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 ‘Madam Justice DeWitt-Van Oosten’

$140,000 Non-Pecuniary Assessment for Chronic Back and Ankle Injury

January 22nd, 2019

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back and ankle injury sustained in a vehicle collision.

In today’s case (Lensu v. Victorio) the Defendant was operating a vehicle and ran over the plaintiff’s foot as he was exiting a pakrade.  The Court found the Defendant 75% liable for the incident with the plaintiff shouldering 25% of the blame.

The incident led to chronic back and ankle difficulties with a poor prognosis.  In assessing non-pecuniary damages at $140,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[208]     Applying these factors, the plaintiff is 62 and was only in the second year of retirement when the accident occurred.  She led a physically active and independent life, including numerous outdoor and sports-related activities, as well as international travel.  These activities formed an integral part of her personal fitness regime, family life and social relationships.  She took pleasure in them.  She was an avid skier; could play ping-pong for long periods; she hiked challenging trails; rode horses; and could sit through the entirety of her granddaughter’s piano practice.  Others found it difficult to keep up with her.

[209]     The plaintiff looked forward to a retirement of high-energy output.  From her perspective, these years also presented an ideal opportunity to learn and try new things (such as sailing).  She was excited about the prospect.

[210]     There is no question that the injuries to her left ankle, foot and lower back have profoundly affected the plaintiff’s life.  She experiences daily pain; is unable to do many of the things she previously did; her mobility and endurance have been reduced; and she has decided she must sell her condominium, a place she has lived in for ten years and enjoys.  Overall, the situation has led to feelings of dependency, helplessness and decreased enjoyment in life.  There are still things she can do, including travel.  She does them and tries to persevere.  However, it is not the same.  The plaintiff’s frustration with her current situation was obvious from her testimony.  She presents as proud and stoic.  However, her physical discomfort was readily apparent from the way in which she held and moved her body while testifying.  Moreover, it was obvious to me that she genuinely misses, and longs for, her prior independence and strength.

[211]     No medical intervention is likely to alleviate the plaintiff’s condition.  The prognosis for improvement is poor.  The lifestyle the plaintiff planned for herself post-retirement is forever diminished…

[216]     Having regard to these decisions, as well as the cases referenced in Rizzolo at paras. 32–37, I consider a non-pecuniary award of $140,000 to be appropriate in the circumstances of this case.


$185,000 Non-Pecuniary Assessment for Severe Soft Tissue Injury With Nerve Irritation

July 5th, 2018

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury with nerve irritation and a poor prognosis.

In today’s case (Broad v. Clark) the Plaintiff was involved in a 2013 collision.  The defendant denied fault but was found fully liable at trial.  The crash caused a severe low back soft tissue injury which progressed into chronic pain with a poor prognosis.  In assessing non-pecuniary damages at $185,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[272]     I find that the soft tissue injury to the lower back was severe, leading to multiple and complex issues that have worsened in their cumulative impact since July 2014, including: mechanical low back pain; a painful lesion on her lower back that has grown; and, intermittent nerve irritation that causes pain to “shoot” down her legs, particularly the right leg.

[273]     I also find that the plaintiff is likely to be impacted by these conditions, in one form or another, for the entirety of her life.  The overall prognosis for improvement is poor.  The plaintiff presents as an unusual case, with multiple issues simultaneously affecting her lower back.  The lesion, in particular, appears to be a rarity.

[274]     The evidence establishes that the plaintiff’s life has been profoundly impacted by her lower back injury.  The video footage from May and June 2014, the Facebook photographs and Instagram postings do not persuade me to the contrary.  They represent moments in time.  The video footage predates the time at which the lower back injury took a turn for the worse.

[275]     The evidence, considered in its entirety, proves the existence of chronic pain and limitations to physical capacity that adversely impact the plaintiff’s emotional health; relationships with friends and family; her ability to physically engage with her children; intimacy with her partner; an incapacity to complete everyday tasks, including maintaining a household and meeting her children’s needs; and, the plaintiff’s physical struggles keep her out of the external work force and unable to achieve the independence and self-sufficiency goals that she set for herself.  She now spends a large portion of her life in pain and on the “sidelines”, unable to avail herself of opportunity for active engagement and advancement.  She is only 28.

[276]     In this sense, I agree with the plaintiff that her situation is analogous to (although not as severe as), Turner v. Dionne…

[284]     Recognizing that no two cases are ever exactly alike, after reviewing the authorities cited by the parties and applying the factors from Stapley v. Hejslet, it is my view that non-pecuniary damages within the context of the plaintiff’s individual circumstances are appropriately set at $185,000.