ICBC Law

Reasons for judgment were released yesterday (Fortin v. Cousins) by the BC Supreme Court awarding a Plaintiff just over $300,000 in damages as a result of a 2004 BC Car Crash.

The Plaintiff’s main injury involved his knees and was described by his orthopaedic surgeon as follows:

In the motor vehicle accident of March 28, 2004, Mr. Fortin’s principal injury for which there are ongoing symptoms is contusion of the right and left knees.  It is the writer’s opinion that Mr. Fortin must have sustained anterior blunt trauma to the right and left knees.  He presents with ongoing symptoms consistent with patellofemoral degeneration.

Currently, the discomfort in the right and left knees related to presumed chondromalacia patellae (post traumatic), is not impairing Mr. Fortin in his work.  He obviously is very happy about his present employment.  He has aspirations to, at some time, own his own company and not have to do hands on work.  It is the writer’s opinion that if Mr. Fortin continues in his current occupation long term as a pipefitter, he will experience progressive problems with the right and left knee.

I reviewed with Mr. Fortin the job requirements of a pipefitter in stainless steel.  The requirements are obviously quite rigorous and all his co-workers have musculoskeletal complaints related to the occupation.

The writer does not anticipate there will be spontaneous improvement in the complaints referable to the right and left knee.  Currently, Mr. Fortin is following instructions with regard to the protection of his knees throughout the course of his activities as a pipefitter.

The long term prognosis is guarded if Mr. Fortin remains in precisely his current role as a pipefitter.  One could anticipate that in 10 to 20 years in this particular occupation, he might become disabled for (sic) continuing on.  At the present time there are no operative interventions which would prolong the life of either the right or the left knee.  Mr. Fortin is already making plans to attempt to advance to a supervisory position and eventually, to be an independent contractor of a pipefitting company.  Were Mr. Fortin to follow this career path, it is in the writer’s opinion that his knees would not be a barrier to his future employment.

In valuing the Plaintiff’s non-pecuniary damages (pain and suffering) at $70,000 Mr. Justice Harvey noted the following:

49] The purpose of non-pecuniary damage awards is “to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at ¶134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 260-265; and Kuskis v. Hon Tin, 2008 BCSC 862 at ¶135.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as guides to assist the court in arriving at an award that is just and fair to both parties: Kuskis at ¶136.

[50] Russell J. discussed this process in Hoang v. Smith Industries Ltd. et al., 2009 BCSC 275 at ¶33:

There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.))

[51] Here, Mr. Fortin has suffered significant injuries as a result of a horrific accident.  Happily, with the exception of the problem with his knees, which is permanent, his other complaints resolved over time.  Approximately one year following the accident, Mr. Fortin’s other injuries had resolved and no longer were interfering with either his employment or his enjoyment of life.

[52] His knee symptoms, although mild at present, will create ongoing problems for him both in his vocational and recreational pursuits.  The more he is obliged to work “on the tools”, the greater the interference with both.

[53] Counsel for the plaintiff suggests an award of $90,000 to $100,000 for non-pecuniary loss.  Counsel for the defendant distinguishes the authorities relied upon for the plaintiff and suggests, instead, a range of $30,000 to $45,000, noting, amongst other things, that there has been no surgery to the plaintiff’s knees nor is it anticipated that such will occur in the future.

[54] Both counsel cited Gernitz v. Mowat, 1992 CarswellBC 2460 (S.C.) [Gernitz], presumably because the facts there were remarkably similar to the facts in this case but for the plaintiff’s age.  In Gernitz, the award for non-pecuniary loss was $35,000.  Counsel agreed that grossing up the award from 1992 to present day value results in an award of approximately $47,000.

[55] The major distinguishing factor in Gernitz was the age of the plaintiff who was 56 at the time of trial.  Here the plaintiff is 27 and will be subject to a much longer period of pain and restriction in his social pursuits.  Accordingly, having regard to all of the authorities cited by counsel on the question of non-pecuniary damages, I award the sum of $70,000 under this heading of loss.

(Please note the past wage loss award in the case discussed below was varied slightly on appeal.  The BC Court of Appeal Judgement can be found here)

Here is the latest in my effort to continue to grow this online database of ICBC and other BC Personal Injury Cases addressing damages for pain and suffering.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Bradshaw v. Matwick) awarding a Plaintiff $268,389 in total damages as a result of injuries and losses suffered in a 2006 motor vehicle collision.

The crash was a rear end collision which occurred in Port Coquitlam.  Liability (fault) was admitted focusing the trial on quantum of damages (value of the injuries).

The Plaintiff was a 41 year old metal fabricator.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000  Mr. Justice Groves summarized the Plaintiff’s injuries as follows:

[32] By the time of trial, the plaintiff’s injuries were close to three years old.  I accept the plaintiff’s evidence that he continues to suffer from some level of disability resulting from the accident—he continues to suffer pain and he continues to have a disability which prohibits heavy lifting, prolonged standing, neck flexion, and sustained and repetitive reaching.  I accept the plaintiff’s evidence that at present, he continues to put all of his physical energies towards his work.  When he is not at work, he is resting and preparing for the next day of work.  The effect of the injuries caused by the accident have created a significantly lower quality of life for the plaintiff.

[33] As for the knee injury, the plaintiff continued to walk with a significant limp in court.  This is consistent with what is reported by:  his spouse, Sandra Bennett; his co-workers Rune Akerbakk and Ron Philbrook; and by his less than sympathetic employer, Rob Charland.  The evidence is suggestive that the medial tear may be repairable by surgery.  Of note, it took considerable time, despite the plaintiff’s desire early on for a MRI, to have the MRI performed.  There is no evidence before me as to when or if surgery to repair this knee is possible or scheduled…

[43] The plaintiff suffered injuries to his back, neck, shoulder and left knee.  He was unable to return to work for over three months after the April 26, 2006 accident, and then only with difficulty and on reduced hours.  Close to three years after the accident, the plaintiff continues to experience considerable pain in his neck and shoulder, back and knee.  The evidence is clear that his job as a metal fabricator involves physically demanding tasks which exacerbate these injuries.  He has not been able to return to his pre-accident performance levels at work.

[44] Two of the expert witnesses, Dr. Spooner and Dr. Vaisler, testified that the plaintiff may have a permanent disability as a result of the accident injuries.  The injuries and the corresponding pain levels have significantly affected the plaintiff’s quality of life and his relationship with his family, as he has little energy or ability to remain active outside of work hours and is frequently irritable and short-tempered as a result of the pain.

[45] The plaintiff’s lifestyle has been dramatically affected by the injuries he suffered in the accident.  The plaintiff, prior to the accident, was an active outdoorsman who regularly went fly fishing with his daughter at remote locations around the Lower Mainland and in southern British Columbia.  Since the accident he has completely curtailed this activity and his relationship with his daughter has suffered.  Prior to the accident, he was an active father with his young son, enjoying activities with his son in the yard, and in the home.  Since the accident his relationship with his son has resorted to playing video games or other activities which involved sitting and lying down, with no physical exertion.

[46] Ms. Bennett describes the plaintiff, prior to the accident, as a “fabulous 100% dad”.  She described that her daughter viewed him as “her god”.  Now the daughter does not want to hang around with her father any longer.

[47] The evidence suggests yard work and snow removal is simply left undone, as the plaintiff can no longer do it.

[48] Ms. Bennett describes her relationship with the plaintiff as “hell”.  She says that when the plaintiff is at home, the family is “walking on eggshells”.  The plaintiff is in near constant pain.  He has to immediately lie down after work.  His interaction with the family is minimal.  He is completed affected by the pain.

[49] His relationship with his wife, Ms. Bennett, who testified, has become tenuous at best.  Prior to the accident they enjoyed an active sex life—they no longer do.  For close to 2½ years, because of his injuries, the plaintiff slept on the living room floor rather than with his wife.  Prior to the accident, the plaintiff vacuumed, did dishes, and cleaned up around the house and was completely responsible for outside yard activities.  The plaintiff and his wife purchased a home on a quarter acre lot.  The home was, to use the vernacular, a “fixer upper”.  The home was repaired by considerable efforts of the plaintiff and the quarter-acre yard was completely landscaped by the efforts of the plaintiff.  Since the accident he has been unable to participate in home repairs or landscaping work.

Reasons for judgment were released last week (Atkison v. Niles) by the BC Supreme Court awarding just over $120,000 to a ‘gifted athlete’ who was injured in a 2003 BC motor vehicle collision.

The Plaintiff was 16 at the time of the collision. He was a passenger in a vehicle involved in an intersection crash. As a result he suffered a knee injury which was expected to have some permanent consequences. The injury was diagnosed as either a posterior cruciate ligament tear or damage to the trochlea groove of the femur. As a result of this knee injury it was agreed that the Plaintiff had an increased risk of developing progressive osteoarthritis eventually requiring knee replacement surgery.

The Plaintiff played as catcher for an ‘elite’ league in White Rock at the time of the crash. By the time of trial in 2009 the Plaintiff was playing at the University of New Mexico as a first baseman and had aspirations of going pro after graduating.

In quantifying the Plaintiff’s pain and suffering (non-pecuniary damages) at $55,000 the Court noted the following facts:

[15] More significantly, he suffered a permanent injury to his left knee that has caused and will continue to cause intermittent pain, particularly with certain body positions. He will suffer the early onset of osteo-arthritis and require knee replacement surgery, likely in his 40’s. If he lived a sedentary life, as Dr. Hill recommends, the time for that surgery could be extended to the 60’s. However, the plaintiff is a gifted and active athlete. Extending the time for surgery by remaining inactive would constitute a drastic negative impact on his lifestyle. There is evidence that, because of the limited life span of a knee replacement, other surgeries may be required. While the defendant points to ongoing medical research which may provide other alternatives in future, that remains speculative at present.

[16] A significant impact for this plaintiff has been the impact on his baseball career. The evidence is that he was particularly suited to playing the position of catcher, a position he has not been able to occupy since the accident, nor will he ever. There is evidence, which I accept, is that he would have been most attractive to professional baseball had he been able to play that position. There is also evidence that, playing at first base, he does not have the size that professional baseball seeks for that position. There is also evidence that the knee injury had some impact on his foot speed, which would also diminish his chances of playing professionally.

In assessing the Plaintiff’s loss of earning capacity (future wage loss) at $100,000 the Court noted the following:

[20] The plaintiff will be graduating from university with a general degree. Thus he has no earnings history. As earlier stated, his goal has long been to play professional baseball. That has not been a unrealistic goal given his exceptional talent.

[21] However, he is less attractive to professional baseball because of the knee injury, both because of that fact and the fact that the injury required him to move permanently to a position where he is less valuable. The evidence of professional baseball scout Mr. Archer in that regard is consistent with common sense. Measuring that lessened opportunity is a particularly difficult exercise at his youthful age, except to say that it is real and not insignificant.

[22] If that dream is not realized, the plaintiff intends to seek a career as a firefighter or in a trade, as his brother and father have done. While there is no expert evidence on the issue, It is plain and obvious that the plaintiff, with his permanent knee injury, will be less attractive to future employers, particular those occupations requiring physical exertion.

[23] Finally, I must consider the very real possibility that the plaintiff will be forced to undergo at least one major knee surgery and the effect this will have on his employability and ability to earn income in the physically demanding careers most likely open to him.

The Plaintiff’s total damages were then reduced by 22.5% because he was not wearing his seatbelt at the time of the collision and this contributed to the severity/cause of his injuries.