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 Saunders’

$85,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Somatic Symptom Disorder

November 1st, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of a pre-existing psychiatric condition from a vehicle collision.

In today’s case (Hrnic v. Bero Investments Ltd.) the Plaintiff was involved in a 2013 collison that the Defendants accepted fault for.  The crash caused both physical injury and an aggravation of a pre-existing somatic symptom disorder.  In assessing non-pecuniary damages at $85,000 Mr. Justice Saunders provided the following reasons:

[35]        I find the plaintiff suffered physical injuries in the accident. I am not persuaded that the purely physical injuries were significantly disabling in respect of the plaintiff’s activities of daily living, or her employment, for more than approximately 18 months following the accident. There is no reason to believe that there is a physical, i.e. orthopaedic or neurological, cause of Ms. Hrnic’s current symptoms.

[36]        However, I find that the plaintiff also suffered at the time of the accident from a pre-existing, but not disabling, psychiatric condition – somatic symptom disorder – that was aggravated by the accident, and which, superimposed on the actual physical injuries she did temporarily suffer, has become functionally disabling.

[37]        I do not find any real or substantial possibility that the pre-existing somatic symptom disorder would have become disabling, but for the subject accident. In that respect, the defendants “take the victim as they find her”, and there is no discounting of the defendants’ degree of liability on account of the plaintiff’s original position as regards the claims for loss of past and future earning capacity.

[38]        Given the longstanding nature of the plaintiff’s disorder, and given her resistance to recommended medical treatment, I find it likely that her disability will not substantially improve up to her previously planned retirement age of 65, and beyond. There is some possibility that Ms. Hrnic may undergo some spontaneous improvement, and some possibility that she may elect some form of medical treatment that will benefit her. But these are very modest possibilities, and are properly accounted for as contingencies through very modest reductions in damages…

[52]        I award the plaintiff non-pecuniary damages of $85,000.


Expert Witness Plagiarism Concerns Lead to Strong Criticism of Medico-Legal Report

May 20th, 2016

In my ongoing efforts to highlight judicial criticism of expert witnesses who stray into advocacy, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, excluding an expert report for numerous reasons including concerns about plagiarism.

In today’s case (Anderson v. Pieters) the defence objected to the admissibility of a report generated by the Plaintiff’s physician on numerous grounds.  The Court excluded the report finding ” I would not qualify Dr. Sank as an expert capable of offering the opinion evidence tendered in the April Report.”.

The Court went on to note a far more serious concern, namely that the physician “acknowledged in his direct testimony that he had lifted passages from the Steilen Article, copying them into his report without attribution“.

The physician explained this was inadvertent but the Court did not believe this noting “I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence“. In ruling the report was inadmissible for this transgression Mr. Justice Saunders provided the following reasons:

[57]         Lastly, Dr. Sank’s use of the Steilen Article raises very serious concerns as to bias and as to whether Dr. Sank has in fact fulfilled his duty to the court to provide an independent opinion. The concerns arise out of the failure to acknowledge his source material, and out of what he chose to copy, and what he chose to leave out.

[58]         Regarding the copying of the Steilen Article, I would say first that I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence. As can be seen from the excerpts in the Appendix to these Reasons, not only did he add a few words to the passages he copied, he included two of the citations in the Steilen Article and renumbered them (renumbering notes 110 and 111 as his own notes 1 and 2), effectively representing those citations as the product of his own research. It is inconceivable that he was not conscious of the fact that his April Report was lacking necessary citation of the Steilen Article, and the fact that he was misrepresenting large portions of the narrative as his own work product. This was plagiarism, pure and simple. The plagiarism, and Dr. Sank’s failure to acknowledge it as such, were dishonest, and severely impact his credibility.

[59]         The offence is not mitigated by the fact that the segments copied by Dr. Sank might be viewed as uncontroversial descriptions of basic human anatomy. The issue here is not whether the science is accurately stated. The issue is that Dr. Sank, who in fact had so little understanding of the neuro-vascular anatomy that he had to undertake research, is purporting to speak about the issues with authority, through almost entirely utilizing words, phrases, and a manner of expression that are not his own, without disclosure. He is misrepresenting his grasp of the material, and is thereby substantially exaggerating his expertise.

[60]         The final concern is Dr. Sank’s failure to acknowledge the fundamentally speculative nature of his proposed diagnosis. Given the tentative nature of the propositions put forward in the Steilen Article, there is clearly no basis for him offering his opinion as being “highly probable”. In this regard his report stands in contrast to the expert opinion evidence of the otologist Dr. Longridge, who, in his August 19, 2015 report, explicitly acknowledges the lack of support for his opinion in the medical literature. In failing to express his opinion in the guarded, careful manner used by the authors of the Steilen Article, Dr. Sank was not forthright. He in fact substantially exaggerated the strength of his opinion, apparently at least in part on the basis of a misapprehension as to the need to present a “black or white” opinion. Given his relationship to the plaintiff as her treating physician, this exaggeration of his opinion’s strength gives rise to significant concern as to bias.

[61]         In submissions on the voir dire, the plaintiff’s counsel argued that Dr. Sank did exactly what we want an expert to do: equipped with information from his patient and from other specialists, he undertook research, and as a medical practitioner he reached a medical diagnosis. I find Dr. Sank’s report markedly deficient, and I find him to have fallen short of the standard of independence that is required of an expert witness.

[62]         On any second-stage assessment of the April Report, the foregoing issues would reveal the report to have no substantial benefit, weighing strongly against its admission. On the “costs” side of the ledger, the concerns canvassed in White Burgess are present. It is apparent that admitting even a sanitized version of the report deleting reference to the inadmissible opinions of the chiropractor would risk the jury potentially being exposed to inadmissible evidence through inadvertence in the course of his cross-examination, given the extent to which Dr. Sank relied upon it. The defence would be obliged to call experts of its own in reply to Dr. Sank, lengthening the trial and imposing a further burden on the jury. Though the defence would now be relatively well-positioned to attempt to undermine Dr. Sank through cross-examination, there would remain the risk of the fact-finding process being distorted by evidence of little real value.

[63]         These concerns as to admissibility are not of the sort ideally addressed through instructions to the jury. The concerns are so broad that the necessary instruction to the jury would be something tantamount to a direction that they give the April Report no, or at best, very little weight. There is, practically speaking, nothing to be gained by burdening the jury with it.

[64]         Even absent my finding as to Dr. Sank not being sufficiently qualified under the first stage of the admissibility test, I would for these reasons rule against admission of the April Report.

Mr. Justice Saunders set out the below, as an appendix to his reasons, “some of the passages lifted from the article – in the column to the left – with the comparable passages from the April Report set out alongside for comparison, to the right. Original wording inserted by Dr. Sank is indicated in bold face.”

Expert alleged plaigarism

expert alleged plaigarism 2


$45,000 Non-Pecuniary Assessment for “Persistent Episodes of Low Back Pain”

May 1st, 2016

Reasons for judgment were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a persistent low back injury.

In the recent case (Jones v. McLerie) the Plaintiff was involved in a 2011 rear-end collision that the Defendant admitted fault for.  The collision caused a low back soft tissue injury that persisted to the time of trial with symptoms flaring with heavier physical activity.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[37]         I find that Mr. Jones continues to be significantly affected by persistent episodes of low back pain triggered by heavier physical exertion. Mr. Jones struck me as a somewhat stoic individual, inclined to understate the impact of his condition. He is the sole breadwinner of his young family, and he seems determined not to let his symptoms substantially interfere with his life. That having been said there have been some restrictions imposed on his physical activities and his enjoyment of life has been negatively impacted, to a relatively minor though not insignificant extent, and his relationships with family members has been adversely affected….

[39]         Exercise – or the lack thereof – has been and will be a key component in his recovery. I am struck by Dr. Helper’s opinion that Mr. Jones has a “good probability of maintaining his low back symptoms at a mild degree of severity with a dedication to fitness…”. I am not, contrary to the submission of the defence, going to reduce Mr. Jones’ damages award for a failure to mitigate by reason of him not having undertaken a regular exercise program; the strains of coping with a young family and with changes in his employment have, in my view understandably, led to him not making exercise a priority. However Dr. Helper’s assessment has brought home how critical exercise will be. Mr. Jones, with a young family to care for her, would appear to be strongly motivated to dedicate himself to exercise recovery program that will, as Dr. Helper says, maintain his symptoms at a mild degree of severity.

[40]         There is, of course, a risk that he will not do so, but in that eventuality any worsening of his symptoms would, going forward, substantially arise from his own failure to mitigate, limiting the defendant’s responsibility…

[50]         I assessed his general damages in the amount of $45,000.


Defamatory Facebook Post Leads to $65,000 Damage Award

April 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay $65,000 in damages following a defamatory Facebook post.

In today’s case (Pritchard v. Van Nes) were neighbors who had “tensions” between them.   The Defendant published some troubling posts on Facebook that “in their natural meaning and by innuendo, bore the meaning that the plaintiff was a paedophile“.   The court found that these suggestions “were completely false and unjustified“.

The Plaintiff successfully sued the Defendant for defamation.  In awarding $50,000 in general damages and a further $15,000 in punitive damages Mr. Justice Saunders provided the following reasons:

[122]     The seriousness of Ms. Van Nes’ defamatory Facebook post, her replies, and the comments of her “friends” cannot be overstated. An accusation of paedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity. The identity of Mr. Pritchard is especially relevant in this case. Through his engagement in extra-curricular activities he occupies a position of trust as a music teacher for children. Through hard work and dedication to his students, he had earned the community’s respect and admiration, as clearly established on the evidence. I find that he now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point.

[123]     The vehicle through which Ms. Van Nes chose to publicize her defamatory accusations provided the court with further evidence of the damage to his reputation; that there were individual replies from 37 of Ms. Van Nes’ Facebook “friends” within less than 24 hours clearly documents the quick degradation of Mr. Pritchard’s estimation in the eyes of others..

[131]     I do not find that the claim of malice has been made out. Taken in its entirety, the evidence of the defendant’s actions – her self-centred, unneighbourly conduct; her failure to respond reasonably to the plaintiff’s various complaints, particularly regarding her dog; and her thoughtless Facebook posts – point just as much to narcissism as to animosity. Her belief that the decorative mirror hung on the exterior of the plaintiff’s house was some sort of surveillance device was simply ridiculous, speaking, to be blunt, more of stupidity than malice.

[132]     The defendant, as I see it, appears to have thoughtlessly taken to a social medium to give vent to her feelings, making reckless statements without any regard to the consequences. She certainly ought to have anticipated the potential impact of her remarks; whether she actually did so has not been proven.

[133]     The defendant’s subsequent actions bear none of the indicia of malice discussed at para. 191 of Hill: she removed the posts relatively quickly, probably when the gravity of the situation became apparent to her through the police presence at the plaintiff’s home; she did not seek to publicize the proceedings, giving rise to further dissemination of the defamation; she did not file a defence.

[134]     Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135]     I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, a punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publically denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.

[136]     I award the plaintiff additional punitive damages of $15,000.


$95,000 Non-Pecuniary Assessment for Chronic Wrist Injury

April 13th, 2015

Adding to this site’s archived case summaries of non-pecuniary awards for wrist injuries, reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic wrist injury.

In today’s case (Ozeer v. Young) the Plaintiff was riding as a passenger in a vehicle that ran head on into a hydro pole.  He suffered some soft tissue injuries which resolved without issue.  He also suffered a wrist injury which required multiple surgeries and continued to pose problems.  In assessing non-pecuniary damages at $95,000 Mr. Justice Saunders provided the following reasons:

[22]         In short, in addition to relatively mild or mild-to-moderate soft tissue injuries, Mr. Ozeer has sustained a severe wrist injury resulting in significant restriction in the use of his dominant hand that will be permanent. He has undergone two surgeries directly attributable to the accident, with an extended recovery period, and will probably have to undergo another surgery to fuse the wrist. He has continued to suffer pain and discomfort to varying degrees. I infer the pain and discomfort will likely only worsen due to the onset of arthritis…

[27]         Of the cases cited, the facts in Ferguson bear the closest resemblance to the present case. The 37-year-old plaintiff in Ferguson suffered injuries to his neck, back and left wrist. His neck and back problems resolved within weeks, but his wrist injury persisted, requiring three surgeries. A report prepared by an orthopaedic and hand surgeon concluded that the plaintiff would be left with permanent weakness in his left hand and he would require job retraining as the injury would probably permanently prevent him from returning to his job as a heavy duty mechanic. Madam Justice Gill awarded the plaintiff $75,000 in non-pecuniary damages.

[28]         I award Mr. Ozeer non-pecuniary damages of $95,000.


$140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

November 4th, 2014

Adding to this site’s archived cases addressing damages for psychological injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a predominantly psychological chronic pain disorder.

In today’s case (Khosa v. Kalamatimaleki) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered relatively mild objective physical injuries but went on to develop a largely disabling chronic pain disorder with a significant psychological component.  In assessing non-pecuniary damages at $140,000 Mr. Justice Saunders provided the following reasons:

[100]     In view of the testimony of Ms. Khosa and her collateral witnesses, and the medical evidence as I whole, I find on a balance of probabilities that she has been and continues to be both physically and psychologically disabled from her previous employment as an LPN, and from housework…

[103]     As noted above, Dr. Gandhi has opined that Ms. Khosa “likely developed a pain disorder associated with both physical and psychological factors”. I agree. The current physical disability, I find, undoubtedly has a very significant psychological component…

[105]     Given the persistence of the physical symptoms in the absence of any significant organic objective signs I find it likely that the psychological factors are the predominant cause…

[107]     I find that Ms. Khosa, on a balance of probabilities, is and has been impaired largely due to psychological injuries caused by the accident.

[108]     Ms. Khosa, I find, currently lacks the ability, at least psychologically, to undergo any form of retraining or upgrade of her skills, and, even if she could undertake the necessary training, currently lacks the physical and psychological wherewithal to discharge the job duties of a registered nurse. The plaintiff submits that:

The constellation of issues she has around tasks requiring management of stress, memory, and concentration, render her an unlikely candidate for completion of nursing school, let alone meeting the job requirements for nursing set out by her employer – foremost among those is the ability to safely administer medication and perform feeding procedures on her young patients.

[109]     I agree.

[110]     It is also apparent that Ms. Khosa’s injuries have had a profound impact on her self-image and her relationships with her husband and children.

[111]     These injuries, subjective though they may be, are real, were clearly caused by the physical and psychological trauma of the accident, and are compensable…

[121]     Based on the opinions of Dr. Koch and Dr. Gandhi, and on Dr. Estrin’s observations as to her positive responses to the limited CBT and neurofeedback therapy she has had, I find that Ms. Khosa’s current condition is such that there is considerable uncertainty as to her prognosis. I am not satisfied that her condition is such that marked improvement is improbable. As the plaintiff has not met the onus of proving this, I find there to be a probability of her responding favourably to psychological treatment. I find the outcomes that could follow from such favourable response range, in ascending probability, from only having her emotional well-being and her relationships with her family restored, to becoming more physically active, to being able to return to work as an LPN and possibly renew her planned pursuit of a career as an RN. I also find, however, that even within the best of these potential outcomes, Ms. Khosa may remain at least somewhat fragile and possibly susceptible to further episodes of anxiety and depression. I also recognize the possibility that the treatment period may be prolonged.

[122]     Given the inherent uncertainty in her condition, I also find that there is a relatively small, but still significant possibility of Ms. Khosa’s psychological condition being resistant to further treatment, resulting in no meaningful improvement. There is a very small possibility of her condition remaining so persistent and so debilitating that she would end up removing herself from the workforce entirely…

[130]     Bearing in mind both the probability of eventual recovery and the possibility of persistent symptoms into the future, and having regard to the non-exhaustive list of factors outlined in Stapley v. Hejslet, 2006 BCCA 34, I assess her non-pecuniary damages at $140,000.


A Balanced Costs Award Following Jury Trial

May 5th, 2014

In an illustration that not all trial ‘losses’ trigger catastrophic costs consequences, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering balanced costs consequences.

In this week’s case (Desharnais v. Parkhurst) the Plaintiff was involved in two vehicle collisions.   Prior to trial the Defendants provided two formal offers, the first at $50,000 the second at $75,000.  The Plaintiff, who was seeking in excess of $1 million rejected both offers and proeeded to trial.  Following a thirteen day jury trial the Plaintiff’s damages were ultimately assessed at $30,100.

Both parties had medical evidence to justify their respective positions, however, the Court noted, some of the opinions of the Plaintiff’s experts were “highly suspect”.

The Defendants sought substantial costs having bested their formal settlement offers. The Court noted a more appropriate result would be to award the Plaintiff costs up to the date of the second formal offer and to have the parties bear their own costs thereafter.  While such an order still has significant financial consequences for the Plaintiff it is far less sever than ordering payment of the Defendant’s costs. In reaching this decision Mr.Justice Saunders provided the following reasons:

[42]         On the whole, I do not consider either the First or the Second Offer as having reflected, objectively speaking, a genuine attempt at compromise. I find them to hae been more reflective of what the Applicants could reasonably have hoped to achieve if all or substantially all of the issues were resolved in their favour. I am not dissuaded from taking this view by the fact that the jury awarded even a lesser amount; I do not think it is unfair to counsel or to the jury for me to say that the jury’s decision was considerably less than what reasonably prudent counsel would have regarded as a “win” for the defence. I cannot find that either offer ought reasonably to have been accepted by the plaintiff.

[43]         As Goepel J. stated in Ward, that is the beginning, not the end of the analysis. The most basic principle underpinning the Rules relating to costs is that costs of a proceeding are to be awarded to the successful party (R. 14-1(9)). This expectation is intended to promote sensible conduct throughout court proceeding; it exists notwithstanding the broad judicial discretion to depart from the principle, which is generously built into the Rules.

[44]         In this case, the jury found that the plaintiff had successfully proven some damage. But for the offers to settle, he would be entitled to his costs. Having regard to the factors set out in Rule 9-1(6), including giving some weight to the plaintiff’s financial circumstances, I do not find that the offers were so substantial that the Applicants ought to be entitled to any indemnification against their own costs. The plaintiff’s position was not completely lacking in merit. It was not frivolous. However, the fact that the settlement offers exceeded the judgment amount cannot be ignored. The Applicants were forced to incur the expense of a trial which they were willing to avoid by paying the plaintiff a not insubstantial sum, a sum which ended up being considerably greater than the damages the plaintiff was judged to be entitled to. It would be unfair to require the Applicants to indemnify the plaintiff for the costs of advancing a claim that was ultimately judged to be greatly overvalued.

[45]         I find that the plaintiff is entitled to his costs up to the date of delivery of the Second Offer. The parties will bear their own costs thereafter.

 

 


Motorcyclist At Fault for Collision After Making “Poor Reactive Choice”

November 22nd, 2013

Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.

In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff.  The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“.  In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:

[42]         I find that the accident happened through no fault on the part of the defendant.  She did what was reasonably expected of her.  She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again.  She cannot be held responsible for his decision to veer to the right.

[43]         The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn.  That evidence struck me as a post hoc rationalization of the plaintiff’s actions.  There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.

[44]         I find this accident happened solely due to the plaintiff’s fault.  He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant.  He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.

[45]         The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.

[46]         The action is, therefore, dismissed.


ICBC Expert Witness Rejected for "Facile and Argumentative" Testimony

May 2nd, 2013

Adding to this ever growing database of case comments criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, rejecting the evidence of an orthopaedic surgeon hired by ICBC and providing critical comments about his courtroom testimony.

In this week’s case (Devilliers v. McMurchy) the Plaintiff was involved in a 2008 collision.  She sustained “a significant back injury leading to significant pain that has become chronic and likely permanent“.  The Plaintiff was awarded non-pecuniary damages of $75,000.  In the course of trial the Defendant called an orthopaedic surgeon who minimized the connection between the plaintiff’s symptoms and the collision.  In rejecting this opinion Mr. Justice Saunders provided the following critical comments:

[34]         I am not persuaded by the alternative theories Dr. Grypma put forward. In attributing Ms. De Villiers’ continuing symptoms in part to deconditioning, Dr. Grypma completely overlooked Ms. De Villiers’ ongoing exercise routine, which has led to a 90-pound weight loss. He also gave no explanation as to how the relatively mild degenerative changes seen in the MRI study could account for Ms. De Villiers’ chronic pain and its resistance to the various treatments she has undertaken, without the accident having been a critical factor in the onset of her complaints. To accept his changed opinion, I would have to find that the emergence of symptoms of back pain in proximity to the accident was mere coincidence. I am not prepared to make that finding.

[35]         Furthermore, Dr. Grypma’s interpretation of Dr. Schuurman’s CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the fact that Dr. Schuurman clearly found it to be a Grade II injury; the second page of the CL-19 form has a ticked box next to the description of a Grade II injury:

Neck/upper back

musculoskeletal signs:

·        decreased ROM

·        point tenderness.

Dr. Grypma initially maintained on cross-examination that a Grade II injury classification requires both decreased range of motion, and point tenderness. However, he conceded that the Québec Task Force Grade II classification uses point tenderness as a clinical sign, distinguishing this injury from a Grade I injury in which there are no clinical signs. Attempting to defend his position that this was not a Grade II injury, Dr. Grypma then asserted that Ms. De Villiers’ injury could be viewed as a “Grade 1.5”. There is no evidence of such a classification being recognized. I was not impressed by this testimony.

[36]         Dr. Grypma contended that as patients waiting for hip replacements usually have chronic pain over two to three years prior to having surgery, and the vast majority of these patients eventually recover, there is every reason to believe that Ms. De Villiers will also recover from her chronic low back pain. I found this analogy facile and argumentative. Dr. Grypma did not claim any expertise in the field of chronic pain treatment.

[37]         Overall I found Dr. Grypma’s evaluation of Ms. De Villiers to be ill-considered and superficial, and I give no weight to his evidence.


"Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"

April 9th, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, underlying the importance of having medical opinion evidence in support of claimed special damages in an injury claim.

In this week’s case (Redl v. Sellin) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant and there was no disagreement that the Plaintiff suffered from a chronic pain disorder as a result of her collision related injuries.  What was disputed was the significant treatment related expenses the Plaintiff advanced at trial.

The Plaintiff advanced special damages of over $46,000.  The Court disallowed many of these noting there was no medical evidence to justify many of these expenses.  In rejecting much of the sought special damages claim Mr. Justice Saunders provided the following reasons:

[44]         Ms. Redl is advancing a claim for special damages which is remarkable in its size and scope. The total amount sought is $46,501.22…

[55]         Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch(1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness. I accept the argument expressed through Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept the plaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson inPersonal Injury Damages in Canada, (2d ed., 1996) at p. 166:

Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of a character that stretched far beyond the resources of even an affluent Canadian.

That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good.

[56]         In the present case, Ms. Redl undertook an extraordinarily wide variety of therapies, some without advice, and some less conventional than others. She did so at considerable expense. It is probable, in my view, that she undertook this course of action in part through a desire to recover quickly and in part on the basis of her positive past experience, pre-accident, with massage therapy and chiropractic. However, her firm beliefs notwithstanding, there is no medical evidence that the therapies she undertook accelerated her return to work or have otherwise improved her physical condition. With regard to the palliative effect of the therapies, Ms. Redl did not experiment with trying one modality at a time. She did not experiment with lengthening the time between appointments. There is no evidence that the palliative effect of these therapies was any greater than what may have resulted from the use of over-the-counter medications. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Redl’s physical or mental well-being is or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies, than it would be if she had stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly chiropractic treatments.

[57]         I am allowing, as special damages, the cost of her first 12 massage therapy sessions ($936.50), and her first 12 chiropractic treatments ($930), as such would have been reasonable during the acute phase of Ms. Redl’s recovery. Beyond that, I find that had the accident not occurred, the pre-accident pattern of these treatments likely would have continued up to the present date, even had the accident not occurred, and no greater frequency of treatment has been demonstrated to have been reasonable.

[58]         I am further allowing the cost of massage therapy sessions she underwent when on cruise vacations in September 2010 and March 2012, when she experienced flare-ups ($650). I am also allowing the physiotherapy ($210) and kinesiology ($453) expenses, as they were incurred on medical advice, and the 14 acupuncture treatments rendered at Dr. Frobb’s clinic ($2,100). The expense of the Pilates course is also allowed ($3,974.92), as being in furtherance of core strengthening, which Dr. Frobb referred to as a priority. I am disallowing the balance of the massage therapy, acupuncture and chiropractic expenses, and the claims for naturopathic and reflexology treatments, as not having been demonstrated as reasonable.