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 ‘hip injury’

$95,000 Non-Pecuniary Assessment For Labral Tear with Articular Cartilage Disruption

February 27th, 2019

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic hip injury sustained in a collision.

In today’s case (McCann v. Anderson) the Plaintiff was involved in a 2014 vehicle collision that the Defendant accepted fault for.  The Plaintiff suffered a variety of soft tissue injuries which made full recovery.  More notably he also sustained a chronic hip injury which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $95,000 Madam Justice Shergill provided the following reasons:

[78]         At the time of the MVC, Mr. McCann was a physically active 54-year-old man who worked at a physically demanding job without restrictions. Though he had some problems in his low back prior to the MVC, there is no evidence that the low back pain would have continued or caused him to experience problems in the future. The impact of the October 2014 MVC was substantial, and caused him significant injuries which have continued to affect his employment and recreational activities.

[79]         Mr. McCann recovered from his soft tissue injuries to his neck, back, left shoulder and left hip within ten months of the MVC. In addition, he suffered from anxiety and depression which are partially attributable to the MVC but from which he fully recovered after approximately one year of symptoms.

[80]         The most significant injury is to Mr. McCann’s left hip. He has been diagnosed with an inter-articular labral tear with articular cartilage disruption. His left hip injury prevented him for returning to any form of work for approximately one-and-a-half years. During that time, Mr. McCann underwent a number of investigations and tried many different treatments to try to alleviate his pain. It was not until he underwent a PRP injection in July 2016 that Mr. McCann finally began to experience long-lasting relief from his symptoms.

[81]         Despite having returned to work at his full-time regular duties, he continues to remain symptomatic and experiences intermittent days off work (once every four to six weeks) due to his ongoing pain from the MVC.

[82]         Prior to the MVC, Mr. McCann participated in a number of sports and outdoor activities, and was generally in good health. Mr. McCann is no longer able to participate fully in all of his pre-MVC recreational and leisure pursuits. 

[83]         Mr. McCann’s condition plateaued by March 2018. Now, over four years later, he continues to experience ongoing pain. His prognosis for significant further clinical improvement in his left hip condition is poor….

88]         After considering all of the case authorities, and having regard to the evidence and the unique circumstances in this case, I assess Mr. McCann’s non-pecuniary damages at $95,000.  


$200,000 Non-Pecuniary Damage Assessment For Multiple, Disabling Orthopaedic Injuries

February 29th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple, complex, orthopaedic injuries caused by a motor vehicle collision.

In last week’s case (Tompkins v. Bruce) the Plaintiff was injured in a serious 2006 collision which was caused when the Defendant, who had been drinking and was driving while over the legal limit, crossed the centre line and collided with the Plaintiff’s vehicle.  The Defendant was found fully at fault for the crash.

The Plaintiff suffered multiple injuries including rib fractures with a collapsed lung, a left hip fracture, a fractured femur and a fractured patella.  These injuries required surgical intervention.  The Plaintiff had a total hip replacement and likely needed a total knee replacement in the future.

The Plaintiff was a plumber and gas fitter and was rendered totally, permanently disabled from his own occupation.  He was left with a minimal residual earning capacity.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Mr. Justice Curtis provided the following reasons:

[47] Wayne Tompkins was 50 years old, living in Pemberton and happily employed as a tradesman when the June 3, 2006 collision occurred.  As a result of the injuries suffered by Mr. Tompkins which were caused by the negligent and criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has been permanently and very significantly altered.

[48] He has lost his ability to work in his trade at employment he enjoyed.  He has lost a great deal of his mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he once did.  He cannot stand or sit for long periods of time.  His mood is depressed and his anger harms his relationship with other people ? particularly in the case of Nancy Larkin, his romantic partner after the accident who left him largely because of his anger and irritability.  In addition, Mr. Tompkins now faces the prospect of further surgeries, such as two knee replacements, another hip replacement, the prospect that the condition of his knees and hip may get worse ? and that each surgery comes with a risk of loss of function, dangerous embolisms, scar tissue, long recovery periods and possible poor results.

[49] On the other hand, Mr. Tompkins is an intelligent man whose depression and anger can quite likely be treated and improved.  He now has his own home in Chilliwack where he lives with his dog close to his sons and grandson.  He is capable of driving his car, at least as far as Chilliwack to Whistler.  There is a good chance that continued physical training will maintain his strength and may well improve his mobility and flexibility ? he has been capable of walking without a cane in the past, and even of lifting Nancy Larkin who weighs 115 pounds from her wheelchair into a car and it is not unlikely that his condition may again reach that level.  He did own and operate a boat after the accident and could again, and fishing is still possible.  While his trade work as he once did it is no longer open to him, there is the possibility he may find rewarding employment in some other field…

[53] Mr. Tompkins has been particularly unfortunate in having three major joints ? both knees and his left hip damaged in the collision.  Those injuries are permanent and the condition of those joints likely to get worse.  Considering that and his altered mood and other injuries, I find the sum of $200,000 a fair and reasonable amount for non pecuniary damages.


$90,000 Non-Pecuniary Damages for Subcapital Hip Fracture Requiring Replacement

January 3rd, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, awarding damages for injuries sustained in a trip and fall incident.

In last week’s case (Etson v. Loblaw Companies Limited) the 76 year old plaintiff tripped and fell over a wooden pallet in an aisle while shopping at the Real Canadian Superstore.  The Court found that both the Plaintiff and Defendant were equally at fault for the incident.

The Plaintiff sustained a subcapital fracture to her right hip.  Initially this was treated with internal fixation although the Plaintiff’s pain continued.  She eventually required a total hip replacement following which she recovered reasonably well.  Madam Justice Fisher valued the Plaintiff’s non-pecuniary damages at $90,000 and in arriving at this figure the Court provided the following reasons:

[61]        Ms. Etson was quite reserved in her descriptions of the pain she experienced as a result of her injuries but there is no question that she suffered a tremendous amount of pain.  The initial injury was obviously very painful and it took Ms. Etson about four months to begin to resume her mobility sufficiently to be able to drive and do things for herself.  She suffered a debilitating set-back in August 2009 when the hardware failed and the femoral head in her hip collapsed.  Her mobility deteriorated and she was again unable to do things for herself.  She suffered tremendous and increasing physical pain for about eight months.  She underwent two additional surgeries.  The first, in January 2010, did not alleviate her pain or improve her mobility.  She did not experience any relief from the pain until April 2010 when she had the total hip replacement surgery.

[62]        Ms. Etson had been a very independent and active woman.  She was involved in painting and the arts and was very active in a local painting club and other community events.  After the accident, she was unable to continue any of this involvement and she had considerable difficulty maintaining her independence.  She had to rely on her sister and Ms. Erikson to help her with meals and other things.  She developed ways to get around her house and she managed as best as she could.  However, it is apparent that the severe limitations on her ability to participate in activities outside her home for close to a year and a half left her feeling very isolated.  Moreover, the accident occurred at a very difficult time in Ms. Etson’s life, when her daughter was in the later stages of a terminal illness.  While she said little about this, it was clear to me that her injuries made it practically impossible for her to visit her daughter before her death in April 2009.  Since the hip replacement surgery in April 2010, Ms. Etson’s condition has improved significantly but she has not yet found the spirit to return to her pre-accident activities and she is still not socially active.  I am satisfied that the injury is a factor here, but I also find that some of this lack of spirit is attributed to other factors, such as the death of her daughter.

[63]        Clearly, Ms. Etson’s injuries have had a profound effect of her life.  She has recovered reasonably well since April 2010 but she still has residual problems.  She is limited in how far she can walk, she still uses a cane when walking for more than two or three blocks and she has a bit of a limp. She is able to live independently now but she is still not able to do heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s comment that “there would have been some residual symptoms during her recovery from the hip replacement of about 3 months”.  This statement is not consistent with his own observations of her condition on September 27, 2010, and is not consistent with Ms. Etson’s evidence, which I do accept.  Her residual symptoms have lasted longer than that and while her prognosis is not entirely clear, it is likely that she will be able to resume most, if not all, of her pre-accident activities by the spring.

[64]        I do accept Dr. Moreau’s opinion that Ms. Etson will not require any further treatment or specific rehabilitation and that it is very unlikely that she will have any further problems or disabilities because of the hip injury…

[70] In this case, the injuries had a profound effect on Ms. Etson’s life.  Her active and independent life style, which was important to her, was seriously compromised for over a year and a half.  During that time she experienced significant pain and had to undergo three surgeries.  She is now able to resume most of her former activities but she still has some residual effects.  Given my findings, I assess non-pecuniary damages at $90,000.


Gaps in Medical Treatment in ICBC Injury Claims

December 12th, 2009

If you are involved in an ICBC Injury Claim and have significant gaps in your medical treatment will that reduce the value of compensation you are entitled to?  The answer is not necessarily.  If the gaps in medical treatment are unreasonable and the evidence demonstrates that more frequent medical intervention would have improved the course of recovery then the claim can be reduced for “failure to mitigate“.  However, a gap in medical treatment in and of itself will not reduce a claim for damages and reasons for judgement were released yesterday by the BC Supreme Court demonstrating this.

In yesterday’s case (Sidhu v. Liang) the Plaintiff was injured in 2 BC Car Crashes, the first in 2004 and the second in 2008.  He was not at fault for either crash.  He sued as a result of both accidents and the trials were heard at the same time.  The Court was asked to deal with the value of these ICBC Claims.  In the years from the first collision to the time of trial there were some significant gaps in accident related medical appointments.  One such gap was over 25 months.  The Defence Lawyer argued that the Plaintiff’s injuries were minor and healed quickly as evidenced by the significant gap in treatments.

Madam Justice Russell rejected this argument and held “I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants’ negligence.  I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.”

The Court went on to award the Plaintiff $36,000 in Non-Pecuniary Damages.   In doing so Madam Justice Russell summarized the accident related injuries and their effect on the Plaintiff as follows:

67] The plaintiff’s position, which I accept, is that the medical evidence establishes that the first accident caused musculoligamentous injuries to his neck, back, hips, and elbows, resulting in chronic, persistent pain which continues to restrict his vocational, social and recreational activities.  Furthermore, the second accident caused a minor aggravation of the musculoligamentous injury to his neck.

[68] As a result of the injuries he sustained, the plaintiff has experienced functional limitations due to ongoing symptoms in his neck and left upper back, as well as residual symptoms in the elbows, and mid to low back.  These injuries interfere with his work ability as well as his ability to do chores and participate in his family construction project.  His wife and father have had to take on the physical household chores.  His wife testified that he became less physically active and has decreased his participation in family activities.  The plaintiff’s wife also testified that his pain has caused him to be moody and he also claims to have experienced emotional difficulties in the form of increased stress as a result of the accident.  Because of his modified work ability, the jobs he can take require him to work longer hours for less money and therefore he is facing increasing financial pressures, has less free time and therefore has decreased his social activities, all of which he asserts leads to his stress…

[71] While I have concluded that, according to the medical evidence, the accidents were the cause of the injuries, these injuries are improving, albeit slowly.  Dr. Gandham has estimated that the plaintiff will recover within two years and Dr. Heshler gives a similar guarded prognosis.  Dr. Connell is also optimistic.  Given that the plaintiff is young and healthy with a good prognosis for recovery, I am convinced that he will make a full recovery and thus assess his damages at 80% of the amount put forward by counsel, as I note the amount suggested is the upper range for these types of injuries.


$40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

March 18th, 2009

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.

The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.

Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.