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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 Sewell’

“Partisan” Experts Criticized and Rejected by BC Supreme Court

June 6th, 2017

Adding to this site’s archives of judicial criticism of expert evidence, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the evidence of two experts the court found gave evidence in a ‘partisan’ fashion.

In today’s case (Thompson v. Helgeson) the Plaintiff was involved in a 2012 collision that the Defendant admitted liability for.  In the course of the lawsuit the Plaintiff was assessed by several experts including two psychiatrists, one retained by the Plaintiff and the other by the Defendant.  The Court gave “no weight to either” finding they were partisan in their evidence.  In rejecting these opinions Mr. Justice Sewell provided the following reasons:

[72]         There is a disagreement between Dr. Ancill and Dr. Levin over whether Ms. Thompson suffers from any recognized psychiatric illness related to the Accident.

[73]         Dr. Ancill and Dr. Levin agree that Ms. Thompson does not suffer from post-traumatic stress disorder. However, they disagree on whether she suffers from any recognized psychiatric disorders.

[74]         Dr. Ancill diagnosed Ms. Thompson with the following conditions:

1.  Post-Concussion Syndrome with Mild Traumatic Brain Injury;

2.  Mild Neurocognitive Disorder arising from a Traumatic Brian Injury;

3.  Adjustment Disorder with anxiety-chronic type;

4.  Major Depressive Disorder-moderate-severe, chronic; and

5.  Somatic Symptom Disorder.

[75]         Dr. Levin’s opinion is that Ms. Thompson does not meet the criteria for any recognized psychiatric disorder.

[76]         I have reservations about the evidence of both Dr. Ancill and Dr. Levin. I found both of them to be somewhat partisan in their opinions.

[77]         I do not accept that Ms. Thompson is suffering from five psychiatric disorders as opined by Dr. Ancill. I have already concluded that she does not have post-concussion syndrome or a brain injury. Having reviewed Dr. Ancill’s report, I am unable to conclude that he took a balanced and unpartisan approach to assessing Ms. Thompson’s mental state.

[78]         On the other hand, Dr. Levin rejected the notion that Ms. Thompson suffered from any psychiatric conditions arising from the Accident and attributed any complaints she had to her pre-existing depression.

[79]         As with Dr. Ancill, I considered the tone and content of Dr. Levin’s report to be very adversarial. In his report, he repeatedly referred to what he described as inconsistencies in Ms. Thompson’s statements to him during her interview. However, on cross-examination, he was forced to agree that these inconsistencies were clarified by Ms. Thompson later in her interview. In addition, he provided no explanation as to why Ms. Thompson has developed the headaches that are her chief complaint and in fact, paid scant attention to their existence.

[80]         I also found Dr. Levin to be argumentative and at times non-responsive in the answers he gave on cross-examination. One example of this was his answers with respect to whether Ms. Thompson met the criteria for Somatic Symptom Disorder with Pain. In his report he said the following:

48.       I defer an opinion about Ms. Thompson’s physical injuries sustained in the subject MVA to specialists in internal medicine and orthopaedic surgery. However, from a psychiatric perspective, Ms. Thompson did not present with a catastrophic perception of her injuries, pervasive preoccupation with pain or excessive time consuming activities trying to manage her pain to the extent that she would be diagnosed with chronic pain disorder as a psychiatric condition currently described in DSM 5 under the rubric of somatic symptom and related disorders.

[81]         When counsel pointed out that the DSM 5 criteria for Somatic Symptom Disorder stated that a catastrophic perception of injuries was only possibly present, Dr. Levin gave unresponsive answers and failed to acknowledge the obvious meaning of the passage in the DSM 5 that he was being asked about.

[82]         Finally, Dr. Levin was the only witness of the many expert and lay witnesses who opined that “Ms. Thompson appeared as an optimistic, future-oriented, and at times cheerful woman who reported her unimpaired ability to enjoy herself and make other people laugh.” Based on Ms. Thompson’s evidence at trial, my own observations of her and the evidence of every other witness who commented on her post-Accident condition, I simply cannot accept that she presented herself to Dr. Levin in that manner.

[83]         I therefore conclude that Dr. Levin lacked the required impartiality and objectivity to provide reliable evidence about Ms. Thompson’s post-Accident condition.

[84]         With regard to the reports of both Dr. Ancill and Dr. Levin, I also do not find it particularly helpful to know whether Ms. Thompson meets the criteria for specific psychiatric disorders set out in the DSM 5. In assessing damages, the question is whether Ms. Thompson’s symptoms are genuine, whether there is a substantial connection between those symptoms and the defendant’s negligence, and the effect that those symptoms have had on the plaintiff.

[85]         After reviewing both opinions, I give no weight to either. It seemed to me that Dr. Ancill was going out of his way to identify every possible mental illness suggested by Ms. Thompson’s reported symptoms, while Dr. Levin seemed anxious to convey the impression that Ms. Thompson was in no distress whatsoever.


$175,000 Non-Pecuniary Assessment For Fibromyalgia and Somtatic Disorder

December 28th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychiatric injuries caused by a vehicle collision.

In today’s case (Kim v. Lin) the Plaintiff was involved in a 2007 collision the Defendants admitted fault for. She suffered soft tissue injuries and eventually developed fibromyalgia and a somatic disorder.  In assessing non-pecuniary damages at $175,000 Mr. Justice Sewell provided the following reasons:

[128]     I am satisfied, based on all of the evidence that I accept, that Ms. Kim has suffered soft tissue injuries to her back and SI joints as a result of the Accident, which have caused her considerable pain and discomfort. I am also satisfied that as a result of a combination of Ms. Kim’s physical pain and her personal circumstances, Ms. Kim developed the psychiatric disorders diagnosed by Dr. Shane and the fibromyalgia and chronic pain syndrome diagnosed by Dr. Krassioukov.

[129]     I find that Ms. Kim would not have developed the psychiatric and somatic disorders diagnosed by Drs. Shane and Krassioukov but for the injuries she suffered in the Accident. I therefore find that there is a substantial connection between the tortious conduct of the defendants and the damages and injuries from which Ms. Kim suffers.

[130]     I also find that there is no credible evidence that at the time of the Accident Ms. Kim was suffering from a pre-existing condition that would have had an adverse effect on her future health or capacity. I therefore find that there is no basis for making any deduction from her damages based on any substantial possibility that her health or capacity would have declined in any event…

[152]     In this case, I am satisfied that Ms. Kim’s disability is permanent, in the sense that it is more probable than not that she will continue to suffer from the injuries caused by the Accident for the foreseeable future. Ms. Kim has, however, not suffered any degree of cognitive impairment. The evidence does indicate that there has been some improvement in her overall condition since she moved to Nanaimo and that she has benefitted from counselling with Miyoung Cho, a Korean-speaking psychologist.

[153]     Taking all of the circumstances into account, I assess non-pecuniary damages at $175,000.


Court Rejects “Particularly Problematic” ICBC Expert Witness

December 9th, 2016

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, soundly criticizing an expert witness for a lack of objectivity.

In today’s case (La Porte v. Earl) the Plaintiff was involved in a 2010 collision that the Defendant admitted fault for.   She suffered physical and psychiatrist injuries as a result of the crash.  In the course of the crash the Defendant’s insurer sent her to a psychiatrist who marginalized any psychiatric injuries she had and their connection to the collision.

In rejecting this opinion Mr. Justice Sewell provided the following reasons:

[74]         After careful consideration I have concluded that I can give no weight to Dr. Levin’s report. There are a number of reasons why I have reached this conclusion. I begin by saying that I found that Dr. Levin’s report lacked objectivity. It seemed to me that Dr. Levin was marshalling evidence in favour of his conclusion, rather than attempting to communicate constructively with Ms. La Porte to determine her actual mental state.

[75]         Dr. Levin developed a number of themes that he repeated throughout his report. One such theme was to emphasize how resilient Ms. La Porte had been before the Accident, and to extrapolate that resilience into her reaction to the pain and anxiety that she experienced after the Accident.

[76]         At the outset of his opinion, Dr. Levin referred to Ms. La Porte’s pre-accident condition and began by emphasizing that Ms. La Porte did not present with any biological or psychological vulnerabilities that would have predisposed her to the development of any psychiatric illness.

[77]         In his report, Dr. Levin does not address the important question of the interrelationship of pain and anxiety. In fact, Dr. Levin mentioned Ms. La Porte’s reported pain only in passing. In addition, Dr. Levin does not appear to have elicited any details about what actually occurred on Ms. La Porte’s last day of work. The impression he portrays is that Ms. La Porte was managing her job without any difficulty up to the time she stopped working, and stopped working only in anticipation of having an increased workload in the fall of the year. The portion of his report dealing with this question at page 5 states as follows:

Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems. Ms. La Porte stated that she would be upset when her dispatcher would give her a passenger with a heavy wheelchair or walker. Ms. La Porte, however, did not report an actual worsening of her reported pain or physical problems that could cause her any emotional suffering. In fact, while off work Ms. La Porte reportedly improved and was able to relax at home, at times baby-sitting her grandchildren. While discussing her current activities of daily living Ms. La Porte did not report any ongoing psychological or emotional disturbances of clinical significance that would affect her ability to return to her previous workplace or any other employment for which she is suited by her education and experience. When asked about her mood while baby-sitting for her grandchildren she said, “It’s good but I get tired faster…”. [Underline emphasis added.]

[78]         The foregoing summary is at marked variance to Ms. La Porte’s evidence in court that she struggled with the heavier physical demands of her job and the physical exertions of her job significantly worsened her pain. In addition, given Ms. La Porte’s evidence in court, which I have accepted, about the circumstances of her last day of work, I can only conclude that Dr. Levin did not inquire about those circumstances.

[79]         There were two portions of Dr. Levin’s evidence that I found particularly problematic. The first relates to this sentence at page 5 of the report: “Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems.” When Dr. Levin was asked in cross-examination whether he had italicized the word “could” in this portion of his report to emphasize that there was no actual effect on Ms. La Porte’s physical problems, he denied that intent and stated that the italics were a clerical error. I find this answer to be lacking in credibility. In the context of the rest of that portion of his report, it is obvious that Dr. Levin was emphasizing that Ms. La Porte had not yet experienced any difficulty in coping with her work at the time she stopped working.

[80]         In addition, Dr. Levin implies in this passage that Ms. La Porte had not reported any effect that her job had on her physical problems. It is unclear whether he is suggesting she denied any negative effects or whether he based this statement on Ms. La Porte not volunteering any such information. If she told him that her job had no negative effects on her physical problems, it would have been contrary to what she told the other doctors who examined and treated her, as well as to her evidence before me, which I have accepted as credible. I therefore think it is highly unlikely that she denied any negative effects. I note that Dr. Levin did not indicate that he asked any questions about this subject in his interview of Ms. La Porte.

[81]         The second troubling evidence from Dr. Levin is found in his second report dated June 9, 2014. In that report Dr. Levin comments on the reports of the other physicians that have been put in evidence. At page 5, Dr. Levin begins his comments on Dr. Oluyede’s consultation report of November 15, 2012, which he describes as a “clinical record”. He purports to paraphrase a part of Dr. Oluyede’s report commenting on Ms. La Porte’s mood as follows at page 5:

The clinical records dated November 15, 2012, state, “[…] she describes being in a state of shock…three days later, she noticed an increasing pain…following this, she has had subsequent issues with pain…presently, she is going through legal proceedings to get some compensation…”

[82]         Dr. Levin goes on to comment on this passage from Dr. Oluyede’s report, concluding with the following sentence at page 6:

It seems one of the major issues identified in Ms. La Porte’s case is reportedly, “Legal proceedings to get some compensation as she was the injured party…” However, Dr. Oluyede does not discuss any specific psychiatric or psychological injury sustained in the subject MVA that would require any compensation.

[83]         What Dr. Oluyede actually said in her consultation report at page 1 is as follows:

Three days later she noticed an increasing pain in her right leg and her right arm. She described the pain as spasmodic. On the day of the accident she was seen in emergency and had been medically cleared.

Following this she has had subsequent issues with pain and has seen a chiropractor for a while. Both car insurance companies have been involved and her car has been fixed. She took four days off of work at that time.

Presently she is going through legal proceedings to get some compensation as she was the injured party and has been incapacitated since the accident.

She describes not feeling good most of the time, feeling easily stressed out and overwhelmed. She has had to cut down her hours of work from forty hours previously per week to thirty-five hours.

She has noticed a continuous decline in both her physical and mental health. With regards to her mental health she describes easy fatigability, worry and anxiety about her future and with regards to finances. She describes feeling drained most of the time and has noticed that on certain occasions she does have what she describes as overwhelming anxiety.

[84]         In my view, Dr. Levin did not accurately or fairly paraphrase Dr. Oluyede’s consultation report. Even more problematically, when Dr. Levin was cross-examined on the above passage from his report, he again said this was either a typographical error or he misspoke himself in his dictation and meant to say “assistance” not compensation. Again, given the context of the passage, in which Dr. Levin seems to be at pains to show that Ms. La Porte is seeking compensation, I cannot accept this explanation from him.

[85]         In addition, I found Dr. Levin to be argumentative and somewhat non-responsive in the answers he gave in cross-examination. Finally, I am concerned that Dr. Levin had some animus towards Ms. La Porte. At the outset of his notes on his interview with Ms. La Porte he recorded that he felt she was being unreasonable and uncooperative with him. None of the other doctors who conducted independent medical examinations at the request of the defendants made any such comment.

[86]         I therefore give no weight to Dr. Levin’s opinion in this matter.


Motorist Found Fully At Fault Following Collision With Moose at Highway Speed

August 7th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability following a collision with a moose in Northern BC.

In today’s case (Knight v. Knight) the Defendant collided with a moose causing catastrophic and disabling injuries to his spouse who was a passenger in the vehicle.  The Defendant argued he was not at fault as he was not speeding and had little time to react.  Mr. Justice Sewell rejected this argument and found him fully at fault.  In doing so the Court adopted ICBC’s “Learn to Drive Smart” manual as being relevant in assessing the standard of care and provided the following reasons:

[44]         In this case, Mr. Knight’s evidence is that he was driving at the posted speed limit, was looking straight ahead while driving because of the oncoming headlights of the Thomas vehicle and took no action when he noticed those headlights black out. Mr. Knight was aware that there were signs warning of the risk of moose being present on the highway and had on an earlier occasion seen a moose on Highway 37, albeit closer to Terrace. He was also aware that the risk of a moose being present was increased at dusk and that moose were more likely to be present during the rutting season, which includes October. There would be a minimal burden imposed on the defendant from driving more slowly. The only result of doing so would have been that he would have arrived at his destination a few minutes later than he would have if he was driving at the posted speed. There can be no doubt that a reasonable person living in Northern British Columbia would have been aware of the grave consequences of colliding with a moose at highway speed.

[45]         With respect to the standard of care, the Insurance Corporation of British Columbia’s Learn to Drive Smart Manual states at page 129:

Strategies: watching for animals

To help prevent a collision with an animal:

Scan the sides of the roadway ahead for animals

Watch for animal crossing signs when driving through farming or wooded areas. Slow down in these areas.

Be extra cautious at dusk and dawn. This is when animals move around to feed, and it is also harder for you to see them at these times.

Look for sudden, unusual spots of light on the roadway at night. This may be the reflection of your headlights off an animal’s eyes.

Remember that wild animals often move in herds. If you see one animal, there may be more.

[46]         I consider that the recommendations contained in the Driver’s Manual to be relevant in determining whether Mr. Knight met the required standard of care in this case.

[47]         In his evidence and examination for discovery, Mr. Knight admitted that he took none of the precautions recommended above. I am aware that I must be cautious about admissions made by Mr. Knight in this case given the fact that his wife is the plaintiff and that he therefore stands to benefit from an award in her favour. However, taking into account the whole of his evidence, his demeanor when giving evidence and the direct manner in which he answered questions put to him, I have no reason to believe that he was attempting to deceive me. Mr. Thomas’ estimate of the speed of the Knight vehicle was consistent with Mr. Knight’s evidence.

[48]         I conclude that Mr. Knight was operating his vehicle in a negligent manner on the night of October 22, 2008. I find that given the time of the year and the time of day and the presence of moose warnings signs on Highway 37, Mr. Knight was negligent in failing to slow his vehicle and in failing to take any extra precautions to keep a look out for the presence of moose on or near the highway.

[49]         I also find that he was negligent when he failed to immediately slow his vehicle when he observed something crossing in front of the headlights of Mr. Thomas’s oncoming truck.

[50]         In my view a reasonable person in Mr. Knight’s position would have immediately taken steps to slow his vehicle when he saw the headlights of the oncoming vehicle black out. I find that Mr. Knight was aware that something was obstructing the lights of the oncoming vehicle. Given the other factors I have already outlined – the warning that moose might be present on the highway, the time of day, and the fact that October is in the rutting season when moose are more likely to be present – I conclude that a reasonable driver would have realized that there was a material risk that it was an animal that was obstructing the lights and would immediately have applied his brakes and slowed his vehicle until he had ascertained what was causing the obstruction. I find that it was negligent of Mr. Knight not do so.

 


Criminal Conviction Strips Defendant of Civil Liability Denial

January 17th, 2014

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, confirming that it is an abuse of process to deny liability in a civil lawsuit for damages following a criminal conviction related to the same incident.

In today’s case (McCaffery v. Arguello) the parties were involved in a road rage incidence during which the Defendant “proceeded to intervene in the fight between Mr. McCaffery and Mr. Segundo by repeatedly striking Mr. Mccaffery with the baseball bat, causing him serious but non-life-threatening injuries to his head and wrist.”

The Defendant was criminally convicted of assault with a weapon and assault causing bodily harm.  The Plaintiff sued for damages and the Defendant denied liability.  In summarily finding the Defendant civilly liable Mr. Justice Sewell provided the following reasons:

[33]         Mr. Arguello’s counsel submits that as provocation may affect the quantum of damages It will still be necessary to hear viva voce evidence about the circumstances leading up to the assault at the assessment. That may be so. But the evidence will have no bearing on liability. I am also of the view that evidence restricted to the limited issue of provocation will not materially lengthen or complicate the assessment process.

[34]         I am also satisfied that I should grant judgment on liability notwithstanding the fact that this amounts to a severance of the issues of liability and assessment. Rule 9-7(2) permits a party to apply for judgment on an issue or generally. In my view this is an appropriate case to dispose of liability before assessing damages. Mr. Arguello clearly has no defence on the issue of liability. There is no reason to require him to re-litigate that issue.

[35]         Finally, I conclude that there is no merit in the argument that judgment cannot be granted in the absence of the defendant Mr. Segundo. I was not referred to any authority for the proposition that the plaintiff is not permitted to pursue judgment against one defendant in an assault case. If Mr. Arguello wishes to pursue a claim against Mr. Segundo for contribution, he is at liberty to do so. However I see no reason why that possibility should delay the plaintiff’s claim against him.

[36]         Accordingly I find that the plaintiff is entitled to judgment finding the defendant liable for his injuries, with damages to be assessed.


$85,000 Non-Pecuniary Assessment for Dental Misalignment Coupled With Soft Tissue Injuries

October 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing damages for dental injuries sustained in a vehicle collision.

In this week’s case (Latek v. Krol) the Plaintiff was involved in a 2011 collision for which the Defendant accepted responsibility.  The Plaintiff suffered a jaw injury resulting in misaligned teeth and various soft tissue injuries.  He was an active individual and suffered a variety of soft tissue injuries which impacted his physical lifestyle.  In assessing non-pecuniary damages at $85,000  Mr. Justice Sewell provided the following reasons:

[6]             Mr. Latek was seen by his family doctor, Dr. Ostapkowicz, on May 25, 2011. At that time he was moving with difficulty and could hardly talk. His jaw was swollen and he was unable to chew. He complained of head and teeth ache, maxilla and jaw pain, difficulty in opening his mouth, neck pain, right and left shoulder pain, right lower back, hip and knee pain, as well as left foot pain.

[7]             Mr. Latek was examined by his family dentist, Dr. Gill, on May 25, 2011. At that time he was able to open his mouth only ten millimetres wide, as compared to a normal opening of 40-45 millimetres. Dr. Gill noted that 16 of Mr. Latek’s front teeth were loosened and significantly mobile. On a later examination on July 25, 2011, Dr. Gill observed that two of Mr. Latek’s teeth were misaligned inwardly.

[8]             Mr. Latek remains under the care of Dr. Gill for treatment of the injuries to his teeth. He currently wears braces to correct the misalignment of his teeth suffered in the accident. Once the orthodontic treatment is completed there is a possibility that Mr. Latek may require further treatment to his jaw but Mr. Latek’s prognosis is generally favourable.

[9]             Over time many of Mr. Latek’s symptoms resolved. His last recorded visit to Dr. Ostapkowicz was on December 11, 2012. On January 31, 2013, Mr. Latek attended an independent medical examination by Dr. Hirsch, a specialist in physical medicine and rehabilitation. By that time, Mr. Latek’s injuries were largely resolved except for pain in the low back, left hip and buttock and left knee. Dr. Hirsch’s opinion was that Mr. Latek’s injuries were soft tissue in nature. He found no evidence of any structural or ligamentous damage or any indication of structural injury to the spine. Dr. Hirsch characterized Mr. Latek’s lower back pain as mechanical, or pain that is exacerbated by activities and postures that stress or load the back…

[27]         Mr. Latek’s injuries, though extensive, were not severe or life threatening. He did not suffer an inordinate amount of pain from them. Most of his injuries resolved within about a year after the accident.

[28]         However, the impact of the injuries on Mr. Latek has been much more serious than they might have been on a more sedentary plaintiff. I am satisfied that much of Mr. Latek’s self-esteem and enjoyment of life were based on his physical prowess and his ability to engage in activities requiring a high level of physical fitness, endurance and strength.  Mr. Latek gave priority to those activities over the pursuit of a career in the two years before the accident.

[29]         I am satisfied that Mr. Latek’s inability to pursue his pre-accident activities is attributable to the injuries he suffered in the accident. In my view that loss has had a profound effect on Mr. Latek’s enjoyment of the amenities of life. While there is no expert medical evidence about the physiological and mental health impact of the loss of the ability to do what he did before the accident, I conclude that that loss together with his pain symptoms caused the personality changes exhibited by Mr. Latek since the accident…

[34]         Taking Mr. Latek’s injuries into account in the context of the authorities, and giving particular weight to the impact the injuries have had on Mr. Latek’s quality of life, I assess non-pecuniary damages at $85,000.


$200,000 Non-Pecuniary Damage Assessment in Jay Walking Collision

September 26th, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with fault for a collision involving a jaywalking pedestrian.

In last week’s case (Wong-Lai v. Ong) the elderly Plaintiff and her husband where involved in a serious collision in 2009.  It was a dark and rainy Vancouver Autumn evening.  As they crossed the street to return to their car they were struck by a vehicle driven by the Defendant.  The Plaintiff was not in a marked cross-walk at the time.  Her husband died and the Plaintiff suffered severe injuries.

The Court found that while the Plaintiff was jay-walking she should have been visible to the Driver.  The Court found that the driver was not paying sufficient attention and assessed him 25% at fault.  In reaching this conclusion Mr. Justice Sewell provided the following reasons:

[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries…

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%.  Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

The Plaintiff’s damages were assessed at just over $307,000.  $200,000 of this assessment were for the Plaintiff’s non-pecuniary loss.  In arriving at this figure Mr. Justice Sewell provided the following summary of the Plaintiff’s injuries:

[65] In this case Ms. Lai suffered very grievous injuries. She was struck by a car which I have found to be travelling at close to 60 kilometres per hour.  A good summary of her injuries is found in the report of Dr. Ng.  It is as follows:

1) Gross bleeding from urine requiring emergency urological consultation. A CT cystogram ruled out bladder rupture. Ct scans of the kidneys did not show any severe renal damage and she only required observation and support. However angiogram showed the pelvic fractures has ruptured blood vessels and she had bleeding in the blood supply to the pubic bone and these required embolisation to stop the bleeding.

2] Cervical Cl C2 unstable fracture. This required immobilisation and stabilisation in a collar and traction for the first eight weeks. She also has a moderate central cervical disc protrusion at level C6-7 which indented her cervical spinal cord.

3] Chest contusions left upper lobe, right middle lobe, and multiple rib fractures of the left 3 to 6 ribs and left 8 rib.

4) Multiple pelvic comminuted fractures bilaterally, namely superior and inferior pubic rami. She required immobilisation for her neck and leg fractures as well as for these fractures for the first eight weeks. She remained in the intensive care unit for a few weeks for treatment and stabilisation of all her injuries.

5) The left Tibial and left Fibular fractures require manual reduction and internal fixations on December 1, 2009. She returned to the intensive care unit post operatively.

6) Brain injury, which on CT scan showed multiple bleeding present inside areas of her brain and a small subdural hematoma (within the skull but outside the brain), located in between the cerebral hemispheres. There is a large left scalp hematoma. Her conscious levels and neurological state were monitored in intensive care over the next few weeks

[83] In my view the most important factors in this case are the severe and painful injuries suffered by Ms. Lai, the marked degree of permanent disability, the loss of independence and the increased risk of morbidity and mortality identified in Dr. Guy’s opinion.  I also note that Ms. Lai’s stoicism and determination to make the best of her predicament should not diminish the amount of damages awarded to her.

[84] I have reviewed the numerous decisions on pecuniary damages involving serious injuries cited to me by counsel.  These cases are all of course fact specific.  My review of them, coupled with a consideration of the principles restated in Stapley, leads me to conclude that an award of non pecuniary damages in the amount of $200,000 is appropriate in this case.


Pain and Suffering Without Objective Signs of Injury

July 14th, 2010

The easiest personal injury cases to prosecute are those involving objective injuries.  If a person suffers a broken arm or leg in a car crash there is no dispute as to what the injury is or what caused it.  There may be some disputes regarding the consequences of the injuries but generally there is a lot of room for agreement in these types of lawsuits.

On the other end of the spectrum are chronic pain cases.  Many people involved in traumatic events go on to suffer long term chronic pain.  The pain can be invasive and sometimes disabling.  It can interrupt domestic, vocational and recreational activities, it can even negatively impact personal relationships.   Often the source of chronic pain cannot be objectively identified and people suffering from chronic injury face not only the pain but also the stigma that they are somehow exaggerating or even faking their injury.  This skepticism can take a further toll and add to the cycle of chronic pain.

These cases bring challenges in prosecution and create a sharp focus on plaintiff credibility.   Despite their challenges chronic pain disorders can be properly compensated at trial as was demonstrated in reasons for judgement released today by the BC Supreme Court.

In today’s case (Kasidoulis v. Russo) the Plaintiff was involved in a 2005 intersection crash.  Fault was admitted by the driver of the opposing vehicle.  The trial focused on the extent of the Plaintiff’s injuries and their value.

The collision caused several injuries to the Plaintiff which eventually turned into a chronic pain disorder.   As is sometimes the case there was a lack of objective proof of the Plaintiff’s injuries.  Dr. Travlos, the Plaintiff’s treating physiatrist gave the following evidence about the Plaintiff’s injuries:

[21] Dr. Travlos was of the opinion that the complaints reported by Ms. Kasidoulis to Dr. Kneifel, which included headaches, chest pains, neck pains; back pains and emotional difficulties were a direct result of the accident.  He was unable to identify any clinical or objective findings with respect to the back pain but was clearly of the view that Ms. Kasidoulis was genuinely experiencing the pain that she reported.  There does not seem to be any serious dispute between the parties that Ms. Kasidoulis’ pain is genuine and I accept that this is the case.

[22] In his second report Dr. Travlos concluded that Ms. Kasidoulis suffers from chronic pain disorder.  That pain was affecting her daily activities, both social and work related.  He was of the view that Ms. Kasidoulis would benefit from a long-term “longitudinal” course of treatment designed to permit her to manage and cope with her pain.  On the other hand, Dr. Travlos was clearly of the view that there should be no expectation that the pain would resolve and that it was no more probable than not that she will continue to have permanent on-going pain.

[23] In both his reports, and in particular in his March 2010 report, Dr. Travlos focused considerable attention on the necessity of Ms. Kasidoulis undergoing treatment and having access to the resources necessary to reduce the stressors in her life.  As I read Dr. Travlos’ opinion, he was of the view that if Ms. Kasidoulis is given the opportunity to access a reasonable long-term treatment plan and the resources to relieve her household responsibilities, she could expect significant improvement in her ability to function and in her ability to cope with her pain.

[24] Dr. Travlos was of the view that it was unrealistic to expect that Ms. Kasidoulis would ever be able to work full-time, but that it was reasonable to anticipate that she could work between three and four days a week if the therapies that he recommended were pursued and were effective.

Mr. Justice Sewell accepted this evidence and awarded the Plaintiff over $900,000 for her injuries and resulting disability including $90,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In arriving at this verdict the Court made the following comments about causation and compensation for chronic pain cases with lack of objective proof:

[36] As is not uncommon in cases of this sort, the critical issue in this case is the extent to which the injuries Ms. Kasidoulis suffered in the accident are the cause of the difficulties described in the evidence…

37]         This case therefore requires consideration of the law as laid by the Supreme Court of Canada and our Court of Appeal with respect to causation.  The law with respect to causation has been recently addressed and reviewed in Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke, 2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

[38]         These cases establish the proposition that to impose liability on the defendant  I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms but for the accident or, in other words, that the injuries she suffered in the accident were a necessary cause of her post accident symptoms.

[39]         I find that Ms. Kasidoulis suffers from debilitating mid and low-back pain.  This pain and attendant low energy have had a significant impact on her life.  I find that the symptoms being experienced by Ms. Kasidoulis are an indivisible injury which would not have occurred but for the injuries she suffered in the motor vehicle accident.

[40]         I base this conclusion on a comparison of Ms. Kasidoulis’ energy and capabilities before and after the accident.  I accept her evidence that she is suffering debilitating back pain.  I also rely on Dr. Travlos’ conclusion that Ms. Kasidoulis is suffering from chronic pain syndrome.  I can see nothing in the evidence which supports the assertion that Ms. Kasidoulis would be experiencing the pain or the level of disability she currently experiences had she not been injured in the motor vehicle accident.  I therefore conclude that the defendant is fully responsible for the consequences of Ms. Kasidoulis’ present condition.

[41]         I make this finding notwithstanding the lack of objective clinical evidence of serious injury.  I note that neither Ms. Kasidoulis nor Dr. Travlos were cross- examined with respect to the genuineness of Ms. Kasidoulis’ reported symptoms.  In his cross-examination of Dr. Travlos, Mr. Robinson did establish that there was a paucity of objective evidence of injury present.  I note, however, that there is no indication that Ms. Kasidoulis was in any way feigning the symptoms she is experiencing.  Given this fact and the fact that there was ample evidence before me contrasting Ms. Kasidoulis’ personality and abilities before the accident from those she presently possesses and demonstrates, I have no hesitation in concluding that the difficulties that she now faces would not have been experienced but the wrongful conduct of the defendant.

In addition to the above this case is worth reviewing in full for the Court’s discussion of damages for ‘diminished earning capacity‘ at paragraphs 52-65.  The Plaintiff was awarded $550,000 for diminished earning capacity despite being able to continue working in her own occupation because the Court was satisfied that the accident related injuries would prevent the Plaintiff from working on a full time basis as a teacher and instead would be limited to working on a part time on-call basis.


$70,000 Non-Pecuniary Damages Assessment for Patellofemoral Knee Pain

May 22nd, 2010

Reasons for judgement were released this week by the BC Supreme Court awarding $126,000 in total damages as a result of injuries and loss caused by a 2006 BC car crash,

In this week’s case (Poulton v. Inderbosch) the Plaintiff was injured when the Defendant ‘went through a red light‘ and T-boned the Plaintiff’s vehicle on her passenger side.  Fault was admitted by the Defendant focussing the trial on the value of the Plaintiff’s claim.

The Court heard competing evidence about whether the Plaintiff suffered a knee injury as a result of the crash.  Mr. Justice Sewell decided that the Plaintiff’s knee in fact was injured.  In awarding $70,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for the Plaintiff’s injuries the Court stated as follows:

[15] The plaintiff filed a medical/legal report of Dr. McKenzie, an orthopaedic surgeon.  He examined Ms. Poulton on September 14, 2009.  Dr. McKenzie is of the opinion that Ms. Poulton has ongoing left knee pain which is likely patellofemoral knee pain as well as ongoing pain in her neck and upper back.  In his opinion her symptoms are caused by the accident including a direct blow to her knee…

[21] I conclude that Ms. Poulton did injure her left knee in the motor vehicle accident on January 27, 2006…

[26] In this case, Ms. Poulton has suffered an injury which continues to trouble her more than four years after the accident.  Given the duration of Ms. Poulton’s symptoms and the inability of any of the treating physicians to isolate an organic cause for those symptoms, I agree with Dr. Mackenzie’s opinion that the prognosis for the resolution of Ms. Poulton’s pain is poor.  There is evidence that Ms. Poulton’s headaches have significantly improved since the date of the accident and there is therefore some reason to conclude that those headaches will continue to improve.  I am also mindful of the evidence that Ms. Poulton seems to be able to function with the assistance of medications.  On the other hand, Ms. Poulton has testified that the injuries have had a significant impact on the quality of her life, particularly with respect to her ability to pursue such recreational activities as hiking and aqua size. ..

[30] I conclude that an award of $70,000 is appropriate in this case to compensate Ms. Poulton for her pain, suffering and loss of amenities of life.  In assessing these damages I have taken into account that Ms. Poulton will likely seek symptomatic relief from medication for the reasons set out in paras. 50 and 51 of these reasons.

You can click here to read my archived posts of other recent BC Court Cases awarding damages for knee injuries.


Chronic Pain With No Objective Signs Discussed in Injury Litigation

February 19th, 2010

One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.

Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury.  So how do courts deal with such claims?  Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility.  If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.

In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC.  The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her.  The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.

Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses.  The award included $45,000 for non-pecuniary damages.  In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries.  The highlights of the Court’s discussion were as follows:

[12] Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area.  In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident.  Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005.  He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.

[13] I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson.  I do not think it is necessary to refer to their evidence in any detail.  In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area.  The doctors also all agree that there is no objective evidence of underlying injury causing this pain.  They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.

[14] Dr. McPherson’s initial opinion was that there was no objective evidence of disability.  However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006.  I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future.  However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.

[15] The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation.  The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.

[16] Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area.  I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…

[18] Ms. Sylte is 51 years old.  She testified that prior to the first motor vehicle accident she was an active, energetic individual.  She enjoyed playing mixed softball, golf and skiing.  She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster.  She was a single mother whose adult son, Josh, lived with her.

[19] Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally.  She simply finds these activities too painful to pursue.  In addition she no longer skis.  She indicated that Josh is now required to do many of the more physically demanding tasks around the house.  She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain.  She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.

[20] Josh gave evidence at the trial.  He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident.  He also indicated that his mother had become much less social after the accident.  Josh, who is now 31, does much of the heavy work around the house.

[21] Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident.  The evidence before me is that these symptoms will be permanent.  I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing.  She is in more or less constant discomfort from the injuries she has suffered.  As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.

[22] I have concluded that there should be a substantial award for non-pecuniary damages in this case.  I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability.  In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.