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 ‘Complex Regional Pain Syndrome’

Road Rage Assault Leads to $800,000 Civil Judgement

August 22nd, 2017

Reasons for judgement were published this week assessing damages for a plaintiff who sustained serious injuries following a road rage assault.

In this week’s case (McCaffery v. Arguello) the parties were involved in a road rage incident resulting in the Defendant existing his vehicle and  repeatedly striking the Plaintiff  “with the baseball bat, causing him serious but non-life-threatening injuries to his head, chest, left arm, hand, and wrist.

The Defendant was criminally convicted for his actions.  In the civil lawsuit damages of just over $800,000 were assessed with findings that the assault caused Complex Regional Pain Syndrome along with other partially disabling injuries.

In assessing non-pecuniary damages at $200,000 Madam Justice MacNaughton provided the following reasons:

[37]         Dr. Negraeff examined Mr. McCaffery on March 9, 2016 and diagnosed the following injuries:

a)    Complex Regional Pain Syndrome Type 1: Left Hand (“CRPS”);

b)    persistent headache attributed to mild traumatic injury to the head;

c)     moderate to severe sleep disturbance secondary to chronic pain and headaches; and

d)    moderate to severe mood disturbance with anxiety and depression secondary to chronic pain and headaches.

[38]         Dr. Negraeff explained the CRPS is a form of chronic pain that usually develops in a limb after an injury to it. There are two types of CRPS depending on whether a distinct nerve injury is confirmed. In the first type, there is no confirmed nerve injury and in the second, such a nerve injury is confirmed. The hallmarks of CRPS are pain which is out of proportion to the injury and a combination of symptoms that can include swelling, skin colour and temperature changes, sweating, hair and nail growth changes, and disturbances to the movement or coordination of the limb…

[45]         I conclude that at the age of 28, in the few moments in which the Incident occurred, Mr. McCaffery became a different person. The effects of the assault will redefine Mr. McCaffery for the rest of his life, both physically and psychologically. He no longer sees himself as a “big strong guy” who could do, and did, nearly everything.

[46]         Mr. McCaffery’s personality change has also affected what had been a very positive, close, and harmonious family relationship among Mr. McCaffery, his wife, and their three children. All of Mr. McCaffery’s family witnesses testified about how his symptoms have affected his relationship with Ethan, who has been most affected by his father’s personality change and physical limitations. Ethan was old enough to have experienced and remembered his father’s much more engaged and affectionate relationship with him before the Incident. Ethan misses the activities he used to do with his father and is cautious about not hurting him.

[47]         Mr. McCaffery’s continuing pain has caused sleeplessness, and his headaches are often accompanied by dizziness…

[56]         Based on all this evidence, I conclude that Mr. Arguello’s actions have caused Mr. McCaffery to suffer debilitating and disabling injuries which have had significant life-changing effects and that, as a result, he should be compensated with a substantial award of non-pecuniary damages…

[79]         Taking all these considerations into account, I have concluded that an appropriate award for Mr. McCaffery’s pain, suffering, and loss of enjoyment of life is $200,000.

The Court went on to note that punitive damages were warranted even though the Defendant was criminally convicted.  In assessing punitive damages at $30,000 the court provided the following reasons:

[122]     At para. 33 of Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA 277, referring to Whiten v. Pilot Insurance Co., 2002 SCC 18, Justice Gerow reviewed the factors a court should consider when determining whether to award, and the quantum of, punitive damages. In addition to the overall purpose of such damages, in relevant part, the factors she outlined included that:

a)    punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, and any advantage or profit gained by the defendant;

b)    punitive damages should take into account any other fines or penalties suffered by the defendant for the misconduct in question;

c)     punitive damages should generally only be awarded where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence, and denunciation;

d)    the purpose of punitive damages is to give the defendant her or his “just desert”, deter the defendant, and others, from similar misconduct, and to mark the community’s collective condemnation about what has happened. Punitive damages are only awarded when compensatory damages are insufficient to accomplish these objectives;

e)    punitive damages are awarded in an amount that is no greater than necessary to accomplish their purposes and are generally moderated; and

f)      the court should assess whether the conduct of a defendant should be punished over and above the requirement to pay non-pecuniary, pecuniary, and aggravated damages.

[123]     In this case, Mr. Arguello was prosecuted and convicted of assault with a weapon and assault causing bodily harm. He was sentenced to a six-month conditional sentence, during which for three months he was subject to a curfew, and one year of probation. At the sentencing hearing, Mr. Arguello’s criminal counsel submitted to Judge Moss that the fact that Mr. Arguello was facing a civil lawsuit for damages should be a factor in favour of a conditional sentence. In his sentencing reasons, Judge Moss considered the fact of the civil lawsuit.

[124]     The compensatory damages I have awarded are significant, but they compensate Mr. McCaffery for his actual losses and damages. In the circumstances of this case, I am satisfied that an award of punitive damages is also necessary to make it clear to the public that Mr. Arguello’s conduct departed so markedly from the ordinary standards of decent behaviour as to be worthy of further punishment.

[125]     Mr. Arguello’s decision to follow Mr. McCaffery’s vehicle for five kilometres up the Upper Levels Highway, cut aggressively in front of it, slam on his brakes and cause a collision, and then to exit his vehicle with a baseball bat with which he repeatedly hit Mr. McCaffery, cannot be countenanced in civil society where hundreds of thousands of drivers use our roads and encounter driving manoeuvres which upset or anger them. Road rage incidents are increasingly common in our busy lives and on our busy roads as drivers’ jockey for position. They cannot be tolerated.

[126]     I accept that Mr. Arguello expressed regret for the injuries he caused by his behaviour, but at the same time, he asked for consideration for the legal fees he expended to defend himself criminally and the impact of the Incident on his family. As the person determined to be fully responsible for the Incident, both criminally and civilly, his submissions indicated to me that he had not entirely understood the community’s condemnation of his behaviour.

[127]     Therefore, in addition to the compensatory damages I have ordered, I award Mr. McCaffery the sum of $30,000 in punitive damages.


$85,000 Non-Pecuniary Assessment for Knee Injury With Potential CRPS

August 29th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Williams Lake Registry, assessing damages for a chronic knee injury.

In this week’s case (Anderson v. Shepherd) the Plaintiff suffered a “major injury” to his knee when he was struck by the Defendant’s vehicle crushing his knee “between the car door and the frame of the vehicle“.  Fault was admitted focusing the trial on damages.

The Plaintiff’s knee injury required surgical intervention and resulted in chronic pain.  He was diagnosed with potential Complex Regional Pain Syndrome because of his knee trauma.  His pain symptoms were expected to linger indefinitely.  In assessing non-pecuniary damages at $85,000 Mr. Justice Davies provided the following reasons:

[58] Although the medical opinions differ with respect to whether Mr. Anderson may suffer from complex regional pain syndrome because of the injuries to his knee, and also whether patellar maltracking was caused by or made symptomatic by the collision, I am satisfied by the totality of the evidence that the knee pain Mr. Anderson has suffered and continues to suffer, as well as the mobility issues he has experienced and continues to experience, are genuine and were all caused by the collision.

[59] I am also satisfied on a balance of probabilities that the negative effects upon Mr. Anderson’s life arising from the left knee injury were caused by the collision and the defendant’s negligence, and would not have occurred but for that negligence…

[75] My consideration of the totality of the evidence in this case leads me to conclude that:

1) Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.

2) Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.

3) No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.

4) Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.

5) Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.

6) The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.

84] Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.

[85] Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.

[86] Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.

[87] After considering the totality of the evidence and the principles enunciated in Stapley, and the authorities to which I was referred by both counsel, I have determined that an award of $85,000 is necessary to appropriately compensate Mr. Anderson for his non-pecuniary losses.