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 Fitzpatrick’

Soft Tissue Injuries “Substantially Resolved” After 5 Years Given $45,000 Non-Pecuniary Assessment

August 31st, 2017

Adding to this site’s soft tissue injury database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries that “substantially resolved” in about 5 years.

In the recent case (Nguyen v. Bhatti) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The Plaintiff suffered various soft tissue injuries which, the court found, were largely improved by the time of trial.  The Court assessed non-pecuniary damages at $45,000 and reduced this by 10% finding the Plaintiff failed to mitigate damages by not seeking out some treatments which could have assisted.

In arriving at this assessment Madam Justice Fitzpatrick provided the following reasons:

[126]     Having considered the entirety of the evidence, I conclude the following in relation to the injuries asserted by Mr. Nguyen:

  1. a)Pre-existing injuries: I find that Mr. Nguyen had snoring and sleep issues well before the accident which negatively affected his mental cognition (ability to concentrate, memory issues and his reported “fogginess”) and caused fatigue and lethargy. I do not accept the evidence of the Nguyens that there were no sleeping problems prior to the accident. Ms. Nguyen describes her husband’s sleeping patterns before the accident as “normal”. Nevertheless, the medical records reveal a significant snoring problem. Even Ms. Nguyen confirmed that when he snored, she often had to poke him to wake him up and stop. This could only have contributed to a less than restful sleep, which he now attributes solely to the accident. Finally, there is no medical evidence to support that these sleeping and cognition issues, to the extent that they continued after July 2012, are linked to the accident: Deo v. Wong, 2008 BCCA 110 at paras. 19-20, leave to appeal refused [2008] S.C.C.A No. 229;
  2. b)Neck, back and right shoulder: I accept that Mr. Nguyen suffered soft tissue injuries in these areas, which was an aggravation of his injuries arising from the 2009 accident which were continuing to some extent in July 2012. I find that Mr. Nguyen was greatly improved in these areas by late 2014/early 2015 and that he continued to improve after that time. I reject Mr. Nguyen’s evidence that he remains in constant daily neck, shoulder and back pain at this time. Largely based on the testing of Dr. Marks in April 2017 and Dr. Wee’s notes arising from the May 2017 visit, I find that his symptoms were substantially resolved by the spring of 2017;
  3. c)Other injuries: the defence made submissions regarding complaints identified by Dr. Wee relating to Mr. Nguyen’s right arm and elbow. As Mr. Nguyen did not assert these as a compensable injury at this trial, I will not address them further. Mr. Nguyen did assert injury to both shoulders, although Dr. Wee confirmed only injury to his right shoulder arising from the accident. Dr. Lee’s opinion does not provide any clarification in respect of this alleged injury. I accept that the first indication of any left shoulder injury only arose in September 2015 when he reported to Dr. Rapoport that he was having trouble in that area only 5-6 weeks prior. There is no medical evidence to support that he had any ongoing left shoulder injury as of September 2015 arising from the accident. I agree with the defence that if such an injury arose in 2015, it was unrelated to the accident.

[161]     In my view, the cases cited by the defence are more in line with Mr. Nguyen’s injuries, the effects on his life and the extent of his recovery, as per my findings above. I award the sum of $45,000 for non-pecuniary damages, less a 10% reduction for the failure to mitigate, resulting in a net award of $40,500.


Parents Held Responsible For Child’s Destruction of School Property

January 8th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding parents liable for damages caused to school property by their child.

In today’s case (Nanaimo-Ladysmith School District No.68 v. Dean) the Defendant played a prank at school by attempting to attach a lock to a sprinkler head.  While doing so “the red filament inside the sprinkler head was disturbed and, as sprinkler heads are intended to operate, it immediately began spraying water.”  This caused over $48,000 in damage to school property.

The Plaintiff was found negligent and he and his parents were ordered to pay back the money based on the operation of s. 10 of the School Act which reads as follows:

If property of a board or a francophone education authority is destroyed, damaged, lost or converted by the intentional or negligent act of a student or a francophone student, that student and that student’s parents are jointly and severally liable to the board or francophone education authority in respect of the act of that student.”

Madam Justice Fitzpatrick noted this is a harsh result for the parents who had nothing to do with the damage but the legislative requriements are clear.  In reaching this decision the Court provided the following reasons:

[36]         What s. 10 seeks to accomplish is to impose statutory liability for the intentional actions of a student that cause damage to the school, which is a liability imposed beyond whatever liability there might be at common law. The section accomplishes a shifting of risk from the school to the student and that student’s parents arising from the actions of the student. I do not consider that a plain reading of s. 10 results in any other interpretation or a “reading in” of the meaning of “intentional act”, as the Deans assert…

[38]         In my view, there is no ambiguity in s. 10. It simply refers to an “intentional … act”. Accordingly, I conclude that the legislative intention, however draconian it may be, is that the student need not have intended to cause damage by his or her act. The parties agree that, if this interpretation prevails, the parents are liable by a plain reading of s. 10…

[93]         In my view, the School District has proven its case in terms of the applicability of s. 10 of the School Act to the circumstances here.

[94]         I am sure that this is a very unfortunate result for the Dean family and perhaps it will be for other families in the future. This was clearly the result of a young boy misbehaving and thinking that the only grief to come of it would be to Ben and perhaps the janitor in removing the padlock. Obviously, more dire consequences followed. However, if there is to be any change to this provision in the School Act, that is a matter for the legislature, not the courts.

[95]         The action is allowed and judgment is granted against all defendants in the amount of $48,630.47, plus court order interest and costs to be assessed.


Addiction and Pain Management Programs Not Mandatory ICBC Benefits

November 19th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an addiction program and a multi-disciplinary pain management program are not mandatory ICBC No Fault benefits.

In today’s case (MacDonald v. ICBC) the Plaintiff was inured in three separate motor vehicle collisions.  She was insured with ICBC.  She suffered a variety of injuries which resulted in chronic pain and addiction issues.  Among the recommended treatments for the Plaintiff were an inpatient residential addiction treatment program along with a multi-disciplinary pain management program.

ICBC refused to fund these under the Plaintiff’s policy of insurance arguing that neither of these programs were ‘mandatory’ benefits covered under section 88(1) of the Insurance (Vehicle) Regulation.  Madam Justice Fitzpatrick agreed finding components of the programs (such as physiotherapy) may be covered individually and further that the programs may be covered as ‘permissive’ ICBC benefits, they could not be compelled under section 88.  In reaching this conclusion the Court reasoned as follows:

[83]         The mandatory provisions in s. 88(1) stand in contrast to those in s. 88(2) where ICBC may provide funds to an insured at its discretion and where ICBC’s medical advisor advises that funded benefits under this section are likely to promote the rehabilitation of the insured who was injured in an accident…

[95]         I am reluctantly driven to the conclusion that Ms. MacDonald’s position is not supportable. As ICBC argues, I think correctly, the Raguin decision has confirmed that the proper interpretation of the section is a more restrictive one in the sense that it is driven by the specific enumerated services that are described in s. 88(1). In accordance with that approach, I see no basis upon which services could be seen to be included as long as they are overseen or supervised by a medical doctor. Services provided by others do not become “medical services” simply because a medical doctor directs them or oversees or supervises them.

[96]         From a public policy perspective, this strict interpretation of the enumerated services presents some difficulties. It is unlikely that the Legislature intended to adopt a rehabilitation-in-pieces approach to legislation that exists to promote reasonable and necessary benefit coverage to injured persons. However, in the absence of clear guidance in the Regulation that s. 88(1) is capable of supporting multi-disciplinary programs, these programs cannot be read-in to include other services not specifically enumerated, such as the court did in Raguin.

[97]         Even accepting Ms. MacDonald’s proposition regarding medical supervision, there is no evidence that in fact, the services at Heartwood and the “other services” at Orion Health either were or would be under the supervision of a medical doctor (although I appreciate that Dr. Mead continued to treat Ms. MacDonald for pain and addiction issues throughout her stay at Heartwood).

[98]         The difficulty is that the argument for both Heartwood and Orion Health is an all or nothing proposition. Both are, as described above, multi-disciplinary treatment programs that bring in various disciplines in order to offer a team approach to dealing with a host of problems, such as Ms. MacDonald has. I have no hesitation in finding that some of the services, such as provided by a medical doctor, were or would be covered under s. 88(1) but it is equally apparent that some are not. In my view, this leads to the conclusion that the treatment programs, as a whole, are not covered under s. 88(1).


Passenger 35% To Blame For Riding With Impaired Driver

October 14th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing contributory negligence for a passenger who rides with an impaired motorist involved in a collision.

In today’s case (Telford v. Hogan) the Plaintiff was a passenger in a vehicle operated by the Defendant.  Both were drinking throughout the day.  As the vehicle was travelling at excessive speed on a highway the driver lost control resulting in a serious single vehicle collision.  The Plaintiff apparently interfered somehow with the steering wheel moments before the loss of control and the Court found the driver 75% at fault with the passenger shouldering 25% of the blame for this interference.  In addition to this the Court apportioned the Plaintiff’s contributory negligence at 35% for riding with an impaired motorist.  In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:

[103]     Despite the efforts of Ms. Telford’s counsel to distinguish the above cases, all of them bear some resemblance to this case in that the passenger and the driver embarked on a drinking exercise or “hazardous enterprise” where both knew or should have known that the intoxication of the driver was inevitable. I would repeat that Ms. Telford was well aware that Ms. Hogan was drinking over the course of the day and she had particular knowledge of the quantity of what Ms. Hogan consumed as the majority of it came from her own drink container. Although she may not have been aware of exactly what Ms. Hogan consumed from Ms. Ettinger’s cup, she would also have been aware that Ms. Ettinger’s beverage was alcoholic and that Ms. Hogan was sharing that too.

[104]     It does not follow that since Ms. Hogan was not exhibiting overt signs of impairment, one need not consider Ms. Telford’s lack of judgment in both offering her drink to Ms. Hogan and then getting in the vehicle being driven by Ms. Hogan for the trip home. To the extent that later in the day, Ms. Telford drank alcohol to the point of being severely intoxicated herself confirms that she failed to take reasonable steps to ensure her ongoing ability to assess her safety over the course of the trip home.

[105]     The cases cited by ICBC support the suggested range of apportionment of 30-35% for such a passenger who voluntarily rides with a drunk driver. The higher end of this range is amply supported, particularly by the fact that Ms. Telford herself provided most of the alcohol consumed by Ms. Hogan that day.

[106]     I assess Ms. Telford’s contributory negligence to be 35%.


Costs Following Unsuccessful “Considerable Gamble To Achieve A Significant Award”

December 17th, 2013

Update – July 13, 2015 – the below decision was overturned today by the BC Court of Appeal for several reasons and a new trial was ordered.  In reaching this conclusion the court noted it was improper for the Court to make a present value calculation when considering a formal offer to settle.  The Court provided the following reasons:

[53]         I agree with the appellant that the judge erred in adjusting the initial offer to reflect its 2013 value. This approach is not supported in law. As a result, the amount that the appellant was awarded ($51,300) exceeded the formal offer ($50,000) and the judge had no basis to award costs to the defendants pursuant to Rule 9-1(5)(d).

[54]         The trial judge also erred in applying the incorrect standard to determine which party was successful. The appellant was clearly the successful party in the action, as that standard is described in Loft. Though the appellant was not awarded the entire amount in damages that she sought, she established liability under a cause of action – as in Loft, by way of the defendants’ admitting liability and conceding some damages – and she obtained a remedy. The defendants did not obtain a dismissal of her case, either with respect to liability or damages.

[55]         Thus the order for costs could not have been sustained in any event of the appeal.

________________________________

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing costs consequences following a jury trial.

In this week’s case (Han v. Park) the Plaintiff was injured in a 1999 collision that the Defendant admitted fault for.  The litigation had a “somewhat tortured history” finally coming to trial in October 2013.    The Plaintiff sought damages of over $2 million.  Following a 14 day trial a jury assessed damages at $51,300.

In 2002 ICBC tendered a formal settlement offer of $50,000.  When coupled with advances paid the offer slightly exceeded the ultimate jury award.  Given the duration of time that passed the Court was also presented with economic evidence adjusting the offer for inflation indicating it was worth about $61,100 in 2013 dollar terms.  In any event the Court was asked to assess costs consequences flowing from this formal offer.  In finding that costs should be used as a remedy where a litigant takes “a considerable gamble to achieve a significant award” the Court ordered the Plaintiff pay the Defendant’s costs from 2004 onward.  In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:

[69]         Like the plaintiff in Bailey v. Jang, 2008 BCSC 1372, aff’d 2011 BCCA 146, Ms. Han took a considerable “gamble to achieve a significant award” and lost: paras. 22, 38. Given that the majority of the time at trial was spent on her unsuccessful attempt to persuade the jury of her disability, one can only describe her as being substantially unsuccessful at trial. Accordingly, even without the application of Rule 9-1, Ms. Han would have faced meritorious arguments by the defence that a costs award should reflect that result and my conclusions below are also consistent with an analysis in this context.

[70]         She conducted herself in this litigation so as to ignore the considerable efforts of the defendants to gather evidence regarding the extent of her injuries, all at considerable cost to them. The early efforts of the defendants were geared to either provide a proper basis for a negotiated settlement or to provide the necessary evidence for a trial. All the while Ms. Han entirely failed to muster any medical opinion evidence that she either knew or should have known would be needed to support her claims at the end of the day. She refused to respond to any settlement offer until the eve of the trial.

[71]         Ms. Han’s intractable position must nevertheless be considered in the face of the July 2002 offer to settle. By this time, over three years had gone by and one would have thought that she would be in a position to critically consider her position. The offer fully addressed the position of the defendants that no brain injury had occurred. The premise of the offer was not contradicted by any medical opinion evidence obtained by Ms. Han. Even if she had chosen, strangely, to rely on the medical evidence of the defendants, by no later than May 2004, Dr. O’Shaughnessy had emphatically concluded that no disability or brain injury had resulted from the accident.

[72]         In the above circumstances, Ms. Han’s position was not an “honest but … mistaken view” per Fan, nor did she have a “meritorious, albeit uncertain claim” per A.E.

[73]         The defence calls Ms. Han “delusional” and while the remark is uncharitable, it is not far from the mark. Ms. Han has purposely conducted this protracted litigation where there was no basis in the evidence upon which to conclude other than that she had suffered a relatively straightforward soft tissue injury. Despite that, 14 years of litigation has gone by, no doubt at great cost to the defendants and to those who have financially supported this litigation on behalf of Ms. Han.

[74]         I conclude that Ms. Han is entitled to her taxable costs, including disbursements, of the action to May 2004. The defendants are entitled to their taxable costs, including disbursements, from June 2004 which will include this application to determine costs. Both costs awards will be on Scale B.


“Genuine Belief” in Entitled Damages Will Not Avoid Formal Settlement Offer Costs Consequences

August 2nd, 2013

In a fairly routine exercise of the Court’s discretion, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to pay the Defendant’s trial costs for failing to best a pre-trial formal settlement offer in a personal injury claim.

In this week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision.  Fault was not at issue.   Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility”  Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.  Six weeks prior to trial the Defendant made a formal settlement offer of just over $121,000.  The Plaintiff sought an award well above this at trial but many of the claimed damages were rejected with the court assessing damages about $25,000 below the formal settlement offer.

The Defendant sought post offer costs and these were granted.  In finding that a Plaintiff’s “honest belief” in entitlement to damages does not avoid the costs consequences intended by the Rules of Court, Madam Justice Fitzpatrick provided the following reasons:

[11]         Mr. Wilson argues that he “genuinely believed” that he had incurred a past and future wage loss because he was unable to work for Taja. With respect, it can hardly be the case that honest belief alone will avoid the intended effect of the Rule. This is similar to my rejection of his honest belief as to disability where that belief was not supported by any medical evidence: Reasons, para. 137. As set out in the Reasons, there were numerous difficulties with Mr. Wilson’s arguments regarding Taja, including the lack of proper documentation, lack of medical evidence, and a rejection of his testimony on this issue (see paras. 120-146, 157-163). His claim for future massage therapy of $30,000 was also rejected for the reason that no medical evidence supported that claim.

[12]         Finally, Mr. Wilson’s evidence also suffered from credibility problems particularly where not supported by other credible evidence: Reasons, para. 42. Failure to anticipate credibility issues will also not avoid the operation of the Rule: Gehlen v. Rana, 2011 BCCA 219 at paras. 50-51.

[13]         Mr. Wilson argues that he should not be penalized for “guessing wrong”, citing Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1497. However, it is clear from the comments of the court in that case that there were difficult issues relating to the evidence and how any offer could be dealt with, particularly given the involvement of the public trustee. Similar difficulties do not arise in this case.

[14]         I agree that a party is not required to “guess” about the probable outcome; rather, he or she is required to fairly and objectively assess the evidence intended to be adduced at trial and make a reasoned decision about the relative merits of the claim or defence, having in mind a certain amount of litigation risk. In essence, the party receiving the offer must critically review the merits of the claim in relation to the amount offered. As the court noted in Fan, quoting A.E.:

[62]      Regardless of the merits of the plaintiff’s claim the defendant’s offer to settle cannot be ignored, because to do so would undermine the purpose of the Rule. Having decided to proceed in the face of a not insignificant and ultimately successful offer to settle, the plaintiff cannot avoid some consequences.

[15]         The offer amount, while not approaching the amounts sought by Mr. Wilson, in all likelihood fairly assessed the claims about which there was no dispute and added further amounts for the litigation risk that the more contentious claims would go against the defendants. The offer was, no doubt, also prepared recognizing the substantial cost to both parties if the matter proceeded to trial. It cannot be understated that one of the purposes of the Rule is to avoid costs of proceeding further in the action: Martin, para. 8.

[16]         I conclude that the offer should reasonably have been accepted by Mr. Wilson shortly after it was made and that this factor favours the defendants…

[24]         I conclude that all factors to be considered under Rule 9-1(6) favour the costs award sought by the defendants. Accordingly, Mr. Wilson will recover his assessed costs and disbursements up to April 27, 2013, which is 5 days after the offer was sent in recognition that some reasonable period of time would have been necessary to consider the offer. Thereafter, the defendants will recover their assessed costs and disbursements commencing April 28, 2013. After assessment of these respective amounts, the parties shall set off the awards to produce a net award.


$40,000 Non-Pecuniary Assessment for Lingering “Intermittent” Soft Tissue Injuries

July 18th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering intermittent soft tissue injuries.

In last week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision.  Fault was not at issue.   Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility”  Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[75]         I conclude and find as a fact the following with respect to Mr. Wilson’s injuries:

a)    Mr. Wilson suffered soft tissue injuries to his neck, shoulder and back areas as a result of the motor vehicle accident.

b)    Mr. Wilson’s low back injuries resolved very quickly after the accident.

c)     Mr. Wilson suffered from fairly constant neck and shoulder pain and headaches for the first six months, but these symptoms gradually became more intermittent and less severe until his return to work in early 2010.

d)    By May 2010, Mr. Wilson’s neck and shoulder pain and headaches were continuing on an intermittent basis, but were continuing to improve.

e)    At the time of the trial, Mr. Wilson continued to experience pain in his neck and shoulder area and was experiencing headaches, all on a very intermittent basis.

[112]     I award the sum of $40,000 for non-pecuniary damages.


When Does An Award of $20,000 = A Significant Debt

April 22nd, 2013

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.

The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:

[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.

[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.

[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).

[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.

[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.


Low Velocity Impact – Not the Law but a Factor That Can Be Looked At

February 19th, 2013

I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage.  The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In last week’s case (Gonzales v. Voskakis) the Plaintiff was involved in a minor rear-end collision   Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back.  The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.

The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision.  In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence:

[206]     I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.

[207]     Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33.

[208]     In Miller v. Darwel, 2005 BCSC 759, the court stated:

[9]        On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has not application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

[10]      As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.

[11]      I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.

[209]     More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.”

[210]     I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.


LVI Defence Rejected Again; Damages Awarded for Modest Injuries

July 23rd, 2012

In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.

In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision.  The impact resulted very minor vehicle damage.  The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“.  Madam Justice Fitzpatrick rejected this logic and provided the following reasons:

[46] As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47] I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

[48] Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

[49] In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.

The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery.  In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:

[71] In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…

[77] I award the sum of $7,000 for non-pecuniary damages.

Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court.  You can click here to read other decisions addressing this discretionary issue.