ICBC Law

When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports.  An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“.   The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.

In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision.  The Defendant ran a stop sign and admitted fault for the crash.   The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc.  The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial.  The Defendant argued that the report was responsive and should be admitted.  Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4).  In excluding the report the Court provided the following reasons:

[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon.  The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.  Counsel for the defendant relied upon rule 11-6 (4), which reads:

(4)        Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a)        the responding report, and

(b)        notice that the responding report is being served under this rule.

[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party.  It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3).  Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.

[23] In this case, I found that the report was not limited to true responsive evidence.  It stated the author’s opinion on the nature and cause of the plaintiff’s injury−the central issue that both sides had to address from the outset−and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report.  As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3).  I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.

The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:

[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation.  To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident.  I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…

[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life.  She has back pain on a daily basis, fluctuating according to her activities.  She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain.  The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…

[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.

In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.  Fault for the crash was admitted focussing the trial on assessing damages.

Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.

The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome.  The Court accepted that the Plaintiff would likely not work in his profession again.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:

[117]     I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….

[155]     The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.

This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.

Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle.  Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records.  The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called.  The Defence asked the Court to draw an adverse inference.  Mr. Justice Pearlman refused to do so and provided the following helpful reasons:

[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.

Reasons for judgement were released yesterday by the BC Supreme Court, assessing damges for non-pecuniary loss (pain and suffering and loss of enjoyment of life) for an L4-5 disk herniation.

In yesterday’s case (Doho v. Melnikova) the Plaintiff was involved in two seperate collisions.  Fault was admitted in both actions leaving the Court to assess damages.  The first collision caused a disk injury at the 4-5 level of the Plaintiff’s lower spine.  The second collision resulted in a minor aggravation of this.

The prognosis for recovery was poor and the Plaintiff was expected to experience ongoing pain and discomfort in his lower back as a result of the first collision.  In assessing non-pecuniary damages at $80,000 for the first collision Mr. Justice Rogers provided the following reasons:

[38] The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.

[39] I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.

This case is also worth reviewing for the Court’s discussion of the principle of ‘failure to mitigate‘ at 49-53.

(UPDATE November 18, 2011 - The case discussed below was upheld in reasons for judgement released today by the BC Court of Appeal.  These can be accessed here)

Reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, discussing the duties of landlords to take reasonable steps to make sure buildings they own are safe for tenants and guests.

In today’s case (Jack v. Tekavec) the Defendant owned an apartment in Gold River, BC.  He rented this out to a third party who invited the Plaintiff over.  While visiting the Plaintiff “leaned against a balcony railing which gave way.   (He) plummetted three stories to the ground and was badly injured“. The Plaintiff sued the building owner arguing he was careless for failing to keep the balcony railing in good repair.  Mr. Justice Savage agreed.  In finding the Defendant at fault for the Plaintiff’s injuries the Court stated as follows:

[38]         The evidence establishes that the defendant, as owner and operator of the apartment block, is a landlord pursuant to s. 1 of the RTA.  I find that the defendant is responsible for the repair and maintenance of the deck and owes a duty of care pursuant to s. 6 of the Act to the guests of his tenants including Jack.

[39]         That duty of care includes, in my opinion, a duty to inspect.  The duty to inspect is part of the duty of the landlord to take reasonable care in carrying out the responsibility for the repair of premises under the Act. ..

[44]         In this case the defendant knew of a problem with the balcony railing before the tenancy commenced.  The tenants requested that he repair the balcony railing but he chose not to do so.  The defendant was also aware that the tenant, through Billy, took it upon herself to effect a repair when he did not respond to the requests.  The defendant saw that the work done by the tenant was not done properly.

[45]         The defendant knew that Billy, who did the work, was not skilled.  Although this repair was his responsibility, as the landlord responsible for maintenance, and he knew the work was done wrongly, he chose not to fix it.  He was well aware of the danger of improper work on the balcony railing.

[46]         In my opinion Tekavec owed a duty of care to Mark and to Mark’s guests including Jack.  The standard of care required that he respond to requests of tenants to inspect the tenanted premises regarding the safety problems they raised.  The standard of care also required that, if a tenant did work on a balcony railing that he saw was wrongly done, that he inspect and repair or cause to have repaired the balcony railing himself.

[47]         By choosing inaction he breached the standard of care of a reasonable landlord responsible for such maintenance.  His breach of the standard of care was a direct cause of the accident and Jack’s injuries.

[48]         In the result, I find Tekavec liable to Jack for damages.

The Plaintiff’s damages included an award of $100,000 for non-pecuniary loss.  In arriving at this figure the Court noted the extent and severity of the injuries which were summarized as follows:

[15] Briefly, Jack’s multiple injuries included a broken pelvis, fractured ribs, fractured vertebrae, and internal injuries resulting in hernias.  While in hospital he developed pneumonia requiring a tracheotomy.  His pelvis fracture required a metal plate and screws.  He pelvis fracture healed but he has lost 2” in height.  He now weighs less than 200 lbs and walks with a slight limp.  After six months he returned to work but is now unable to do heavy lifting.  ..

[63]         I have earlier briefly described Jack’s injuries (paras. 13, 14, and 15).  I will not repeat that description here.  His diagnosis was as follows:

(a)        Vertically instable fracture of left side of pelvis involving fractures of the sacrum and symphyseal disruption;

(b)        Stable disruption of the right SI joint; bilateral transverse process fractures of L4 and 5 vertebra; left transverse process fractures of the Li and L2 vertebra;

(c)        Cecal volvulus resulting in right hemicolectomy; facial fractures not requiring intervention;

(d)        Post trauma aspiration pneumonia with respiratory compromise requiring tracheostomy;

(e)        Fracture of left 9^th and 10^th rib;

(f)         Post operative problems included mild infection of lower part of the abdominal incision; incisional hernia requiring surgery; mild malunion of let hemi pelvis resulting in 1 to 1.5 centimeter shortening of left leg; degenerative changes at the lumbar spine involving L4-5 and 12-S1 levels.

(g)        Pelvic x-rays revealed slight malunion with the left hemi-pelvis being approximately 1 to 1.5 centimeters higher than the right; posterior screw is slightly bent in keeping with this shift in position; hip joints are normal on x-ray; lumbar spine x-rays show degenerative changes at L4-5 level and L5-S1 level. …

[70] In my view, an appropriate award in these circumstances for past and future pain and suffering, loss of amenities and other non-pecuniary losses is $100,000.

(UPDATE: February 3, 2012 - The below cost of care award was reduced somewhat in reasons for judgement released by the BC Court of Appeal)

Important reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, recognizing the real financial toll that catastrophic injuries can cause.

In today’s case (O’Connell v. Yung) the Plaintiff was seriously injured in a 2007 motor vehicle collision.   Her car was struck by a tractor-trailer pinning her vehicle against the Massey Tunnel.  The injuries were extensive and these included traumatic brain injury, a cervical spine fracture, fractures to her right femur, ankle, tibia, fibula, toes, ribs, nose and sternum.  The Plaintiff also sustained injury to her spleen and liver. These left the Plaintiff with chronic pain and serious dysfunction requiring a high level of daily supervision and care.

The Plaintiff initially received such care from a ‘personal care worker’, however she was uncomfortable having strangers tend to her for prolonged periods and eventually her husband of many years took over the role as primary caregiver.  This amounted to full time work.

The biggest issue at trial was the Plaintiff’s accident related future care needs.  The Plaintiff sought compensation for the fair value of hiring individuals to provide her with the care she needed.  The Defendant argued that “any award for the future cost of personal care must be reduced to take into account the fact that Mr. O’Connell is present in the household to provide supervision and guidance and a contingency can be factored in to address the possibility that he will at some point be unable or unwilling to continue to provide this care“.

Madam Justice Fisher rejected this argument and went on to award the Plaintiff $2.25 million dollars to compensate her for her  future care needs.  In doing so the Court provided the following useful reasons:

[124]     I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell.  Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her.  A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

[125]     The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services.  The majority of the court stated at p. 75:

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

[126]     In McTavish v. MacGillivray, 2000 BCCA 164, the court was also dealing with an award for the loss of housekeeping capacity, both past and future, and interpreting and applying the principles set out in Kroeker v. Jansen.  At para. 43, Huddart J.A. stated:

.. the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[127]     While Kroeker was restricted to housekeeping services and, as Huddart J.A. noted, the court did not adopt the analogy with future care as a general rule, it is my opinion that the same principle can be applied in the circumstances of this case with respect to personal care services that may or may not be hired in the future.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $240,000 in total damages as a result of injuries and loss sustained in a BC motor vehicle collision.

In last week’s case the Plaintiff was involved in a 2006 collision.  She was not at fault for the crash.  She sustained physical injuries which included a disk protrusion in her neck.  She also suffered from a pre-existing psychiatric illness (bipolar disorder) which was significantly aggravated as a result of her crash.  The Court assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000.  In doing so Mr. Justice Willcock provided the following reasons:

[126] I accept the evidence of  (the Plaintiff’s) treating physicians that she sustained injury to the musculoligamentous structures of her right neck and shoulder area and that she now suffers from a disk protrusion at the C5-C6 level that may become increasingly symptomatic. Dr. Sahjpaul, the witness most qualified to address the cause and effect of the disc protrusion believes the MRI suggests some cord compression but is not convinced that the plaintiff’s symptoms are entirely, or even significantly a result of that cord compression. I accept his conclusion that the plaintiff has neck pain and right shoulder and arm pain and weakness which is a combination of a soft tissue injury and some irritation of the nerve root at the C5-6 level. I further accept his conclusion that the motor vehicle accident was causative of the plaintiff’s symptoms.

[127] I find that since the accident she has suffered mechanical neck, shoulder, mid-back, and low back pain, weakness, and tenderness. Despite that pain and weakness, she has demonstrated on examination by her physicians that she has relatively normal range of motion. Only minimal back muscle wasting has been noted.

[128] (the Plaintiff) perceives that her persistent back pain limits her ability to engage in tasks that require prolonged static or awkward positioning, including twisting, reaching, or stooping. It is noted, however, that (the Plaintiff) has difficulty with self-assessment and is prone to overestimate the extent of her disability.

[129] I accept the opinion of Dr. Adrian that (the Plaintiff) will probably continue to experience difficulty performing activities that place physical forces on the structures involving her neck and back, but find that (the Plaintiff) is limited as much by psychological as by physical symptoms. While her pain has been chronic there is some indication that with therapy the psychological component of her symptoms is at least temporarily improving.

[130] I accept the evidence of Dr. Adrian and Dr. Sahjpaul that there is a risk that the C5-6 disc will cause increasing pain over time. (The Plaintiff) may require surgical intervention as a result of the obvious and problematic C5-6 herniation seen on the MRI…

[145] The accident in this case has had a significant effect on (the Plaintiff’s) life. I am satisfied on the evidence that she suffered from a significant bipolar affective disorder that required monitoring and medication prior to the motor vehicle accident but that that disorder was significantly exacerbated to the point that she became significantly disabled by her illness from 2006 to 2009. While she is under reasonable control at the moment, her significant depressive and manic episodes have made her more prone to relapse. In addition, she has a physical injury that continues to trouble her and a disk protrusion that may become more symptomatic in the future. Taking into account the likelihood that she would to some extent have suffered from increasing symptoms of bipolar disorder, I am of the view that non-pecuniary damages should be set at $90,000.

In addition to the above, the decision is worth reviewing in full for the Court’s comments about the expert psychiatrist retained by the Defendant.  The Defendants argued that any worsening of the Plaintiff’s bipolar disorder was not a result of the collision, rather it could be better explained by “chronic family stresses, non-compliance with treatment, and pregnancy“.   In support of this argument the Defendant’s relied on Dr. Solomons, a psychiatrist retained by the Defence.  Mr. Justice Willcock rejected this argument and in doing so provided the following criticism of Dr. Solomons opinions:

Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident. He erroneously concluded that (the Plaintiff) had not described the traumatic effect of the accident and its emotional consequences to her physicians, or sought psychiatric help. In cross-examination Dr. Solomons acknowledged deficiencies in his review of the records and misunderstanding of (the Plaintiff’s) history and treatment. While he expressly describes pregnancy as a factor contributing to the increase in symptoms of bipolar illness he does not consider the fact that (the Plaintiff’s) one specific worry during the pregnancy was the possibility of a miscarriage or birth defect due to the motor vehicle accident… I reject most of Dr. Solomons’ opinion

Just last month the BC Supreme court criticized another psychiatrist retained by defence counsel in injury litigation.  Since medico-legal experts generally enjoy immunity from lawsuits if they are careless in expressing their opinions, judicial criticism is a welcome development which can help keep privately retained expert witnesses in-line.

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.