ICBC Law

Reasons for Judgement were released today by the BC Supreme Court addressing two noteworthy topics, the non-pecuniary damages for a right knee avulsion fracture with good resolution and the potential consequences of testimony which overstates the effects of an injury in an ICBC court case.

In today’s case (Dodsworth v. Krenus) the Plaintiff was struck by a vehicle while he was walking in a crosswalk in North Vancouver, BC.   Fault was admitted by the motorist.  The Plaintiff sustained various injuries the most serious being “an avulsion fracture of the insertion of the lateral collateral ligamentous complex of his right knee where it inserted in the fibular neck“.

As significant as this sounds the fracture was ‘minimally displaced’ did not require surgical intervention and made a good recovery.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Masuhara noted the following:

[34] Mr. Dodsworth suffered a serious injury and endured considerable pain particularly during the first few weeks following the accident.  He suffered multiple bruises and abrasions from the accident, in addition to the avulsion fracture.  He was on pain medication for a month, wore a knee brace for four months, his mother testified to his significant pain during the first few days of the accident, he suffered a rectal tear caused by the constipation from the pain medications, he had to attend physiotherapy 2 to 3 times a week for months, and he was unable to bear weight on his injured leg for about three months.  On the other hand, he had sufficient ability to within a few days of the accident to attend his family doctor’s office, attempt to take classes at UBC, attend traffic court in North Vancouver to dispute traffic violations, to go shopping and make purchases to replace his pants, prescription glasses, and laptop computer that had been damaged in the accident, and start physiotherapy. ..

[36] …The medical evidence indicates that there is a risk, though small of the plaintiff developing early degenerative osteoarthritis in his right knee as a result of the accident.  The plaintiff has regained full range of motion in his right knee with no residual knee instability; as well, he has full range of motion of his lumbar spine.  This evidence also indicates that there is an even chance he will continue to suffer some intermittent, occasional annoying and disabling low back pain for the foreseeable future.  In terms of neurologic injury, the plaintiff did not suffer any permanent neurologic injury as a result of the accident.

[37] I note the evidence of the plaintiff’s family physician since birth who stated in his report that “in time Justin will become completely asymptomatic”. ..

[39] Having reviewed the cases provided by each of the parties and having regard to the specific circumstances of this case with respect to the inconvenience, loss of enjoyment of life and the pain and suffering the plaintiff has experienced, and making allowances for risks, I assess general damages as being $45,000.

I’ve written many times about the crucial role Plaintiff credibility plays in any BC personal injury lawsuit or ICBC claim.  Pain is inherently subjective and cannot be measured.  If a Plaintiff lacks credibility this will directly impact the value of a claim.  The role of credibility in injury litigation was highlighted once again in today’s case where Mr. Justice Masuhara found that the Plaintiff’s “testimony was overstated in regards to his disabilities“.  This finding in all likelihood affected the Court’s valuation of the Plaintiff’s non-pecuniary loss.  In coming to this conclusion the Court made the following key comments:

[38] I find that Mr. Dodsworth’s testimony was overstated in regard to his disabilities.  I say this in light of the following:

(a)      his full participation as a camp leader for two summers at Camp Elphinstone post-accident .  He was one of two leaders in charge of ten campers on a continuous basis for two weeks at a time over the entire summer.  He would lead the children in a wide variety of activities such as hiking, camping, swimming, climbing high ropes, sailing, field games, kayaking, canoeing, etc.  I note that this included lifting and carrying a large war canoe, kayaks, hobie cats, and canoes.  There is no indication that he had any limitations in these activities other than his own statement.

(b)      his ability to ski on double diamond runs as he indicated in his examination for discovery.  In this regard, I did not accept his correction at trial that he was actually in the Seventh Heaven area an intermediate ski area.  Mr. Dodsworth’s vagueness, lack of recall or inconsistencies during the trial reduced the level of reliance to be placed on his more recent recall of events and the level of his injuries generally.

(c)      his ability to successfully complete within a concentrated period of time all of his lifeguarding certifications and subsequent annual re-certifications, all of which involved a fairly high level of physicality and concentration;

(d)      his ability to carry on as a lifeguard and swim instructor, though I note at one point he did not take on any shifts as a swim instructor but did not tell his supervisor.  My view is that this was more related to his claim than his disability;

(e)      his ability to successfully complete his education in an expeditious fashion; and

(f)       his vagueness or lack of recall relating to events surrounding previous employment, his diversion, and inconsistency between the aforementioned activities and his claimed disability.

Given all of his activities I am not persuaded that his pain is or will be as debilitating as submitted.  I do not view the ongoing complaints as significant as those suffered by the plaintiffs in the cases he cited to the court, including the extent of his right knee injury.

As readers of this blog know a common theme in injury litigation is that ’stoic’ plaintiffs are not punished by reducing the value of their claims due to their tough attitudes.  This can be contrasted with numerous cases where damages are assessed at a lower range where Courts find plaintiffs have overstated their injuries.  A good lesson to learn for lawyers and clients alike is that a tough attitude in the face of injury is not a bad thing.

When people suffer from mild traumatic brain injuries (MTBI), it sometimes takes time for people to recognize the extent of the injury and the impact that the consequences of MTBI have on everyday life.  Changes can be subtle but the impact could be dramatic.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering such a case.

In today’s case (Burdett v. Eidse) the Plaintiff was involved in 2 serious motor vehicle accidents.  The first in Kelowna, the second in North Vancouver.  Fault was not admitted for the first but after trial the Court found the Defendant 100% liable for the first crash.  Fault was admitted by the Defendant for the second crash.  Madam Justice Loo was asked to determine the extent of the Plaintiff’s accident related injuries.

The Plaintiff suffered from an MTBI in the first crash.  As is sometimes seen with these types of injuries the Plaintiff did not appreciate the significant impact his MTBI had on his level of functioning.   The Plaintiff, who had a “bulldog“ attitude took very little time off work and complained very little about the consequences of the car crash.

To those around the Plaintiff, however, the changes were noticeable.  Evidence was called that there were significant changes in the Plaintiff’s functioning after the car crash by those close to him.  Ultimately Madam Justice Loo of the BC Supreme Court accepted that the Plaintiff did suffer an MTBI in the collision and that he was competitively unemployable as a result.  The Court went on to award just over $1.1 Million in total damages including an award of $200,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In reaching her conclusions Madam Justice Loo highlighted the difficulty the Plaintiff had in realizing the consequences of the car crash.  Some of the key findings were as follows:

[106] When asked when he became aware that he had a problem, Mr. Burdett said that when he first saw his counsel Mr. Burns, he mentioned he had an accident, and “kind of left it” at that. No one in his crew told him he was not doing what he was supposed to be doing on the job. Then “weird things” started “creeping into my life”. Friends started telling him he was forgetting things, he was having a hard time remembering numbers, he could no longer estimate the cost of a plan, and he was forgetting things at work. His crew told him to get joist hangers and he returned with something else. They started writing things down for him so that he would remember. He finally realized “there’s something really wrong here; I need help”. He returned to see Mr. Burns again.

[107] There is no evidence of when Mr. Burdett saw his counsel the first or second time, but this action was commenced and a statement of claim filed on April 4, 2007. The statement of defence was filed July 30, 2007.

[108] Despite what his family, friends, and co-workers saw and observed of Mr. Burdett, it was not until he saw Dr. Cameron that he recognized the extent of his injuries from the motor vehicle accident of June 26, 2005.

[109] At the time Mr. Burdett worked on the Losch and Summerland Motel projects, he thought he was doing fine. In retrospect, he was not. In retrospect he realized that he was cut out of the loop, did not stay on top of matters, and let work get out of control.

[110] Several times during the construction of the Losch projects, the architect voiced to him that the project was not running satisfactorily. Not only has an architect never said that to him, but Mr. Burdett also did not realize that the project was not running smoothly at the time.

[111] Mr. Burdett’s company is still owed $80,000 on the Losch project, but Mr. Burdett is unable to determine what the deficiencies are or what work has been left undone because he left everything to the job superintendent with whom he no longer has a relationship.

[112] The Summerland Motel project became an even bigger disaster because Mr. Burdett failed to properly manage the project. He did not write up a change order or extra work order and did everything with a wave of his hand. He never made sure that the owner had financing in place, with the result that Mr. Burdett financed much of the work with his own personal funds. He did not deal with the trades as he should have, with the result that trades walked off the job or never showed up. The job occurred at a time when carpenters and other trades were hard to get. Mr. Burdett misquoted parts of the work by leaving out necessary work, and did not know at the time that he was having difficulty estimating and working with numbers.

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.

Litigants in the BC Supreme Court have to make pre-trial disclosure in a variety of ways.  Some of this compelled disclosure may reflect poorly on a party’s credibility but if the documents or evidence is otherwise producible it must be disclosed to the other side despite the potentially harmful effects on your case.  What about documents or facts that don’t relate to the lawsuit directly but do address a parties credibility?  Can these documents be forced to be disclosed?

The answer is usually no.  Credibility, as important as it is, is considered a ‘collateral issue‘ in litigation and matters relating solely to credibility are deemed irrelevant in terms of pre-trial disclosure.  Reasons for judgement were released today by the BC Supreme Court discussing this.

In today’s case (Bay v. Pasieka) the Plaintiff was involved in a 2005 intersection car crash in Kelowna, BC.  The Plaintiff sued the alleged at fault motorist.   In the pre-trial discovery process the Defendant stated he had no recollection of the accident.  In exploring why the Defendant had no recollection the Plaintiff’s lawyer asked him whether he might have been taking any medication at the time of the crash which may have affected his memory to which he replied “I don’t know if I took medication that would affect my memory“.

The Plaintiff’s lawyer brought a motion for the production of the Defendant’s MSP history along with clinical records of treating physicians who cared for the Defendant in the relevant time frame to test “the creditility of the defendant” and to provide “some explanation for why he has no recollection of the accident“.

Master Young ultimately dismissed the motion holding that the evidence on the application was not sufficient for production of the sought records.  Before reaching this conclusion Master Young made some useful comments with respect to sought disclosure in ICBC Injury Claims relating solely to issues of credibility.  Specifically she held as follows:

Credibility is a collateral issue, as stated in the decision of Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78 (S.C.), and that decision says that it is not a matter which can be examinable in discovery. The defendant quotes from the decision in Roberts v. Singh, 2006 BCSC 906, which confirms that principle and quotes several other decisions which I have reviewed..These records are only being demanded to challenge his credibility, which is not a relevant issue.

There is caselaw that suggests that matters relating solely to credibility may be produced when punitive damages are being claimed (see for example Rioux v. Smith; 1983, 43 BCLR 392) but otherwise it is important to note that credibility is a ‘collateral issue‘ and not relevant for the purposes of pre-trial disclosure.

Reasons for judgement were released today showing how an effective cross examination of a Defendant can make all the difference in the prosecution of an ICBC Injury Claim.

In today’s case (Mclaren v. Rice) the Plaintiff was involved in a single vehicle accident in February, 2005.  The Plaintiff was a passenger.  The Defendant lost control of the vehicle and left the roadway.  The Plaintiff was injured in this collision.  There were no witnesses to the crash itself and the Plaintiff’s injuries were so severe ( a closed head injury and a fractured skull) that he had no memory of the accident.  The Defendant denied that he was at fault for losing control of the vehicle.

Just because a driver loses control of a vehicle does not automatically make him at fault for the accident.  The Plaintiff still has to prove his/her case on a ‘balance of probabilities‘.   So how then, can a plaintiff with no memory of what happened, with no witnesses and with a defendant who denies wrongdoing prove his case?  Some of the tools that can be used are pre-trial discovery and cross examination.  Today’s case demonstrates that the lawyer involved effectively used these tools to prove that the Driver was responsible for losing control.

Mr. Justice Brooke found that the Defendant driver was at fault.  In reaching this conclusion the Court highlighted serious damage done to the Defendant’s position through cross-examination.  The Plaintiff’s lawyer was able to pick apart the Defendant’s in court evidence and the effect of this was a winning case for the Plaintiff.  Following the Defendant’s cross examination Mr. Justice Brooke reached the below conclusions about his credibility:

[24] There are significant inconsistencies and contradictions between the evidence given by Jacob Rice at trial and prior unsworn statements given by him and prior evidence given under oath. It is, of course, the evidence given at trial that I must assess, and those prior inconsistent statements go to the credibility of Mr. Jacob Rice. I find that Jacob Rice is an unreliable witness and that the inconsistencies and contradictions diminish such weight as his evidence might have had. I find that the events immediately preceding the accident are not clear in Jacob Rice’s mind because he was either asleep or inattentive as the truck proceeded across the oncoming lanes of traffic. There were no brake marks or any indication that evasive action was taken until the truck “hit the ditch”. I find that what Jacob Rice told ICBC in his statement taken on March 8, 2005, is likely what happened:

It was a pull to the left and then, I just hit the ditch and as we hit the ditch, I tried pulling it to the right and it lost control and, and spinning and from there, it just lost control.

(Emphasis Added)

[25] I find that Jacob Rice failed to apply the brakes in a timely fashion and that he failed to divert the course of the truck so as to avoid the accident which occurred. Whether he fell asleep or was merely momentarily inattentive, his conduct was negligent.

When involved in an ICBC Injury Claim it is natural to want to know what the trial experience can be like. The best way to experience what the Court process is like is to actually attend a live trial and watch the evidence play out before you.  This is easy enough to do, particularly in larger centres around the Province, like in Vancouver or New Westminster, as an injury trial is occurring on almost any given day.

If you can’t do this you can read past court judgements to get a feel for the ways these claims can proceed at trial.  While this is not nearly as enlightening as witnessing a live trial some useful insight can still be gleaned.  If you are looking for a court judgement giving insight into the court process Reasons for judgement were released today reproducing extensive portions of a Plaintiff’s cross examination in an ICBC Brain Injury Claim that are worth reviewing in full.

In today’s case (Trevitt v. Tobin) the Plaintiff was injured in a 2004 Motorcycle Accident in Surrey, BC.    The Defendant pulled into the Plaintiff’s line of travel while making a left hand turn.  The Defendant ultimately conceded the issue of fault.

The trial focused on the injuries the Plaintiff had the the appropriate award for compensation.  The Plaintiff alleged that he suffered a traumatic brain injury and as a result would suffer a serious ongoing disability.  The Plaintiff sought over $1.5 million dollars in total damages.

The Plaintiff’s claim with respect to his injuries and the extent of disability was largely rejected with Mr. Justice McEwan finding that “the physical evidence does not account for a head injury or concussion“.  In the end the Court found that the Plaintiff suffered from “general bruising and shaking up in the accident” and following a setback in his career ambitions he suffered from “ongoing difficulties with headaches, tinnitus and some balance issues“.  The Court found that these issues were ongoing by the time of trial (some 5 years later).  The Plaintiff’s non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) was valued at $60,000.

The Court heard from many very qualified physicians who gave opinion evidence with respect to the Plaintiff’s medical condition.  As is often the case in ICBC Injury Claims the court heard competing expert evidence from physicians called by the Plaintiff and the Defendant.  In determining which experts had the more useful evidence Mr. Justice McEwan pointed out that “what any given doctor ‘believes’ is only helpful to the extent taht the underlying information is plausible by the standards of the court“.

To this end, the The Plaintiff’s credibility and reliability were put squarely at issue in this trial.    The Defence lawyer argued that credibility was central to this case and engaged in an extensive cross examination relating to the Plaintiff’s credibility as a witness.  Portions of this cross examination are set out in paragraphs 15-18 and these give good insight into what cross-examination can be like in Injury Litigation.   Ultimately Mr. Justice McEwan held that the plaintiff gave some “unusual” and “inconsistent” evidence and that “he quite clearly cannot be relied upon for the accuracy of his observations about his condition“.

I’ve blogged many times about ICBC’s LVI program.  This program is not unique to ICBC.  Many auto insurers have a similar program where they deny compensible injury in tort claims where little vehicle damage occurs in the collision.

The difficulty with the LVI defence, however, is that to successfully run it the defence lawyer is basically inviting the court to find that the Plaintiff is lying about or exaggerating their injuries.  There have been many LVI cases that have gone to trial recently and the overwhelming judicial response to these was to find that compensible injury in fact did occur. Reasons for judgment were released today dealing with 2 LVI cases and such a finding was made again.

In today’s case (Loik v. Hannah) the Plaintiff was involved in 2 collisions in 2006.  Fault was admitted in each case leaving the Court to deal with the issue of quantum of damages (value of the claims).  The cases were defended on the LVI basis where the defence lawyer denied that the Plaintiff was injured in either of the accidents.

Mr. Justice Goepel rejected this argument and found that, notwithstanding the minor nature of these collisions, the Plaintiff was indeed injured.  The court’s useful analysis is set out at paragraphs 34-36 which I set out below:

[34] Ms. Loik claims damages arising from injuries she alleges to have suffered in what were two admittedly low velocity conditions. If the plaintiff was injured in the accidents, the injuries have persisted much longer than one would normally expect. In determining this case, the comments of Chief Justice McEachern, as he then was, in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 398-99 (S.C.), must be kept in mind:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation. …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[35] In this case, as in most soft tissue injury cases, the case largely turns on the plaintiff’s credibility. The evidence of her injuries is based almost entirely on her subjective reporting to her doctors and to the Court. In such circumstances, it is important to consider whether the evidence of the witness accords with the circumstances that are proven on a balance of probabilities:  Faryna v. Chorny (1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.).

[36] I find the plaintiff to be a credible witness. Her evidence accords with the surrounding circumstances. Prior to the accident, she was living a healthy active life, participating in many activities. She no longer is able to do so. I find that the reason she cannot do so is the ongoing pain she continues to suffer as a result of the motor vehicle accidents.

Mr. Justice Goepel found that the Plaintiff suffered soft tissue injuries in these collisions “which have caused her ongoing problems with her neck, back and shoulders.”  He went on to value the Plaintiff’s non-pecuniary damages at $25,000.

In addition to a useful discussion about LVI Accidents, the court went on to discuss a topic that I wrote about yesterday, namely the connection between the value of a claim and the numnber of medical appointments attended.

The Defendant argued that since the Plaintiff did not seek medical treatment between November 2006 and April 2008 her injuries had fully recovered.  Mr. Justice Goepel rejected this argument finding that “She thought she was getting better and continued to do the exercises that had been prescribed for her. When, over the next 18 months, her condition did not improve, she sought further medical treatment. In the circumstances of this case, I find that the failure to seek medical treatment does not establish that the plaintiff had recovered from her injuries by November 2006.”

(Update: December 14, 2011 - the  below decision was upheld by the BC Court of Appeal in reasons for judgement released today)

I’ve written on this topic a few times in the past.  Surveillance in and of itself does not harm a Plaintiff’s ICBC Injury Claim.  It’s when surveillance contradicts a Plaintiff’s testimony that the damage is done.  Reasons for judgment were released today by the BC Supreme Court demonstrating this in action.

In today’s case (Fan v. Chana) the Plaintiff was injured as a passenger in a rear-end collision in Vancouver BC. The crash happened in 2000 and the Plaintiff was 9 years old at the time.

At trial the Plaintiff testified that she suffered various injuries in this collision and that these continued to affect her at the time of trial some 9 years later.   Mr. Justice McEwan noted that the Plaintiff “twisted, turned, stretched and pushed herself against the edge of the (witness) box almost constantly” while testifying.

The Court concluded that the Plaintiff’s injuries were not as severe as presented and instead found that this crash caused “soft tissue injuries of an immediate duration of less than two years” and awarded $25,000 for the Plaintiff’s non-pecuniary damages.

In coming to his conclusions about the extent and severity of the Plaintiff’s injuries the Court noted the following about video surveillance evidence that was gathered on behalf of the defendant:

[50] The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain.  After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed.  In redirect she identified a few occasions on the video where she appeared to “crack” her neck…

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves.  The first is her ordinary, public life.  This is the world of school and teachers and social friends.  In the aftermath of the accident, the plaintiff’s physical education teachers noted no change.  The plaintiff’s marks were those of a diligent, hard working student.  Her social activities are in all respects normal.  The plaintiff’s friends consider her an outgoing, lively companion.  Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court.  There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say.  The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies.  She was observed to sit through a very long film with no trouble.  I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.

In addition to a useful and lengthy discussion on credibility in chronic pain cases Mr. Justice McEwan had the following statement of interest when it comes to doctor’s opinions regarding the severity of Chronic Pain in Subjective Injury Cases:

[72] The balance of the medical opinion divides along lines that depend on the degree of scepticism the doctors bring to the description of symptoms with which they were presented.  These range from very strong endorsements of the plaintiff’s claims (Dr. Kuttner, as reported by Dr. Hahn) to the blunt, contrary opinions offered by Dr. Weeks.

[73] I see very little purpose in parsing the medical reports to sort out who has the greater credibility based on their qualifications (i.e. “paediatric” physiatrists v. “adult” physiatrists).  As courts have observed on any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately reporting to them and then set about a diagnosis that plausibly fits the pattern of the complaint.  In the absence of objective signs of injury, the court’s reliance on the medical profession must, however, proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries.

On Friday two more cases were released by the BC Supreme Court dealing with non-pecuniary damages which  I summarize below to add to this Pain and Suffering database.

The first case (Macki v. Gruber) dealt with a bus accident.   The Plaintiff’s vehicle was struck by a Greyhound bus in Duncan, BC.  Liability was contested but the Greyhound bus driver was found 100% at fault for the accident.  Paragraphs 1-60 of the case deal with the issue of fault and are worth reviewing for Mr. Justice Metzger’s discussion of credibility.  In finding the Defendant at fault the Court found that he was “careless” and that he “lied” and his evidence was rejected in all areas that it was in “conflict with the testimony of any other witness“.

The Plaintiff suffered various injuries, the most serious of which neck pain, headaches and upper back pain.  She was diagnosed with a chronic pain syndrome.  Mr. Justice Metzger assessed her non-pecuniary damages at $75,000 and in doing summarized the Plaintiff’s injuries and their effect on her life as follows:

[144] I find the chronic pain has made Ms. Mackie reclusive and morose. She has gone from a “bubbly, fun-loving, outgoing, social, interesting” person, to someone who is  anti-social, with bouts of depression and sadness. From the evidence of the plaintiff and Ms. Garnett, I find that the plaintiff defines herself as a very hardworking woman, but that the chronic pain prevents her exhibiting her previous commitment to work.

[145] This loss of enjoyment of life and identity is given considerable weight.

[146] I am satisfied the plaintiff is resilient and stoic by nature, and I do not doubt the extent of her pain and suffering. She has endured a regime of injections in order to retain some of her employment capacity. Plaintiffs are not to receive a lesser damage award because of their stoicism.

[147] I am satisfied that the plaintiff’s injuries and ongoing limitations are more like those cited in the plaintiff’s authorities and therefore I award her $75,000 in non-pecuniary damages.

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In the second case released on Friday (Dhillon v. Ashton) the Plaintiff was involved in 2 separate rear-end collisions.  Both claims were heard at the same time and fault was admitted leaving the court to deal with the sole issue of damages.

Madam Justice Ross found that the Plaintiff suffered various soft tissue injuries in each of the 2 accidents.  She awarded non-pecuniary damages in total of $25,000 for both collisions.

In assessing an award of $15,000 for non-pecuniary damages for the first accident the Court summarized the Plaintiff’s injuries as follows:

[60]         I find that Mr. Dhillon suffered soft tissue injury to his neck, right shoulder and low back in the First MVA. He suffered from headaches arising from this injury, but these resolved in a relatively short period of time. The injury to the right shoulder had essentially resolved by mid-May 2005. I find, consistent with Dr. Sandhu’s report that Mr. Dhillon was unable to work as a result of his injuries from the time of the First MVA to mid-May 2005 and then continued to suffer partial disability at work until July 2005. By July 2005 he was able to return to work without limitation. I find that his injuries from the First MVA were essentially resolved by October 2005, except for intermittent pain, consistent with Dr. Sandhu’s report. From October 2005 until the time of the First Workplace Accident, Mr. Dhillon required the use of pain medication for low back pain that was the consequence of both his prior condition and lingering consequences of the First MVA.

[61]         In the result, I find that Mr. Dhillon suffered mild to moderate soft tissue injury from the First MVA with the symptoms most significant in the first three months following the injury; with some ongoing problems for the next five months and intermittent pain thereafter. I find the appropriate amount for non-pecuniary damages for the First MVA to be $15,000.00.

In assessing non-pecuniary damages of $10,000 for the second accident Madam Justice Ross summarized the injuries it caused as follows:

[64]         I find that Mr. Dhillon suffered soft tissue injuries in the Second MVA that resulted in an exacerbation of his injuries to his neck, shoulder, and low back. He had returned to work following the Second Workplace Accident before the Second MVA, but was not able to work after this accident. He required physiotherapy, chiropractic treatment and pain medication for both the continuing injuries from the Workplace Accidents, an apparent recurrence or continuation of the right side back problem first noted in 2000, and the Second MVA. Mr. Dhillon was able to return to work part-time in November 2006 and full-time in January 2007. He requires some accommodation from his employer in terms of his duties. He continues to experience pain and requires medication to control his pain. I find that the Second MVA plays some role, albeit a minimal one, in Mr. Dhillon’s continuing symptoms, the other more significant contributors being the original complaint of low back pain, and the two Workplace Accidents.

[65]         In the circumstances, I find that $10,000.00 is an appropriate award for non-pecuniary loss for the Second MVA

Reasons for judgment were released today by the BC Supreme Court, Prince George Registry, dealing extensively with Plaintiff credibility in ICBC Injury Claims.

In today’s case (Willing v. Ayles) 2 Plaintiffs were involved in a 2005 crash that was described as a ‘significant rear end collision causing some significant physical damage to the vehicle occupied by the plaintiffs‘

The court found that both Plaintiffs sustained injuries and non-pecuniary damages of $20,000 and $35,000 were made for various soft tissue injuries.

The lion’s share of this 43 page judgement focuses on the Plaintiff’s credibility.  I reproduce some highlights of the courts discussion on this topic below.   Anyone interested in seeing how BC Courts deal with Plaintiff credibility in ICBC injury claims in encouraged to read this judgment in full:

[75] For reasons which will become apparent these statements are demonstrably inaccurate and untrue.  Of more concern, they appear to be repeated consistently to create a particular impression, namely that she was far more active before the accident and that her injuries had restricted her activities and resulted in a major weight gain…

[153] I am satisfied that both Dr. Haskins and Dr. McKenzie suffered in the preparation of their reports and opinions from information that was, at best, exaggerated and inaccurate.

[154] This factor alone diminishes the value of their reports and opinions but when it is combined with the absence of evidence from either family doctor the difficulties become even greater.

[155] Ms. Willing struggled to fill the void created by the absence of her family doctor by repeatedly offering her own opinions on a wide variety of topics ranging from the reason for notes found in Dr. Scott’s clinical records to the cause of her weight gain after the accident.  These opinions, though revealing, are of extremely limited evidentiary value and do not supplement the actual medical evidence before the court.

[156] In the absence of medical evidence based on a proper foundation I am not prepared to accept Ms. Willing’s opinions as to causation.  To be clear, I am satisfied that, above all, Ms. Willing demonstrated a remarkable capacity to blame the collision in question for virtually everything which crossed her path.  This included attributing her weight gain to the accident, her move to Smithers, and complaints of headaches with orgasm which appears to have surfaced on March 21, 2007, approaching two years post-accident, and that of lower back and hip pain after sex which appears to have been reported to Dr. Haskins on February 11, 2008.

[157] This penchant for exaggeration and attribution appears to have been passed on to her husband who, at least in the reports of Dr. Haskins, attributes the change from his job as a mechanic to a salesman to the after effects of his injuries.

[158] Perhaps the most troubling aspect of the evidence in this case arises again in the reports and the opinion of Dr. McKenzie about the plaintiff, Kristina Willing.

[159] This report is replete with qualifications which make it clear that Dr. McKenzie’s opinion that her reported complaints were caused by the collision in question were based on the fact that she had recovered completely from previous injuries and she was asymptomatic from the degenerative disc condition prior to the accident.

[160] Those qualifications include the following –

(a)      For approximately 10 years following her last pregnancy however she had no significant back pain;

(b)      She was involved in a previous motor vehicle accident with some neck and right shoulder pain.  By her history the neck pain completely resolved although she had some mild residual shoulder pain;

(c)      The degenerative disc disease almost assuredly pre-existed but was minimally or completely asymptomatic.

[161] It seems clear that Dr. McKenzie’s opinion as to causation, even couched as it is on the various contributing factors, is based on his acceptance of her evidence of her health and condition prior to the accident.

[162] Clinical records produced apparently from the Glover Physiotherapist Corporation (Exhibit 3, Tab 10) contain an intake form dated April 9, 2002.  The symptoms recorded include neck problems, headache and problems with her right shoulder area.  After the initial assessment Ms. Willing is recorded as attending for three treatments – April 16, 2002; April 18, 2002; and April 25, 2002, before apparently discontinuing physiotherapy.

[163] A second intake form on February 17, 2004 references an “old mva” and contains a similar pain diagram to that found in the earlier intake form.  This assessment goes on to record constant pain and a series of difficulties mainly centred on her right shoulder.

[164] On this occasion Ms. Willing apparently attended four physiotherapy treatments over a period of some 16 days from February 21, 2004 to March 9, 2004 before discontinuing her attendances.

[165] During the course of her evidence Ms. Willing was insistent that she recovered completely from these symptoms and that they had completely resolved after March 9, 2004.

[166] Coincidently her claim arising from the 2002 motor vehicle collision was settled on February 27, 2004.

[167] The third intake form is dated August 19, 2005 and follows the present collision.  The pain diagram in this case covers a somewhat larger area of the neck and upper back and includes the lower back.

[168] On this occasion Ms. Willing apparently attended on some 26 occasions from August 29, 2005 until April 7, 2006 before apparently discontinuing the treatments.

[169] Upon arriving in Smithers Ms. Willing began attending at the Bulkley Valley Chiropractic Clinic.  These attendances began on August 9, 2006 and concluded on October 18, 2006 after some 16 visits which apparently included two acupuncture sessions.

[170] On July 27, 2007 Alpine Physiotherapy in Smithers completed an initial assessment form which records, amongst other information, that she had just returned from a trip to France.

[171] The physiotherapist, Graham Pollard, notes in a letter dated July 14, 2008 that he has treated her on five occasions since her initial assessment.

[172] What is interesting about this entire sequence of events in Smithers, I hesitate to describe it as a pattern, is the gaps in what she now claims are necessary therapy treatments.

[173] When Mr. Pollard refers to five treatments after her initial assessment he is not speaking about the July 27, 2007 initial assessment, because after that assessment she did not attend a single physiotherapy treatment until she returned for another initial assessment on June 3, 2008, some eleven months later.

[174] Dealing initially with the initial assessment on July 27, 2007, this appointment took place immediately after the plaintiffs retained counsel to pursue the present claims.  The writs were prepared and signed on July 25, 2007, and they were filed and these actions commenced on July 26, 2007.  The next day she attended Alpine Physiotherapy.

[175] On June 3, 2008 she returned, was assessed and began a series of five treatments.  This followed her attendance at her examination for discovery some weeks before.

[176] Once again I am forced to conclude that this is not a pattern that supports the recital of symptoms and problems presented by Ms. Willing in her evidence.

[177] The adverse credibility findings in this case go to the heart of the factual underpinnings of Dr. McKenzie’s opinion.

[178] The absence of evidence from Dr. Scott and, indeed, from the time of the accident until Ms. Willing first saw Dr. Haskins leaves the court without any medical assessment from the time of the accident until nearly two years later.  More importantly, it leaves the court without any evidence from her doctor concerning the extent of her recovery at the time of the present accident.

[179] There is, in the body of evidence before the court, little in the way of objective evidence let alone convincing evidence of any significant injury.

[180] A medical/legal report or evidence from Dr. Scott may have provided a clearer picture and the basis for a factual finding of continuing pain and discomfort related to the accident; but we do not have the benefit of any such evidence.

[181] A decision must not be based on speculation, supposition or facts not placed in evidence.  While this may possibly result in Kristina Willing being under-compensated she has only herself to blame.

[182] The absence of evidence from Dr. Scott in this case fulfills the circumstances necessary for the drawing of an adverse inference.  The inference in this case is, that if his evidence had been called, Dr. Scott’s evidence would not have supported the ‘complete recovery’ scenario found in Ms. Willing’s evidence and on which, to a significant extent, Dr. McKenzie’s opinion is based.