ICBC Law

As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.

In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.

The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.

The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.

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:

[21] 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’ pain is genuine and I accept that this is the case.

[22] 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 “longitudinal” 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.

[23] 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’ 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.

[24] 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:

[36] 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, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke, 2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

[38]         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.

[39]         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.

[40]         I base this conclusion on a comparison of Ms. Kasidoulis’ 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’ 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’ present condition.

[41]         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’ 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’ 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.

Pre-existing medical difficulties can and do play a role in the process of awarding a Plaintiff damages for pain and suffering and loss of enjoyment of life (non-pecuniary damages).  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this area of law.

In today’s case (Beaudry v. Kishigweb) the Plaintiff’s vehicle was rear-ended by a 1/2 ton pick-up truck.  Fault was admitted for the crash.   The Plaintiff sustained a variety of soft tissue injuries affecting her neck, upper back and lower back.  These went on to cause chronic pain and headaches and the Plaintiff never fully recovered from the consequences of her injuries.

Prior to the accident the Plaintiff suffered from some medical difficulties and these included a chronic low grade depression.  Her pre-accident health made her more vulnerable to having a poor outcome following the accident.  The Defendant, who basically conceded that the Plaintiff did suffer from chronic pain as a result of the collision, argued that “whether or not the Plaintiff was a vulnerable individual (as a result of pre-existing conditions), she cannot be put back to a better position than she would have been had the accident not occurred“.

The Court went on to find that the accident did cause chronic pain which was not resolved at the time of trial.  The Court further found that the chronic pain would continue into the future, however, it would not prevent the Plaintiff from working full time or from carrying out her household responsibilities.  In awarding the Plaintiff $85,000 for her non-pecuniary damages Mr. Justice Rice made the following comments about damages for non-pecuniary loss for chronic pain with pre-existing difficulties:

[25]         The difficulty of assessing damages for soft-tissue injuries where the plaintiff has a complicated psychological and behavioural background is described in Rod v. Greco, 2003 BCSC 935, at para. 35:

As to physical injuries, because of the mechanics of the motor vehicle accident [the plaintiff’s vehicle was rear-ended] some must have been sustained by the plaintiff.  However, the complex psychological and behavioural history both pre and post accident outlined above made it difficult to identify them with any precision.

…

[34]         With the virtual admission by the defendants that the plaintiff now suffers from chronic pain, I must first of all decide what the condition of the plaintiff was just before the accident.  Clearly she was not in the best of shape and that must be taken into account.  She was susceptible to pain and worse, depression, some of which could be said was the result of lifestyle mistakes made in the past.  Having recovered from most of those, I agree that it is not fair to reduce what she would otherwise receive simply on the basis of a greater susceptibility because of her past.  On the other hand, to the extent that those past experiences would have revisited her earlier in life than is normal, account must be taken of that too.

[35]         Considering the whole of the evidence, I find that, indeed, the plaintiff suffers chronic pain as a result of the collision.  I award her $85,000 in non-pecuniary damages.

(Update March 19, 2012 - The Below Decision was modestly modified by the BC Court of Appeal in reasons for judgement released today, reducing the claim for future care by $32,115.  The other trial findings were left intact)

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.4 million in total damages for injuries and loss suffered as a result of a BC car crash.

In today’s case (Shapiro v. Dailey) the Plaintiff was involved in a 2005 intersection crash.  The Defendant driver had been drinking earlier in the day and was operating the vehicle without permission of its owner.  Fault was not admitted but the Defendant driver was ultimately found 100% responsible for the crash.

The Plaintiff was 23 years old at the time of the crash and 29 by the time of trial.  The Court heard from a variety of expert physicians who all agreed the Plaintiff suffered “serious injuries“.  The Court concluded that the Plaintiff did indeed suffer serious and permanent injureis and would struggle to earn a competitive living throughout her career.  Mr. Justice Grauer awarded $110,000 for non-pecuniary damages and $900,000 for diminished earning capacity.  In reaching the award for non-pecuniary damages the Mr. Justice Grauer made the following findings:

[58]         On the whole of the evidence, I am satisfied that, as a result of the motor vehicle collision that is the subject of this action, Ms. Shapiro suffered soft tissue injuries to her cervical, lumbar and sacral spine that, through no fault of her own, have left her with:

·                 disabling cervicogenic headaches, and periodic headaches of a migraine nature;

·                 chronic pain disorder, manifesting itself as myofascial pain syndrome and post-traumatic fibromyalgia syndrome;

·                 depressive symptoms falling short of depressive disorder;

·                 mood disorder including resolving post-traumatic stress disorder, anxiety disorder and panic attacks;

·                 mild, but not insignificant, cognitive difficulties in concentration and memory.

[59]         Whether some of these diagnoses overlap in terms of their symptomatology matters not.  What is clear is that Ms. Shapiro genuinely suffers from the symptoms, and that the whole is greater than the sum of its parts.  This has wrought a profound change in every aspect of her life, from interpersonal relationships with her family, friends and partner to her ability to love, work, play, exercise, relax, sleep, and her ability to move forward with her life.  I find that her prognosis is not hopeless, but is extremely guarded.  Although Ms. Shapiro is the type of person who will work hard to achieve as much improvement as is possible, I am satisfied that, on a balance of probabilities, nothing more than a modest improvement can reasonably be expected.  Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of struggling with pain and fatigue in everything she does.

[60]         I have considered the authorities to which counsel referred me, including Dikey v. Samieian, 2008 BCSC 604; Alden v. Spooner, 2002 BCCA 592, 6 B.C.L.R. (4th) 308;Prince-Wright v. Copeman, 2005 BCSC 1306; La France v. Natt, 2009 BCSC 1147; Pelkinen v. Unrau, 2008 BCSC 375; Whyte v. Morin, 2007 BCSC 1329; Niloufari v. Coumont, 2008 BCSC 816, varied 2009 BCCA 517; and Unger v. Singh, 2000 BCCA 94.

[61]         Each case must, of course, be assessed on its own facts.  Considering all of the circumstances, including her age at the time of the accident (23), the toll her injuries have taken on her, and her prospects for the future, I consider Ms. Shapiro’s plight to be considerably worse than that of, for instance, the older plaintiff in the recent decision of La France($80,000) and worse than the older plaintiff in Prince-Wright ($100,000).  I have considered as well the very recent decision of the Court of Appeal in Poirier v. Aubrey, 2010 BCCA 266, where the 38-year-old plaintiff’s non-pecuniary damages were increased to $100,000.  I assess Ms. Shapiro’s non-pecuniary damages at $110,000.

This decision also has a useful discussion of the law of ‘diminished earning capacity‘ and ‘failure to mitigate’ and is worth reviewing in full for the Court’s comments on these areas of law.

If you’re researching the non-pecuniary value of post traumatic fibromyalgia cases you can click here to access my recent archived posts.

Reasons for judgement were released this week by the BC Supreme Court awarding an injured Plaintiff just over $112,000 in total damages as a result of 2 BC car crashes.  In reaching verdict the court had some critical words for Dr. Schweigel who is one of ICBC’s biggest billing physicians.

In this week’s case (Frangolias v. Parry) the Plaintiff was injured in two collisions in December, 2004.  Fault was admitted for both crashes.  Both cases were tried at the same time with the Court focusing on the value of the claims.  As is usual in these types of claims there was competing medical evidence.  Ultimately the Court preferred the evidence of the Plaintiff’s physicians and in assessing her non-pecuniary damages at $80,000 the Court made the following findings:

[97]    I find that Mrs. Frangolias continues to suffer debilitating chronic pain symptoms arising from soft tissue injuries caused by the December MVAs. She suffers headaches, and pain that begins in her head and extends down through her shoulders and then extends through her back to her tail bone.

[98]    Mrs. Frangolias’ headaches and pain caused by the December MVAs have had an adverse effect on her life. I accept as accurate the limitations on Mrs. Frangolias’ lifestyle described by Mr. Frangolias and Effie Ainsley. While Mrs. Frangolias is able to carry out light housekeeping duties and do some minor cooking, she is otherwise prevented from engaging in active housekeeping, cooking, and gardening.

[99]    While there are no objective signs of injury at this time such as muscle spasm, Mrs. Frangolias continues to display tenderness during medical examinations.

Mr. Justice Walker went on to make some critical comments of Dr. Scwheigel.  Specifically his objectivity as a witness was questioned as illustrated by the following paragraphs of the judgement:

[85]    The defendants relied upon the medical-legal report of Dr. Schweigel, which followed his independent medical examination of Mrs. Frangolias that took place on October 20, 2008. I have considerable concerns about the reliability of the opinions expressed in that report. My concerns arise in respect of Dr. Schweigel’s opinions relating to surveillance videos of Mrs. Frangolias taken on May 12 to 14, 2006, March 14 to April 26, 2008, and May 17 to May 23, 2008, and in respect of some of the comments contained in his report concerning his findings on examination.

[86]    The surveillance videos were marked in evidence and shown to me during the trial. The videos show Mrs. Frangolias in her front yard, driving to a grocery store, and driving to a medical appointment. Surveillance of Mrs. Frangolias must have been taken at some distance away or with a camera of poor quality since with the exception of one sequence, none of Mrs. Frangolias’ facial features are discernable.

[87]    In respect of the first DVD containing the videos from May 12 to May 14, 2006, Dr. Schweigel wrote:

This lady is seen walking in a very normal fashion. She bends quite easily on repeated occasions to inspect her flowers on the May 13, 2006 section of this video. She rotates her neck in a very agile fashion with no obvious discomfort both right and left.

[88]    I carefully watched the images on the first DVD. There were a number of occasions where Mrs. Frangolias appeared to be moving stiffly, moving her head with her body in a stiff manner, as if they were all one stiff board. There are times when Mrs. Frangolias bends over to look at the flowers in her front garden, but due to the quality of the video images, it is impossible to tell whether Mrs. Frangolias was in discomfort when she did or indeed, at any time. My concern with Dr. Schweigel’s remarks is for overstatement and more importantly, for the failure to remark on those images showing Mrs. Frangolias to be moving more slowly or stiffly…

[96]    The foregoing excerpts as some examples of the remarks that cause me to be concerned that some of the opinions expressed in Dr. Schweigel’s report lack balance and objectivity. I am, therefore, most concerned about the reliability of the opinions expressed in the report. In the circumstances, I prefer to rely upon the evidence of Drs. Liu and Travlos as well as my assessment of Mrs. Frangolias and the accounts provided by Mr. Frangolias and Effie Ainsley.

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

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

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

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

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

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

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

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

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

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the fair assessment of damages for chronic soft tissue injuries.

In today’s case (Baxter v. Jamal) the Plaintiff was involved in a ‘substantial‘ 2005 motor vehicle collision.  The Plaintiff was in her vehicle in an intersection waiting to turn left.  The Defendant “ran a red light and struck the driver’s side door of the plaintiff’s vehicle“.

Despite feeling no pain at the time of the accident the Plaintiff in fact was injured.  Her symptoms came on shortly after the crash and some of them persisted to the time of trial.   In awarding $50,000 for the plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Boyd stated as follows:

[18] Dr. Witherspoon and Dr. Rosemary Nairne Stewart, a physiatrist who conducted an independent medical examination on behalf of the plaintiff in February 2009, both opine the plaintiff has suffered soft tissue injuries to her neck and back.  Since more than three years have passed since the injury, they expect she will continue to experience her current symptoms over the long term and that as a result, she will likely be unable to do physically demanding work.  ..

I am satisfied that pre-accident, the plaintiff was asymptomatic and that since the accident, she has unfortunately been plagued by ongoing neck and back pain which now remain unresolved over four years since the accident.  I accept Dr. Nairne Stewart’s opinion that her condition is either the reflection of the soft tissue injuries (suffered at the time of the accident) which remain unresolved or are the result of the trauma to her back (suffered at the time of the accident), which has rendered a previously asymptomatic condition symptomatic.

[34] I accept Dr. Nairne Stewart’s evidence concerning the plaintiff prognosis, namely that she is “likely to continue to experience all of her current symptoms and limitations over the long term.  She will be unable to do physically demanding work because of her injury.  In sedentary work, she will continue to need a good ergonomic setup in her workstation and the flexibility to change her work tasks and position periodically throughout her workday”.

[35] I accept that these injuries have had a significant effect on the plaintiff’s life, both in terms of her career and her recreational activities. ..

[43] On a revinew of all of the evidence, and considering the significant impact these injuries have had and will continue to have on this young woman, I find that an appropriate award of damages is $50,000.

An interesting part of this decision dealt with the Court’s analysis of the competing medical evidence.  As is common in ICBC Injury Claims the Defence called the evidence of an ‘independent medical examiner’ (orthopaedic surgeon Dr. Maloon) who provided an opinion contrary to the Plaintiff’s treating physician with respect to the extent of the accident related injuries.  The court noted that Dr. Maloon’s competing opinion was ‘obliquely stated‘ and ultimately preferred the evidence of the Plaintiff’s doctors.  This case is worth reviewing for the Court’s discussion of the competing expert evidence and the analysis of the Court in favouring the expert evidence in support of the Plaintiff’s case.

One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.

Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury.  So how do courts deal with such claims?  Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility.  If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.

In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC.  The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her.  The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.

Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses.  The award included $45,000 for non-pecuniary damages.  In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries.  The highlights of the Court’s discussion were as follows:

[12] Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area.  In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident.  Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005.  He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.

[13] I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson.  I do not think it is necessary to refer to their evidence in any detail.  In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area.  The doctors also all agree that there is no objective evidence of underlying injury causing this pain.  They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.

[14] Dr. McPherson’s initial opinion was that there was no objective evidence of disability.  However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006.  I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future.  However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.

[15] The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation.  The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.

[16] Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area.  I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…

[18] Ms. Sylte is 51 years old.  She testified that prior to the first motor vehicle accident she was an active, energetic individual.  She enjoyed playing mixed softball, golf and skiing.  She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster.  She was a single mother whose adult son, Josh, lived with her.

[19] Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally.  She simply finds these activities too painful to pursue.  In addition she no longer skis.  She indicated that Josh is now required to do many of the more physically demanding tasks around the house.  She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain.  She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.

[20] Josh gave evidence at the trial.  He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident.  He also indicated that his mother had become much less social after the accident.  Josh, who is now 31, does much of the heavy work around the house.

[21] Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident.  The evidence before me is that these symptoms will be permanent.  I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing.  She is in more or less constant discomfort from the injuries she has suffered.  As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.

[22] I have concluded that there should be a substantial award for non-pecuniary damages in this case.  I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability.  In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.

(Please note the case discussed here was overturned by the BC Court of Appeal in May, 2010)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry, (Poirier v. Aubrey) awarding a Plaintiff just over $220,000 in total damages as a result of a BC Car Crash.

The Collision occurred in 2006 and was a rear-end crash.  The Plaintiff suffered from some pre-existing injuries but the trial judge found that the Plaintiff did not have a ‘relevant’ pre-existing condition.  Mr. Justice Stewart concluded that the accident caused fibromyalgia and awarded $60,000 non-pecuniary damages.  In arriving at this figure Mr. Justice Stewart noted the following:

there was no relevant significant pre-existing condition and the doctors may differ as to what label should be applied to the plaintiff’s condition – fibromyalgia, fibromyalgia-like syndrome, chronic pain condition – but the fact is that she suffers from chronic widespread pain that is, for her, debilitating and with respect to which the prognosis is guarded.  An “optimal fibromyalgia based treatment protocol”, including biofeedback, is recommended and there is a real and substantial possibility, bordering on likelihood, that her pain and discomfort will be relieved and her functioning improved.  (Exhibit 5 Tab B Page 6).  But no “cure” is in prospect…

I find as a fact that the plaintiff’s persistent, consistent and, ultimately, chronic pain and suffering arose only immediately after the September 5, 2006 motor vehicle accident.  The schism in the expert medical evidence placed before me was not as to whether the September 5, 2006 trauma was a materially contributing cause of the plaintiff’s ongoing chronic pain condition but as to whether it so contributed by exacerbating a pre-existing chronic pain condition or by simply triggering a chronic pain condition.  It is now a fact that there was no significant pre-existing condition.  The only available conclusion in the case at bar is that but for the defendant’s negligence on September 5, 2006 the plaintiff would not be burdened with the chronic pain condition that has been her lot since September 5, 2006.

[23] Soft tissue damage is the source of her problems.  I have kept Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) in mind.  I find that the plaintiff is one of that small percentage of people, well known to the law, whose pain and suffering continues long after science would say that the injured tissue must have healed.  I have cautioned myself about the need to be slow to rely on what are uncorroborated reports of long-standing pain and discomfort.  But, on the whole of the evidence I have decided that her complaints of pain are true reflections of a continuing injury and are not a product of desire by the plaintiff for things such as care, sympathy, relaxation or compensation and that she has used every ounce of willpower she has to overcome her problems and could not reasonably be expected to have achieved more by her own inherent resources or willpower.  (Maslen v. Rubenstein,supra, paragraphs 8 and 15).

[24] I turn to the future.

[25] To use language employed by Dr. Jaworski, the prognosis is “guarded”.  Taken together, the evidence of Dr. Hyams, Dr. Shuckett and Dr. Jaworski bottoms the conclusion that what is now in place – an ongoing, positive, pro-active approach, to echo Dr. Shuckett – means that there is a real and substantial possibility that significant improvement is in the offing.  To date, the plaintiff has sought help in such things as prescription drugs, chiropractic treatments, physiotherapy, massage, acupuncture and trigger point injections.  Only now is the plaintiff in the course of an organized effort to both alleviate her pain and discomfort to the extent possible and teach her techniques and methods of dealing with and surmounting her pain and discomfort.

[26] I turn to the assessing of non-pecuniary damages.  The plaintiff has been burdened thus far for 39 months.  Her prospects are not bleak, but guarded.  The level of the pain and discomfort she has endured was such that her life apart from work has been turned from one full of activity to one devoted to rest and recovery.  She is not housebound.  She drives a car for up to 20 hours a week and makes herself useful in the lives of her children.  The level of her pain and discomfort resulted in this woman – whom I am convinced is not a slacker and enjoyed her job in the world of insurance adjusting – being off work for six weeks, returning to work at half-time for two months and, ultimately, stopping work after having her employer cooperate in every way possible to reduce the demands of the job so that she could continue working.  That speaks volumes about her condition.  Additionally, the fact she actually enjoyed her work and has had it curtailed as a result of the defendant’s negligence must weigh heavily in the assessment of non-pecuniary damages.  I have considered the cases placed before me by counsel.  To track some of the language used in Knauf v. Chao, 2009 BCCA 605, I classify this as a case in which there is a real and substantial possibility that the plaintiff’s soft tissue injury will prove to be “permanent” but the degree of pain and discomfort cannot be considered to be “the most severe in nature” when compared with that of plaintiffs in other such cases.  Taking into account not just what I have said here but the whole of the evidence and all I have said thus far in these reasons for judgment, I award the plaintiff $60,000 by way of non-pecuniary damages.

This case was interesting for Mr. Justice Stewart’s very specific reasons setting out why he rejected many of the defence positions advanced at trial and also for the Court’s discussion of the law of adverse inference for failing to call a treating physician in an injury claim.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $156,000 in total damages as a result of damages and loss from a BC Car Crash.

In yesterday’s case (Szymanski v. Morin) the Plaintiff was involved in a rear end collision in 2004.  Liability (Fault) was admitted by the Defendants leaving the court to deal with the value of the Claim.

The Plaintiff suffered mild/moderate soft tissue injuries but due to the nature of his physical work (a hard-wood floor installer) his injury continued to be aggravated and symptomatic through trial some 5 years later.

In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Ker highlighted the following facts with respect to the accident related injuries:

[134] Upon a consideration of all of the evidence, I find that Mr. Szymanski’s complaint of continuing neck and trapezius pain was caused by the accident.  The fact that he suffered soft tissue injuries to his neck is not disputed.  The significance in this case is that the complaint continues.  I find that Mr. Szymanski continues to suffer neck and trapezius pain and that is because the accident and injuries occurred to a person with Mr. Szymanski’s particular occupation such that it has made it difficult for the injuries to fully resolve in the ordinary course.  As noted in the evidence of Dr. Tomaszewski, Dr. Hershler and Ms. Quastel, which I accept, Mr. Szymanski’s occupation as a hardwood floor installed has exacerbated the situation and made him more susceptible to suffering injury for a greater period of time than a normal person might have.  Mr. Szymanski has established that he has continuing problems with chronic neck pain and his continuing problems were caused by the defendants’ negligence.  He is entitled to be compensated for his injuries…

[142] I accept Mr. Szymanski’s evidence that he sustained a soft tissue injury to the left side of his neck as a result of the accident and that he still experiences pain in the left side of his neck that radiates into his upper left trapezius muscle area.  The injury can be described as mild to moderate in nature but has developed an element of chronic pain that continues to bother Mr. Szymanski.  The pain is most evident when Mr. Szymanski works.  His job as a hardwood floor installer is physically demanding although he has been able to find contracts that are less demanding than what he undertook prior to the accident.  This chronic neck pain still manifests itself some four years after the accident, albeit significantly reduced from what it was immediately after the accident and the two years following the accident.

[143] Mr. Szymanski is a stoic and determined person.  Despite the neck and upper left trapezius pain he has tried to remain physically active but is less active than he was prior to the accident.  He no longer goes for long hikes, electing shorter slower walks, he no longer canoes, he hunts less than he did prior to the accident, primarily by reducing the number of hours he goes out hunting.  His injuries have impacted on his ability to contribute to various household chores such as vacuuming and washing dishes, and he is not able to conduct the home renovations at the pace he had set before the accident.  He no longer socializes to the extent he used to prior to the accident because of the chronic pain and fatigue he experiences.  His plan of retiring and building and opening a bed and breakfast may well be compromised by the continuing pain he experiences and thus is a further component in the assessment of impairment and loss of his previous lifestyle.

[144] Taking into account all of these circumstances, the referenced authorities and the nature of Mr. Szymanski’s injuries, the fact that the injury of real consequence was to the left side of his neck, and the upper left trapezius muscles that lead to his left shoulder, the relatively enduring nature of this injury, the pain he has suffered and may continue to experience in the future, as well as the fact that he suffered some diminishment in lifestyle, I assess non-pecuniary damages in the amount of $75,000.