ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘back injury’

Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce

October 30th, 2010

Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.

When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.

The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.

The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.

Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.


ICBC's Low Velocity Impact Program – Not a "Legal Principle"

March 24th, 2010

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.

In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”

In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.


$45,000 Non-Pecuniary Damages for Soft Tissue Injuries to Back, Neck and Shoulders

February 1st, 2010

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff just over $88,000 in total damages as a result of a 2006 BC car crash.

In today’s case (Dutchak v. Fowler) the Plaintiff was involved in a rear-end collision.  Fault was admitted by the Defence lawyer leaving the Court to deal with the sole issue of quantum of damages (value of the injury claim).  The Plaintiff suffered various soft tissue injuries which continue to bother her by the time of trial and these had a likelihood of continuing indefinitely into the future.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Sewell made the following observations about the severity of the accident related injuries:

22] While I accept that Ms. Dutchak has genuine symptoms, I do have some concerns that she has unrealistic expectations about the consequences of the physical activities in which she engages.  Ms. Dutchak runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays squash three times a week and cycles for long distances on a regular basis.  These activities undoubtedly cause physiological stresses on her anatomy.

[23] It is apparent that engaging in these physical activities is an important part of Ms. Dutchak’s relationship with her husband.  Both Ms. Dutchak and her husband continue to place a high level of importance on physical activity and a good deal of their personal interactions with one another revolves around physical fitness and exercise activities.  In addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24] I have concluded that Ms. Dutchak is now able to engage in almost all of the activities she did before the accident, but at a price.  That price is a much higher level of pain and discomfort than before the accident.

[25] The preponderance of evidence before me satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely disappear.  However, I am also of the view that there is a reasonable possibility that she will experience some continued improvement as she adjusts to her altered circumstances…

[28] In the result, I conclude that Ms. Dutchak has suffered soft-tissue injuries to her upper back, shoulders and neck which have resulted in stiffness, pain and headaches, all of which are significantly aggravated by strenuous physical activity.  She continues to experience those symptoms.  My conclusion is that there is some prospect of continued improvement but that in assessing damages in this case, I should proceed on the basis that Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other hand, I also conclude that Ms. Dutchak is now able to perform virtually all of the tasks and activities that she did prior to the accident and, in particular, is able to engage in vigorous physical activity.  In carrying out these activities she has no mechanical limitations.  The only restriction on these activities is the pain which they cause.

[29] I have also concluded that Ms. Dutchak is highly motivated to continue with these activities and, in fact, is continuing to perform and engage in them notwithstanding the level of pain and the headaches that she experiences as a result…

In my view, this case is one in which an award of non-pecuniary damages should be at the lower end of the range for cases involving chronic pain.  I say this because Ms. Dutchak is able to engage in all of the activities she formerly did with the assistance of analgesic medicines and in the full knowledge that engaging in activities will often trigger pain for her.  In all the circumstances I award Ms. Dutchak $45,000 for non-pecuniary damages.


Gaps in Medical Treatment in ICBC Injury Claims

December 12th, 2009

If you are involved in an ICBC Injury Claim and have significant gaps in your medical treatment will that reduce the value of compensation you are entitled to?  The answer is not necessarily.  If the gaps in medical treatment are unreasonable and the evidence demonstrates that more frequent medical intervention would have improved the course of recovery then the claim can be reduced for “failure to mitigate“.  However, a gap in medical treatment in and of itself will not reduce a claim for damages and reasons for judgement were released yesterday by the BC Supreme Court demonstrating this.

In yesterday’s case (Sidhu v. Liang) the Plaintiff was injured in 2 BC Car Crashes, the first in 2004 and the second in 2008.  He was not at fault for either crash.  He sued as a result of both accidents and the trials were heard at the same time.  The Court was asked to deal with the value of these ICBC Claims.  In the years from the first collision to the time of trial there were some significant gaps in accident related medical appointments.  One such gap was over 25 months.  The Defence Lawyer argued that the Plaintiff’s injuries were minor and healed quickly as evidenced by the significant gap in treatments.

Madam Justice Russell rejected this argument and held “I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants’ negligence.  I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.”

The Court went on to award the Plaintiff $36,000 in Non-Pecuniary Damages.   In doing so Madam Justice Russell summarized the accident related injuries and their effect on the Plaintiff as follows:

67] The plaintiff’s position, which I accept, is that the medical evidence establishes that the first accident caused musculoligamentous injuries to his neck, back, hips, and elbows, resulting in chronic, persistent pain which continues to restrict his vocational, social and recreational activities.  Furthermore, the second accident caused a minor aggravation of the musculoligamentous injury to his neck.

[68] As a result of the injuries he sustained, the plaintiff has experienced functional limitations due to ongoing symptoms in his neck and left upper back, as well as residual symptoms in the elbows, and mid to low back.  These injuries interfere with his work ability as well as his ability to do chores and participate in his family construction project.  His wife and father have had to take on the physical household chores.  His wife testified that he became less physically active and has decreased his participation in family activities.  The plaintiff’s wife also testified that his pain has caused him to be moody and he also claims to have experienced emotional difficulties in the form of increased stress as a result of the accident.  Because of his modified work ability, the jobs he can take require him to work longer hours for less money and therefore he is facing increasing financial pressures, has less free time and therefore has decreased his social activities, all of which he asserts leads to his stress…

[71] While I have concluded that, according to the medical evidence, the accidents were the cause of the injuries, these injuries are improving, albeit slowly.  Dr. Gandham has estimated that the plaintiff will recover within two years and Dr. Heshler gives a similar guarded prognosis.  Dr. Connell is also optimistic.  Given that the plaintiff is young and healthy with a good prognosis for recovery, I am convinced that he will make a full recovery and thus assess his damages at 80% of the amount put forward by counsel, as I note the amount suggested is the upper range for these types of injuries.


$8,000 Non-Pecuniary Damages for "Not Substantial" Soft Tissue Injuries

December 7th, 2009

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Gradek v. DhaimlerChrystler) awarding a Plaintiff just under $10,000 in total damages as a result of a 2006 BC Car Crash.

The collision occurred in an intersection as the Plaintiff was attempting to drive through.  The Defendant made a left hand turn in front of the Plaintiff.  Both Liability (Fault) and Quantum of Damages (Value of the case) where at issue.  The Court found that the left hand turner was 100% responsible for the crash. Paragraphs 21-34 of the case are worth reviewing for a good discussion of the law concerning fault for intersection crashes.

Mr. Justice Savage found that the Plaintiff “exaggerated the impact of his injuries” and that he suffered nothing more than relatively minor soft tissue injuries.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $8,000 the Court summarized the Plaintiff’s injuries as follows:

[35] Gradek’s evidence regarding the impact of the injury on him is at times contradictory and confusing.  Gradek evidence contradicts that of his physician, Dr. Milne, who was called as a witness by Gradek, was qualified as an expert, filed an expert report and testified.

[36] Gradek description of the impact, however, accords with the somewhat unusual damage caused to the left front bumper of his vehicle.  With respect to the impact of the accident on him, I accept the evidence of Dr. Milne where Gradek’s evidence conflicts with that of Dr. Milne.  I find that Gradek has exaggerated the impact of his injuries.

[37] Dr. Milne testified that he found objective signs of injury on examination which he conducted on May 15, 2006.  The accident occurred on May 13, 2006.  Gradek was seen in Dr. Milne’s office but by another physician on May 14, 2006.  Gradek was diagnosed with soft tissue injuries, namely, a tender Trapezii muscles and tender Latissimus dorsi muscle.  He was prescribed Flexiril for ten days and Naprosyn for ten days.  Gradek was prescribed physiotherapy.  He was off work.  On May 23rd, he was much better but lower back and neck pain persisted as did the objective signs of injury.  Gradek was advised to continue to physiotherapy and to return to work on May 29, 2006.

[38] Gradek was seen again on May 30, 2006 he said he was 50 percent improved but unable to return to work.  He was advised to return to work on June 5, 2006, which he did.  Gradek was seen again on June 19, 2006 and July 3, 2006.  He had continuing minor complaints that were not severe enough to warrant prescription medication.

[39] Gradek was next seen in December 2006 where he reported minor complaints for two days, but had been fine for the last four to five months.  He was prescribed Naprosyn for five days.  Gradek was not seen again until May 5, 2007 where he had a headache and neck pain for three days.  Gradek reported that he had no pain between August 2006 and May 2007 other than for two days in December 2006 and three days in May 2007.

[40] Gradek was last seen by Dr. Milne June 15, 2009.  There were no specific complaints although he was still experiencing occasional right side pain.  This did not prevent him from engaging in vigorous exercise.  I accept Dr. Milne’s summary as a fair summary of the injuries and consequences with one exception, as noted below.  Dr. Milne summarizes:

In summary, Mr. Gradek Henryk was involved in a motor vehicle accident in May 13, 2006.  He incurred soft tissue injuries to the neck and lower back which resulted in him missing 4 weeks of work in 2006.  His injuries were not substantial and he shows no evidence of long term damage as a result of this motor vehicle accident.

The parties agree that Dr. Milne’s reference to four weeks of missed work in 2006 is in error as earlier in the report he specifies three weeks which is also consistent with employer records.



$40,000 Non-Pecuniary Damages for Young Mom With Soft Tissue Injuries

November 26th, 2009

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $43,000 in total damages to a Plaintiff as a result of a 2005 car crash.

In today’s case (Daniels v. Haaksma) the Plaintiff was a passenger in a vehicle that was rear ended.  As a result of the collision she suffered “mild to moderate soft tissue injuries to her lower and mid-back, and moderate soft tissue injuries to her neck. ”  Mr. Justice Ehrcke found that while these injuries “resulted in considerable pain, discomfort and loss of range of motion, as well as headaches and loss of sleep”  these largely improved after 6 months and ‘substantially recovered” 3.5 years after the crash when the Plaintiff was injured in a subsequent collision.

In awarding $40,000 for non-pecuniary damages for the Plaintiff’s pain and suffering and loss of enjoyment of life the Court stressed the fact that the Plaintiff was a young mother at the time of the crash and that her injuries caused her to lose out “on experiencing the full joy of raising her son when he was an infant“.  In assessing the Plaintiff’s damages at this figure Mr. Justice Ehrcke made the following findings:

[41] As set out above, I have concluded that the plaintiff suffered mild to moderate soft tissue injuries to her lower and mid-back and moderate soft tissue injuries to her neck as a result of the 2005 accident, resulting in pain, discomfort, and loss of range of motion, headaches, and loss of sleep. These symptoms were particularly acute for the first several months after the accident, but they improved about 75 percent after six months. She continued, however, to experience some pain and discomfort over the next two years. By the time of the subsequent accident in October 2008, she was substantially recovered and did not have any continuing limitations on her ability to work…

[45] One important factor in the present case is that the plaintiff’s injuries came at a particularly unfortunate time for her, when she was trying to care for her infant son. This was her first child. He was only four months old at the time of the accident. As a result of her injuries, she could not enjoy a carefree experience of playing with him. She could not lift him without someone else’s assistance. She had to have someone hand the child to her when he needed feeding. Because she was breast feeding, she was reluctant to take painkillers to relieve her pain. It is a cliché, but true, that children are young only once. The plaintiff feels that as a result of the accident she lost out on experiencing the full joy of raising her son when he was an infant. That is a loss that she can never recover. This was a great disappointment to her.

[46] The evidence in this case also establishes that the accident put considerable stress on the plaintiff’s relationship with her fiancée. He was working long hours at his new business, and when he came home, he had to take on housekeeping chores that would normally have been shared. He described how, as a result of the accident, the plaintiff was no longer the active person she had been, and how much of the fun went out of their relationship.

[47] Particularly important in this case is the fact that the plaintiff had been an accomplished soccer player prior to the accident. This was clearly a very important part of her life. She had been playing since she was a young child. She played on three different leagues at a very high level. She had travelled to foreign countries with her team. To a large extent, her social life revolved around her athletic activities. It was an important factor in initially bringing the plaintiff and her fiancée together. After the accident, she found she could not play soccer. She tried for a month or so in 2006, but had to stop…

[50] On the evidence, I am satisfied that the plaintiff tried to resume playing soccer in 2006 and perhaps again in 2007 and that she stopped playing because she felt the pain from her injuries prevented her from playing at the level she had previously been accustomed to. I am satisfied that this is a factor that should properly be taken into account in assessing non-pecuniary damages…

[53] In my view, the severity of the injuries, the length of their persistence, and the effect which they had on the plaintiff’s life in the present case are more serious than in the cases cited by the defendant, and somewhat less serious than the cases cited by the plaintiff. At the end of the day, every case is unique and must be determined on the basis of its own facts.

[54] I am satisfied that in the circumstances of the present case the proper assessment of non-pecuniary damages is $40,000.


$40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

November 2nd, 2009

Adding to this “pain and suffering case-law database” reasons for judgement were released today dealing with damages for a knee injury and soft tissue injuries sustained in a BC Car Crash.

In today’s case (Hill v. Durham), the Plaintiff was involved in a 2005 rear end accident.  The Plaintiff was a passenger at the time and the issue of liability (fault) was admitted at trial.  The trial focused on the extent of the Plaintiff’s accident related injuries and their value.  In total, damages of just over $77,000 were awarded including an award of $40,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In arriving at this figure Mr. Justice Barrow summarized the Plaintiff’s accident related injuries and prognosis for these as follows:

[22] Dr. McKenzie saw Ms. Hill in early October 2006. In his consultation report of October 12, 2006 he wrote that Ms. Hill’s problem seemed to be localized to a particular tendon in the knee and he thought that it may be the “result of trauma during the motor vehicle accident”. He prescribed exercises and ordered some further diagnostic imaging. An MRI was performed in January 2007 and it revealed two things:  thinning of the patellar cartilage in the knee joint and greater than normal water content in one of the bones, a condition technically described as subchondrial bone marrow edema. Dr. McKenzie testified that edema such as that found in Ms. Hill’s knee is caused by one of two things:  trauma or excessive wear and tear. When it is caused by excessive wear and tear it is accompanied by other findings visible on x-ray. Those other findings were not present in Ms. Hill’s knee, and as a result Dr. McKenzie concluded that the edema she is experiencing is as a result of trauma. He noted that Ms. Hill’s left knee has neither of the conditions. He testified that the degree of trauma necessary to cause this condition would “not be trivial”. He said that the problems are consistent with the kind of trauma that might be sustained by hitting a knee on the dash in motor vehicle accident…

25]         To a degree the resolution of this issue and other issues turns on the reliability and credibility of Ms. Hill. In general I found Ms. Hill to be a careful and credible witness. She testified that she had experienced bumps, bruises and injuries of various kinds over the course of her life. She said that she had always recovered reasonably quickly and completely from these events. She expected to do likewise following this accident. In general she impressed me as someone not prone to dwell on or overstate her physical problems. I accept that she now believes she struck her knee in the collision, although she has reached that conclusion not because she specifically remembers doing so but rather on the basis of the circumstantial evidence. She testified almost in passing that at one of her first yoga classes, within a month of the motor vehicle accident, she told her teacher that she was experiencing difficulties with her right knee. I accept her evidence on that point, and accept that she became aware of the discomfort in her knee reasonably shortly after the accident. Further, I am satisfied that she did not strike her knee after the accident in a manner that would give rise to the condition Dr. McKenzie found. I think it more likely than not that, as Dr. McKenzie noted, Ms. Hill was experiencing a number of more significant pains in the immediate aftermath of the collision and it was only as those pains subsided and her activity level increased that she became aware of the difficulty in her right knee.

[26]         I am satisfied that Ms. Hill’s right knee problems are caused by the motor vehicle accident.

[27]         The prognosis for this injury is guarded. Dr. McKenzie’s opinion is that the condition is often chronic. In February 2007 he prescribed a knee brace for use when exercising in a way that strains the knee. In his opinion, Ms. Hill may require renewals of that brace as well as periodic support from physiotherapists and medications for pain and inflammation. Ms. Hill reported to Dr. Dodek in October 2008 that her knee symptoms were improving.

[28]         Ms. Hill’s other injury is to the soft tissues of her back. She has headaches secondary to that injury. In his October 28, 2008 report, Dr. Dodek expressed the view that her “long term prognosis for recovery…remains good” notwithstanding that almost three years had passed since the accident. Dr. Travlos, in his November 1, 2007 report, wrote that Ms. Hill’s headaches would continue to reduce in frequency and would likely return to their pre?accident level. As to her right mid and low back difficulties, he expressed no opinion on future prognosis. He did, however, encourage Ms. Hill to add cycling to her exercise program and to reduce her reliance on physiotherapy. He also thought that her consumption of over-the-counter analgesics could and should be reduced. Dr. Apel, in her September 12, 2008 report, concluded that the prognosis for complete recovery is guarded however the prognosis for significant symptom reduction is fair to good. In her view, Ms. Hill’s current exercise program is insufficient and with appropriate changes, including increased focus on stretching, she will experience further symptom reduction…

[34]         Turning to the authorities, the injuries sustained by the plaintiffs in Menhinick, Wery, and Houghton (Litigation Guardian of), are generally similar to those suffered by Ms. Hill. The prognosis for each of those plaintiffs, however, was more guarded than I find is the case for Ms. Hill. The injuries sustained by the plaintiffs in the other authorities cited by counsel for Ms. Hill are all significantly more serious. On the other hand, I am satisfied that Ms. Hill’s injuries are more significant than those suffered by the plaintiffs in Krogh and Job.

[35]         In summary, Ms. Hill suffered a moderate soft tissue injury to her back. That injury remains problematic almost four years after the accident. I am satisfied that it will continue to improve. Her knee injury is less painful but is likely to last longer, if not indefinitely. Based on all of the evidence and a consideration of all of the authorities cited by counsel, I find that the appropriate award for non-pecuniary damages is $40,000. Although not asked to, I would allocate that award $25,000 to the back injury and $15,000 to the knee injury. I have not reduced the award to account for Ms. Hill’s pre?existing knee problems because I am satisfied they would not interfere in any significant way with her recreational and other activities.


$35,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Back Injury

August 9th, 2009

Reasons for judgment were released Friday awarding a Plaintiff just over $69,000 in total damages for injuries and losses sustained as a result of a 2006 BC Car Crash.

In Friday’s case (Dermody v. Gassier) the Plaintiff was injured when his vehicle was rear-ended in South Surrey.  Fault was admitted leaving the court to deal with the sole issue of damages (value of the claim).

Mr. Justice Williams found that while the Plaintiff “embellished his description of the way things were before the accident” the Plaintiff nonetheless was injured and had a pre-existing condition worsened as a consequence of this collision.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000  Mr. Justice Williams summarized the Plaintiff’s injuries as follows:

[92] The plaintiff sustained soft tissue injuries in the motor vehicle accident.  Some of them were relatively transitory in nature; others were more serious and he says they have continued to impact him in a significant way.

[93] The bruising and such injury abated within a short period of time, that is, within two or three weeks.  The headaches continued, albeit on a diminished basis, for a period of time in the order of 12 months.  The neck pain was initially a serious problem but I conclude resolved substantially within 12 to 16 months.  The driving apprehension, again, resolved within a fairly short period of time and did not meaningfully impact in any long-term way upon the plaintiff.

[94] There is the matter of the sensation loss in the plaintiff’s feet.  None of the medical experts have been able to understand what causes that, and Dr. Sovio was quite sceptical of it.  Nevertheless, there appears to be no reason to find that it is not an actual condition; its onset was concurrent with the accident.  I, therefore, find that it is a consequence, albeit a relatively minor one, of the incident and that it is a continuing condition.

[95] The most serious and sustained injury was that to the plaintiff’s back.  I accept that it caused him significant pain and discomfort.  Based on the medical evidence, I accept as well that there will be some residual back pain going forward….

[103] To clarify, I find that, at the time of the motor vehicle accident, the plaintiff’s back condition was not asymptomatic.  He was having back pain with certain attendant limitations.  Whether that was from the incidents at the courier job, whether it was because of degenerative conditions, or whether it was some combination, I am not able to say.

[104] However, I am satisfied that his back was symptomatic at the time of the accident, and, in accordance with the crumbling skull principle, he is only entitled to recover damages that reflect the difference between his post-accident condition and his pre-accident condition….

I conclude that there were weaknesses in this plaintiff’s pre-accident condition that were not symptomatic at the time of the accident injury, but which would have the effect of making the plaintiff likely to experience greater consequences from the insult of the accident.  Injuries that result where such a situation is present are compensable…

[115] On the particular facts of the matter at hand, it is my conclusion that a fit and appropriate award of non-pecuniary damages in this case is $35,000.

In addition to the discussion addressing the award for non-pecuniary damages, this case contains a useful discussion of the “thin skull” and “crumbling skull” legal principles which is worth reviewing for anyone interested in how BC courts deal with pre-existing conditions and their interplay with traumatic injuries in BC tort claims.


$70,000 Non-Pecuniary Damages Awarded for Back and Knee Injuries

April 29th, 2009

(Please note the past wage loss award in the case discussed below was varied slightly on appeal.  The BC Court of Appeal Judgement can be found here)

Here is the latest in my effort to continue to grow this online database of ICBC and other BC Personal Injury Cases addressing damages for pain and suffering.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Bradshaw v. Matwick) awarding a Plaintiff $268,389 in total damages as a result of injuries and losses suffered in a 2006 motor vehicle collision.

The crash was a rear end collision which occurred in Port Coquitlam.  Liability (fault) was admitted focusing the trial on quantum of damages (value of the injuries).

The Plaintiff was a 41 year old metal fabricator.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000  Mr. Justice Groves summarized the Plaintiff’s injuries as follows:

[32] By the time of trial, the plaintiff’s injuries were close to three years old.  I accept the plaintiff’s evidence that he continues to suffer from some level of disability resulting from the accident—he continues to suffer pain and he continues to have a disability which prohibits heavy lifting, prolonged standing, neck flexion, and sustained and repetitive reaching.  I accept the plaintiff’s evidence that at present, he continues to put all of his physical energies towards his work.  When he is not at work, he is resting and preparing for the next day of work.  The effect of the injuries caused by the accident have created a significantly lower quality of life for the plaintiff.

[33] As for the knee injury, the plaintiff continued to walk with a significant limp in court.  This is consistent with what is reported by:  his spouse, Sandra Bennett; his co-workers Rune Akerbakk and Ron Philbrook; and by his less than sympathetic employer, Rob Charland.  The evidence is suggestive that the medial tear may be repairable by surgery.  Of note, it took considerable time, despite the plaintiff’s desire early on for a MRI, to have the MRI performed.  There is no evidence before me as to when or if surgery to repair this knee is possible or scheduled…

[43] The plaintiff suffered injuries to his back, neck, shoulder and left knee.  He was unable to return to work for over three months after the April 26, 2006 accident, and then only with difficulty and on reduced hours.  Close to three years after the accident, the plaintiff continues to experience considerable pain in his neck and shoulder, back and knee.  The evidence is clear that his job as a metal fabricator involves physically demanding tasks which exacerbate these injuries.  He has not been able to return to his pre-accident performance levels at work.

[44] Two of the expert witnesses, Dr. Spooner and Dr. Vaisler, testified that the plaintiff may have a permanent disability as a result of the accident injuries.  The injuries and the corresponding pain levels have significantly affected the plaintiff’s quality of life and his relationship with his family, as he has little energy or ability to remain active outside of work hours and is frequently irritable and short-tempered as a result of the pain.

[45] The plaintiff’s lifestyle has been dramatically affected by the injuries he suffered in the accident.  The plaintiff, prior to the accident, was an active outdoorsman who regularly went fly fishing with his daughter at remote locations around the Lower Mainland and in southern British Columbia.  Since the accident he has completely curtailed this activity and his relationship with his daughter has suffered.  Prior to the accident, he was an active father with his young son, enjoying activities with his son in the yard, and in the home.  Since the accident his relationship with his son has resorted to playing video games or other activities which involved sitting and lying down, with no physical exertion.

[46] Ms. Bennett describes the plaintiff, prior to the accident, as a “fabulous 100% dad”.  She described that her daughter viewed him as “her god”.  Now the daughter does not want to hang around with her father any longer.

[47] The evidence suggests yard work and snow removal is simply left undone, as the plaintiff can no longer do it.

[48] Ms. Bennett describes her relationship with the plaintiff as “hell”.  She says that when the plaintiff is at home, the family is “walking on eggshells”.  The plaintiff is in near constant pain.  He has to immediately lie down after work.  His interaction with the family is minimal.  He is completed affected by the pain.

[49] His relationship with his wife, Ms. Bennett, who testified, has become tenuous at best.  Prior to the accident they enjoyed an active sex life—they no longer do.  For close to 2½ years, because of his injuries, the plaintiff slept on the living room floor rather than with his wife.  Prior to the accident, the plaintiff vacuumed, did dishes, and cleaned up around the house and was completely responsible for outside yard activities.  The plaintiff and his wife purchased a home on a quarter acre lot.  The home was, to use the vernacular, a “fixer upper”.  The home was repaired by considerable efforts of the plaintiff and the quarter-acre yard was completely landscaped by the efforts of the plaintiff.  Since the accident he has been unable to participate in home repairs or landscaping work.


Can Future Wage Loss be Awarded in an ICBC Claim When There is no Past Wage Loss?

March 28th, 2009

The answer is yes and reasons for judgement were released yesterday (Schnare v. Roberts) by the BC Supreme Court illustrating this fact.  In yesterday’s case the BC Supreme Court awarded the Plaintiff just over $240,000 in total damages as a result of a 2005 BC Motor Vehicle Collision.   

The Plaintiff was a school teacher and was on her way to school when her vehicle was rear-ended.  The crash was significant enough that the Plaintiff’s vehicle was pushed into the vehicle in front of hers.

The Plaintiff suffered various injuries and these and their effect on the Plaintiff’s life are summarized at paragraphs 56-57 as follows:

[56]            Based on the evidence of Ms. Schnare, Dr. Fagan, Mr. McLean and Dr. van Rijn, I conclude that, in the accident on March 14, 2005, Ms. Schnare suffered soft tissue injuries to her neck, upper, mid and lower back, including in and around her sacroiliac region.  As a result of the injuries, Ms. Schnare was left with a mobile sacroiliac joint.  I conclude further that the defendants’ negligence caused Ms. Schnare’s injuries.  While, as of the trial, Ms. Schnare had occasional neck pain attributable to the accident, I find that the most serious result of the injuries Ms. Schnare suffered in the accident has been the mobility in her sacroiliac joint, the pelvic misalignment and rotation, and the associated back pain.  The pelvic rotation was observed and identified (by Mr. McLean) at Ms. Schnare’s first physiotherapy assessment on March 31, 2005 (approximately two weeks after the accident).  Dr. van Rijn’s examination disclosed that Ms. Schnare had a mobile right sacroiliac region and he identified Ms. Schnare’s sacroiliac region as the probable pain generator and source of Ms. Schnare’s back pain.

[57]            I find that, as a result of her injuries, Ms. Schnare continues to suffer some neck pain and significant back pain, and that this pain – particularly her back pain – limits and interferes with most normal and routine activities of her daily life.  Based on the evidence, particularly from Mr. McLean, Ms. Schnare’s condition has improved since the accident, as a result of physiotherapy and Ms. Schnare’s own efforts.  However, I accept the opinion of Dr. van Rijn and conclude that Ms. Schnare’s accident-related symptoms caused by her injuries have resulted in some permanent disability.

In justifying an award for non-pecuniary damages (pain and suffering) for $85,000 the Court highlighted the following facts:

Ms. Schnare’s injuries have had a very significant effect on the quality of Ms. Schnare’s life.  She has back pain regularly, and from time to time flare-ups of severe pain; she fatigues easily; she is unable to enjoy activities such as hiking or car trips with her family; she is unable to participate in her children’s activities (including homework and sports) in the manner and to the degree she would like; household chores are more difficult; she feels like a spectator on family activities, rather than involved and engaged; her intimate relationship with her husband has changed; and her strong desire to pursue a career as a kindergarten teacher has been frustrated.

[63]            Taking into account in particular Ms. Schnare’s evidence, the evidence of Mr. Schnare, Ms. Schultz and Ms. Brebuck concerning Ms. Schnare’s circumstances before and after the accident, and the opinions stated by Dr. van Rijn, I conclude that an award of $85,000 is appropriate in the circumstances.

From there the court went on to discuss the law of diminished earning capacity (future wage loss).  Despite only having a minimal past wage loss the Court awarded the Plaintiff $125,000 for diminished earning capacity.  In doing so the Court summarized and applied the law as follows:

 

[64]            The principles governing a claim for loss of earning capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.  There, the court confirmed that, “Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation.  What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.”  The standard of proof to be applied when evaluating hypothetical, future events that may affect an award is simple probability, not the balance of probabilities.  Huddart J.A. continued:

10.     The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence:  Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31;Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

1.    whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

2.    whether the plaintiff is less marketable or attractive as an employee to potential employers;

3.    whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.    whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

11.     The task of the court is to assess damages, not to calculate them according to some mathematical formula:  Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued.  . . . The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[65]            Ms. Schnare seeks damages in the sum of $345,600 for lost earning capacity.  This sum is based on a full-time salary of $64,000 per year; on the assumption that, because of her injuries, Ms. Schnare is permanently unable to work more than 4 days per week; and on the further assumption that, but for her injuries, she would begin teaching full time in about 2010 and continue until age 65, a period of 27 years (20% of $64,000 = $12,800 multiplied by 27 years = $345,600).

[66]            When Ms. Schnare worked a full-time week in the fall of 2008, she determined that she could not keep it up, and that she needed the one day a week to recuperate.  Other than that one week, Ms. Schnare last taught full time during the school year September 2000 to June 2001.  At that time, the Schnares’ daughter was about two, and Ms. Schnare was pregnant with their son.  As noted above, the Schnares has discussed Ms. Schnare returning to work full time when their daughter entered grade 7.  Of course, that Ms. Schnare would in fact have returned to work full time once her daughter entered grade 7, but for the accident, is not a certainty.

[67]            Dr. van Rijn addressed the topic of Ms. Schnare’s potential “occupational restrictions” in his June 5, 2008 report.  He noted Ms. Schnare’s plans to move to grade 1, rather than teaching kindergarten, and observed that “some of the job requirements (including sitting on the ground) may not be as necessary, which will hopefully allow her to manage more easily.”  He continued (italics added):

She has permanent restrictions with respect to jobs requiring increasing physical effort and would be competitively unemployable in such work when compared to an able-bodied woman with similar interests and skill sets.  This represents a permanent loss in her work capability and has caused her to suffer a work handicap as a result of her injuries.  She is potentially less desirable an employee to perspective employers as a result of her accident related symptoms.

[68]            However, Dr. van Rijn does not say anywhere in his report that Ms. Schnare would be unable, because of her injuries, to work full-time as a teacher.  I compare what Dr. van Rijn says with the evidence referred to in Fox v. Danis, at para. 97, where the court had the benefit of opinion evidence to the effect that the plaintiff had lost the capacity to work full-time.  While Ms. Schnare may have restrictions, and therefore be less employable or “competitively unemployable,” with respect to “jobs requiring increasing physical effort,” Dr. van Rijn does not identify teaching grade 1, or indeed teaching any particular school grade, as a job of this type.  In addition, there is no evidence that Ms. Schnare has ever considered any type of work other than teaching.

[69]            I consider that the approach taken by Ms. Schnare with respect to damages for loss of earning capacity is excessively mathematical.  In my view, it seeks to have Ms. Schnare compensated as if it were certain that she would never work full-time again, and her approach produces a result that, overall, is neither fair nor reasonable, taking into account all of the evidence.  On the other hand, based on the evidence, I do not accept the defendants’ submission that Ms. Schnare should receive no award for loss of capacity to earn income.

[70]            In my view, based in particular on Ms. Schnare’s evidence and on the opinions stated by Dr. van Rijn in his June 5, 2008 report, Ms. Schnare has suffered some impairment of her earning capacity as a result of her injuries.  She has been rendered less capable overall from earning income from all types of employment available to an individual qualified as a teacher, and she has lost the ability to take advantage of all job opportunities that might otherwise have been open to her had she not been injured.  Specifically, Ms. Schnare has lost the ability to take advantage of the opportunity to work full-time as a kindergarten teacher, taking into account the physical demands of that job.  On the other hand, I do not consider that the evidence supports the conclusion that, as a result of her injuries, Ms. Schnare has lost the ability generally to take advantage of opportunities to work full-time as a teacher, should she choose to do so in the future.  In that light, the difference between Ms. Schnare’s likely future income had the accident not occurred and her income now that the accident has occurred may well be small.

[71]            Accordingly, Ms. Schnare is entitled to damages, but the amount should be more modest than what her counsel has submitted.  I conclude that the damages for Ms. Schnare’s loss of earning capacity should be assessed at $125,000.