ICBC Law

As I’ve previously written, video surveillance in and of itself does not harm a persons ICBC claim, being caught in a lie does.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this fact.

In today’s case (Fata v. Heinonen) the Plaintiff was involved in a 2006 BC collision.  Fault was admitted.  The Plaintiff suffered several injuries including “an obvious impingement syndrome at the shoulder“.  The Defendant disputed the severity of the Plaintiff’s injuries at trial.  Instead of relying on independent medical evidence, the Defendant sought to harm the Plaintiff’s case by relying on video surveillance which was taken the year following the collision.

The surveillance showed the Plaintiff doing various activities such as grocery shopping and unloading and loading objects into his vehicle.  This video surveillance did not harm the Plaintiff’s claim.  Why?  Because it did not show anything that contradicted the Plaintiff’s evidence at trial.  In explaining why the surveillance did not harm the Plaintiff’s claim Madam Justice Griffin held as follows:

[45] The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

[46] I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

The Court went on to award the Plaintiff $45,000 in non-pecuniary damages for his soft tissue injuries and shoulder impingement.

This case is also worth also worth reviewing for the Court’s explanation of the “Golden Years” doctrine.

• The “Golden Years Doctrine” Explained

In personal injury claims BC Courts recognize that no two cases are exactly alike and the assessment of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) depends on the unique facts of any given case.

One principle that is sometimes used in assessing non-pecuniary damages is the “Golden Years” doctrine.  This principle recognizes the fact that the retirement years are particularly special and an injury affecting a person in their golden years may warrant a greater award for non-pecuniary damages.  Madam Justice Griffin succinctly summarized this principle as follows:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89] In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

[91] On the facts of this case, where Mr. Fata has suffered a loss of some enjoyment of life in every aspect of his life, I conclude that an appropriate award for non-pecuniary damages is $45,000.

Reasons for judgement were released today discussing two ares of interest in the context of an ICBC injury claim; the non-pecuniary value of a shoulder injury and “failure to mitigate” for following naturopathic remedies instead of recommended surgery.

In today’s case (Hauer v. Clendenning) the Plaintiff was injured in a 2006 BC vehicle collision.  The Plaintiff was a passenger in a vehicle involved in an intersection crash.  The crash was “significant, causing extensive damage to both vehicles“.   Fault was admitted by the Defendant focusing the trial on the value of the case.

• Discussion of Non-Pecuniary Damages for Plaintiff’s Shoulder Injury

The Plaintiff suffered various soft tissue injuries which improved by the time of trial.  The Plaintiff’s most serious injury was a right shoulder injury which remained symptomatic by the time of trial.

The Court heard evidence from a number of expert physicians including orthopaedic surgeon Dr. Richardson who gave evidence that the Plaintiff has a rotator cuff injury to her right shoulder resulting in tendonitis and impingement.  Her prognosis for full recover was “guarded“.

Mr. Justice Slade assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000.  In arriving at this figure the Court made the following findings and provided the following analysis:

[72] It is not a matter of contention among the medical experts that the plaintiff sustained soft tissue injuries in the August 6, 2006 accident.  These injuries were to the neck, shoulder, and back. ..

[75] The medical experts are all of the view that the plaintiff will benefit from injections in the shoulder area, that being the most problematic of the plaintiff’s injuries.  Dr. Aitken and Dr. Richardson say that she may benefit from arthroscopic surgery on the shoulder…

[78] I accept the evidence of the lay witnesses that the plaintiff was active and fully able to perform the physical demands of her employment before the accident, and after the accident, is no longer as active or able to perform to the pre-accident level.  The evidence of the plaintiff, the lay witnesses, and Dr. Richardson, establish a causal connection between the accident and the plaintiff’s ongoing shoulder pain, and establish, as fact, the contribution of injuries sustained in the accident to the present condition of her shoulder.

[79] The plaintiff’s shoulder pain has persisted, largely undiminished, from the time of the accident. ..

[82] I find that the accident is a significant contributing factor to her shoulder injury, and that the plaintiff has established causation on the “but for” test described in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[85] Considering these authorities and the factors set out by Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, 263 D.L.R. (4^th) 19, leave to appeal ref’d [2006] S.C.C.A. No. 100, I award the plaintiff $50,000 in non-pecuniary damages.

• Failure to Mitigate:

Further to my previous articles on the subject, it is well established that the Court can reduce a Plaintiff’s award in a personal injury claim if a Plaintiff unreasonably fails to follow medical advice where the medical would have likely improved the injuries.

In today’s case the Defendant argued that the Plaintiff failed to mitigate her damages by not having injections and/or surgery on her shoulder injury.  Mr. Justice Slade agreed with this submission and found that the Plaintiff failed to mitigate her damages by not following the advice of the orthopaedic surgeons and instead choosing naturopathic remedies.  The Court reduced the Plaintiff’s damages by 30% as a result.  Specifically Mr. Justice Slade held as follows:

[105] The defendant bears the burden of establishing that the plaintiff has failed to mitigate her loss, in this case that she failed to follow medical direction, and that had she followed that advice, she would have recovered further or faster: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[106] The plaintiff prefers naturopathic remedies.  She was influenced by advice given by a friend on the effect of injections.  A physician advised her, informally, that she may not benefit from surgery.  On these bases, she declined to act on the recommendations of three well-qualified orthopaedic surgeons to take injections into the shoulder area, and to consider arthroscopic surgery.  Dr. Richardson puts the percentage chance of improvement from arthroscopic surgery at between 70-80%.

[107] There are, of course, risks associated with surgery, though these seem minimal.  If the plaintiff underwent surgery, there may be some losses during the recovery period.

[108] There will be a reduction of 30% of the amounts awarded for general damages, loss of income earning capacity, and cost of care due to the plaintiff’s failure to mitigate.