels and it is likely she would have been troubled by lower back pain and stiffness at some time in the future, absent Accident #2. However, I am also satisfied that although the degeneration is pre-existing, there was symptomatic acceleration of the facet arthritis as a result of Accident #2…

[26] The CT scan of September 20, 2008, according to Dr. Vallentyne, “showed severe bilateral degeneration of the facet joints at the L4-5-S1 levels in addition to a minor 3 mm L4-5 degenerative anterolisthesis”.

[27] According to Dr. Vallentyne, degenerative changes take years to develop and he found it was probable that the plaintiff had degenerative changes of her lower lumbar facet joints prior to the 2007 motor vehicle accident. He concluded that “[g]iven that the degeneration is severe at two levels, it is likely that Ms. Booth would have been troubled by low back pain and stiffness at sometime in the future absent the 2007 MVA.”

[28] I am satisfied that 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, and I must take that into account in reducing the overall award.

[29] The principle to be applied is found in Zaruk v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43 [Zaruk]. There the plaintiff had suffered a soft-tissue injury but some of her symptoms by the time of trial were consistent with degenerative changes. The Court was not satisfied that the general condition would have become symptomatic between the date of the accident and the date of trial, but concluded at para. 40, that there was a measurable risk that it would have become symptomatic in the future:

[40]   However, application of the crumbling skull doctrine may not result in the same reduction for past losses as future losses. Past losses must be assessed on the basis of a balance of probabilities. “Once the burden of proof is met, causation must be accepted as a certainty,” [Athey v. Leonati, [1996] 3 S.C.R. 458] ¶ 30). But for the assessment of future losses, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation,” (Athey ¶ 27)

[30] The Court then reduced non-pecuniary damages by 15% and future care damages by 20%.

[31] Because the plaintiff’s degenerative condition was described by Dr. Vallentyne as “severe bilateral degeneration”, I am of the view that a large deduction is appropriate in this case and I find an appropriate deduction for non-pecuniary damages is 25% and for future care damages, 30%.

As I previously wrote,  a great discussion of this area of the law was also provided in a recent case (Gohringer v. Hernandez-Lazo) where Madam Justice Russell summarized the law as follows:

[92] In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”: Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35.

[93] In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff.  An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured.  The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96.  Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32.  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94] I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages: A. (T.W.N.) at paras. 36-37; Barnes at para. 90.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reasons for judgement were released yesterday by the BC Supreme Court considering whether a pedestrian involved in a collision was at fault for not being visible enough to the motorist.

In yesterday’s case (Smaill v. Williams) the pedestrian was struck by a minivan while he was walking on a dirt road in dusk conditions.  When he heard the vehicle approaching he “took a few quick steps to the side out of the travelled path of the road”.  Unfortunately he could not get out of the way and was “thrown up onto the hood, striking his back and shoulders, and then was thrown to the ground on his hands and knees“.

The Defendant argued that the Plaintiff was partially at fault for the accident for wearing dark clothing, not having a flashlight and not wearing a reflective traffic vest.  Madam Justice Russell rejected this argument and in doing so provided the following reasons:

[68] I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.

[69] I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.

[70] I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.

[71] I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.

[72] I find no contributory negligence on the part of the plaintiff.

The Plaintiff suffered some serious injuries to his spine which were expected to cause some permanent restrictions.  In valuing the non-pecuniary damages at $100,000 the Court summarized the injuries and their effect on the Plaintiff’s life as follows:

[62] I accept the evidence of Dr. McKenzie.  I found him to be a careful and persuasive witness.  I accept his medical finding that the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an injury to the sacroiliac joint and that formerly asymptomatic disc bulges and protrusions became symptomatic as a result of his injuries.  I accept that the plaintiff has proved on a balance of probabilities that the symptoms, including non-specific back pain that he currently suffers from, including disc protrusion, were caused by the first accident and the pain from those injuries was aggravated by the second accident.

[63] While none of the doctors could say with certainty that the disc problems were caused by the accident, this is not the standard required.  Dr. McKenzie testified, and I accept, that it is more probable than not that they were caused by the injury.  This is supported by the evidence of Dr. Dercksen who noted the injuries were more than normal degeneration for someone of the plaintiff’s age.

[64] Therefore, I agree with the plaintiff that, on a balance of probabilities, but for the negligence of the defendants, the plaintiff would not have sustained the injuries that he did, and  the plaintiff has met the test for causation:  Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 18-28, [2007] 1 S.C.R. 333. ..

[87] As a result of these accidents, the plaintiff sustained significant injuries and suffered from a great deal of pain, for which he is entitled to recover damages.  However, while I have the greatest sympathy for the plaintiff’s emotional suffering, there is evidence before this Court that this is a pre-existing condition from which the plaintiff had already been suffering and therefore this is not a ‘thin-skull’ situation.  The defendants are not liable to compensate the plaintiff for a condition which was already manifest at the time of the accident.

[88] In light of the plaintiff’s suffering, and taking into consideration his pre-exisiting condition and its contribution to his chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.

A common set of facts Courts grapple with in ICBC Injury Claims is when an accident causes a Whiplash Injury and also causes pre-existing but symptom free neck degeneration to become painful.  Reasons for judgment were released today by the BC Supreme Court dealing with exactly these facts.

In today’s case (Prednichuk v. Spencer) the Plaintiff was involved in a 2004 BC Car Crash.   The Defendant was travelling at about 100 kmph when he lost control and the collision occurred.   He was found 100% responsible for the collision.   In addressing the Plaintiff’s damages the majority of the medical evidence focused on the extent that this accident was responsible for the Plaintiff’s degenerative neck condition.  Dr. Hershler, a specialist in physiatry gave the following opinion evidence which was largely accepted by the court:

[80]         In Dr. Hershler’s opinion, the accident caused the following musculoskeletal injuries, which fall into three diagnostic categories:

(1)   Musculoligamentous injury to the lower region of her cervical spine (moderate severity);

(2)   Musculoligamentous injury at the thoracolumbar junction (moderate severity);

(3)   Mild bilateral carpal tunnel syndrome….

[83]         Dr. Hershler’s overall view is that while the spinal degenerative changes were probably present before the accident occurred, it is more likely than not that the accident accelerated their development and rendered them symptomatic.  Dr. Hershler clarified that, in his view, had the accident not occurred, it is not likely that Ms. Predinchuk would have developed the same degree of cervical degeneration and that, in all probability, her degenerative condition was contributing to her pain.

[84]         In Dr. Hershler’s view, the prognosis for Ms. Predinchuk’s complete recovery is guarded.  He believes it more likely than not that she will continue to have to deal with some level of symptoms indefinitely.  At the same time, however, he stated that he would not rule out completely the prospect of further healing and additional improvement occurring over the next two years.

In assessing the Plaintiff’s non-pecuniary damages at $80,000 Madam Justice Ballance of the BC Supreme Court made the following findings and highlighted the following facts:

[105] Based on the evidence as a whole, I conclude that, in all probability, the accident caused Ms. Predinchuk’s soft tissue injuries to her neck, back and shoulders, her headaches and intermittent arm and hand numbness.  I conclude also that the accident caused the formerly dormant degenerative condition throughout Ms. Predinchuk’s spine to become symptomatic, which has added another component to her overall discomfort and pain and the chronicity of her symptoms….

[113]     Members of Ms. Predinchuk’s family and her friends testified at trial.  Without exception, their evidence was reliable and credible.  Their evidence, in conjunction with testimony of Ms. Predinchuk, Ms. Chu, Mr. Mason and Mr. Markus, establishes that before the accident Ms. Predinchuk was a highly industrious, successful businesswoman with many recreational interests and pursuits.  She was self-confident and strong with an established social network.  She was “house proud” and spent considerable energy maintaining and improving her homes over the years.  She kept a garden and did most small household repairs herself.  Over the years, Ms. Predinchuk had painted her various homes, removed wall-to-wall carpeting, sanded wood floors, laid ceramic tile and laminate flooring, jack-hammered a wall, installed cupboards, drywalled a play room for her grandchildren, and tiled a fireplace surround.  I accept that she had no physical limitations in carrying out those activities and enjoyed performing them.

[114]     Ms. Predinchuk’s life at work and outside of work changed dramatically after the accident.  Her impairments with respect to work with Crown have already been canvassed.  In terms of her non-work activities, I find that she significantly curtailed her participation in the social activities that she had once enjoyed, such as line dancing, playing bingo and cards and dinner parties with friends.  She became increasingly reclusive.  Her energy levels became markedly depleted after the accident, and have never fully revived.

[115]     Ms. Predinchuk’s daughter-in-law, who has known her for 26 years, testified that currently Ms. Predinchuk does not accomplish half or even a quarter of the activities that she previously carried out in a typical day.  She routinely complains of a sore neck, back and arm, and avoids driving.  I accept that Ms. Predinchuk’s worry over driving has prevented her from driving across town to see her grandchildren and son as much as she would like.  She no longer hosts large family dinners on her own, which was a long-standing tradition that she assumed from her mother and which she enjoyed immensely before the accident.

[116]     For a self-made and self-sufficient woman like Ms. Predinchuk, her perceived loss of independence due to a weakened body and difficulty performing her work, doing mundane chores and driving is especially distressing, and continues to bother her deeply today.

[117]     I find that the physical symptoms caused by the accident have brought about unwelcome and disruptive changes to the enjoyment and quality of Ms. Predinchuk’s life and continue to do so.  She is an older plaintiff and has not recovered the way a younger person might have.  While her symptoms have clearly improved, the prognosis for a full recovery is poor.  Ms. Predinchuk is not the woman that she was a moment before the accident occurred and probably never will be again.

[118]     A tragedy occurred in Ms. Predinchuk’s family in 2006.  There was a mild suggestion made by counsel for ICBC that certain aspects of Ms. Predinchuk’s apparent unravelling could be attributed to that.  The evidence does not support that contention, and I reject it.

[119]     Ms. Predinchuk seeks an award for non-pecuniary damages in the range of between $80,000 and $125,000, and has provided case authorities in support.  The defendants have provided case authorities favouring significantly smaller awards.

[120]     Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to Ms. Predinchuk’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

Today reasons for judgment were released by the Vancouver Registry of the BC Supreme Court in 2 separate Injury Claims where Pain and Suffering was valued.  In each case the Plaintiffs suffered different injuries which affected their respective lives to different degrees.  Yet both Plaintiffs were awarded exactly $55,000 for their non-pecuniary damages.  How can this be?  The answer is that valuing claims for pain and suffering is an art, not an exact science.

When asking a personal injury lawyer how much a claim for pain and suffering is worth it is difficult  if not impossible to value a claim at an exact dollar figure.  The only accurate answer is “whatever the judge or jury gives you“.  Instead of attaching an exact dollar figure to any claim personal injury lawyers learn that claims can best be valued within an approximate range of damages.  One judge can award a plaintiff $50,000 for a disc herniation and another can award a plaintiff with the exact same injuries $80,000 and there is nothing wrong in law with this so long as the award falls within the accepted range of damages for similar injuries.

Today’s cases demonstrate this quite well.  In the first case (Morrison v. Gauthier) the Plaintiff was injured in a 2006 BC Car crash.  Her vehicle was rear-ended in Coquitlam BC.  The Defendant was fully at fault for the crash.

The Plaintiff suffered fairly severe injuries which included an L4-5 disc herniation which from time to time “puts pressure on the L4 nerve root and that the result for the plaintiff is not just pain in the low back - which is always her lot - but intense pain that, amongst other things, travels down the back of her leg“.  In addition to this the Plaintiff suffered soft tissue injuries and a concussion in the collision.

Mr. Justice Stewart found that the effects of the Plaintiff’s back injuries were likely permanent and had a rather profound impact on her.  He stated that “the effect…on the Plaintiff’s life was dramatic…her capacity to (keep her work and home environment in order) has been severely reduced . ”  He went on to find that the Plaintiff was incredibly athletic before the collision and “was a woman who on the basis of the evidence placed before me, I can only describe as a dynamo” and as a result of the car crash “she became…ornery.  She withdrew from her friends.  She became moody and - stunning for her - one who sat idly watching television and gaining unwelcome weight.  To some extent she became - utterly new to her - a chronic complainer.”  Lastly he stated that (the defendant) “managed to reduce a woman operating at an athletic level undreamt of by 99% of the population to a woman who must now, often, be helped out of a chair.  (the Plaintiff’s) compensable loss if overwhelming“.

Mr. Justice Stewart awarded the Plaintiff $55,000 for her non-pecuniary damages.,

In the second case (O’Rourke v. Kenworthy) released today by the BC Supreme Court the Plaintiff was involved in a 2004 BC Car Crash.  The Defendant was 100% at fault.  Madam Justice Wedge found that the Plaintiff was injured in the crash.  Specifically the court found that the Plaintiff suffered from neck and back pain which was “severe for several months, which then alleviated considerably over the next year or so.”  The Plaintiff curtailed many of the physical activities which she enjoyed by after about a year she “resumed most of these activities despite continuing ot experience pain“.   By the time of trial she “continued to have pain in her neck and back, but it is not disabling.  She has been able to work, and she is currently able to work.  She participates in numerous sporting activities and continues to hike, which is her first love.  She has continued to travel extensively.   No medical professional offered the opinion that (the Plaintiff’s) pain is chronic in nature, or that it is caused by anything other than soft tissue injuries.  They all agreed that her symptoms are expected to improve and will likely resolve gradually over time…At most (the Plaintiff) is at risk of suffering exacerbation’s of her pain if she engages in certain rigorous activities.”

Scrutinizing the facts of the above two cases the first Plaintiff appears to have suffered more severe injuries which had a more profound effect on her life.  Yet both were awarded the exact same figure for pain and suffering.  This does not necessarily mean that either award was wrong in law, rather the difference can readily be explained by the fact that pain and suffering awards are assessed within rather large ranges of acceptable damages.  A more severe injury valued on the lower end of its respective range of damages can equal a more minor injury valued on the generous end of its range.

In the end, cases like this speak to the art of assessing pain and suffering in BC Injury Claims.  As with any art ‘feel‘ becomes important and this is gained through time and experience.  The more cases you read, the better you will get at the art of valuing non-pecuniary damages and determining the potential value of any given BC Injury Claim.

Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, awarding total damages of just over $95,000 as a result of a 2005 BC Car Crash.

In today’s case (Mar v. Young) the Plaintiff was rear-ended while in a vehicle on the Island Highway near Nanoose, BC.   Fault was not formally admitted.  Mr. Justice Bracken found the rear vehicle 100% liable for the collision.

A physiatrist who gave evidence on behalf of the Plaintiff explained that he suffered from mechanical spine pain as a result of the collision and this was different from a soft tissue injury because “mechanical spine pain originates in the tissues that are part of the spine itself and not the muscle or soft tissue that surround the spine.  These tissues lay quite deep under the skin and provide support for the spine itself.”

In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Bracken summarized the accident related injuries and their effect on the Plaintiff’s life as follows:

[37] On all of the evidence I conclude that the plaintiff suffered injuries to his thoracic and lumbar spine and that while his condition has improved he has not yet fully recovered.  The physical examinations conducted by Dr. Wahl and Dr. McKean indicate that the plaintiff has good range of motion of his neck and hips, but that he still has pain in his mid and lower back.  Both doctors testified that the plaintiff says that his pain and discomfort prevents him from carrying out his normal day-to-day activities of work and recreation, but the doctors disagree on his prognosis.  Dr. McKean considers it quite possible that the plaintiff will continue to experience some pain that will affect him for the foreseeable future.  Dr. Wahl is more optimistic and believes that there will at least be significant improvement and possibly full recovery.

[38] I find that the plaintiff still experiences pain 4 years post accident and it is likely that he will do so for some time to come.  It is clear from the evidence that he can carry out many of his normal activities, but not without some pain.  He has limited many of his activities somewhat and says that he is still prevented from participating in others.  There is no supportive objective medical evidence other than the disc bulge and early degeneration in the lumbar spine that Dr. Wahl considered to be within the normal range for the plaintiff’s age.  The plaintiff has been able to continue working, at times for long periods at a time, but he has experienced pain and discomfort and says that he must get up and move around and stretch at frequent intervals to ease his discomfort.  Former co-workers corroborate his evidence on his work related limits.  He purchased an expensive chair for use when he is working at his computer, but while it helps him, it does not completely eliminate pain and discomfort.

[39] The defendant noted that the plaintiff seemed to move easily and without obvious pain while he was in the courtroom.  I agree that the plaintiff seemed to have a reasonable range of flexibility when rotating from his hips and he could move his arms easily.  That does not seem inconsistent with the observations of both Dr. McKean and Dr. Wahl, but both note that the plaintiff continues to complain of pain in the mid to lower back.  The plaintiff testified that he still experiences some pain in that part of his back and his wife and friends corroborate his evidence.  There is no evidence before me to contradict that evidence.  No doubt the injuries have taken some time to resolve, but I accept that the plaintiff still has some pain and discomfort from the injuries caused by the accident.

[40] While each of the cases referred to above were cited as cases that had similar fact patterns, as it was stated in Tong v. Sidhu, above, no two cases are exactly alike and in the final result each case stands on its own facts.  In this case I find that the plaintiff’s injuries are more serious than the range suggested by the defendant.  The injuries have lasted with diminishing disability for 4 years and will likely continue to affect the plaintiff for a considerable period of time to at least some degree.

[41] The plaintiff has a sedentary job and to some extent that is an advantage as he is not likely to be exposed to the need for any hard physical labour in the course of his work.  However, he will likely spend the majority of his working life sitting at a desk working on a computer.  The impact of even mild pain or discomfort in his back will be a problem that will affect his concentration and ability to focus on his work.  He will have to take frequent short breaks from his work to compensate.  He will be at least somewhat limited in his recreational and home maintenance activities, although I accept Dr. Wahl’s view that the impact of his injuries will likely diminish over time as his condition improves and his disability lessens.

[42] On all of the evidence, it is my view that an award of $50,000 is appropriate for non-pecuniary damages.

Reasons for judgment were released today by the BC Supreme Court (JFC v. Ladolcetta) awarding a Plaintiff just over $500,000 in total damages as a result of a serious BC motor vehicle collision.

The Crash occurred in 2005 and was a near head-on collision for which the Defendant was found 100% at fault.  As a result of this crash the Plaintiff suffered various serious injuries including a compression fracture in the low back, a brain injury with post concussive problems and various cuts, bruises and soft tissue injuries.

The majority of the judgement dealt with the Plaintiff’s pre-existing psoriasis and psoriatic arthritis and the extent to which this was affected by the collision.

Mr. Justice Brown concluded that in addition to the above serious injuries the Plaintiff’s pre-existing conditions were made significantly worse by the car crash.   The Plaintiff’s non-pecuniary damages were assessed at $150,000 although this award was then reduced to $120,000 to account for the plaintiff’s ‘failure to mitigate’.

In summarizing the Plaintiff’s accident related injuries and their effect on his life Mr. Justice Brown found as follows:

[112] I find no sufficiently persuasive reason to doubt that the plaintiff sustained significant soft tissue neck, thoracic, lumber spine, right shoulder, ankle, right knee and other soft tissue injuries, as set out in paragraph 3 of these reasons, together with a compression fracture in the lumbar spine, and ongoing sequelae. The ultimate residual effect of these injuries absent the influence of the plaintiff’s psoriatic arthritis will have to wait on the full remediating effects of medication, unfortunately unknown to the date of trial. However, given the history and opinions in this case, I find that the evidence supports a finding that, more likely than not, he will continue to experience some residual symptoms that may be alleviated to a degree by further therapy….

In this case, a belief based on clinical experience that physical or psychological trauma can initiate or influence the course of both psoriasis and psoriatic arthritis, is one, based on the sufficiently weighty evidence heard in this case, widely held among dermatologists and rheumatologists in their respective fields…

[153] Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis…

I find the evidence, including the plaintiff’s, persuades that the plaintiff’s psoriasis and psoriatic arthritis worsened sufficiently soon after the accident…

[158] What is important here is that the evidence sufficiently establishes that the plaintiff was struggling when he returned to work in mid-February 2006 experiencing joint pain and limitation that he thought he needed to hide for the sake of job security. He saw some improvement in the summer, to be expected because of the sun’s benefits and the fact that he had most of June and July off work, presumably a time when he golfed and was in the sun more. As it is, I note that by early October 2006, he saw Dr. Hong, reporting a flare-up. I accept the plaintiff’s evidence that over-all he had experienced a change in the pattern of the disease from a slow gradual worsening over time between treatments to one of intense flares involving both skin and joints. The basic pattern and course of the disease had manifestly altered; I accept the plaintiff’s evidence that pre-accident he never had to abrade the skin for over two hours each day; that the plaques and other aspects of the disease had taken on an aggressive flaring pattern. This is not to overlook the fact that the worsening condition went largely untreated, which likely worsened his situation; but that points to questions of mitigation discussed below.

[159] Further, as also discussed below, I find that the evidence well establishes that accident-induced ongoing emotional trauma and persistent stress are the pre-dominant and most significant exacerbating factors of both the plaintiff’s psoriasis and psoriatic arthritis.

[160] I also reject the defence argument that the onset of psoriatic arthritis suffered by the plaintiff was too temporally removed from the accident to be related to it. There is sufficient accepted evidence to show that the plaintiff’s psoriatic arthritis flared within a few weeks of the accident and involved new areas and that to the date of trial he has not returned to his pre-accident level of functioning…

[216] It must be borne in mind that although the plaintiff in this case did suffer from a psoriatic arthritis condition pre-accident, it was very mild; and he was able to work in what were heavy labor intensive positions. Accepted evidence indicates that the plaintiff’s condition, both in relation to his psoriasis and psoriatic arthritis, were set upon a new and more aggressive course after the accident. This was not a short term exacerbation—which said, is not to over look the contribution that the plaintiff’s failure to seek or follow treatment advice played in his worsening condition psoriasis. Further, I find that the plaintiff suffered significant sequelae from his brain injury; and further, and very significantly, as earlier explained, that his other physiological and emotional accident-induced stressors amplified his symptoms, which gradually became worse over time. He has obviously suffered a serious depression and remains vulnerable in that regard. Moreover, he suffered significant soft tissue injuries, the ultimate prognosis for which is not certain. As Dr. Shahid explained, most people do make a good fairly uneventful recovery from compression fractures and are able to return to work; but a significant proportion of those people continue to suffer pain and disability and some of those are unable to return to labor intensive work.

[217] Further, the plaintiff has suffered a substantial loss of enjoyment of life, is now unable to participate in golf and other activities he enjoyed before the accident. With successful treatment, he may be able to return. As I view the evidence, his suffering, both physiological and physical, has been quite intense, albeit partly in relation to his failure to follow treatment recommendations.

[218]     Considering all of the evidence and the submissions of counsel, for non-pecuniary damages I award $150,000, and taking into account the plaintiff’s failure to mitigate before the date of trial, reduced to $120,000.

In addition to the above, today’s case contained an interesting discussion of causation when it comes to traumatic injury.  Often in ICBC Injury Claims different experts come to different conclusions as to the reasons for a Plaintiff’s disabilities.  In this case there was a debate whether many of the Plaintiff’s problems were due to a head injury, depression, chronic pain or perhaps other causes.  Mr. Justice Brown gave useful reasons holding that it is not necessary to pigeon-hole a Plaintiff’s injuries into specific categories to find that a compensable loss occurred.  Specifically he stated as follows:

I find the conclusion that most accords with the testimony and medical evidence that I have accepted is this: All of the plaintiff’s injuries and associated symptoms, including those from his mild concussive frontal lobe injury, his subclinical PTSD and its symptoms, the stress and anxiety he experienced related to pain from his soft tissue injuries, his incrementally worsening psoriasis and psoriatic arthritis, and his inability to work operated over time to produce a serious depression. These factors in varying degrees punctuated the plaintiff’s experiences from the time of the accident onwards, and produced the levels of psychological stress that produced the ongoing exacerbation of the plaintiff’s condition that plaintiff experts identified as the cause of the worsening of the plaintiff’s psoriasis and psoriatic arthritis. Given the extensive evidence heard, I find this consilient view of the evidence and medical opinions removes the need to reduce judicial findings to specific diagnostic categories; at the same time more accurately reflecting the actual subjective experiences of the plaintiff. These causative stressors were caused directly or indirectly by the accident, subject to consideration of mitigation arguments.

The above quote, particularly the bolded part, could prove persuasive in ICBC Injury Claims where experts agree that a Plaintiff suffers a deterioration in health and functioning following a colliison but cannot agree on the exact medical cause for the same.

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court.  Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.

4 cases worth noting were released today by the BC Supreme Court.  The first deals with the issue of fault and the others deal with damages (value of the the claims).

In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident.  She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.

The Plaintiff had a stop sign and was the ’servient driver’.  The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so.    Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”

The court also found that the Defendant was speeding.  The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10^th at between 83.5 and 86 km/h as he approached the Intersection.  He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street.  The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred.  I also find fault with Mr. Peck for failing to keep a proper look-out.  He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way.  That is why he did not see her pull into the Intersection when he was 62 to 65 metres away.  The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes.  To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him.  Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration.  The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres.  Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff.  This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.

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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.

In this case the Plaintiff was injured in a 2005 BC Car Crash.   In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:

88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages:   $45,000

Income Loss:  $8,771.97

Future Loss of Opportunity:  $30,000

Special Damages:  $12,045.96

Cost of Future Care:  $5,500

Loss of Houskeeeping Capacity:  $3,721

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The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“.   Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘.  Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do  to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate“

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms.  I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries.  I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi).  There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present.  Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found.  It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear.  However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal.  Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC.  Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision.  With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury.  She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling.  The Accident aggravated the existing condition of her spine.  The nature and extent of her symptoms changed.  The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004.  I accept Dr. Matishak’s opinion as the treating surgeon.  He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck.  He was cross-examined extensively on the issue.  He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident.  She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent.  She worked at physically demanding jobs without experiencing low back pain.  In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic.  She continued to experience pain from the date of the Accident onwards.  However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure.  Drs. Watt and Matishak were cross-examined on this issue.  Both maintained that this fact did not cause them to alter their opinions.  They both noted that there were symptoms of radiating leg pain shortly after the Accident.  Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case.  The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries.  I have found that the symptoms and back pain were caused by the Accident.  Those symptoms persisted and became chronic.  The conservative treatment attempted did not provide relief.  Consequently, Ms. Sanders chose surgery.  The fact that three surgeries were required was a direct result of the condition of her spine after the Accident.  In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses.  What this means is a Plaintiff must take reasonable steps to minimize their losses.  If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.

In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision.   Fault was admitted by the driver of the Plaintiff’s vehicle.   The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision.   Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘.  The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided.  A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant.  See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it.  The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen.  Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise.  In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment.  On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries.  The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong.  Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later.  This is not evidence of a person anxious to obtain psychological treatment.  Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2^nd medical-legal report) but failed to take any immediate steps in that regard.  The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work.  She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.