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 Warren’

BC Supreme Court Gives Scathing Reasons Rejecting ICBC Doctor as “Advocate”

August 17th, 2018

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, holding a defence expert witness report as inadmissible due to advocacy.

In today’s case (Tathgur v. Dobson) the Plaintiff was injured in two separate vehicle collisions.  Fault was admitted for both by the Defendants.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a physician who provided an opinion minimizing the Plaintiff’s injuries and their connection to the collisions.  In finding the opinion inadmissible and worth no weight Madam Justice Warren provided the following harsh reasons calling the doctor an “advocate” for the defence:

[93]         The question then is whether Dr. Grypma was in fact biased, impartial, or acting as an advocate for the defence.  If I find he was, he is clearly unwilling or unable to fulfill his duty, and his evidence is inadmissible as not meeting the threshold requirement of “qualified expert”.

[94]         Dr. Grypma included the certification required by Rule 11-2(2) in each of his reports, but that is not the end of the matter: see White at para. 48.  The concern is that notwithstanding the inclusion of this certification in his reports, Dr. Grypma assumed the role of advocate for the defence.  For the following reasons, I have determined that Dr. Grypma was acting as an advocate for the defence and, as a result, was not able and willing to provide fair, objective and non-partisan evidence.

[95]         As noted, Dr. Grypma’s opinions rested on five primary footings.  The second and third footings concerning Dr. Grypma’s rear-end accident theories are themselves opinions for which no foundation was expressed in the reports.  The failure to expressly note the foundation for those opinions would not, on its own, be sufficient to exclude the reports at the initial stage on grounds of bias or advocacy.  However, it became apparent that Dr. Grypma is not actually aware of an adequate foundation for these views.  When asked, in cross-examination, to explain the foundation for the opinion that a rear-end accident rarely causes injury to the lower back, Dr. Grypma testified that he had attended courses with others who agreed that an injury to the lower back is rare in a rear-end accident.  He did not say when he attended these courses.  He did not identify the entities or institutions that offered the courses or even their subject matters.  He did not identify who these others were who agreed with him.  He also said that he relied on the conclusions of two professors.  He did not say when those conclusions had been relayed to him or in what form, and he was able to name only one of these professors, having forgotten the name of the other.  He acknowledged not having referred to any scientific publication supportive of this opinion.

[96]         In the circumstances, it is not possible to evaluate the soundness Dr. Grypma’s rear-end accident theories or even determine whether they fall within the scope of his expertise.  More fundamentally, however, Dr. Grypma relied so heavily on opinions for which he had no proper foundation strongly suggests that he had taken up the role of advocate for the defence.  Any doubt about that was removed by Dr. Grypma’s response to being provided with a more complete set of Mr. Tathgur’s clinical records, which undermined another of the foundational footings for Dr. Grypma’s opinion.

[97]         It is not clear to me why Dr. Grypma did not have all of Mr. Tathgur’s medical records, including Dr. Manga’s clinical records and the 2009 MRI, before he wrote his first report in 2011.  It is apparent from his May 31, 2011 summary of the history provided by Mr. Tathgur that Dr. Grypma was aware that Mr. Tathgur had been treated by his family doctor, and that x-rays and an MRI had been performed.  In other words, he knew that relevant records existed.  While he is not required to conduct an investigation (Edmondson at para. 77) it would have been more helpful had he obtained access to these before offering an opinion, particularly before challenging the credibility of Mr. Tathgur’s complaints.

[98]         Nevertheless, irrespective of what Mr. Tathgur told Dr. Grypma about the initial onset of pain following the first accident, it is beyond dispute that Mr. Tathgur did report pain to Dr. Manga the day after the accident and, by the time Dr. Grypma wrote his August 21, 2015 report, he must have been aware of this.  Dr. Manga’s handwritten clinical records are not easy to read but the words “pain neck, low back” are legible in the clinical record for May 27, 2008, and there is also a hand-drawn sketch of Mr. Tathgur’s back with diagonal lines on it at the left side of the neck and the left low back, which is obviously intended to record the specific locations of reported symptoms.  In his August 21, 2015 report, Dr. Grypma complained that Dr. Manga’s records were not legible and he said he had to “go on Mr. Tathgur’s memory as [he found] the family physician’s records were not helpful”, yet he went on to specifically note that the family physician’s records indicated normal range of motion on May 27, 2008, the day after the first accident and the same day that the words “pain neck, low back” and the sketch appear.  He also referred to notations in the clinical records for September 5, 2009 and December 18, 2011 that support his theory, but made no mention of other references that did not support his theory, such as the references to spasm.

[99]         Again, Dr. Manga’s records are not easy to read.  It would have been understandable if Dr. Grypma had refused to comment on the clinical records at all unless they were transcribed.  However, he clearly could read some of the entries and he relied on those that were consistent with his previously stated views.  He cannot overcome the inescapable conclusion that he cherry-picked entries, ignoring those that undermined his opinion.

[100]     Similarly, in his December 3, 2015 report, he noted that the history given to Dr. Hershler concerning symptoms the day after the first accident was materially different from that which he said Mr. Tathgur gave him such that clarification was required, but then he went on to reiterate the same opinion (that significant injury from the first accident was unlikely) based largely on the fact that Mr. Tathgur experienced little or no pain after that accident.  Again, by this time he also had Dr. Manga’s clinical records, which clearly indicated complaints of pain on the day after the first accident.

[101]     For the foregoing reasons, I find that Dr. Grypma lost sight of his duty to the court and instead became an advocate for the defence.  His evidence is inadmissible as a result.  Even if I was not prepared to exclude the evidence, for the same reasons I would give it no weight.  Further and in any event, as discussed below, I accept Mr. Tathgur’s evidence that he did have significant pain the day after the first accident.  Leaving aside concerns of bias, partiality and lack of independence, this finding is incompatible with a key footing for Dr. Grypma’s core opinion and, for that reason alone, I would give his opinion no weight.


$75,000 Non-Pecuniary Assessment for Probably Permanent Soft Tissue Injuries

June 19th, 2018

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing damages for chronic and probably permanent soft tissue injuries.

In today’s case (McColm v. Street) the Plaintiff was injured in a 2014 collision.  Fault was admitted.  The crash resulted in injury to the Plaintiff’s neck, back and shoulder.  Symptoms persisted to the time of trial.  The court noted while there was a possibility the symptoms would improve in the future it was more likely that complete recovery would not occur.  In assessing non-pecuniary damages at $75,000 Madam Justice Warren provided the following reasons:

[86]         I have concluded that as a result of the accident, Mr. McColm has suffered pain and a loss of enjoyment of life, which will continue, to some extent, into the foreseeable future and from which he is unlikely to ever fully recover.

[87]         As a result of the injuries he sustained in the accident, Mr. McColm suffered from severe pain in his neck, back and right shoulder, with associated severe headaches, for several months.  The symptoms gradually improved, but the first year after the accident was marked by significant discomfort and functional limitations.  Although the pain and other symptoms have continued to gradually improve, he has been left with ongoing sporadic pain, particularly in his shoulder.  While there is a possibility that he will continue to improve and even fully recover, it is more likely than not that his current condition is permanent.

[88]         Mr. McColm’s pain is exacerbated by certain physical activities and by heavy lifting.  The pain has resulted in the recurrence of Mr. McColm’s difficulties sleeping.  It has also affected his mood and his lifestyle.

[89]         Before the accident, Mr. McColm’s mood was good and he enjoyed spending time with Ms. Marshall and his other friends.  He maintained a very active lifestyle and enjoyed many physical activities, including fishing, camping, kayaking, cycling, and snowboarding, as well as playing hockey, soccer, golf, and disc golf.  I accept his evidence that he was a particularly daring snowboarder.  This was corroborated by Mr. Edwards and Mr. Butler.  He also played the guitar.  For the first few weeks after the accident he was largely bedridden.  Since then he has gradually returned to some physical activity but he has not been able to return to many of the more extreme physical activities, such as snowboarding and team sports.  He has been depressed and somewhat socially isolated.  His relationship with Ms. Marshall ended, although the evidence was too vague to support specific findings about the extent to which this was caused by the injuries he sustained in the accident.

[90]         The most significant of the Stapley factors in this case are Mr. McColm’s age, the impairment of his physical abilities and associated loss of lifestyle, and his emotional suffering.  Mr. McColm is relatively young and faces the prospect of a lifetime of sporadic pain and associated functional limitations.  He has had to settle for a much more routine or mundane recreational life than he enjoyed before the accident.  The pain, functional limitations, and loss of lifestyle have caused emotional suffering linked to social isolation and some degree of angst about his future…

[94]         Having considered all the authorities and the factors discussed in Stapley, I assess Mr. McColm’s non-pecuniary damages at $75,000.


$75,000 Non-Pecuniary Assessment for Persistent Neck and Back Injuries

November 27th, 2016

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

In the recent case (Lally v. He) the Plaintiff was involved in a 2011 intersection collision that the Defendant accepted fault for.  The collision resulted in soft tissue injuries and symptoms persisted to the time of trial.  The Court assessed non-pecuniary damages at $75,000 but reduced these by 10% for the Plaintiff’s failure to follow through with an active rehab program that could have helped improve the symptoms.  In reaching this assessment Madam Justice Warren provided the following reasons:

[93]         I have concluded that as a result of the accident, Ms. Lally has suffered pain and a loss of enjoyment of life, and that will continue to some extent, into the foreseeable future.

[94]         As a result of the injuries she sustained in the accident, Ms. Lally suffered from severe pain in her neck, back and shoulder for several months.  The neck pain triggered headaches that, at times, were severe.  Although the pain gradually improved, she has been left with less severe but persistent neck and shoulder pain as well as occasional low back pain.  While she is likely to experience improvement in her symptoms with active rehabilitation, particularly with respect to the low back and shoulder, even with sustained, active rehabilitation, she will likely continue to suffer from occasional pain in her neck and, to a lesser extent, her low back and shoulder.

[95]         Ms. Lally’s pain is exacerbated by repetitive activities, heavy lifting or working at a level higher than her shoulders.  She cannot sit still for long.  When driving she has difficulty moving her head from side to side.  When she watches television, reads or uses a computer she has to move her neck or it becomes stiff.  Household chores and physical duties at work exacerbate the pain and when the neck pain is particularly bad it develops into a headache.  This happens between two and five times a week and the headache lasts up to eight or nine hours.  The neck pain disturbs her sleep.

[96]         The pain has affected Ms. Lally’s mood.  Before the accident, her mood was good and she enjoyed spending time with her family.  For the first few months after the accident she was quiet and spent most of her time resting because of the pain.  She continues to spend much of her non-working time resting at home using a massager and heat pad.

[97]         Ms. Lally used to do the majority of the housework before the accident.  Since the accident she has been limited to light housework such as cooking and doing dishes.  She did not testify about any other impacts on her lifestyle…

[100]     Having considered all the authorities and the factors discussed in Stapley, I assess Ms. Lally’s non-pecuniary damages at $75,000, prior to any adjustment for her failure to mitigate.  For the reasons already expressed, I reduce that amount by 10% to reflect her failure to have participated in a regular, sustained program of active rehabilitation.


“Outlandish” Uncorroborated Injury Claims Rejected

September 15th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.

In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:

9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.

[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.


$80,000 Non-Pecuniary Assessment for Chronic but Tolerable Hip Injury

June 16th, 2016

Adding to this site’s archived case summaries involving hip injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages of $80,000 for a chronic but tolerable hip injury.

In today’s case (Bramley v. Lee) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault.  The Plaintiff  suffered a variety of injuries attributable to the crash, the most serious of which was a hip injury which continued to pose symptoms at the time of trial.

In assessing non-pecuniary damages at $80,000 Madam Justice Warren provided the following reasons:

[95]        In summary, I make the following findings on causation and the current state of Mr. Bramley’s condition:

  • Mr. Bramley sustained an injury to the greater trochanteric area of his right hip in the accident, which developed into trochanteric pain syndrome.  He suffered from persistent, significant right hip pain until 2011, when the pain started to improve after the cortisone injection and the switch in medication to Vimovo.  The hip pain continued to improve after Mr. Bramley began strengthening exercises in 2013, leaving him with lingering symptoms that he has learned to live with.
  • Mr. Bramley suffered a soft tissue injury to his low back in the accident that initially resulted in significant low back pain extending into his right leg for several months, which gradually improved and ultimately resolved by early 2012.
  • Mr. Bramley suffered acid reflux symptoms as a result of medications he took for his hip and low back pain, which plagued him for about a year, in 2010 to 2011, until he switched medications and began taking Vimovo.
  • After the accident, the pain in Mr. Bramley’s hip began to interfere with his sleep.  This became progressively worse and eventually developed into a sleep disturbance that left him fatigued by late 2009.  There was no material improvement in his sleep until after the hip pain began to improve in 2011.  By early 2012, Mr. Bramley’s sleep had returned to normal.  Subsequently, Mr. Bramley suffered again from a significant sleep disturbance, but that was a result of sleep apnea and unrelated to the accident.

[113]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  However, considering the cases referred to me and, in particularMcKenzie, which was decided three years ago, and Foster, which was decided four years ago, as well as the factors discussed in Stapley, I assess Mr. Bramley’s non-pecuniary damages at $80,000.


$25,000 Non-Pecuniary Assessment for 18 Month Aggravation of Pre-Existing Injuries

March 24th, 2016

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages of $25,000 for the aggravation of chronic pre-existing injuries.

In this week’s case (Dorsey v. Bhindi) the Plaintiff was involved in a 2013 rear end collision.  Liability was not at issue.  The court voiced some credibility concerns regarding the plaintiff and did not accept her claim in its entirety.  The Court did accept, however, that the collision caused an 18 month aggravation of pre-existing symptoms.  In assessing non-pecuniary damages at $25,000 for these injuries Madam Justice Warren provided the following reasons:

[108]     In summary, I make the following findings on causation:

  • Ms. Dorsey injured her shoulders in the slip at work, but did not exacerbate that injury in the accident.  She currently suffers from frozen shoulder on the left side, but I am not persuaded that the accident caused or materially contributed to that condition.
  • The accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months, and by late September 2014 Ms. Dorsey’s condition had returned to its pre-accident state.
  • Ms. Dorsey has suffered from some anxiety and depressive symptoms but I am not persuaded that the accident caused or materially contributed to those conditions.

[117]     Of the authorities cited by the defendants, Kearns v. Marples, 2009 BCSC 802, bears the most similarity to this case.  In that case damages were assessed on the basis that the 51-year-old plaintiff had suffered injuries to her shoulders, right elbow, and neck that largely resolved within about eight months, but for the right shoulder which remained injured and was predisposed to further injury which occurred in two subsequent motor vehicle accidents.  These injuries were superimposed on pre-existing conditions.  Non-pecuniary damages of $25,000 were awarded. In that case, Justice Verhoeven referred to Job v. Van Blankers, 2009 BCSC 230, where Justice Ker awarded non-pecuniary damages of $25,000 to a plaintiff who had suffered a mild to moderate soft tissue injury that resulted in sustained disability, pain and suffering, and interfered with the plaintiff’s life for about 14 months: Kearns at para. 134.

[118]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  I have found that the accident caused a temporary and relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that gradually improved over about 18 months.  The exacerbation was not so significant as to materially interfere with her ability to work.  There is very little evidence of any material impairment of her physical abilities or significant loss of lifestyle.  Considering the principles discussed in the cases referred to me and the criteria considered in the assessment of damages in Stapley, I assess Ms. Dorsey’s non-pecuniary damages at $25,000.


$131,250 Non Pecuniary Assessment for Chronic TMJ Injury

October 2nd, 2015

Reasons for judgement were released today assessing damages for a severe jaw injury sustained in a vehicle collision.

In today’s case (Williams v. Gallagher) the Plaintiff, who was 20 at the time, was involved in a 2010 vehicle collision caused by the Defendant.  The Plaintiff suffered a variety of injuries the most serious of which was an injury to the temporomandibular (TM) joints in his jaw.  This required surgical intervention which did not cure his pain and the Plaintiff  was expected to have chronic lingering problems.  In assessing non-pecuniary damages at just over $130,000 after factoring in some contingencies Madam Justice Warren provided the following reasons:

80]     For the past five years, Mr. Williams has suffered from very severe, debilitating pain. The ongoing neck, back and shoulder pain is significant but the jaw pain is excruciating. He testified that he wakes up in pain every morning. He takes 10 to 12 Percocet each day which reduces the pain but does not eliminate it. The Percocet leaves him feeling foggy and impairs his ability to focus. If he does not take the Percocet, the pain is unbearable. He has attended at the emergency department of the hospital on several occasions because he cannot bear its intensity. He testified that he feels trapped in his jaw pain and it controls his life.

[181]     Dr. Courtemanche explained that facial pain is qualitatively different from pain in other parts of the body. As he put it, people think of themselves as living in their heads. A person may be able to distance or dissociate themselves from pain in an extremity, such as foot, but may find it impossible to do the same with pain in the head or face. Also, unlike an injured knee or hip, it is almost impossible for a patient not to use an injured jaw, which is engaged each time the patient speaks or eats. Dr. Courtemanche explained that injured TM joints often result in severe muscle spasm, which he has observed repeatedly when examining Mr. Williams, and this prevents the joint from finding any comfortable rest place.

[182]     Mr. Williams has undergone extensive, invasive, painful orthodontic treatment including two surgeries. In addition to the neck, back and shoulder pain, which alone is significant, and the excruciating jaw pain, he now suffers from significant psychological conditions that are debilitating.

[183]     Mr. Williams testified that as each jaw treatment failed, he became more anxious and his feelings of hopelessness increased. He has spent his savings on living expenses and medical treatments. He is overwhelmed by worry about his inability to work. On several occasions when his testimony turned to his future, he broke down in sobs.

[184]     Dr. Courtemanche agreed, at trial, that the surgery he is now recommending is rarely indicated but, in the circumstances of this case, he continues to be of the view that it is worth trying. However, he said that, at best, the surgery will temporarily alleviate the pain, that Mr. Williams will likely continue to suffer TMJ pain for the rest of his life, and that his TMJ disorder cannot be cured. He also said that, eventually, Mr. Williams will probably require a TM joint replacement, which is likely to last 15 years, after which the replacement would have to be repeated.

[185]     Mr. Williams testified that the prospect of living with no hope of pain relief causes him such despair that he wishes to end his life. He said he hides the severity of his symptoms from his mother because he does not want her to know that her son would rather die than live with the pain.

[186]     Mr. Williams’ symptoms have very significantly affected all aspects of his life. He can no longer play soccer. He has no interest in going to movies or sporting events. He is restricted in what he can eat. His personality has been affected. He has become isolated and socially withdrawn. He now spends most of his time alone at home or going for drives. He does still go out with friends for meals or drinks, as often as once a week, but sometimes he does not socialize at all for several weeks in a row. Mr. Webber and Mr. Kreklewetz testified that sometimes they go to Mr. Williams’ house and force him to go out.

[187]     The injuries Mr. Williams suffered have prevented him from working. He has suffered financial consequences as a result which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. He has had to live with the likelihood that his injuries will preclude him from working in any physical job, which has caused him to despair about his future. Given his limited academic success to date, and now limited functionality, he fears that his options for more sedentary work are few even if he manages to develop strategies for dealing with the pain. It is apparent that this reality has weighed very heavily on him, and is a significant contributing cause of his psychological conditions.

[188]     Mr. Williams has been transformed from a happy, social young man with an optimistic future, who was focussed on his work and was well on his way to achieving his life goals, into an anxious, fearful and isolated young man who is barely managing to get through each day and who is tormented by virtually constant, intense pain.

[189]     I accept the evidence of Dr. Adrian, Dr. Courtemanche and Dr. Smith concerning Mr. Williams’ prognosis. Mr. Williams’ neck, back and shoulder injuries are most likely permanent. The TMJ disorder cannot be cured. Even if Mr. Williams undergoes the surgery recommended by Dr. Courtemanche, the best case scenario is that he will experience some temporary alleviation of the pain. He faces the prospect of more than one jaw replacement surgery in his lifetime and the prospect of many years of ongoing pain and compromised lifestyle. Even if the pain improves, it is unlikely he will experience a full remission of the depressive and anxiety symptoms and he will remain vulnerable to developing those kinds of symptoms in times of stress…

[203]     On balance, I think an appropriate assessment, for non-pecuniary damages is $175,000, less:

·       a reduction of 10%, or $17,500, to account for the contingency that Mr. Williams would have undergone the orthodontic treatment in any event and, as a result, would have suffered some pain associated with the treatment itself;

·       10%, or $17,500, to account for the contingency that if he underwent the orthodontic treatment, it would have triggered chronic TMJ disorder in any event; and

·       5%, or $8,750, to account for the contingency that if he underwent the orthodontic treatment and if that treatment triggered the chronic TMJ disorder, the resulting pain and disability would have in turn triggered the psychological conditions.

After accounting for those contingencies I award non-pecuniary damages to Mr. Williams of $131,250. To be clear, this award reflects the positive contingency that Mr. Williams’ functionality and quality of life may improve, even if his pain does not, if he follows the recommendations of his physicians.


Court Rejects “Perplexing” Defence Doctor Evidence Minimizing Plaintiff Disability

February 25th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages following a rear-end collision.

In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for.  In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries.  In rejecting these opinions Madam Justice Warren provided the following critical comments:

[140]     In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.

In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:

[159]     Mr. Sirak is a middle aged man. He was 45 years old when the accident occurred and is now 55 years old. Prior to the accident, he was healthy, energetic and physically active. It is apparent from the lay witnesses, who testified on his behalf, that he was a cheerful, happy, outgoing person who enjoyed life and had many friends. His family was important to him and he enjoyed spending time with them. He enjoyed participating in a wide range of recreational activities. He worked long hours in a physically-demanding career, and had earned the respect of those in the construction industry in the Squamish and Whistler area.

[160]     For the past ten years, Mr. Sirak has suffered from severe, disabling, and progressively worsening pain and neurological symptoms. These symptoms have very significantly affected all aspects of his life. Even if he undergoes surgery, he is unlikely to experience any substantial improvement. His condition is most likely permanent. He faces many years of ongoing pain and compromised lifestyle. His personality has been affected. He has gained weight. His sleep has been affected. His appearance has changed. He has become sloppy and unkempt. He can no longer participate in most of the recreational activities he previously enjoyed. He cannot play with his grandchildren in the physical, rambunctious way that was his pre-accident nature. This, in particular, has caused emotional suffering. He has become quiet and socially withdrawn. He now spends most of his time alone.

[161]     It has become increasingly difficult for Mr. Sirak to continue to work as a painter or in any physical job. He has suffered financial consequences as a result, which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. First, he has had to force himself to continue to work on a part-time basis so that he is able to support himself and his son, but this has further compromised his health and exacerbated his pain. Second, he has had to live with the prospect that his injuries will eventually preclude him from working in any physical job. Given his limited formal education, and now limited functionality, his options for more sedentary work are few. It is apparent, from a consideration of the whole of his evidence, that this reality, together with his poor prognosis, has weighed heavily on him, and has had an adverse effect on his overall emotional well-being…

[167]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having considered the extent of Mr. Sirak’s injuries, and all of the cases presented by counsel, I am of the view that an award of $160,000 for non-pecuniary damages is appropriate in this case.


$125,000 Non-Pecuniary Assessment for Fibromyalgia in ICBC Claim

December 2nd, 2014

Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry dealing with such an injury caused by a motor vehicle collision.

In today’s case (Hosseinzadeh v. Leungthe Plaintiff was involved in a 2009 collision caused by the Defendant.  She developed chronic pain/fibromyalgia as a consequence and her disabling symptoms persisted to the time of trial.  In assessing non-pecuniary damages at $125,000  Madam Justice Warren provided the following reasons:

[101]     Ms. Hosseinzadeh is a middle-aged woman; 43 years old when the accident occurred. The pain she has suffered has been significant, has persisted, has disabled her from most of her former activities, and is unlikely to improve. It has resulted in sleep impairment and has affected her mood. She faces many years of ongoing pain and compromised lifestyle.

[102]     The injuries have affected all areas of Ms. Hosseinzadeh’s life. Prior to the accident, she was able, with ease, to look after all of the cooking, housekeeping, laundry, and shopping for her family. She now depends on her husband and son to do much of this work and, although she can do some housekeeping, what used to take her a few hours each week is now a constant chore that she slowly works at throughout the day, taking frequent breaks. She has been deprived of her favorite activity — cooking meals for and entertaining large groups of friends. Her once vibrant social life of weekly parties, BBQs, and other events with friends has been significantly diminished.

[103]     While Ms. Hosseinzadeh continues to try to exercise regularly, she has had to modify what she does and sometimes she exercises in pain. She used to swim but now does mild exercises in the pool. She used to walk with friends easily but now has to take frequent breaks when she walks. At times her pain not only prevents her from exercising, it leaves her immobile for days at a time.

[104]     A formerly outgoing, sociable, and engaged woman, Ms. Hosseinzadeh is now more reclusive and has to depend heavily on her husband and her son. She must confront the reality that she has an incurable condition that has left her significantly impaired and, on bad days, almost completely incapacitated. All of this has had a significant adverse effect on her overall emotional well-being…

[107]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having said that, I did find that the cases referred to by counsel for Ms. Hosseinzadeh to be helpful, particularly S.R. which was very similar in several factual respects. Taking all this into account, I find that an award of $125,000 for non-pecuniary damages is appropriate in this case.


$120,000 Non Pecuniary Assessment For Chronic Myofacial Pain Syndrome

June 16th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.

In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision.  She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete.  She sustained soft tissue injuries which impacted her education and training.  Her symptoms lingered to the time of trial and were expected to continue.  The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:

[182]     In summary, and having taken into account all the evidence, I make the following findings:

·       Ms. Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.

·       Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms. Kirkham.

·       Ms. Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.

·       Ms. Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.

·       Ms. Kirkham’s soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.

·       Ms. Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms. Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms. Kirkham’s leave of absence from her PhD studies.

·       As a result of the concussion, Ms. Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.

[195]     Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.