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 ‘Mr. Justice Davies’

$265,000 Non-Pecuniary Assessment for PTSD and Major Depressive Disorder

June 27th, 2016

In what is one of the highest non-pecuniary awards in Canadian history for psychiatric injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $265,000 for psychological injuries stemming from a collision.

In last week’s case (Hans v. Volvo Trucks North America Inc) the Plaintiff was operating a fully-loaded tractor trailer when, without warning, all electrical power failed and the vehicle started to jack-knife.  The trailer struck the cab of the truck and forced the vehicle off the road.

The Court found that the vehicle manufacturer was responsible for the collision because “Volvo was negligent in the installation of the hardware that was supplied by Norgren on the cab positive terminal of the Truck, and that the total loss of electrical power resulted from that negligent installation.

The Plaintiff, while not suffering significant physical injuries, sustained profound psychological consequences including PTSD and a major depressive disorder secondary to this.  In assessing non-pecuniary damages at $265,000 Mr. Justice Davies provided the following reasons:

[479]     Mr. Hans’ injuries were life altering in every respect.

[480]     The evidence of not only Mrs. Hans but also that of Mr. Hans’ daughter and his many friends who testified establishes that before the collision Mr. Hans was a gregarious, fun-loving, competitive, hard-working, ambitious and financially driven young man with boundless energy.

[481]     Although he had gained weight as a truck driver he was still a man with great strength and athletic ability resulting in a prodigious capacity for hard labour which he immensely enjoyed. His one-time employer Ron Collick described Mr. Hans as “a jolly giant”.

[482]     Mr. Hans lived a socially and emotionally rewarding life often centered on work but also often involving his family, his friends of many years and his love of travel which he shared with Mrs. Hans and their children both in North America and in India.

[483]     Mr. Hans shared a loving partnership with his wife as her husband, business partner, and as a father to their children.  He was a full participant with Mrs. Hans in all aspects of their children’s lives and in household responsibilities.

[484]     Mr. Hans was a proud man with a taste for good clothing who cared for his appearance. Socially he was often the center of attention – while dancing or even while playing with children.

[485]     Over the seven years since the collision all of that has changed drastically because of PTSD accompanied by Mr. Hans’ suffering from a Major Depressive Disorder that arose as a consequence of PTSD.

[486]     Mr. Hans is now emotionally and socially a shell of his former self.

[487]     His gregariousness has been replaced by isolation and withdrawal from contact with friends and family.

[488]     His love of fun has been replaced by depression, agitation and volatile bursts of anger. 

[489]     Competitiveness has been replaced by lethargy.

[490]     Ambition has turned to resentment and the blaming of those he believes have ruined his life.

[491]     Where he once ran and played sports he now walks aimlessly. Dr. Thinda reported that Mr. Hans has a slow gait due to psychomotor retardation or the effects of the medication he is prescribed for his psychiatric symptoms.

[492]     Mr. Hans’ capacity for and love of hard work have been replaced by indolence and despair.

[493]     He neglects his personal hygiene and cares little for his appearance. He is irritable and has significant problems with concentration and memory. He suffers from nightmares, sleeplessness and bad eating habits.

[494]     He has little interest in his children and must be coaxed to attend their activities. When he does, he is often uncomfortable, disinterested or both.

[495]     Mr. Hans is no longer active in the partnership that he and Mrs. Hans forged during the years of their marriage before the collision. He does not share in responsibility or workload but rather requires supervision and care.

[496]     He has attempted suicide three times each of which has seen him hospitalized for extended periods.

[497]     His life is now ruled by pharmaceutical intervention to attempt to overcome the symptoms of PTSD and Major Depression which dominate his existence. Without that medication his existence is further threatened.

[498]     Mr. Hans faces a future of continued pharmaceutical and psychiatric intervention as well as close supervision as his treating medical professionals, family and friends attempt to preclude the active manifestation of his suicidal ideation.

[499]     While it is a positive sign that Mr. Hans has not attempted suicide for more than 5 years since his last attempt, that must be measured against the medical intervention and supervision that has been necessary to attain that modest success.

[500]     Mr. Hans’ self-loathing and despair were starkly evidenced by his testimony at trial as well as by his anger and resentment at those whom he holds responsible for the loss of his capacity to care and provide for his family and enjoy life as he once did.

[501]     The totality of the medical evidence establishes that there is little prospect that Mr. Hans will ever recover socially, emotionally or mentally from the effects of the collision.

[502]     The prognosis for real progress after almost seven years of the debilitating effects of PTSD and Major Depressive Disorder from which Mr. Hans suffers is guarded at best and bleak at worst…

[528]     Considering that factor together with all of the other factors enumerated in Stapley to which I have alluded I have concluded that the appropriate award for Mr. Hans’ past and future pain and suffering and loss of enjoyment of life is $265,000.

 


$64,000 Non-Pecuniary Assessment Following “Low Velocity” Collision

February 18th, 2015

Adding to this site’s archived judgments dealing with ‘low velocity’ collisions, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an incident.

In today’s case (Park v. Abd El Malak) the Plaintiff was involved in 2010 rear end collision caused by the Defendant.  The impact was not severe but did cause the Plaintiff injuries.  The Defendant argued it was a low velocity impact and therefore the Plaintiff’s injuries must be from other causes.  In rejecting this defense and awarding $64,000 in non-pecuniary damages for the Plaintiff’s injuries Mr. Justice Davies provided the following reasons:

[73]         Counsel for the defendant has submitted that all aspects of Mr. Park’s ongoing back problems are related to his pre-existing disc problems that would have occurred in any event. He also submits that the low velocity of the collision supports that finding.

[74]         I do not agree.

[75]         The defendant’s submission ignores the overwhelming cumulative effect of the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that Mr. Park’s injuries were caused by the collision and that his pre-existing back conditions were asymptomatic at the time of the collision and were rendered symptomatic by the collision…

[95]         I reach that conclusion with specific reference to the following evidence which I accept:

1)    Dr. Kim’s prognosis that despite all medical measures undertaken, Mr. Park’s symptoms persist and have now persisted for more than five years and will continue to with perhaps some (but gradual) improvement.

2)    Dr. Heran’s prognosis and recommendations as recorded in his opinion of June 26, 2014, that:

The recommendations that Dr. Craig makes for management based on the fact that he does not believe that Mr. Park has reached maximal medical improvement in his primary medical legal report are somewhat conflictual as clearly Mr. Park has developed L4 radiculopathy into his right leg likely before and definitely after the assessment with Dr. Craig and this confounds any abilities to recover overall. The myofascial components of his pain definitely have improved. The optimistic approach to him being able to do all of his usual activities back in a setting where only intermittent exacerbations would be incurred is therefore not supported by the presence of the L4 radiculopathy either. Dr. Craig does appropriately note that there is potential for slightly increased risk of accelerated degenerative changes in his neck and back due to the injuries from this accident. This is more importantly for the lumbar spine where he already has prominent degenerative changes already resulting in narrowing of the space where the nerves pass through in a setting where he has already been symptomatic in such distribution.

In my opinion Mr. Park is now well over two to three years out from the motor vehicle accident which is the time one would expect him to be plateaued from his myofascial injuries. Your records support that he has reached a point where he has intermittent neck pain, albeit not a major concern by the time he saw me, as well as persistent low back pain, albeit much improved than when it first started following the motor vehicle accident. What I don’t know is whether the L4 radiculopathy i.e. the radiation into his right leg, will improve with time. This is possible, however, not probable, given the imaging abnormalities. Subsequent MRI scan has not yet been performed. A comparative MRI scan which I have already ordered, requesting this to be performed around December 2014, will be valuable for further delineation of true causation for the right sided L4 radiculopathy as it is likely to be from height loss, disc settling and osteophytes as opposed to a disc herniation, with the former not getting better with time. If it were to persist, then a recommendation for intraspinous device for decompression of the nerve root indirectly is what I would propose. I would not recommend an aggressive surgery with instrumentation or aggressive open surgery with laminectomy for decompression. For this reason I would like to see Mr. Park following his MRI scan of around December 2014.

At this point in time I feel that Mr. Park is limited from all moderate to heavier activities yet is able to participate in all of his usual daily activities of light to moderate nature. Assistance would be required for heavier lifting, repetitive activities requiring bending and twisting maneuvers. His recreational activities have also been affected and this is well outlined.

3)    Dr. Craig’s prognosis to which I earlier referred and quoted at para. 57 of these reasons.

4)    Mr. Park’s evidence which I accept, that he is now able to be less physically active and unable to enjoy outdoor activities that he used to enjoy, is burdened by headaches when trying to read historical treatises which he used to very much enjoy, and finds that he is more tired from the standing his work requires and also less able to do the heavier lifting that he previously did.

[96]         I do, however, find that Mr. Park’s pain and suffering and loss of enjoyment of life are less than that suffered by the plaintiffs in those cases in which the plaintiffs were awarded general damages of $100,000.

[97]         Although Mr. Park has suffered pain that is chronic, it does however, wax and wane. He is also still able to enjoy travel to Asia although of a more sedentary nature than before the collision. He is still also able to make the long drive from Valemount to Vancouver although with more frequent stops and discomfort. The sparse evidence of the need for future surgical or other invasive medical intervention is also insufficient to establish entitlement to compensation for such eventualities.

[98]         In all of the circumstances I find that an award of $80,000 would appropriately compensate Mr. Park for his past, present, and future pain and suffering and loss of enjoyment of life.

[99]         By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that has been caused by the defendant’s negligence, I award Mr. Park $64,000 to compensate him for his non-pecuniary losses.


Defence Expert Witness Found Biased After Presenting “a Distorted Recording of his Interview” With Plaintiff

July 18th, 2014

Adding to this site’s archived cases criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing the evidence of a defense hired psychiatrist.

In today’s case (Yang v. Engen) the Plaintiff was injured in a 2011 intersection collision.  Fault was admitted by the Defendant.

The Plaintiff suffered moderate soft tissue injuries but her recovery was complicated by “ever-increasing emotional difficulties and mood disorders“.

The Defendant retained a psychiatrist who minimized the connection between the collision and these psychological difficulties.  In finding the expert witness crossed the line into advocacy Mr. Justice Davies provided the following comments:

[53]         After hearing those submissions and reviewing Dr. Levin’s original and rebuttal reports, I concluded that it was necessary to excise as inadmissible the following parts of his reports:

1)    The observation in the body of his opinion that:

It should be mentioned at the beginning of this summary that Ms. Yang’s diagnostic formulation should be viewed in the context of her interview in my office that revealed numerous discrepancies and inconsistencies between her subjectively-reported complaints of anxiety and her virtually-unimpaired social, occupational and interpersonal functioning. Ms. Yang initially omitted and under-reported her pre-existent history of psychological/emotional disturbances, attributing her current subjectively-presented complaints of “generalized” anxiety specifically and selectively to the subject MVA.

2)    The observation in Appendix C of his opinion that:

From a diagnostic perspective, however, the above-reviewed psychological clinical notes do not identify any specific PTSD symptomatology or reports of any type of generalized anxiety described by Ms. Yang during the interview in my office. It seems that Ms. Yang’s “generalized anxiety” disturbances had a somewhat rapid onset following her reported psychiatric consultation with Dr. Lu (organized by her lawyer).

[54]         I excised those paragraphs because:

1)    The excised observations in the body of his opinion not only crossed the line into an improper assessment of credibility but also constituted advocacy in the guise of expertise; and

2)    The excised observations in Appendix C demonstrated an unwarranted and unsubstantiated personal attack not only on the credibility of the plaintiff but also upon a well-qualified psychiatrist and upon plaintiff’s counsel.

[55]         I did not, however, rule that the totality of Dr. Levin’s reports should be determined to be inadmissible at that stage of the proceeding because I was satisfied that fairness to the impugned expert and to the defendant who had relied upon his evidence required that such a ruling should not be made without the benefit of hearing Dr. Levin’s evidence in chief and in cross-examination

[56]         I reached that conclusion also because of the complexities of the subject matter on which Dr. Levin was seeking to opine and in the context of the breadth of the attack by counsel for Ms. Yang upon not only his substantive opinion but also the methodology employed by Dr. Levin in rendering it.

[57]         After hearing his evidence at trial and having the opportunity to consider the totality of his evidence, including both written opinions and the entirety of his testimony at trial, I have concluded that Dr. Levin’s opinion presents a distorted recording of his interview with Ms. Yang by failing to identify with preciseness the questions which he asked of her and by his interspersed editorializing as to what answers he would have expected, all of which constituted his assessment of her lack of credibility which he then used as the basis for his diagnosis. That in turn resulted in a resort to advocacy on behalf of the defendant in relation to issues of causation and, in my view, demonstrated a personal investment in the litigation sufficient to constitute bias.

[58]         Those concerns were even more dramatically highlighted by a highly personalized, and, in my view, entirely unwarranted attack upon Dr. Lu’s opinion and professionalism in Dr. Levin’s rebuttal report delivered in response to Dr. Lu’s critique of Dr. Levin’s analysis.

[59]         In result, I have concluded that Dr. Levin’s opinions suffer so greatly from overstepping the proper bounds of opinion evidence into the assessment of credibility (a function for the trier of fact), advocacy and bias, that they are inadmissible.

[60]         I must also observe that even if I had concluded that some part or parts of his opinions could be determined to be admissible, I would in any event have been required to give such opinions little or no weight because of the many shortcomings to which I have adverted.

[61]         That conclusion is also mandated because while Dr. Levin improperly questioned the veracity of many of Ms. Yang’s responses to his questions and offered his versions of what responses he would have “expected,” counsel for the defendants did not confront Ms. Yang with the alleged “inconsistencies” and “discrepancies” relied upon by Dr. Levin in rendering his opinions.

[62]         What is left is simply an array of unfounded and untested allegations of dishonesty and exaggeration that do not accord with my own assessment of Ms. Yang as a witness.

[63]         Notwithstanding that English is Ms. Yang’s second language she is fluent in it and well able to express herself. She impressed me as a stoical, careful and honest witness who listened carefully to the questions asked of her and responded without exaggeration.

[64]         Although the anxiety she testified about now suffering related to seemingly common everyday life situations may seem wholly disproportionate to the circumstances she related in her evidence which manifest in those reactions, the totality of the evidence, including most importantly the psychological evidence of Dr. Lu to which I have referred in detail, convinces me that the anxiety she expresses is genuine.

[65]         In summary, I find that I can safely rely on the veracity of Ms. Yang’s testimony concerning the injuries she suffered in the collision, the progress of those injuries and the extent to which they have impacted her life both on a physical and emotional level.


Proving Fault After A Transit Bus Collision – The Reverse Onus

June 23rd, 2014

If you are injured while a passenger in a transit bus British Columbia law requires the bus driver to prove they were not at fault.  This is a ‘reverse onus’ from most personal injury claims where the Plaintiff must prove the Defendant was at fault.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this.

In last week’s claim (Tchir v. South Coast British Columbia Transportation Authority) the plaintiff was riding as a passenger in a bus “when an unidentified driver came to an abrupt stop in front of the bus“.  The bus driver was forced to brake hard to avoid collision and the Plaintiff was thrown from her seat and injured.

The Court found both motorists were to blame for the incident.  In discussing the reverse onus in proving fault, Mr. Justice Davies provided the following summary of the law:

[38]         The standard of care owed by the Transit Defendants to Mrs. Tchir as a passenger is a high one. Also, once it is proven that a passenger is injured while riding on a public transit vehicle, a prima facie case of negligence is made out and the onus then shifts to the carrier to establish that the injuries suffered by the passenger occurred without fault on the carrier’s part.

[39]         Those principles were summarized by McLachlin J. (as she then was) in Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) [Planidin] at pages 3 and 4 as follows:

There is little dispute as to the legal principles applicable in this case. The standard of care imposed on a public character is a high one. This standard has been established in the Supreme Court of Canada decision Day v. Toronto Transportation Committee [1940] S.C.R. 433, 4 D.L.R. 485 . At page 439 of that report of that case Davis, J. said:

·        ” The duty of the respondent to the appellant, its passenger, was to carry her safely as far as reasonable care and forethought could attain that end.”

·        At page 441 Hudson, J. in an oft-quoted passage, stated:

·        ” Although the carrier of passenger is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.”

These, and other cases, establish that once an accident occurs and a passenger is injured, a prima facie case in negligence is raised and the onus shifts to the public carrier to establish that the passenger’s injuries were occasioned without negligence on the company’s part. The question then is: What suffices to discharge this onus?

[40]         Concerning the last question posed, McLachlin J. went on to say:

This has been considered in at least two British Columbian cases and I refer to Lawrie v. B.C. Hydro and Power Authority (unreported, May 31st, 1876, B.C.S.C. Vancouver Registry No. 32708/74) and Fischer v. B.C. Hydro and Power Authority (unreported, February 19th, 1980, B.C.S.C. B781446). In the latter case, at page 8, Taylor, J., set out what the defendant must show to discharge the onus upon it in the following terms:

·        ” Thus there is in this case an onus on the defendants to show that the plaintiff came by her injury without negligence on their part or as a result of some cause for which they are not responsible. That is to say they must show that the vehicle was being driven carefully at the time of her fall, or that her fall resulted from some cause other than the manner in which the bus was being driven.”

[41]         Also instructive on the issue of the standard of care expected of the Transit Defendants in this case is the decision of Dardi J. in Prempeh v. Boisvert, 2012 BCSC 304 [Prempeh] at para. 15, in which she wrote:

… The standard of care owed to a plaintiff passenger by a defendant bus driver is the conduct or behaviour that would be expected of a reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver and anything the defendant driver knew or should have known: Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 at para. 39 (C.A.); Patoma v. Clarke, 2009 BCSC 1069 at para. 6.

 


$120,000 Non-Pecuniary Assessment for Vestibular Injury

February 17th, 2014

Reasons for judgement were released last week by the BC Supreme Court,  New Westminster Registry, assessing damages for chronic vestibular issues following a motor vehicle collision.

In last week’s case (Reynolds v. M. Sanghera and Sons Trucking Ltd.) the Plaintiff was involved in a 2009 collision.  The Defendant’s tractor trailer rolled down a hill, unoccupied, colliding with the Plaintiff’s vehicle.  The plaintiff suffered a variety of soft tissue injuries along with vestibular dysfunction.  In assessing non-pecuniary damages at $120,000 Mr. Justice Davies provided the following reasons:

[52]         Mr. Reynolds suffered serious and debilitating injuries in the collision, which have had a profound impact upon his enjoyment of life. The most serious of those injuries are the injuries to his neck and the vestibular injuries he suffered which separately or in tandem have caused fear of further injury from rapid movement, migraine headaches, anxiety, fear of driving and other travel, and sleeplessness. The injuries are still unresolved and will likely continue to affect all aspects of his enjoyment of life.

[53]         I accept the evidence of the lay witnesses that prior to the collision Mr. Reynolds was a man of almost boundless energy and enthusiasm for life. While he still tries hard to work in his business and does so with some success, his enjoyment of his work is now compromised by his medical conditions caused by the collision. His life is now far more one-dimensional than before, with work and the energy required to continue with his business now dominating all other aspects of life for which he now has both less energy and time because of the toll that simply working now exacts.

[54]         As to the prognoses for improvement in future, Dr. Underwood opined that it is extremely guarded. Dr. Stevens concluded that it is highly unlikely that Mr. Reynolds will return to his pre-collision state. She also stated that Mr. Reynolds downplays his symptoms.

[55]         Although I consider the award for non-pecuniary damages suggested by the defendant to be inordinately low, I also do not agree with Mr. Arnold’s submission that an award of $150,000 is appropriate in this case. In my view, the injuries suffered by Ms. Felix which resulted in a non-pecuniary damage award of $200,000, and by Ms. Cantin which resulted in a non-pecuniary award of $150,000, were more serious and debilitating than those suffered by Mr. Reynolds. They involved more serious physical injuries requiring surgery, and more severe psychological problems in the case of Ms. Felix, and more cognitive and psychological problems in the case of Ms. Cantin.

[56]         In all of the circumstances I find that an award of $120,000 will appropriately compensate Mr. Reynolds for his past, present and future pain and suffering and loss of enjoyment of life. That award recognizes the impact of the debilitating effect of the neck injury suffered by him and the related dizziness and vertigo that are similar to those suffered by Mr. Moukhine and Mr. Yang, both of whom were awarded $90,000, but also allows compensation for the debilitating effects of his past, present and future mood and anxiety disorders and the sleeplessness which has so dominated his life since the collision and will likely continue.


$72,000 Non-Pecuniary Assessment for Chronic and Plateued Soft Tissue Injury

January 7th, 2014

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury with a pre-existing complicating factor.

In the recent case (MacIntosh v. Davison) the Plaintiff was involved in a rear end collision in 2009.  He had injuries from previous collisions which were recovered.  He also underwent back surgery many years prior.  Although he had no symptoms related to this his back was at risk of suffering exacerbation of back injuries.  The Court assessed non-pecuniary damages at $90,000 but then reduced these by 20% to account for the plaintiff’s original position.  In reaching this conclusion Mr. Justice Davies provided the following reasons:

On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh’s “original” position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants’ negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his “original” and his “injured” condition…

1)    Mr. MacIntosh’s testimony and that of the medical and lay witnesses establishes that although injuries arising from the collision other than his low back injuries were largely resolved within one year, the low back injuries suffered in the collision have continued with only limited and sporadic abatement over time.

2)    I accept the opinions of Drs. Kates, Quirke and O’Connor that Mr. MacIntosh’s condition has now “plateaued” and will not likely deteriorate further, except for occasional flare-up of more intense and debilitating pain.

3)    However, the “plateau” which Mr. MacIntosh has reached renders him a far different person than the one he was prior to the collision.

4)    Mr. MacIntosh’s life in the four years since the collision has been dominated by the effects of the collision as he has followed all of the medical advice he has received to attempt to regain his health.

5)    While he has continued to golf regularly, his enjoyment of the game is much lessened. He also now golfs at significant rehabilitative cost and discomfort requiring much ongoing physical therapy.

6)    In that regard, while I note Dr. MacPherson’s opinion that the golfing exacerbates Mr. MacIntosh’s condition, I also note that his treating physicians have encouraged him to attempt to golf and undertake therapy as necessary to alleviate more acute symptomology related to it.

7)    I accept that to be a reasonable course of both advice and treatment because if Mr. MacIntosh had to restrict his golfing more than he has done, the result would be a larger award for non-pecuniary losses related to his ability to enjoy that which he previously enjoyed before the collision.

8)    The medical “plateau” at which Mr. MacIntosh now finds himself and which will likely endure for the balance of his active life also includes an inability to exercise as rigorously as he once did or hike with the enjoyment he once had. He is also far more irritable due to sleep deprivation caused by his injuries. That has an impact on his social life as he has become more reclusive than before.

9)    All of those aspects of his present life significantly negatively impact his overall enjoyment of life not only physically but also socially and emotionally. Coping with and trying to ameliorate the lasting effects of those injuries now are the focus of his daily life in place of the healthy and well-rounded physical, emotional and social life he previously enjoyed.

[91]         In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that arises from the defendants’ negligence, I award Mr. MacIntosh $72,000 to compensate him for his non-pecuniary losses.


$85,000 Non-Pecuniary Assessment for Knee Injury With Potential CRPS

August 29th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Williams Lake Registry, assessing damages for a chronic knee injury.

In this week’s case (Anderson v. Shepherd) the Plaintiff suffered a “major injury” to his knee when he was struck by the Defendant’s vehicle crushing his knee “between the car door and the frame of the vehicle“.  Fault was admitted focusing the trial on damages.

The Plaintiff’s knee injury required surgical intervention and resulted in chronic pain.  He was diagnosed with potential Complex Regional Pain Syndrome because of his knee trauma.  His pain symptoms were expected to linger indefinitely.  In assessing non-pecuniary damages at $85,000 Mr. Justice Davies provided the following reasons:

[58] Although the medical opinions differ with respect to whether Mr. Anderson may suffer from complex regional pain syndrome because of the injuries to his knee, and also whether patellar maltracking was caused by or made symptomatic by the collision, I am satisfied by the totality of the evidence that the knee pain Mr. Anderson has suffered and continues to suffer, as well as the mobility issues he has experienced and continues to experience, are genuine and were all caused by the collision.

[59] I am also satisfied on a balance of probabilities that the negative effects upon Mr. Anderson’s life arising from the left knee injury were caused by the collision and the defendant’s negligence, and would not have occurred but for that negligence…

[75] My consideration of the totality of the evidence in this case leads me to conclude that:

1) Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.

2) Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.

3) No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.

4) Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.

5) Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.

6) The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.

84] Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.

[85] Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.

[86] Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.

[87] After considering the totality of the evidence and the principles enunciated in Stapley, and the authorities to which I was referred by both counsel, I have determined that an award of $85,000 is necessary to appropriately compensate Mr. Anderson for his non-pecuniary losses.


"Pro Forma" Pleadings Not Enough To Compel MSP Record Production

March 13th, 2012

Further to my previous post on this topic, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether MSP records were producible in a personal injury claim.

Today’s case provides perhaps the most in depth analysis of the issue to date and is worth reviewing in full.  In short the Court held that such records may be disclosable given the right circumstances but a ‘pro forma’ pleading of pre-existing injury is not sufficient to trigger disclosure obligations.

In this week’s case (Kaladjian v. Jose) the Plaintiff was injured in a collision.  The Defendant applied for production of the Plaintiff’s MSP printout.  The Plaintiff’s lawyer had this document but did not produce it arguing it was not relevant.  The Defendant’s application was dismissed at first instance.  The Defendant appealed arguing MSP records were disclosable as a matter of course in a personal injury claim.  Mr. Justice Davies disagreed and dismissed the appeal.  In doing so the Court provided feedback as to the proper procedure when seeking production of such records and gave the following reasons:

[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, …

[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.

[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”

[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.

[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made…

[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.

[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents…

[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).

[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.

[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro formapleadings…

70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.


Treating Surgeon Allowed to Give Expert Evidence Despite Non-Compliance With Rules of Court

November 4th, 2011

Although the BC Supreme Court Rules have strict requirements with respect to the admission of expert opinion evidence Rule 11-7(6) gives the Court a wide discretion to dispense with these if “the interests of justice require it“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this discretion.

In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.  At trial the Plaintiff presented expert opinion evidence from a privately retained physiatrist.  The Plaintiff’s treating orthopaedic surgeon was also called to the stand, however, he was not called as an expert witness but rather as a witness of fact.  Despite this limitation the Court exercised its discretion under Rule 11-7(6) and permitted the treating surgeon to give opinion evidence addressing diagnosis and prognosis.  In doing so Mr. Justice Davies provided the following reasons:

[55] Dr. Zarkadas was not called as an expert witness at trial but he is obviously a well-qualified orthopaedic surgeon. He is also Ms. Milliken’s treating physician concerning her right shoulder difficulties.

[56] As such he was able to assist me in assessing Ms. Milliken’s future prospects if the surgery is undertaken or if it is not. To that extent, his more immediate involvement with and treatment of Ms. Milliken allows insight that was not previously available to Dr. Andrew Travlos (adduced as opinion evidence by the plaintiff) arising from his examinations and enquiries six months earlier.

[57] In those circumstances, notwithstanding the failure of the plaintiff to seek to have Dr. Zarkadas qualified to provide opinion evidence, I determined to receive his evidence concerning his diagnosis and prognosis related to Ms. Milliken’s right shoulder injuries.

[58] I did so over the objection of the defendant because of my belief that the determination of damages in this case should be based upon the best evidence available.

[59] In my opinion, the ability to achieve a just result should be served, rather than thwarted, by the application of procedural rules.

[60] The Court’s power to exercise discretion to allow relief from the harsh consequences of non-compliance with procedural rules recognizes that principle.

[61] I also, however, recognized that the defendant could be prejudiced by the admission and consideration of Dr. Zarkadas’ prognostic evidence if not given an opportunity to answer it.

[62] I accordingly provided the defendant an opportunity to consider whether to call rebuttal evidence before rendering judgment.

[63] I was subsequently informed that the defendant did not intend to do so.


$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

November 2nd, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury.

In this week’s case (Milliken v. Rowe) the 37 year old plaintiff suffered a variety of injuries in a 2007 collision.  The Defendant motorist admitted fault.  The Plaintiff’s most serious injury resulted in chronic shoulder pain the cause of which was described as “one of two things or both in combination which include biceps tendonitis and AC joint antropathy“.

The Plaintiff endured a variety of medical interventions none of which meaningfully resolved her injury.  Surgery was expected to have no better than a 50/50 chance of improving her injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Davies made the following findings:

[65] I find that the totality of the evidence establishes that the neck and shoulder pain as well as the headaches, back pain and right leg pain which Ms. Milliken has suffered since August 2007 were caused by the defendant’s negligence…

[83] Ms. Milliken was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort (primarily at work). The effects of those injuries were largely resolved within about two years.

[84] Ms. Milliken also, however, suffered from right shoulder pain that did not resolve and has now been ongoing for four years. The only potential end in sight for the amelioration of the pain and suffering concerning her right shoulder is invasive surgery with about an even chance of success. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.

[85] I find that the pain Ms. Milliken has endured has been debilitating.

[86] While she has worked through much of it of necessity, the cost to her of doing so has been great.

[87] Her life has become a one-dimensional one in which activities unrelated to work have largely had to be put aside. She no longer has the stamina or physical ability to care for her home as she previously did and has become socially reclusive because of that and her constant tiredness.

[88] Ms. Milliken is no longer able to play with her grandchildren as she once did due to pain and discomfort in her shoulder. She no longer participates in making crafts or enjoying recreational pursuits with her family.

[89] Her injuries have also exacerbated the physical challenges which she now faces in caring for her husband and that prevented her from taking on some of the work around the home and yard for which he was previously responsible…

[91] Ms. Milliken’s suffering will also not end with this litigation.

[92] At minimum she must endure complex shoulder surgery and a lengthy period of rehabilitation in which she will continue to be unable to enjoy life as she once did. Her likely future enjoyment of life is also compromised by the prospect that the surgery may be wholly or partially unsuccessful.

[93] The totality of the evidence satisfies me that there is no question that Ms. Milliken will continue to suffer pain and suffering as well as loss of her enjoyment of life at least until after rehabilitation from surgery to her shoulder.

[94] There is also a substantial likelihood that she will suffer ongoing pain and suffering and loss of enjoyment into the future after the shoulder surgery…

[105] I award Ms. Milliken non-pecuniary damages of $85,000.