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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 ‘Madam Justice Choi’

$110,000 Non-Pecuniary Assessment for “Likely Permanent” Vertigo

February 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary loss at $110,000 for chronic vertigo symptoms.

In today’s case (Wright v. Mistry) the Plaintiff was involved in a 2006 collision.  Liability was disputed but the Court found the Defendant fully at fault.

The Plaintiff suffered chronic vertigo and an exacerbation of pre-existing depression.  In assessing non-pecuniary damages t $110,000 Madam Justice Choi provided the following reasons:

[54]         While each case depends on its own facts, the award should be fair and measured against other similar cases. In Stapley v. Hesjlet, 2006 BCCA 34 at paras. 45-46, the Court of Appeal set out a non-exhaustive list of factors to be considered in making this award. These include the age of the plaintiff; the nature of the injury; severity and duration of the pain; disability; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. The plaintiff’s stoicism should not penalize the plaintiff.

[55]         Mr. Wright was 56 at the time of the accident and was 65 at the time of trial.

[56]         Mr. Wright suffered a number of injuries in the accident. He had soft tissue injuries that resolved within six months of the accident. He developed vertigo which has lasted for ten years and is likely a permanent condition. In addition, he has ongoing testicular pain from a fall related to the vertigo. His impairment also caused exacerbation of his pre-existing depression.

[57]         Mr. Wright noted that his vertigo has robbed him of much of his enjoyment of life, especially by limiting how much time he can spend with his grandson, and how they can play together…

[60]         I find the facts in Moukhine to be most helpful here. Moukhine considered a 53- year-old computer programmer who developed Visual Vestibular Mismatch after a motor vehicle accident. Madam Justice Watchuk awarded $90,000 for general, non-pecuniary losses.

[61]         Non-pecuniary awards will always turn on a complex factual matrix. I find, considering all of the circumstances, that $110,000 is fair and just compensation for Mr. Wright’s loss.


$100,000 Non-Pecuniary Assessment for Chronic PTSD

November 28th, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for post traumatic stress disorder as a result of a vehicle collision.

In today’s case, (Harmati v. Williams) the Plaintiff was involved in a 2011 rear end collision that the Defendant accepted fault for.  She suffered PTSD and a generalized anxiety disorder following the crash and the Court accepted these conditions were caused by the collision.  In assessing non-pecuniary damages at $100,000 Madam Justice Choi provided the following reasons:

[48]         Dr. O’Shaughnessy was steadfast in his opinion when he testified that Ms. Harmati’s PTSD was as a result of the accident. He wavered on cross examination that the generalized anxiety was a result of the accident. I accept Dr. O’Shaughnessy’s testimony and diagnosis and found him to be a forthright and helpful expert witness…

[70]         On a balance of probabilities, I find that Ms. Harmati’s present disability, both physical and psychological, is a result of the accident. I accept Dr. O’Shaughnessy’s opinion that the PTSD was triggered by the accident, and I am satisfied that there is a substantial connection between the injuries Ms. Harmati suffered in this accident and her present symptoms sufficient to impose liability on the Defendants. Just as the Defendants are liable for any physical injuries caused to Ms. Harmati, they are too liable for any psychological injuries that arose from this accident.

[71]         I find that but for the accident, Ms. Harmati would not have suffered from pain in the neck, head and back or post-traumatic stress disorder. While Ms. Harmati may have had a more extreme reaction to the accident than most, she is better described as a “thin skull” than a crumbling one. The injuries she has suffered were not inherent in her original position and would not have occurred had the accident not happened…

[81]         A few lay witnesses testified as to Ms. Harmati’s ongoing limitations.

[82]         Mr. Gosling testified that Ms. Harmati is responsible for most of the cleaning, but that they don’t keep a clean house, and that Ms. Harmati is responsible for most of the cooking. She does more now than she did when they first cohabited because she is no longer working. I found Mr. Gosling a measured and careful witness, whose evidence I found credible.

[83]         Mr. Gosling testified that Ms. Harmati does not want to be a burden, so she will insist on performing tasks that then require her to rest, such as carrying groceries and pots of boiling water.

[84]         Mr. Derek Carswell worked with Ms. Harmati at Electronics Art. They were both hired on the same day in 2010 and became friends. Prior to the accident, he described her as “bubbly, enthusiastic and lots of energy”. After the energy, he testified that she was “subdued, lacking vital energy”. He said they played video games with their respective partners and that after the accident, she could not play video games for long because she needed to rest and due to nausea. Mr. Carswell testified that some video games are virtual reality games, involving wearing a headset and a screen which wraps around your face, and is an immersive gaming experience. Ms. Harmati has been unable to participate in this type of game since the accident…

[88]         Having considered the evidence and cases, it is my view that an award of non-pecuniary damages in the amount of $100,000 is appropriate.