ICBC Law

It is well established that a small percentage of people who suffer from whiplash associated disorder following a collision go on to experience pain for a prolonged period of time.

When cases with prolonged injury go to trial it is not uncommon for the Court to hear competing medical evidence as to the cause of the chronic pain.  Oftentimes defence doctors provide opinions that causes unrelated to the collision are responsible for a Plaintiff’s ongoing symptoms.  Reasons for judgement were released today by the BC Supreme Court, Powell River Registry, dealing with and dismissing such a defence.

In today’s case (Borgfjord v. Penner) the Plaintiff was involved in a rear-end collision.  Fault for the crash was admitted by the Defendant.  The trial focused on the value of the Plaintiff’s claim.

The Plaintiff injured her neck in the crash.  She went on to have chronic symptoms of pain.  The Defendants acknowledged that the Plaintiff likely had on-going pain but argued that this was unrelated to the crash and instead was as a result of ‘degenerative changes’ .  Mr. Justice Shabbits rejected this argument and went on to assess the Plaintiff’s non-pecuniary damages for her chronic whiplash injury at $85,000.  In rejecting the defence argument the Court provided the following useful reasons:

[74] Dr. Dommisse’s opinion is that cervical strain caused the plaintiff’s early problems and that her cervical strain symptoms likely resolved within 6 months to 2 years post accident. His opinion is that degenerative changes caused the plaintiff’s later problems. He says that degenerative changes are the cause of the plaintiff’s continuing problems…

[98]         In my opinion, the plaintiff has established that the accident caused her to suffer a cervical strain.

[99]         In my opinion, Dr. Dommisse is speculating when he opines that the plaintiff’s accident caused symptoms have already resolved. The usual pattern of soft tissue injury may well involve the resolution of symptoms within 6 months to two years post injury, but the plaintiff’s complaints have continued unabated and there is no certainty that the plaintiff’s disc protrusion or degenerative condition of the spine is now or ever has been symptomatic. Dr. Waterman’s opinion is that what he saw on the MRI, (which includes the disc protrusion), is unlikely to be clinically significant. He says it is difficult to attribute spine pain to what he observed.

[100]     I accept the opinion and prognosis of Dr. Waterman. In my opinion, his evaluation and analysis of the medical evidence is persuasive.

[101]     I find that the plaintiff suffered a whiplash injury in the motor vehicle accident and that her whiplash caused injuries are ongoing. I think it more likely than not that the plaintiff falls within that category of patients referred to by Dr. Waterman who experience whiplash caused pain for years post-accident. I find that the most likely outcome of the plaintiff’s injuries is that she will be improved in several years, but that she will suffer intermittent pain which she will be able to largely control by modulating her activities…

[124] I assess the plaintiff’s non-pecuniary damages at $85,000…

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.

A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.

In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.

The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:

[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.

The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

Reasons for judgement were released today awarding a Plaintiff just over $100,000 as a result of a 2006 collision which occurred in Vernon, BC.

The Plaintiff was hit from behind when stopped for a red light.  The issue of fault was admitted.  The accident resulted in minimal vehicle damage.  In many ICBC claims defence lawyers try to get the Judge/Jury to focus on the lack of vehicle damage as opposed to the medical evidence.  Here the Court noted that “Although the lack of vehicle damage may be a relevant consideration in considering (the Plaintiff’s) injuries,k it has to be balanced against the evidence of the Plaintiff and the medical evidence.”

The court heard from various medical experts including the Plaintiff’s doctor and 2 physiatrists (physicians specializing in rehabilitation).

The court accepted that the Plaintiff suffered a Whiplash Associated Disorder, cervicogenic headaches, and an onset of pain in previously asymptomatic degenerative changes in her neck.  The court further accepted that these injuries will linger for some time but should continue to improve in the coming years.

The court assessed damages as follows: