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 Duncan’

$100,000 Non-Pecuniary Assessment for Breast Pain and Chronic Neck Pain

May 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a collision.

In today’s case (Kingston v. Warden) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The crash resulted in chronic neck pain along with a breast injury that did not subside until surgical intervention.  The Plaintiff chose to have breast augmentation during the surgery and the Court found that only a percentage of the cost of the procedure was compensable.

In assessing non-pecuniary damages at $100,000 for these injuries Madam Justice Duncan provided the following reasons:

[126]     I find on a balance of probabilities that the accident caused an injury to the plaintiff’s neck which has not fully subsided. With a focussed exercise program and possibly some injection treatments, the plaintiff may improve but there was no evidence the neck pain would ever go away. The complaint of neck pain is subjective, but the medical experts for both parties largely agreed that the plaintiff presented with soft tissue injury to her neck.  

[127]     I find on a balance of probabilities that the accident caused the plaintiff to feel pain in her left breast which was not alleviated until after the revision surgery. I acknowledge Dr. Malpass’s expert report was not as detailed as it should have been, in that he did not include with it the depiction of asymmetry he described in his evidence. I also acknowledge that the plaintiff appears to have taken advantage of surgical intervention to increase the size of the implants and re-position her nipples, rather than simply seek to be restored to her pre-accident appearance. Nonetheless, I do not accept the plaintiff was making up the pain or concerns about asymmetry to take advantage of surgery that might be eventually covered by a damage award stemming from the accident.

[128]     I find on a balance of probabilities that the accident intensified the plaintiff’s headaches and caused them to be more frequent, but that in the time since the accident they have essentially returned to the pre-accident level, based on her report to Dr. Sovio…

[136]     Before the accident the plaintiff was an active, fit person. While the defendant, Mr. Warden, characterized the accident as fairly minor, I accept the plaintiff’s perception of the accident as frightening to her. The plaintiff suffered soft tissue injuries in addition to a worsening of headaches. Her neck pain continues to limit her activities, although the experts have said she can return to her usual activity level, bearing in mind she may not be able to snowboard or do other activities for as long or as vigorously as before the accident. 34

[137]     The plaintiff underwent surgery to address pain and the appearance of her left breast, which conditions resulted from the accident. The plaintiff suffered a loss of self-esteem and increased her consumption of alcohol to cope with her pain, although I cannot find she has proven an addiction to alcohol stemming from the accident. I accept that the plaintiff has isolated herself from her formerly active social life and her relationship with her husband is not as close as it was before the accident.

[138]     In all the circumstances I am satisfied an award of $100,000 for non-pecuniary damages is fit in the plaintiff’s case.


Court Orders Several Injury Claims Tried Together Due to Fraud Allegations

January 24th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering several lawsuits to be heard together due to allegations of fraud.

In today’s case (ICBC v. Singh) the court reviewed an application requesting that seven personal injury actions involving motor vehicle accident claims related to three separate collisions be tried together.

In addition to the injury claims ICBC sued the individuals alleging that they “knew each other and conspired to stage the accidents to make false personal injury claims.

ICBC applied to have all the lawsuits tried together. In granting the application Madam Justice Duncan provided the following reasons:

[34]        The authorities provide a non-exhaustive list of facts to consider when making a determination on consolidation or, as in this case, ordering that actions be heard together. The factors are derived from Merritt, as well as Shah v. Bakken, [1996] BCLR No. 2836, and Insurance Corp. of British Columbia v. Sam, [1998] BCJ No. 947:

1.       Will consolidation create a saving in pre-trial procedures?

2.      Will there be a real reduction in the number of trial days taken up by the actions heard together?

3.      What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which they only have a marginal interest?

4.      Will there be a real saving in experts’ time and witness fees?

5.      Is there a common issue of fact or law that makes it desirable to dispose of both (all) actions at the same time?

6.      Will consolidation avoid a multiplicity of proceedings?

7.      What are the relative stages of the actions?

8.      Would consolidation delay the trial and prejudice one or some of the parties?

9.      Would there be a risk of inconsistent results?

[35]        In this case, an order that the actions be heard together should result in a saving in pre-trial procedures. There would be one discovery of ICBC representatives concerning the fraud allegations rather than separately scheduled days of discovery, one per defendant. There would likely be a real reduction in the number of days required for trial if the actions were heard together, rather than as seven tort actions and one fraud action, as a repetition of evidence could be avoided. Parties could be excused for the portions of the trial which do not relate to them, saving their time and expense in that regard.

[36]        Conversely, the actions could be heard in stages with the ICBC fraud action scheduled first as it might determine, in whole or in part, the viability of the individual tort actions. This, of course, would be dependent on the views of a judge at a case planning conference or a judicial management conference.

[37]        The common issues of fact or law as between these actions is manifest in the pleadings and in the documents placed before the court by ICBC. The question is whether these accidents were staged by the parties. The parties knew one another, or at least knew one person with connection to more than one of the collisions. Mr. Haghmohammadi has some involvement in Collision #1 as he gave Ms. Prakash the vehicle she was driving at the time. Mr. Inderjit Singh, who drove the vehicle which allegedly injured Ms. Prakash and Ms. Mehran in Collision #1, had business dealings with Mr. Haghmohammadi in the sale of rebuilt motor vehicles and was in fact involved in Collision #3 with him.

[38]        If individual trials were held, inconsistent results could ensue. It is no answer to say that Ms. Prakash’s trial would create res judicata in relation to issues of alleged fraud arising from Collision #1, as Ms. Mehran has a separate proceeding arising from the same accident and Mr. Inderjit Singh is also a litigant in relation to Collision #3. Determining what issues were adjudicated in the first trial would not be straightforward and might visit unfairness on others who were not parties at Ms. Prakash’s trial.

[39]        I acknowledge that Ms. Prakash’s action is set for hearing in February and an order that the matters be heard together will necessitate an adjournment of that trial; however, I am satisfied of a high degree of interconnectedness between the parties and that it is in the interests of justice that the matters be heard together, or as directed following the case planning process or by judicial management, if a judge is appointed to hear the matter.


$60,000 Non-Pecuniary Assessment For Chronic Back Injury

November 18th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering injuries caused by two vehicle collisions.

In the recent case (Ali v. Rai) the Plaintiff was involved in two collisions in 2011.  He was found faultless for both.  The collisions caused a lingering back injury which remained symptomatic at the tie of trial and the symptoms were expected.  The Court found both collisions caused the injury and it was indivisible.  In assessing non-pecuniary damages at $60,000 Madam Justice Duncan provided the following reasons:

[134]     On the whole of the evidence, I find the plaintiff suffered back and neck injuries as a result of the two accidents at issue before me along with headaches and sleep issues. I cannot find the injuries divisible as between the two accidents. The plaintiff was not fully recovered from his injuries after the First Accident when the Second Accident occurred. This is reflected in Dr. O’Connor’s opinion that the First Accident aggravated the plaintiff’s underlying condition, he was improving by the time of the Second Accident, and that accident did not cause additional injuries, simply a re-aggravation.

[135]     I find the plaintiff’s neck pain had substantially cleared up by the summer of 2011. The aggravation in 2012 which caused the pain to manifest in the right side instead of the left is unexplained and I cannot find it was as a result of the accidents. The plaintiff continues to suffer from back pain to this day. I find it limits his work and recreational activities. I will have more to say about it under the individual heads of damages…

[137]     The plaintiff is now 50 years of age. He has a chronic back injury and suffered from a neck injury for some months after the accidents in addition to headaches and disturbed sleep. The back injury continues to affects his social life. He does not do as much volunteer work as he once did. He has to sit in a chair to pray rather than join his contemporaries and use prayer mats. He cannot sit through a movie or drive long distances. He cannot referee soccer at the high level he once did and he no longer plays recreational soccer due to the impact of the accidents. His back injury has affected his mood and his wife feels it has affected their social and intimate life. The plaintiff does not contribute to work within the home as he once did, nor does he feel able to perform yard work or work that arises from the tenanted basement. Overall, the plaintiff’s back injury has permanently altered all aspects of his life…

[140]     As noted above, while I found the plaintiff’s neck condition had improved by the summer of 2011 and there was no evidence as to why it was aggravated in 2012 and transferred to the opposite side, his back injury continues to affect him. He was a formerly active, engaged and giving member of the community whose quality of life and self worth has been affected by his injury. Balancing all of the factors, I find a fair and reasonable award for non-pecuniary damages is $60,000.


Bus Driver Liable For Driving Over Dip at Excessive Speed

June 19th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for an injury to a bus passenger.

In today’s case (Hutchinson v. Dyck) the Plaintiff was a passenger on a bus.  As the bus drove the plaintiff “was ejected upwards from his seat and hit the seat on the way down.”.  He suffered a burst injury in his low spine which resulted in chronic mechanical back pain.

The bus driver denied fault for the incident arguing he drove with reasonable care but the Court rejected this finding he drove with excessive speed over a depression in the road which caused the injury.  In reaching this conclusion Madam Justice Duncan provided the following reasons:

[23]         The defendant was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff is not expected to assume any risk associated with the operation of the bus which could not reasonably be anticipated by a passenger on the bus. The usual route along Grace Road would not cause a passenger to be thrown up off his seat in such a violent fashion.

[24]         The defendant believed he was travelling 30 kilometres per hour when he hit the dip, but he made no note of that or other salient details on the incident form. The first time his estimate of 30 kilometres per hour was recorded came at his examination for discovery. This was an important detail which should have been noted on the incident form. The defendant was aware someone had been injured after he hit the dip in the road. The ambulance attended and took the plaintiff away. It was not a trivial matter. The defendant’s recollection of his speed well after the incident is not credible.

[25]         In addition, the defendant agreed he noted on the incident report form that he knew there was a bump in the road but could not see how deep it was due to the dark and rain prevailing at the time. In other words, he saw it but did not approach it in such a fashion as to judge it properly. The defendant’s recollection of the conditions as dark and rainy are at odds with photographs taken by his supervisor shortly after the incident was called in. While it would obviously be more light out as the morning progressed, the photographs do not depict a roadway soaked with heavy rain, further calling into question the defendant’s recollection of how the accident occurred.

[26]         In all the circumstances, I find the defendant was travelling faster than he thought on a stretch of road he knew contained a dip. He was going too fast to fully appreciate how significant a dip it was and too fast to take evasive action and brake to minimize the impact once he saw the dip. On balance I am not satisfied the defendants have shown the driver conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit and I find the defendants negligent.


$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

February 27th, 2015

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury sustained in a vehicle collision.

In today’s case (Mir Tabatabaei v. Kular) the  Plaintiff was involved in a 2010 collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[66]         It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

[67]         Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one…

[71]         The plaintiff is 53 years of age. He experiences pain in his right shoulder when he exerts himself. He experiences pain in his neck at night which disrupts his sleep. There is no cure for either of these conditions. His shoulder may get worse and require him to undergo surgery which in turn carries risks. Notwithstanding the pain and discomfort, the plaintiff has continued to work to the extent that he is able and to participate in his previous leisure activities, such as biking and swimming, albeit it to a lesser extent than before the accident. I agree with counsel for the plaintiff that Wong is very similar in terms of the type of injury involved; however, the plaintiff in that case had an additional injury to her knee. Nonetheless, it is a helpful benchmark. In all the circumstances I find an award of $75,000 for non-pecuniary damages is appropriate.


Medical Marijuana Cream Claim Fails at Trial

November 25th, 2014

To date I am aware of two cases in British Columbia that have awarded damages for the costs of medical marijuana to treat personal injuries (these can be accessed here and here).  Earlier this week reasons were released by the BC Supreme Court considering whether to award damages for the cost of medical marijuana cream to a Plaintiff who suffered from chronic pain following a vehicle collision.  In rejecting this aspect of the claim Madam Justice Duncan provided the following reasons:

[75]         In his May 2012, report Dr. Hershler noted that with 4.5 years having passed since the accident it was unlikely the plaintiff’s condition would improve. He classified the plaintiff as having a permanent partial disability with respect to his low back, which was likely to be symptomatic indefinitely. He recommended pulse signal therapy. He is one of only two service providers for this treatment. In a follow-up report dated October 11, 2012, he also recommended medical marijuana compounded in a topical cream. Dr. Hershler is aware of directives from the Canadian Medical Association and Health Canada about exercising restraint in prescribing medical marijuana. He views these directives to be aimed at smoked cannabis of a particular strain, not those he suggests as a cream or oral supplement. He agreed he is keen to use those types of applications of medical marijuana in the field to assist in the gathering of evidence about its efficacy and modality in pain management…

[98]         I agree with the defendant that Dr. Hershler’s opinion should be given little weight. I find he seized on the May 2008 MRI as the source of the plaintiff’s discomfort whereas the other experts, both Dr. Helper for the plaintiff and Dr. Paquette for the defence, had a very different view of the plaintiff’s MRI history. Similarly, I place no weight on Dr. Hershler’s recommendations for pulsed signal therapy or medical marijuana cream. The former is a service for which he is one of the only providers and the latter is a treatment in its very early experimental stage with minimal empirical evidence to suggest it will assist the plaintiff, if it is even permissible under Health Canada’s medical marijuana exceptions.

 


$75,000 Non-Pecuniary Assessment For Chronic and Disabling Neck and Back Injury

November 25th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and largely disabling neck and back injuries.

In this week’s case (Mandra v. Lu) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The Plaintiff suffered chronic neck and back injuries as a result which disabled him from is occupation as a millwright and challenged him in lighter vocational options.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[121]     Mr. Mandra was 53 years of age when the accident occurred. He was transformed from a happy, healthy and hardworking man to one who lives in constant chronic pain. His lower, mid and upper back hurt on an ongoing basis. He has neck pain, headaches and pain in his legs. He is nervous, forgetful, miserable and depressed. Treatment and medication have not helped and there is no prognosis for improvement except as described by Dr. Helper and only in relation to his lumbar pain. Compendiously his pain is severe and chronic and disables him from the type of work he used to do. He was formerly employed as a millwright, a heavy duty job, but now has a hard time sitting or standing for prolonged periods and lacks the necessary physicality to work as he once did. The injuries render him unemployable in his past career as a millwright and only very marginally employable in lighter occupations, particularly given his challenges with English. The injuries have affected his social life and his relationship with his wife. He is not as active as he once was. He has suffered psychologically.

[122]     Balancing all these factors, I award the plaintiff $75,000 for non-pecuniary damages.


$50,000 Non-Pecuniary Assessment for Lingering PTSD Following Collision

July 24th, 2014

Adding to this site’s archived posts addressing damages for Post Traumatic Stress Disorder, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.

In this week’s case (Field v. Bains) the Plaintiff was 7 year old when her vehicle was struck by a semi trailer and dragged along the highway. She suffered from PTSD which had some lingering symptoms by the time of trial some 10 years later.  In assessing non-pecuniary damages at $50,000 Madam Justice Duncan provided the following reasons:

[44]         Rebecca was a seven-year-old child when she was involved in a frightening car accident with her mother. She suffered from recurrent nightmares about the accident for approximately a year and intermittent nightmares for some time after. She would not get in a car for a number of months after the accident. When she finally did she was hypervigilant, on the lookout for large trucks. The sight of a large truck near the family car caused her to go into a severe anxiety phase. She would curl up in a ball in the back of the car and obsessively talk about the truck. Rebecca also had a fear of loud noises from buses and trucks, which at its most severe caused her to run and hide or avoid taking the school bus for outings with her classmates. She never returned to ballet classes.

[45]         Rebecca is now a mature and well-spoken 17-year-old. She has worked very hard to overcome the effects of the accident by seeking out counselling and successfully integrating coping techniques into her daily life.

[46]         I accept the opinions of Dr. Weiss and Dr. Kaushansky that the plaintiff developed PTSD as a result of the accident. I accept their opinions that Rebecca’s fear of large trucks spilled over into a generalized anxiety about a number of different things. While it appears Rebecca has recovered from the psychological effects of the accident, the PTSD and anxiety are in remission rather than completely eradicated.

[47]         As for the plaintiff’s prognosis, I prefer Dr. Kaushanky’s opinion over that of Dr. Weiss. Dr. Kaushansky was of the view that Rebecca would live quite a normal life but be significantly more affected by life stressors than other people. He described it as a waxing and waning effect which would necessitate periodic visits with a counsellor. This appears to have been the case, as Rebecca sought out assistance from Ms. Hildebrandt when her stress and anxiety levels over the accident as well as family matters became too much for her to deal with on her own. Ms. Hildebrandt’s intervention appears to have been successful in assisting Rebecca with an abatement of her anxiety.

[48]         Dr. Weiss’s prognosis that the plaintiff would have marked functional impairment in her life as a result of the PTSD has not, in my view, come to fruition. Rebecca has managed to attain her driver’s licence despite the frightening after-effects of the accident. She graduated from high school, has a positive group of friends and has realistic ambitions for future career paths which she will further investigate after a year off…

[55]         Taking into account the findings of fact in this case, the factors in Stapley, and the comparable authorities involving children with PTSD, I award the plaintiff $50,000 in non-pecuniary damages.


$225,000 Non-Pecuniary Assessment for Chronic and Disabling Conversion Disorder

June 12th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling conversion disorder following a motor vehicle collision.

In this week’s case (Best v. Thomas) the Plaintiff was operating a motorcycle when he was rear-ended by a van.  The Plaintiff suffered a spine injury at C-5 which required surgical correction.  He went on to suffer from a variety of disabling ailments.  Ultimately the Court found these were due to a conversion disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $225,000 Madam Justice Duncan provided the following reasons:

[139]     I find on a balance of probabilities that the main cause of the plaintiff’s current condition, including the myoclonus, is conversion disorder. I come to this conclusion because of the relative rarity of propriospinal myoclonus and how it can be mistaken for psychiatric problems. The non-anatomical presentation was also persuasive. As early as Dr. Ho’s involvement, a strange kicking motion was noted, which was inconsistent with a neurological cause. Some of the plaintiff’s pain may well be as a result of the surgery on his C5/6 disc; however, the vast majority of his symptoms, in my view, are not organic or structural in cause.

[140]     Diagnosis of cause aside, what I glean from the experts is that nobody predicts anything close to a full recovery for the plaintiff. Dr. Hurwitz posited a 14% possibility of some recovery, though in light of the fact that the plaintiff has already been treated with a wide variety of anti-depressant drugs, this is a very optimistic prognosis. The other experts recommended various interventions in an effort to assist the plaintiff…

[161]     The plaintiff was almost 32 when the accident happened. The original injury was to his C5-6 disc. I find the following facts about the plaintiff’s condition have been established on a balance of probabilities.

[162]     Since the accident, the plaintiff has been in constant pain, notwithstanding an aggressive regime of pain treatment through medication and other therapies. He is disabled from competitive employment. While he can drive and walk, with some difficulty and with the assistance of a cane, he cannot engage in the activities he enjoyed before the accident. In terms of physical activity, he can do little more than walk very short distances and swim. He can no longer work at a job he enjoyed. His emotional suffering is extreme. He has given up hope of being a father and had a vasectomy as he would be unable to engage in play or chase a child. His enjoyment of sexual activity is significantly diminished as he has lost sensation in his penis during intercourse. His family and friends attest to the fact that he is not the same person as before the accident. He no longer laughs and jokes around. He is constantly fatigued. His family and two close friends remain engaged with him but his world has shrunk considerably from his pre-accident social activities and he has essentially lost a healthy, active, social lifestyle. He is not as mentally sharp as he was, whether by virtue of the injury or the associated medications he takes to manage his condition. None of the experts predicted anything remotely approaching a full recovery.

[163]     Taking into account all of the foregoing, as well as the range of cases provided by counsel, I award the plaintiff $225,000 in non-pecuniary damages.