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 ‘impingement syndrome’

$60,000 Non-Pecuniary Damage Assessment for Shoulder Impingement Syndrome

April 9th, 2012

Adding to this site’s archived posts of BC non-pecuniary damage awards for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries and an impingement syndrome.

In last week’s case (Sandhar v. Rolston) the Plaintiff was injured in a 2004 rear-end collision.  Fault was admitted by the offending driver.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff suffered a soft tissue injury to her neck and an impingement syndrome to her right shoulder.  The symptoms largely recovered by 2007 following a cortisone injection although she had some lingering symptoms.

Complicating matters, the Plaintiff injured her right shoulder shovelling snow in 2008.   She injured her rotator cuff.  Mr. Justice Affleck found this was a ‘divisible injury‘ and assessed damages accordingly.  In awarding $60,000 for non-pecuniary damages the Court provided the following reasons:

[53] In Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, the court observed that decisions of the court on the question of an intervening cause, “say that if an injured party acts unreasonably and causes him or herself further injury, the tortfeasor is not responsible for any injuries suffered as a result of the second injury.” It was not reasonable for the plaintiff to have shovelled snow in the fashion that she did in 2008. Even if the injuries from that activity were indivisible, I would not award damages for them.

[54] That does not mean compensation for the injuries from the car accident is cut off from the date the plaintiff shovelled snow. If the car accident injuries continued to have their effects after December 2008, the defendant remains liable to compensate the plaintiff for those effects. See Dudek v. Li, 2000 BCCA 321.

[55] There has been no mechanical derangement of the plaintiff’s neck and shoulder caused by the car accident. I accept Dr. Leith’s view that the plaintiff’s injuries were soft tissue injuries of the “whiplash” variety. The evidence is that the whiplash was properly characterized as grade one. That is the least damaging form of a whiplash injury. That does not mean the injuries were insignificant. On the contrary, they caused pain and measure of disability from May 2004 until the cortisone injection in April 2007. I accept that slight pain returned later that year and through 2008. Despite the plaintiff’s ability to carry on with work, the plaintiff found it to be uncomfortable to do so. I accept that even if she had not suffered a new injury to her shoulder in December 2008, the pre-existing problems would have lingered even beyond 2008 for perhaps about two years.

[56] I have been provided by the parties with numerous authorities on the assessment of non-pecuniary damages in similar cases. As is usual, none of the plaintiffs in those cases had injuries the same as the plaintiff before me. I take into account the long course of difficulties experienced by the plaintiff which would not have been suffered but for the car accident and that the car accident injuries would have lingered for about six years while gradually diminishing. The three years before the plaintiff had the cortisone injection were difficult, but she did her best to carry on with her employment and with her housekeeping with considerable discomfort. She lost much of her enjoyment of life in those years. She returned to her pre-accident condition after April 2007 and had marked relief of pain for 18 months, but not complete resolution. The plaintiff’s high expectations of herself in her employment, housekeeping and recreational activities, increased the effect of the car accident injuries, but the defendant must accept the plaintiff as she is.

[57] I assess non-pecuniary damages at $60,000…


$55,000 Non-Pecuniary Damages for Rotator Cuff Impingement Syndrome

February 23rd, 2012

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a rotator cuff injury caused by a motor vehicle collision.

In yesterday’s case (Lim v. Anderson) the Plaintiff was injured in a 2008 collision when the Defendant ran a red light.  Fault was admitted by the Defendant.  The Plaintiff suffered an impingement syndrome in her shoulder due to a rotator cuff injury caused by the crash.  She had some ongoing symptoms of pain and limitation at the time of trial.  In assessing non-pecuniary damages at $55,000 Madam Justice Fenlon provided the following reasons:

[7] There was a difference of opinion between Dr. Christian and the plaintiff’s treating orthopaedic surgeon, Dr. Yu, as to the cause of the plaintiff’s ongoing shoulder pain. Dr. Yu attributes it to calcific tendonitis caused by the soft tissue injuries. In his view, with the injury there was bruising and swelling or hemorrhage into the rotator cuff giving rise to pain or an abduction and impingement syndrome. In this condition the tendon is pinched between the under surface of the acromion and the humeral head, resulting in pain on movement…

[9] While it is not really necessary to choose between the opinions on causation, given the agreement on ongoing residual pain in the shoulder, I prefer Dr. Yu’s diagnosis…

[10] I accept his finding that the plaintiff’s response to an injection into the subacromial space of her right shoulder, (temporary relief from pain), confirmed his diagnosis…

[38] The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.

[39] There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.

[40] Taking into account all of the Stapley factors, I find that an award of $55,000 for pain, suffering and loss of enjoyment of life is appropriate.


$170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

June 28th, 2010

Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.

In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant.  The Defendant had just left a pub and had a blood alcohol level well over the legal limit.  the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.

As a result of this criminal conviction the Defendant was in breach of his ICBC insurance.  He defended the lawsuit personally and ICBC defended as a statutory third party.

The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him.   Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident.  Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption  of alcohol that his actions in so doing were not only negligent, but grossly negligent“.

The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash.  In reaching this conclusion Mr. Justice Davies reasoned as follows:

[70]        The question is whether Mr. Eggleston’s own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle’s brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.

[71]        In all of the circumstances I find, as did Kirkpatrick J. in Laface, that Mr. Watson’s conduct was so unforeseeable, and the risk of injury from Mr. Eggleston’s failure to take more care so unlikely that “it is simply not appropriate” to find that Mr. Eggleston was contributorily negligent.

[72]        If I am wrong in that conclusion, based upon the analysis and conclusions of Esson J.A. in Giuliani, I would assess Mr. Eggleston’s fault in failing to avoid the collision to be no more than 5%.

The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI).  In arriving at this figure the Court provided the following reasons:

[145]     After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr. Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June 9, 2009.

[146]     I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…

[157]     In addition to the mild traumatic brain injury that I find has been the primary cause of Mr. Eggleston’s past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr. Watson’s negligence caused the following physical injuries which Mr. Eggleston has suffered and from some of which continues to suffer:

1)        Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr. Travlos.

2)        A traumatic umbilical hernia which was successfully operated upon on May 29, 2007.

3)        Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December 5, 2007, and which in the opinion of Dr. Leith, require further surgery.

4)        Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr. Palfi and in respect of which I accept Dr. Leith’s opinion of June 2, 2009.

[158]     In addition to those specific physical injuries, I accept the evidence of Dr. Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr. Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr. Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.

[159]     In determining the appropriate award to compensate Mr. Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr. Watson’s negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.

[160]     I have also considered the pain Mr. Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.

[161]     In addition, I have considered the situation that has existed since March of 2008 when Mr. Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.

[162]     Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr. Eggleston but which are of course dependent on their unique fact situations.

[163]     I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr. Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr. Watson’s negligence.