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This Blog is authored by British Columbia personal injury 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 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 ‘chronic pain syndrome’
March 29th, 2012
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing causation and quantum of damages for chronic pain syndrome.
In this week’s case (Mohan v. Khan) the Plaintiff was¬†involved¬†in a 2007 collision in Vancouver, BC. ¬†Although ICBC denied the issue of fault the Defendant was ultimately found fully liable for the crash. ¬†The Plaintiff suffered various soft tissue injuries and went to suffer from a chronic pain disorder. ¬†Despite some concerns about the Plaintiff’s ‘exaggeration‘ and a further finding that the Plaintiff failed to mitigate her¬†damages¬†the Court assessed non-pecuniary damages at $100,000. ¬†In doing so Mr. Justice Bowden provided the following reasons:
 This case went to trial approximately 4¬Ĺ years after the motor vehicle accident in which the plaintiff was injured. There is no question that the plaintiff suffered soft tissue injuries from the accident. Had those injuries taken three or four months to resolve, this litigation would most likely not have taken place. What has led to this court case and a substantial claim for damages is that the plaintiff asserts that she suffers from what is described as chronic pain disorder long after her physical injuries from the accident have resolved.
 Based on the evidence of the medical experts it is apparent that chronic pain disorder is a condition that involves both physical trauma and psychological factors…
 Based on the testimony of the medical experts I am satisfied that the pain described by the plaintiff, in large part, is real and I do not find her to be dishonest. However, in my view, she has exaggerated her symptoms to some degree…
 Having considered these opinions and the opinions of the other experts, I am satisfied that the motor vehicle accident, which I have already determined to have resulted from the defendant Mohan‚Äôs negligence, was largely, although not exclusively, the cause of the plaintiff‚Äôs ‚Äúconstellation‚ÄĚ of conditions. The plaintiff has established on a balance of probabilities that the defendant‚Äôs negligence materially contributed to her condition. I am also satisfied that the plaintiff‚Äôs condition is not motivated by a desire for secondary gain. By that I mean the third principle stated by Lambert J. I accept that the plaintiff wishes to be free from her pain; however, her failure to mitigate, much like the exaggeration of her symptoms, in my view should be considered in the determination of damages.
 Dr. Anderson and Dr. Caillier both expressed the opinion that the plaintiff suffered from chronic pain disorder. None of the medical experts said that the plaintiff does not suffer from chronic pain disorder. The defendant‚Äôs expert neurologist Dr. Teal opined that the plaintiff‚Äôs primary problems were related to symptoms of pain which are significantly amplified by psychological factors. At the same time, he agreed with counsel for the plaintiff that some of his observations were consistent with someone with chronic pain disorder.
 I am satisfied that the plaintiff‚Äôs condition is properly described as chronic pain disorder…
 Having considered the cases referred to by counsel for both parties, and factoring in the failure of the plaintiff to mitigate as well as her exaggeration of her symptoms, I have concluded that an award of non-pecuniary damages should be $100,000.
March 13th, 2012
Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic pain disorder caused by a motor vehicle collision.
In yesterday’s case (Loveys v. Fleetham) the Plaintiff was involved in a significastn 2006 collision. ¬† The Plaintiff was struck by an out of control large truck driven by the Defendant. ¬†The force of impact pushed the Plaintiff’s vehicle off the road. ¬†The Plaintiff alleged she suffered physical and psychiatric injuries as a consequence of the crash.
Mr. Justice Armstrong found that the Plaintiff did suffer from physical¬†injuries¬†which went on to cause a chronic pain disorder. ¬†The court did not find the Plaintiff’s psychiatric difficulties were related to the collision finding these had their origin in other life events. ¬†The reasons for judgement are useful for the Courts lengthy discussion of¬†causation¬†and indivisible injuries. ¬†In assessing non-pecuniary damages at $65,000 Mr. Justice Armstrong provided the following reasons:
 I am satisfied that Ms. Loveys suffered soft tissue injuries to her neck, back and shoulder and that those areas of complaint have evolved into a chronic pain disorder. I accept the plaintiff‚Äôs chronic pain was caused by the accidents. I also accept that she experienced an exacerbation of her pre-existing symptoms of depression and bulimia after the accident; the plaintiff has not proven that ‚Äúbut for the accident‚ÄĚ she would have suffered the recurrent bulimia, acute stress disorder and/or depression.
 Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents‚Äô illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.
 In my view Ms. Loveys‚Äô psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted…
 I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.
 Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.
 Even on an intermittent basis, chronic pain deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys’ recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.
October 13th, 2011
Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.
In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” ¬†He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. ¬† The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her¬†abilities¬†both vocationally and recreationally. ¬†Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000. ¬†In arriving at this figure Mr. Justice Grist provided the following reasons:
 In this case, the physical injuries continuing to affect the plaintiff include: the injury to her left shoulder, left wrist and left ankle; as well as persistent pain in her neck and back. The pain in her neck and back limits her ability to sit for any extended period of time and is associated with the onset of headaches.
 The residual effect of the collision, however, is markedly more significant because of the PTSD and depression that she suffers. Combined, there is significant loss in respect of her vocation, family life and social activities…
 Ms. Felix‚Äôs life has markedly changed following the collision. She is now reliant on her daughters to assist in keeping her home. She receives psychological therapy, is treated with anti-depressant medication and has been prescribed Ativan and Valium to allow her to sleep. She has not been able to work and has been forced to live off of disability benefits and funds realized by re-mortgaging her home. The evidence from her daughter and her two long-time friends who gave evidence on her behalf was that her level of activity and previously bright outlook on life had markedly changed. Her daughter was concerned that, at times, she seemed suicidal. She said that she noted some improvement after she attended the pain clinic in the spring of 2010 and that she seemed a little happier and better able to manage her pain, but that she had regressed since and lacked focus and initiative. She said she often appeared to be in pain, had become short tempered and withdrew from contact with family and friends.
 Many of the same comments were made by her friends who commented on the difficulty in getting her to attend social functions, her lack of participation and stamina, and her fragile emotional state.
 For a time, she formed a relationship with an individual she met through a common friend, but they have since separated which she attributed to her depression and inability to join in social activities he wanted to participate in. She relates that she began to abuse alcohol to the point she feared she was alcoholic…
 It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…
 On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix‚Äôs personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.
It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim. ¬†Despite this, the case still has value as a precedent for non-pecuniary¬†damage assessments for chronic pain following a motor vehicle collision.
August 24th, 2011
(Update: June 11, 2012 – With the exception of a modest decrease in the damage award for Cost of Future Care, the below¬†decision¬†was upheld by the BC Court of Appeal in reasons for¬†judgement¬†released today)
Adding to this site’s chronic pain non-pecuniary¬†damages archives, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain and depression.
In this week’s case (Tsalamandris v. MacDonald) the Plaintiff was¬†involved¬†in two collisions, the first in 2004 and the second in 2006. ¬†The Defendants admitted fault in both claims. ¬†The Plaintiff suffered from “chronic pain and a depressive disorder which is quite debilitating“. ¬†The cause of the Plaintiff’s disability was the main focus of trial with the Plaintiff arguing the collisions were responsible while the¬†Defendants¬†pointed to other explanations.
Ultimately the Court found that the the collisions were responsible for the Plaintiff’s injuries. ¬†These were expected to be largely disabling for the duration of the Plaintiff’s career. ¬†In assessing non-pecuniary damages at $100,000 Madam Justice Griffin provided the following reasons:
 I therefore conclude that but for the Accidents, the plaintiff would not have suffered the chronic pain and depression she suffered following the Accidents and continuing to this day and into the future. ¬†The plaintiff has proven that the Accidents caused her conditions of chronic pain syndrome and depression…
 The plaintiff had an active lifestyle prior to the Accidents, did many outdoors things with her husband and got along well with others.¬† The minor discomfort she experienced on occasion stemming from the 2001 accident did not interfere with her activities.
 The changes she has gone through since the 2004 and 2006 Accidents have been dramatic.¬† Her chronic pain and chronic depression mood have had a very negative impact.¬† She has said very hurtful things to her mother and her husband. She has not been able to properly take care of her children and she does not get the same joy out of life as she used to do…
 The plaintiff cites a number of cases that suggest that an award of damages for loss of enjoyment of life and pain and suffering (non-pecuniary damages) in similar circumstances should be in the range of $85,000.00 to $125,000.00:¬†¬†Beaudry v. Kishigweb, 2010 BCSC 915;¬†Eccleston v. Dresen, 2009 BCSC 332;¬†Kasidoulis v. Russo, 2010 BCSC 978;¬†Poirier v. Aubrey, 2010 BCCA 266;¬†Zhang v. Law, 2009 BCSC 991; and,¬†MacKenzie v. Rogalasky, 2011 BCSC 54 (the latter cited by the defendants for other reasons).
 The authorities can only serve as general guidelines.
 Given the plaintiff‚Äôs age, the stage of her life when she was injured, as a young mother, the ongoing and severe nature of her injuries which negatively affect every aspect of her daily life and her relationships with those around her, including with her children, her husband and her parents, I conclude that a fair and reasonable award for the loss of her enjoyment of life and her pain and suffering is $100,000.00.
May 5th, 2011
Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, dealing with non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic soft tissue injuries.
In today’s case (Thauli v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision. ¬†It was a ‘t-bone’ crash. ¬†The Plaintiff was a passenger at the time and the issue of fault was admitted by ICBC on behalf of the offending motorist. ¬†The Plaintiff suffered a variety of soft tissue injuries which resulted in a chronic myofascial pain syndrome. ¬†In assessing non-pecuniary damages at $50,000 Mr. Justice Crawford provided the following reasons:
 Pain is doubtless one of the discussion footballs in medical science.¬† It is subjective.¬† Many of us have seen people receive devastating injuries, bear with them stoically and sometimes recover in very short time.¬† We see the professional footballer or hockey player do that on a regular basis, but many cannot.¬† Many are built differently and respond differently to different injuries.¬† Dr.¬†Sidhu said that he expected Ms.¬†Kalsi, given her lifestyle, to have largely recovered in six or eight weeks from the car accident.¬† And as I noted, Dr.¬†Chu said in his evidence perhaps the neural pathways are somehow compromised in some people and continue to send messages of pain to the head, and in fact the soft tissues are already recovered.
 In any event, I found Ms.¬†Kalsi an honest and straightforward young lady.¬† The evidence of the witnesses recorded in consistent fashion how busy, vivacious and outgoing she was prior to the accident, how there had been a continuing complaint of pain to her upper left back area, as vague as that might be, and that had continued to be of a consistent concern to her and to her doctors…
 I am satisfied the plaintiff was injured in the car accident in May of 2005.¬† The injuries to her knee, neck and left upper back are consistent with being thrown over the restraining seat belt and extending the soft tissues in her upper back and neck on the left side.¬† It is likely those injured areas of her body have recovered.¬† It is also likely her ongoing complaints of pain in turn caused the depression, but that was well treated in 2007.
 Medically the pain is chronic and the symptoms have been collated under the heading myofascial pain.¬† That is real to Ms.¬†Kalsi.¬† It is, on her own word to her doctors, largely moderated in 2007 and in my view there is a fair chance it will continue to improve, if not wholly, at least be well within her control.
 In sum, then, I award general damages at $50,000.
April 11th, 2011
Adding to this site’s archives of chronic pain cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain syndrome.
In last week’s case (Perry v. Perry) the Plaintiff was¬†involved¬†in two motor vehicle collisions. ¬†She suffered from pre-existing health problems including PTSD and¬†chronic¬†pain. ¬†She was injured in both collisions and this aggravated her pre-existing¬†difficulties and caused new ones. ¬†Ultimately¬†she was diagnosed with a Chronic Pain Syndrome with a poor prognosis. ¬†In assessing her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Melnick made the following findings:
41] Ms.¬†Perry is a person who had had a number of challenging health issues prior to the first accident. Those issues included PTSD, which related to her childhood abuse, and problems with her feet and legs. She sometimes suffered from depressive episodes and had a history of alcohol and heroin abuse. She had multiple areas of pain that she experienced at least as far back as 2003. I conclude that, prior to the first accident, she was a person of some fragility with respect to both her physical and emotional health, likely the seeds of which were sown by her tragic childhood and exacerbated by her alcohol and drug use.
 That said, Ms.¬†Perry, in the few years prior to the accident, had made real progress by putting her addictions behind her and, to a certain extent at least, engaging in life through education, volunteer work and a small amount of employment. She was, however, what I would describe as a ‚Äúthin-skull‚ÄĚ case: more at risk for emotional and psychological trauma than a normal person without Ms.¬†Perry‚Äôs medical history would be:¬†Athey v. Leonati,  3 S.C.R. 458. See also:¬†Hussack v. School District No.¬†33 (Chilliwack),¬†2009 BCSC 852 at para.¬†143;¬†. Thus, while the average otherwise healthy individual involved in the same type of accidents that Ms.¬†Perry experienced may have suffered similar physical injury, that person would not be at the same risk of suffering the same psychological damage as Ms.¬†Perry.
 I am satisfied that Ms.¬†Perry suffers from chronic pain, which is largely attributed to the first accident, and to a minor extent to the second accident. She was not without pain and physical problems before these accidents and the defendants are not responsible for the extent to which those symptoms were already symptomatic:¬†Athey¬†at para.¬†35…
 Ms.¬†Perry has several health issues, a large portion of which are attributable to these two accidents. Taking into account, as I have, that some of her current health situation is attributable to her past medical problems, I asses her overall non-pecuniary damages at $85,000. The seriousness of Ms.¬†Perry‚Äôs injuries and her guarded prognosis are more in line with the authorities suggested by counsel for Ms.¬†Perry.
September 10th, 2010
As I’ve previously written, a common occurrence after a car crash is the onset of pain in a pre-existing but asymptomatic condition. ¬†When this occurs it is no defence for the at-fault party to argue that the pre-existing condition is more responsible for the symptoms than the crash. ¬†This principle was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Neumann v. Eskoy) the Plaintiff was involved in a rear-end collision in 2006. ¬†The Defendant admitted fault. ¬† The trial focused on the value of the Plaintiff’s claim.
Prior to the crash the Plaintiff has osteoarthritis in his hip and asymptomatic degenerative changes in his spine. ¬†After the crash these conditions became painful and the Plaintiff went on to develop a chronic-pain syndrome. ¬†The Defendant hired a doctor who gave evidence that the car crash was not the main cause of the Plaintiff’s chronic pain, rather it was mostly the fault of the pre-existing degenerative changes.
The Defence lawyer then argued that the Plaintiff’s compensation should be relatively modest to account for this pre-existing condition. ¬†Mr. Justice Brooke disagreed and went on to award the Plaintiff $90,000 in non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his chronic pain syndrome. ¬†In doing so the Court provided the following useful comments:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I also refer to the decision of the B.C. Court of Appeal in¬†B.P.B. v. M.M.B., 2009 BCCA 365 where Mr.¬†Justice Chaisson, at paragraphs 42 and 43, says this:
¬†¬†¬†¬†¬† In my view, the trial judge in this case failed to determine whether the plaintiff‚Äôs injury was divisible or indivisible. She appears not to have distinguished ‚Äúbetween causation as the source of the loss and the rules for the assessment of damages in tort‚ÄĚ as mandated by the Supreme Court of Canada in para.¬†78 of¬†Blackwater. The liability question is whether the conduct of the defendant caused injury. The assessment of damages requires a determination whether the injury derived from multiple sources and whether it is divisible. If it is, responsibility is allocated to the individual sources of the injury.
¬†¬†¬†¬†¬† It the injury is indivisible, the court must consider the possible application of the thin skull or crumbling skull rules in the context of the victim‚Äôs original condition. If the crumbling skull rule applies, it forms part of returning the victim to his or her original condition and the tortfeasor is not responsible for events that caused the crumbled skull. Absent the application of the crumbling skull rule, where the injury is indivisible, all torfeasors who caused or contributed to the injury are 100% liable for the damages sustained by the victim.
See also the decision of the B.C. Court of Appeal in¬†Bradley v. Groves, 2010 BCCA 361, which was decided after the trial of this action.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am satisfied that before the accident and despite the asymptomatic degenerative conditions, the plaintiff was not only functioning adequately, but also at a very high physical level. But for the accident and the injury sustained to his neck, the plaintiff would not have sustained the chronic pain syndrome from which he now suffers. I am satisfied that the plaintiff‚Äôs long and commendable work history was interrupted by the injury sustained by him in the accident, and that despite the plaintiff‚Äôs best efforts he continues to suffer from chronic pain which is moderated somewhat by medication. I am also satisfied that the medication itself has an adverse aspect in addition to its therapeutic effect in that the plaintiff now suffers from sleep apnea and fatigue. Pain and fatigue on a continuing or chronic basis can and do dramatically impair the quality of life and the enjoyment of life. The work that Mr.¬†Newmann now does is well paying and secure, but Mr.¬†Newmann worries that he may not be able to continue indefinitely. Worry is burdensome and can also impair the enjoyment of life. I find that an appropriate award for non-pecuniary damages is $90,000.
July 14th, 2010
The easiest personal injury cases to prosecute are those involving objective injuries. ¬†If a person suffers a broken arm or leg in a car crash there is no dispute as to what the injury is or what caused it. ¬†There may be some disputes regarding the consequences of the injuries but generally there is a lot of room for agreement in these types of lawsuits.
On the other end of the spectrum are chronic pain cases. ¬†Many people involved in traumatic events go on to suffer long term chronic pain. ¬†The pain can be invasive and sometimes disabling. ¬†It can interrupt domestic, vocational and recreational activities, it can even negatively impact personal relationships. ¬† Often the source of chronic pain cannot be objectively identified and people suffering from chronic injury face not only the pain but also the stigma that they are somehow exaggerating or even faking their injury. ¬†This skepticism can take a further toll and add to the cycle of chronic pain.
These cases bring challenges in prosecution and create a sharp focus on plaintiff credibility. ¬† Despite their challenges chronic pain disorders can be properly compensated at trial as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Kasidoulis v. Russo) the Plaintiff was involved in a 2005 intersection crash. ¬†Fault was admitted by the driver of the opposing vehicle. ¬†The trial focused on the extent of the Plaintiff’s injuries and their value.
The collision caused several injuries to the Plaintiff which eventually turned into a¬†chronic¬†pain disorder. ¬† As is sometimes the case there was a lack of objective proof of the Plaintiff’s injuries. ¬†Dr. Travlos, the Plaintiff’s treating physiatrist¬†gave the following evidence about the Plaintiff’s injuries:
 Dr. Travlos was of the opinion that the complaints reported by Ms. Kasidoulis to Dr. Kneifel, which included headaches, chest pains, neck pains; back pains and emotional difficulties were a direct result of the accident.¬† He was unable to identify any clinical or objective findings with respect to the back pain but was clearly of the view that Ms. Kasidoulis was genuinely experiencing the pain that she reported.¬† There does not seem to be any serious dispute between the parties that Ms. Kasidoulis‚Äô pain is genuine and I accept that this is the case.
 In his second report Dr. Travlos concluded that Ms. Kasidoulis suffers from chronic pain disorder.¬† That pain was affecting her daily activities, both social and work related.¬† He was of the view that Ms. Kasidoulis would benefit from a long-term ‚Äúlongitudinal‚ÄĚ course of treatment designed to permit her to manage and cope with her pain.¬† On the other hand, Dr. Travlos was clearly of the view that there should be no expectation that the pain would resolve and that it was no more probable than not that she will continue to have permanent on-going pain.
 In both his reports, and in particular in his March 2010 report, Dr. Travlos focused considerable attention on the necessity of Ms. Kasidoulis undergoing treatment and having access to the resources necessary to reduce the stressors in her life.¬† As I read Dr. Travlos‚Äô opinion, he was of the view that if Ms. Kasidoulis is given the opportunity to access a reasonable long-term treatment plan and the resources to relieve her household responsibilities, she could expect significant improvement in her ability to function and in her ability to cope with her pain.
 Dr. Travlos was of the view that it was unrealistic to expect that Ms. Kasidoulis would ever be able to work full-time, but that it was reasonable to anticipate that she could work between three and four days a week if the therapies that he recommended were pursued and were effective.
Mr. Justice Sewell accepted this evidence and awarded the Plaintiff over $900,000 for her injuries and resulting disability including $90,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In arriving at this verdict the Court made the following comments about causation and compensation for chronic pain cases with lack of objective proof:
 As is not uncommon in cases of this sort, the critical issue in this case is the extent to which the injuries Ms. Kasidoulis suffered in the accident are the cause of the difficulties described in the evidence…
37]¬†¬†¬†¬†¬†¬†¬†¬†¬†This case therefore requires consideration of the law as laid by the Supreme Court of Canada and our Court of Appeal with respect to causation.¬† The law with respect to causation has been recently addressed and reviewed in¬†Athey v. Leonati,¬† 3 S.C.R. 458;¬†Resurfice Corp.¬†v.¬† Hanke,¬†2007 SCC 7 and¬†Hutchings v. Dow,¬†2007 BCCA 148.
¬†¬†¬†¬†¬†¬†¬†¬†¬†These cases establish the proposition that to impose liability on the defendant ¬†I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms but for the accident or, in other words, that the injuries she suffered in the accident were a necessary cause of her post accident symptoms.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that Ms. Kasidoulis suffers from debilitating mid and low-back pain.¬† This pain and attendant low energy have had a significant impact on her life.¬† I find that the symptoms being experienced by Ms. Kasidoulis are an indivisible injury which would not have occurred but for the injuries she suffered in the motor vehicle accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I base this conclusion on a comparison of Ms. Kasidoulis‚Äô energy and capabilities before and after the accident. ¬†I accept her evidence that she is suffering debilitating back pain.¬† I also rely on Dr. Travlos‚Äô conclusion that Ms. Kasidoulis is suffering from chronic pain syndrome.¬† I can see nothing in the evidence which supports the assertion that Ms. Kasidoulis would be experiencing the pain or the level of disability she currently experiences had she not been injured in the motor vehicle accident.¬† I therefore conclude that the defendant is fully responsible for the consequences of Ms. Kasidoulis‚Äô present condition.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I make this finding notwithstanding the lack of objective clinical evidence of serious injury.¬† I note that neither Ms. Kasidoulis nor Dr. Travlos were cross- examined with respect to the genuineness of Ms. Kasidoulis‚Äô reported symptoms.¬† In his cross-examination of Dr. Travlos, Mr. Robinson did establish that there was a paucity of objective evidence of injury present.¬† I note, however, that there is no indication that Ms. Kasidoulis was in any way feigning the symptoms she is experiencing.¬† Given this fact and the fact that there was ample evidence before me contrasting Ms. Kasidoulis‚Äô personality and abilities before the accident from those she presently possesses and demonstrates, I have no hesitation in concluding that the difficulties that she now faces would not have been experienced but the wrongful conduct of the defendant.
In addition to the above this case is worth reviewing in full for the Court’s discussion of damages for ‘diminished earning capacity‘ at paragraphs 52-65. ¬†The Plaintiff was awarded $550,000 for diminished earning capacity despite being able to continue working in her own occupation because the Court was satisfied that the accident related¬†injuries¬†would prevent the Plaintiff from working on a full time basis as a teacher and instead would be limited to working on a part time on-call basis.
October 19th, 2009
Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry (Wilson v. Manzano), awarding a Plaintiff over $350,000 in total damages as a result of chronic soft tissue injuries sustained in a 2004 BC Car Crash.
The collision occurred at a relatively low speed with the Defendant accelerating from a stop on the mistaken belief that his light turned green. ¬†He rear-ended the Plaintiff’s vehicle which was stopped in front of him. ¬†The crash caused about $5,000 in damages to the Plaintiff’s vehicle.
The Plaintiff was injured despite the relatively low speed of the crash as she was in a vulnerable position at the moment of impact with her “head and upper body turned toward (a rear seat passenger).”
The Plaintiff’s GP gave evidence that she suffered from a ‘chronic myofacial pain in the upper lumbar area‘ as a result of this crash and that she went on to develop a ‘chronic pain syndrome in the back‘. ¬†The medical evidence established that this injury was permanent and would likely continue to adversely effect the Plaintiff in the future¬†including¬†limiting the types of jobs she could take advantage of.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Bernard summarized the effect of these injuries on the Plaintiff’s life as follows:
 The collision in question was one of moderate impact. The significance of it in relation to injury is not the force of the impact,¬†per se, but rather that the impact came without warning while Ms¬†Wilson‚Äôs body was in a particularly vulnerable position in relation to the effect of the force upon her. Ms¬†Wilson was seated in the driver‚Äôs seat, but not facing forward. Her head and body were twisted to the right so that she could converse face-to-face with her nephew who was seated in a rear passenger seat. Given these circumstances, it is not surprising that she might have sustained an injury qualitatively different than the usual ‚Äúwhiplash‚ÄĚ and that her prognosis for recovery might also be quite different.
 I am satisfied that Ms¬†Wilson is neither an idle complainer nor a hypochondriac. At the time of the collision she was a strong, healthy, active and vibrant woman who was happily employed in a relatively physically demanding job. Within hours after the collision, she was in tears and paralyzing pain from a spasm in her lower back. At 4:30 a.m. she took a hot shower to help alleviate the spasm. She attended her job site the next morning and was in so much pain by the end of the day that she stopped at a medical clinic en route to her home and received pain medication. Thereafter she saw her family physician and went through a physiotherapy program. She wants to recover from her injury and get on with her life as she knew it, but she has been able to make very little progress in that regard.
 Ms¬†Wilson‚Äôs back pain, caused by the collision, has not abated. I am satisfied that there is no prevarication or exaggeration in relation to her symptoms. I also find that there were no intervening events which might reasonably account for the pain she now suffers. There were some medical issues subsequent to the collision; however, I am satisfied that none of these were related to the chronic back pain from which Ms¬†Wilson suffers. There has been continuity of symptoms since the collision. There is no evidence of events inconsistent with Ms¬†Wilson‚Äôs claims; to the contrary, her family, friends, and co-workers corroborate her continuous suffering and the significantly negative impact the injury from the collision has had upon her life. Ms¬†Wilson‚Äôs frustration with the pain and the manifold ways it has affected her life is palpable. The evidence establishes that her chronic back pain has forced her to give up most, if not all, of her activities and pursuits, both in leisure and work, which she found enjoyable, fulfilling, and rewarding. The pain she suffers has made her very unhappy. It has robbed her of a rewarding career and fulfilling pastimes. It has jeopardized valued personal relationships.
 I am similarly satisfied that her pain symptoms are now chronic, with no reasonable prospect of amelioration except over the course of many years, if not decades. In this regard, I accept the diagnosis and prognosis of Dr.¬†Mason. He presented as a very knowledgeable physician and a reasonable man who knows Ms¬†Wilson, as his patient, well. His opinion is corroborated, in critical aspects, by Dr.¬†Gouws…
 I accept that each of the cases cited bear some similarities to the case at bar and establish a range of damages from $40,000 to $100,000. These cases offer some guidance; however, each set of circumstances is unique, as is each plaintiff. I¬†consider two compelling aspects of the case at bar to be: (a) the pervasiveness of the injury upon the plaintiff‚Äôs life, and (b) the reasonable prospect of some amelioration of her symptoms over time. In all the circumstances, and having regard to the cases cited, I set the award for non-pecuniary losses at $55,000.
September 28th, 2009
Further to my previous posts on the subject, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, showing that the use of Facebook photos by Defence Lawyers is a trend that is becoming well entrenched in ICBC and other BC Injury Claims.
In today’s case (Mayenburg v. Yu) the Plaintiff was injured in a 2006 BC Car Crash. ¬†Liability (fault) for the crash was admitted by the Defendant. ¬†The Plaintiff’s non-pecuniary damages were valued at $50,000. ¬†In arriving at this figure Mr. Justice Myers accepted the evidence of Dr. Apel, an expert in physical and rehabilitation medicine. ¬†Dr. Apel opined that the accident caused a soft tissue injury to the Plaintiff’s upper trapezius muscles described as a “myofascial pain of mild severity“. ¬†Additionally the Plaintiff was found to have “myofascial chronic regional pain syndrome of the gluteus medius” and “mechanical back pain“.
The court accepted that the Plaintiff’s injuries were likely permanent, specifically noting that her “prognosis for complete symptom resolution is guarded“.
At trial the Defence Lawyer challenged the credibility of the Plaintiff and to this end tried to introduce 273 photos from the Plaintiff’s Facebook wall.
Mr. Justice Myers noted that “the bulk of these photos showed no more than (the Plaintiff) enjoying herself with her friends“. ¬† He ruled that over 200 of these photos were inadmissible only permitting the photos that showed the plaintiff “doing a specific activity which she said she had difficulty performing”, he did not let the other photos in because they “had no probative value“.
Mr. Justice Myers did not agree with the Defendant’s challenges to the Plaintiff’s credibility noting that the admissible photos did not contradict the Plaintiff’s evidence, specifically he stated as follows:
¬†¬†¬† This left a subset of approximately 69 photographs.¬† These showed Ms.¬†Mayenburg doing things such as hiking, dancing, or bending.¬† However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them.¬† Rather, she said she would feel the consequences afterwards.
¬†¬†¬† In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident.¬† That was not the evidence of Ms. Mayenburg.
¬†¬†¬† As indicated above, I accept the conclusions of Dr. Apel.¬† That said, Ms.¬†Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand.¬† Her damages must be assessed on that basis.
¬†¬†¬† In terms of the facts relevant to assessing non-pecuniary damages (as opposed to loss of capacity) this case is remarkably similar to¬†Henri v. Seo, 2009 BCSC 76, in which Boyd J. awarded the plaintiff $50,000.¬† I find that to be a suitable award in this case.
The Defence also tried ¬†to minimize the extent of the Plaintiff’s injuries by pointing out that there was a “limited number of times she visited physicians to complain about her pain” ¬†Mr. Justice Myers quickly disposed of this argument noting
¬†¬†¬† I do not accept those submissions, which have been made and rejected in several other cases:¬† see¬†Myers v. Leng,¬†2006 BCSC 1582 and¬†Travis v. Kwon, 2009 BCSC 63.¬† Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation.¬† Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time.¬† Dr. Ducholke testified how her time with patients was limited.
¬†¬†¬† In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.
Lastly, this case is also worth reviewing as it contains a useful discussion of ‘rebuttal’ expert medical evidence at paragraphs 29-35.