ICBC Law

As previously discussed, the law in BC provides expert witnesses with immunity when they provide negligent opinions in the medico-legal context.  This gap in the law is unfortunate and has been done away with in the UK.  Unless BC follows suit, the only meaningful avenue in discouraging “advocate” expert evidence is judicial rebuke.

To this end I have been highlighting judicial criticism when it arises with respect to expert opinion evidence.  Adding to this collection are reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, dismissing an expert’s opinion concluding it would be “unsafe for the Court to put any stock in his opinion“.

In this week’s case (Sooch v. Snell) the Plaintiff was involved in a 2006 collision in Kelowna, BC.   He sustained soft tissue injuries to his neck and shoulder and was awarded $45,000 for his non-pecuniary damages.  In the course of the lawsuit the Defendant had the Plaintiff examined by a retired orthopaedic surgeon.  This doctor testified at trial and provided an opinion that it was “unlikely that there was any direct injury to the cervical spine or shoulder at the time of the injury“.

After cross examination the Court was unimpressed with this experts opinion and placed no weight in it.  In rejecting this expert’s evidence Madam Justice Ballance provided the following criticism:

54] Dr. Christian retired from his practice as an orthopaedic surgeon in 2005.  Since then, he has focussed his practice on disability evaluation.

[55] Dr. Christian conducted an independent medical examination of Mr. Sooch on March 18, 2010.  He spent between 45 and 55 minutes assessing Mr. Sooch.  He did not keep detailed notes, preferring instead to occasionally jot down a point or two and then dictate his findings and opinion immediately after the examination…

[60] It is obvious on the face of Dr. Christian’s report that in reaching his conclusion on causation, he relied heavily on this misconception as to the timing of Mr. Sooch’s medical appointment on the day of the Accident.  Yet, after he became aware that Mr. Sooch had actually gone to the medical clinic some hours before the Accident had taken place, he denied placing any importance on his mistaken belief.  He insisted that it was not in his “consciousness”, and was of marginal importance, if any, and maintained that knowledge of the true state of affairs would not have changed his opinion one way or another.

[61] The unfolding of Dr. Christian’s cross-examination on that and related matters was uncomfortable to observe.  At times, his demeanour was combative and the entire exchange on the issue of causation called his impartiality into question.  Dr. Christian’s responses to other lines of questioning were also sometimes argumentative and displayed a compromised objectivity.

[62] I am not able to credit Dr. Christian’s assertion that his mistaken impression about the timing of Mr. Sooch’s appointment on the day of the Accident did not impact his opinion on causation.  It plainly did…

[73] Based on the criticisms I have already expressed about the lack of balance in Dr. Christian’s assessment of Mr. Sooch’s pre-Accident soft tissue complaints, and his refusal to concede that his opinion on causation was partially fastened to his misunderstanding about the timing of Mr. Sooch’s medical appointment on the day of the Accident and other troubling aspects of his testimony, I consider it unsafe for the Court to put any stock in his opinion…

I have previously detailed the potentially high financial consequences for civil breach of insurance.   One way a motorist can be in breach relates to intoxication.  If as a result of intoxication an individual is “incapable of proper control of the vehicle” then the motorist can be in breach of their insurance pursuant to Section 55(8)(a) of BC’s Insurance (Vehicle) Regulation.  This means that the individual can lose all insurance coverage and be forced to pay all damages flowing from a collision.

This is a severe consequence and in appropriate circumstances a very deserving one.  However, if ICBC is too quick to breach someone from their coverage they may be forced to pay damages in bad faith.  Such a result was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (McDonald v. ICBC) the Plaintiff was involved in a 2007 collision.  She was at fault for the crash.  She consumed two to three glasses of wine prior to operating a vehicle.  As she was driving she “turned the wrong way into an oncoming van” causing a collision and injuries to the other motorist.

The Plaintiff was issued a 24 hour roadside suspension and charged criminally with dangerous driving and alcohol related offences.  Eventually the criminal charges were dropped and the Plaintiff plead guilty to careless driving pursuant to section 144 of BC’s Motor Vehicle Act.

The injured van driver brought a claim against the Plaintiff.  ICBC eventually settled the claim for just over $182,000.  ICBC held the Plaintiff in breach of her insurance arguing the collision occurred as a result of impairment and sought to collect the money from her.

The Plaintiff disputed ICBC’s allegations.  She sued ICBC for a declaration that she is entitled to coverage and further for punitive damages.  Madam Justice Ballance sided with the Plaintiff.  The Court found that ICBC failed to prove that the collision occurred as a result of alcohol consumption and further ordered that ICBC pay the Plaintiff $75,000 for their ‘bad faith’ denial of coverage.  In reaching this result Madam Justice Ballance provided the following reasons:

[249] An insurer does not have to have an iron-clad case in order to deny coverage.  It is not expected to investigate a claim with the skill and forensic proficiency of a detective.  Nor is it required to assess the collected information using the rigorous standards employed by a judge.  The duty of good faith does not impose a standard of absolute liability in respect of an insurer’s wrong decision.  The duty simply dictates that an insurer bring reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation, and the assessment of the collected information with respect to the coverage decision.  My criticisms of the calibre of Ms. Baadsvik’s investigation and the shortcomings of her ultimate assessment should not be interpreted as suggesting that each individual omission or failing is, of itself, necessarily a violation of good faith and fair dealing.  It is their cumulative effect that constitutes a breach of its duty of good faith.

[250] It is not possible to perform a fair and proper evaluation in the absence of a reasonably thorough underlying investigation.  The latter precludes achievement of the former.  And so it was, in the case at hand.  Here, that deficiency was compounded by the other failings of Ms. Baadsvik’s evaluation of whether the plaintiff had been Incapacitated…

[259] ICBC engaged in settlement negotiations and concluded a settlement binding the plaintiff without appointing legal counsel on her behalf, all the while investigating her potential breach of contract.  The plaintiff was never informed of the settlement discussions despite the fact that ICBC knew that the damages in the To Action were likely to be significant and that the plaintiff would potentially have to bear them personally.  Indeed, after Ms. Baadsvik’s final discussion with Constable Wood on April 1, she was essentially on the brink of deciding that the plaintiff was in breach and that ICBC would not be indemnifying her.  The nature and sequence of these events, all fully within ICBC’s control, was manifestly unfair.

[260] Ms. Baadsvik was asked whether, in making the decision that the plaintiff was in breach, any consideration was paid to the settlement of the To Action.  She gave the unsatisfactory answer that she understood she had to wait until that settlement was concluded before she could advise the plaintiff about the breach and tell her how much money was involved.

[261] In my opinion, ICBC’s multiple failings in the investigation, assessment and breach decision that I have outlined, and its misconduct in relation to the To Action, respectively, contravened the duty of fair dealing and good faith owed to the plaintiff…

[263] This is an exceptional case.  The nature of ICBC’s bad faith behaviour took different shapes throughout the time line.  The overall handling and evaluation of the claim was overwhelmingly inadequate.  ICBC also allowed its objectivity to be tainted by the fact that the claim indirectly involved the “very difficult” Mr. McDonald.  While I recognize that the tainting of impartiality was only slight, it was nonetheless real and improper.

[264] In my opinion, ICBC’s conduct was harsh, high-handed and oppressive as those concepts have been developed in the jurisprudence, and marked a significant departure from the Court’s sense of decency and fair play.  Some of the acts of bad faith were inadvertent and others were not and they persisted over a considerable period.  The plaintiff was in a vulnerable position and suffered harm in consequence of ICBC’s misconduct, not all of which is tidily rectified by this Court confirming her right to be indemnified.  ICBC would not be accountable for its bad faith in the absence of an award of punitive damages, which it can well afford.  Such an award is justified to deter other insurers from engaging in similar types of misconduct, and to punish ICBC and condemn its breaches of duty…

[267] I declare that the plaintiff is entitled to indemnity from ICBC for all claims arising from the accident, including the To Action.

[268] I also award her the sum of $75,000 in punitive damages.

Motorists are entitled to commit to an intersection and wait until its safe to proceed prior to making a left hand turn.  If the light turns red prior to a safe moment arriving it is appropriate for a motorist to wait that long prior to completing their turn.  In such circumstances a turning motorist can be found fully faultless if a collision occurs which was demonstrated in reasons for judgement released last month by the BC Supreme Court, Vancouver Registry.

In last month’s case (Henry v. Bennett) the Defendant was driving NorthBound on King George intending to make a left hand turn on 68th Avenue.  At the same time the Plaintiff was travelling Southbound on King George intending to drive through the intersection.

The Court found that the Defendant entered the intersection on a green light.  She waited for a gap in traffic.  The light eventually turned amber and then red.   Southbound traffic visible to the Plaintiff stopped.  She began her turn when the Plaintiff came through the intersection and the collision occurred.  The Plaintiff sued for damages but the claim was dismissed with the Court finding him fully at fault for entering the intersection on a red light when it was unsafe to do so.  In finding the Defendant faultless Madam Justice Ballance provided the following reasons:

Reasons for judgement were released today by the BC Supreme Court Awarding damages as a result of a BC Car Crash.

In today’s case, (KT v. AS) The Plaintiff was involved in a motor vehicle collision while seated as a passenger in 2005.  It was a significant intersection collision.  The Plaintiff was 17 years old at the time.  The Plaintiff claimed that she suffered both physical and psychological injuries as a result.

Madam Justice Ballance largely rejected the Plaintiff’s claim for accident related psychological injuries but did accept the claim for physical injuries.  In awarding the Plaintiff $70,000 in non-pecuniary damages the Court summarized the Plaintiff’s accident related physical injuries as follows:

[210]     According to the plaintiff, since the accident she has felt an ache along with tightness and sore muscles in her low back.  She says that every few weeks the pain is so intense that she keels over.  She testified that in the first six months or so following the accident, her neck and muscles were stiff and knotted, particularly when her head was bent.  Her headaches would follow at least once per week, building up slowly from the back of her neck.  At times they lasted an entire day.  Unlike the headaches that she experienced prior to the accident, eating did not alleviate the pain in her head.  Also within the initial six months time frame, the plaintiff said she would feel a sharp pinching sensation in her upper back/trapezius area a few times each month that seemed to come out of nowhere.  She testified that at her last appointment with Dr. Smith roughly 22 months post-accident,  her neck was still stiff and she was still experiencing intermittent sharp pinching pain in her shoulder blade/trapezius area.  Her low back continued to produce a dull ache most of the time that fluctuated considerably in intensity depending on her activity.

[211]     The plaintiff says that she has not had a pain-free day since the accident.  In terms of her current symptoms, the plaintiff claims that her low back pain, of variable intensity, persists and is her dominant problem.  Physical activities such as soccer, jogging and extensive walking, climbing up or descending stairs can cause a flare-up of pain.  However, the postures that are most aggravating are those which appear to be innocuous, such as sitting and static standing for prolonged periods.

[212]     The plaintiff also continues to experience episodic pain in her neck and upper trapezius area.  She claims that the jabs of pain in her shoulder blade area have become infrequent, flaring up roughly once per month.  Although she still suffers headaches, especially when she sits down for long periods to study, they have substantially diminished in their frequency.  Her hips and “upper butt” area have not caused her difficulty for a very long time.

[213]     The defence concedes that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back.  As to her low back injury, the defendants assert that, at most, the accident caused a temporary aggravation of an “ongoing injury process” due to her pre-existing injuries and core weakness.  It should be evident from my discussion of the expert medical evidence and, specifically, my disapproval of Dr. Hepburn’s opinion, that I find the evidence does not support the defendants’ position that the plaintiff’s current low back pain is basically the same as the dysfunction in her upper “butt” sacroiliac joint or hip regions experienced before the accident.

[214]     The evidence amply establishes that the accident caused musculoskeletal injuries to the plaintiff’s neck, upper trapezius (left shoulder area) and her lumbar spine.  Relying on Dr. Hershler, Dr. Jung and Ms. Cross, I also find that it is more probable than not that the accident injured the facet joints of the plaintiff’s lumbar spine.  I find, as well, that it caused her headaches secondary to her neck pain, injured her left sacroiliac joint and aggravated her pre-accident difficulty with the right side of that joint.  On balance, I am not persuaded that she suffered a costovertebral injury as opined by Dr. Jung.

Another interesting aspect of this decision was the Court’s discussion of the Defence Medical Evidence.  The Defence hired Dr. Hepburn, a retired orthopaedic surgeon, to conduct a so-called ‘independent medical exam‘ of the Plaintiff.  Madam Justice Ballance largely rejected this expert’s evidence and in doing so made the following critical comments:

191]     Since his retirement in 2007, Dr. Hepburn’s medical practice has been solely devoted to conducting independent medical examinations.  Virtually every referral examination he receives comes from defence counsel and ICBC.

[192]     By his own admission, a mere 10%-15% of Dr. Hepburn’s practice prior to his retirement involved soft tissue injuries, and even then he was not involved in their ongoing management and treatment.  Dr. Hepburn testified that, while in practice, he did not treat patients with back injuries who had not suffered a fracture, slipped disc, disc prolapse or other type of injury requiring surgical intervention.  Generally, he would not even see such patients and would typically refer them to a specialist better trained to treat ongoing non-orthopaedic soft tissue injuries, such as a physiotherapist and physiatrist.

[193]     Dr. Hepburn could not recollect treating any costovertebral joint injuries, and testified that he only treated orthopaedic facet joint injuries (dislocations and fractures) for which surgery can produce some benefit.

[194]     As Dr. Hepburn testified, it became apparent that, although he was qualified as an expert in the diagnosis and prognosis of soft tissue injuries, his expertise lies almost exclusively in the field of orthopaedics.  This, however, is not an orthopaedic case.  It is a claim involving chronic soft tissue injuries which cannot be repaired through surgical intervention.

[195]     The plaintiff told Dr. Hepburn that her major problem related to her low back.  She also complained of pain in her left shoulder, a stiff neck, and headaches.  Dr. Hepburn agreed that the plaintiff likely suffered some soft tissue injury to her neck and knee from the accident.  However, he found it unclear as to whether her lower back pain was connected to the accident.  In this regard, he seemed to place some reliance on his understanding that there had been no complaint of back pain noted in the plaintiff’s medical records in the months following the accident.  That is a misconception.  The physiotherapy records are replete with the plaintiff’s complaints of low back pain in the months immediately after the accident.  The treating physiotherapist’s discharge note, which formed part of Dr. Smith’s file, leaves no doubt that the plaintiff’s lumbar spine was the chief area of treatment throughout the many sessions.  I can only conclude that Dr. Hepburn’s review of those records was superficial.

[196]     As an aside I would also note that the plaintiff’s controversial ICBC statement tendered into evidence by the defence itself refers to complaints of low back pain within the first two weeks following the accident.

[197]     In addressing the plaintiff’s pre-accident physical difficulties, Dr. Hepburn seemed to suggest that it would be legitimate to interpret her physiotherapist’s notations of sacroiliac joint pain as being medically equivalent to a notation of unspecified low back pain.  The implicit suggestion was that the plaintiff’s post-accident low back pain is the same as her sacroiliac joint complaints before the accident and, accordingly, was not caused by the accident.  He went so far to say that, in all likelihood, the plaintiff actually had low back pain and not sacroiliac joint dysfunction when she saw her physiotherapist before the accident.  I have previously made clear that I reject the free-floating notion that a physiotherapist would confuse those distinct anatomical areas.  His evidence on this point distinguished Dr. Hepburn from the other medical experts who gave evidence on the point.  It caused me considerable concern.

[198]     I also found it strange that in his report, Dr. Hepburn described the plaintiff’s headache complaints as falling beyond his area of expertise.  The preponderance of all of the other medical opinion evidence, which I find credible, is that the plaintiff’s post-accident headaches probably stem from her injured neck.  In his report, Dr. Hepburn did not allow for the prospect that the plaintiff’s headaches could be cervicogenic in origin, and represented referred pain from her injured neck.  He was only prepared to admit that potential in cross-examination.  Instead, in his report he had implied that the plaintiff’s headaches had a psychological source by suggesting that they could be addressed by medication for anxiety.  In my view, Dr. Hepburn’s assessment of the plaintiff’s ongoing headaches was not evenly balanced.  That too was of concern.

[199]     Dr. Hepburn did not find a restricted range of movement in the plaintiff’s spine.  He explained that the dual inclinometer applied by Dr. Jung is not used by him or any orthopaedic surgeon to his knowledge.  That does not mean that measurement with that device is not the gold standard.  I was most impressed with Dr. Jung’s explanation of the frailties of the so-called “eyeballing” assessment of range of motion and the superior measurement capability of the device he used.

[200]     Dr. Hepburn was adamant that the manner in which Dr. Jung and Dr. Hershler purported to diagnose a potential facet joint injury was not adequate.  He testified that a definitive diagnosis cannot be made without proper imaging studies such as a bone scan, CT scan or MRI.  He stood by his opinion that there was no facet joint injury that he could detect on his examination of the plaintiff.  Dr. Hepburn’s comments regarding the diagnosis of facet joint injury illustrates the difference between the medical approach to diagnosis for the purposes of determining causation, and the legal approach to the question of causation.  As noted by the Supreme Court of Canada in Snell v. Farrell, [1990] 2 S.C.R. 311, [Snell ] at para. 34:  “Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.”

[201]     With respect to Dr. Jung’s diagnosis of costovertebral injury, Dr. Hepburn opined that such an injury is quite rare and would normally be associated with severe trauma such as in an individual with broken ribs.  He suggested that it would take a “divine talent” to diagnose this type of injury based on physical/clinical presentation alone.

[202]     Relying on Dr. Hepburn’s opinion, the defence argues that the plaintiff’s subjective pain complaints which have continued for more than four years after the accident are inconsistent with the fact that her spine has suffered no structural damage or other ominous pathology.  The underlying logic appears to be that pain and chronic injury do not occur in the absence of orthopaedic or other structural injury.  That notion offends common sense and is blind to the credible explanations given by Drs. Jung and Hershler and Ms. Cross as to the nature of soft tissue injury.

[203]     In the end, I consider it unsafe to give any weight to the opinions expressed by Dr. Hepburn.

A common set of facts Courts grapple with in ICBC Injury Claims is when an accident causes a Whiplash Injury and also causes pre-existing but symptom free neck degeneration to become painful.  Reasons for judgment were released today by the BC Supreme Court dealing with exactly these facts.

In today’s case (Prednichuk v. Spencer) the Plaintiff was involved in a 2004 BC Car Crash.   The Defendant was travelling at about 100 kmph when he lost control and the collision occurred.   He was found 100% responsible for the collision.   In addressing the Plaintiff’s damages the majority of the medical evidence focused on the extent that this accident was responsible for the Plaintiff’s degenerative neck condition.  Dr. Hershler, a specialist in physiatry gave the following opinion evidence which was largely accepted by the court:

[80]         In Dr. Hershler’s opinion, the accident caused the following musculoskeletal injuries, which fall into three diagnostic categories:

(1)   Musculoligamentous injury to the lower region of her cervical spine (moderate severity);

(2)   Musculoligamentous injury at the thoracolumbar junction (moderate severity);

(3)   Mild bilateral carpal tunnel syndrome….

[83]         Dr. Hershler’s overall view is that while the spinal degenerative changes were probably present before the accident occurred, it is more likely than not that the accident accelerated their development and rendered them symptomatic.  Dr. Hershler clarified that, in his view, had the accident not occurred, it is not likely that Ms. Predinchuk would have developed the same degree of cervical degeneration and that, in all probability, her degenerative condition was contributing to her pain.

[84]         In Dr. Hershler’s view, the prognosis for Ms. Predinchuk’s complete recovery is guarded.  He believes it more likely than not that she will continue to have to deal with some level of symptoms indefinitely.  At the same time, however, he stated that he would not rule out completely the prospect of further healing and additional improvement occurring over the next two years.

In assessing the Plaintiff’s non-pecuniary damages at $80,000 Madam Justice Ballance of the BC Supreme Court made the following findings and highlighted the following facts:

[105] Based on the evidence as a whole, I conclude that, in all probability, the accident caused Ms. Predinchuk’s soft tissue injuries to her neck, back and shoulders, her headaches and intermittent arm and hand numbness.  I conclude also that the accident caused the formerly dormant degenerative condition throughout Ms. Predinchuk’s spine to become symptomatic, which has added another component to her overall discomfort and pain and the chronicity of her symptoms….

[113]     Members of Ms. Predinchuk’s family and her friends testified at trial.  Without exception, their evidence was reliable and credible.  Their evidence, in conjunction with testimony of Ms. Predinchuk, Ms. Chu, Mr. Mason and Mr. Markus, establishes that before the accident Ms. Predinchuk was a highly industrious, successful businesswoman with many recreational interests and pursuits.  She was self-confident and strong with an established social network.  She was “house proud” and spent considerable energy maintaining and improving her homes over the years.  She kept a garden and did most small household repairs herself.  Over the years, Ms. Predinchuk had painted her various homes, removed wall-to-wall carpeting, sanded wood floors, laid ceramic tile and laminate flooring, jack-hammered a wall, installed cupboards, drywalled a play room for her grandchildren, and tiled a fireplace surround.  I accept that she had no physical limitations in carrying out those activities and enjoyed performing them.

[114]     Ms. Predinchuk’s life at work and outside of work changed dramatically after the accident.  Her impairments with respect to work with Crown have already been canvassed.  In terms of her non-work activities, I find that she significantly curtailed her participation in the social activities that she had once enjoyed, such as line dancing, playing bingo and cards and dinner parties with friends.  She became increasingly reclusive.  Her energy levels became markedly depleted after the accident, and have never fully revived.

[115]     Ms. Predinchuk’s daughter-in-law, who has known her for 26 years, testified that currently Ms. Predinchuk does not accomplish half or even a quarter of the activities that she previously carried out in a typical day.  She routinely complains of a sore neck, back and arm, and avoids driving.  I accept that Ms. Predinchuk’s worry over driving has prevented her from driving across town to see her grandchildren and son as much as she would like.  She no longer hosts large family dinners on her own, which was a long-standing tradition that she assumed from her mother and which she enjoyed immensely before the accident.

[116]     For a self-made and self-sufficient woman like Ms. Predinchuk, her perceived loss of independence due to a weakened body and difficulty performing her work, doing mundane chores and driving is especially distressing, and continues to bother her deeply today.

[117]     I find that the physical symptoms caused by the accident have brought about unwelcome and disruptive changes to the enjoyment and quality of Ms. Predinchuk’s life and continue to do so.  She is an older plaintiff and has not recovered the way a younger person might have.  While her symptoms have clearly improved, the prognosis for a full recovery is poor.  Ms. Predinchuk is not the woman that she was a moment before the accident occurred and probably never will be again.

[118]     A tragedy occurred in Ms. Predinchuk’s family in 2006.  There was a mild suggestion made by counsel for ICBC that certain aspects of Ms. Predinchuk’s apparent unravelling could be attributed to that.  The evidence does not support that contention, and I reject it.

[119]     Ms. Predinchuk seeks an award for non-pecuniary damages in the range of between $80,000 and $125,000, and has provided case authorities in support.  The defendants have provided case authorities favouring significantly smaller awards.

[120]     Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to Ms. Predinchuk’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

Reasons for judgment were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff approximately $85,000 in total damages from a 2004 BC Car Crash.

This case (BMM v. MLV) contains lengthy reasons that largely deal with the Plaintiff’s pre and post accident psychological difficulties.  Ultimately the Court rejected the Plaintiff’s claim that her pre-existing depression was affected by the accident.  Madam Justice Ballance concluded that “the evidence does not show that the Plaintiff’s pain and discomfort from her physical injuries caused by the Accident, exacerbated, compounded or intensified her Depression.”  Paragraphs 159-190 contain the Court’s reasoning behind this conclusion and are worth reviewing for anyone interested in seeing how BC Courts can deal with a claim that pre-existing psychological injuries are aggravated by a collision.

The Court did find, however, that the Plaintiff suffered “moderate to severe” soft tissue injuries and assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In reaching this figure Madam Justice Ballance summarized her findings and engaged in the following analysis:

[199] The plaintiff experienced moderate to severe soft tissue injuries to her neck and back as a result of the Accident. Although her shoulders were also implicated and she had initial sleep disturbance and was plagued with low-grade headaches that occasionally developed into migraine-like discomfort, the primary area of injury was her low back and her related left hip discomfort. I accept that during their acute phase, these injuries caused persistent and sometimes severe discomfort and pain to the plaintiff, and disabled her from attending work. Following her leave from work in 2005 and her intensive physiotherapy program, her symptoms improved significantly. She continued to be susceptible to flare-ups of her symptoms throughout the summer of 2005. Her discomfort prompted the plaintiff to attend a program at the CBI which she found considerably beneficial in improving her soft tissue injuries.

[200] I find that by the end of 2005, the plaintiff’s physical symptoms had largely settled, but had not resolved entirely. She was not restored to her pre-Accident condition at that time. I am satisfied that after that stage, the plaintiff experienced intermittent low back symptoms and associated pain throughout 2006 and continuing forward. Those episodes were infrequent but sufficiently bothersome to prompt her to obtain treatment from Dr. Weiss in late 2007 and endure two excruciating injections. I think that the plaintiff will probably experience intermittent bouts of low back discomfort caused by the Accident into the foreseeable future. The evidence indicates that those episodes will continue to be infrequent and rather mild in nature.

[201] I accept that the physical symptoms caused by the Accident brought about unwelcome and disruptive changes to the plaintiff’s enjoyment and quality of her life, especially during the first twelve months after the Accident. She was no longer the fun-loving and enthusiastic person familiar to her son, sister and co-workers. In time, she was able to gradually reintroduce and enjoy certain pursuits such as walking and some gardening, and bike-riding using her electric bike. I have found it challenging to attempt to parse out the changes in the plaintiff’s personality and life which can be said to be attributable to her physical injuries from the Accident, from those associated with her ongoing and severe bouts of Depression, which adversely affected her life but are unconnected to the Accident. I conclude that the enjoyment of certain of her activities was negatively affected at times by her low mood. Even the plaintiff agreed that her gardening could be affected by her mood. While I accept that in the first year or so following the Accident, the plaintiff’s physical symptoms made it uncomfortable for her to attend the usual family functions and pursue her normal community and political interests, I find that her sustained withdrawal from those endeavours and detachment from her sister and other extended family, are due to the plaintiff’s psychological state unrelated to the Accident….

204] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to the plaintiff’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $55,000. A deduction of 5% is to be taken to reflect the measurable risk that her low back symptoms would have manifested without the Accident.