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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 Skolrood’

$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

December 12th, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.

In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision.  Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries.  In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179]     The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180]     Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181]     With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182]     On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183]     Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184]     Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185]     Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186]     I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192]     Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.


BC Supreme Court Criticizes Defense Doctor Who “Crosses the Line”

December 21st, 2015

In what is not the first time, a psychiatrist who is frequently retained in the defense of personal injury lawsuits was criticized by the BC Supreme Court for crossing the line from impartial opinion to prohibited ‘advocacy‘.

In today’s case (Bricker v. Danyk) the Plaintiff was involved in a 2011 collision and sustained physical injuries with psychological repercussions.  The Defense hired a doctor who minimized the connection of the Plaintiff’s psychological difficulties to the collision.  In rejecting this evidence and finding the defense doctor ‘crosses the line‘ Mr. Justice Skolrood provided the following critical comments –

[118]     It is useful at this point to address Ms. Bricker’s submission that the court should place little weight on Dr. Levin’s opinion which she submits constitutes advocacy rather than expert opinion. She points in particular to numerous places in Dr. Levin’s report where he appears to editorialize about answers given by Ms. Bricker during his interview of her in a manner that suggests a pre-determined outcome.

[119]     Much of the editorializing complained of by Ms. Bricker is directed at questioning whether Ms. Bricker’s complaints are sufficiently serious to meet the diagnostic criteria for PTSD and Major Depressive Disorder and, in this regard, Dr. Levin raises valid issues. However, I agree with Ms. Bricker that the overall focus and tenor of his report, as well as his evidence at trial, crosses the line of what is proper for an expert witness and strays into advocacy.

[120]     Without going into great detail about his evidence, some excerpts from his report are illustrative:

a)    at p. 4 Dr. Levin suggests that Ms. Bricker has not reported any neurobehavioral or neurocognitive symptoms that “would even remotely be suggestive of any underlying concussive brain injury”;

b)    at p. 4 of Appendix A, where he records the results of his interview of Ms. Bricker, Dr. Levin refers to the “significant discrepancy” between her report to him and chiropractic records of past treatments;

c)     at p. 5 of Appendix A, he editorializes that the fact that Ms. Bricker enjoys watching National Geographic television programs involving sharks is inconsistent with someone complaining of anxiety; and

d)    at p. 5 of Appendix A, he again editorializes that Ms. Bricker’s description of her range of interests is “clearly not suggestive” of someone suffering from a major depressive disorder or PTSD.

[121]     While these are but a few examples, they reflect the argumentative nature of his report. I agree with Ms. Bricker that Dr. Levin’s evidence in its entirety lacks the degree of objectivity expected of an expert witness. For that reason, I attach no weight to his report.


$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

July 24th, 2015

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.

In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.


$160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

January 16th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological issues following a collision.

In today’s case (Cornish v. Khunkhun) the plaintiff was involved in an intersection collision in 2010.  Both the Plaintiff and Defendant were found equally to blame for the crash.  The Plaintiff suffered from a  major depressive disorder and somatic symptom disorder following the collision.  Her non-pecuniary damages were assessed at $160,000 and in reaching this figure, prior to factoring in the liability split,  Mr. Justice Skolrood provided the following reasons:

[131]     The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

[132]     I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person…

[139]     The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

[140]     In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

[141]     The cause of Ms. Cornish’s confusion and memory loss is less clear as there is no neurological evidence addressing these symptoms. However, I accept Dr.  Riley’s opinion that her condition is related to her depressive disorder which I have found was caused by the accident…

[146]     Given the ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

 


“Wholly Inadequate” Stop Sign Placement Leads to Liability for Collision

September 23rd, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a construction company largely at fault for the ‘wholly inadequate‘ placement of a temporary stop sign in a construction zone.

This week’s case (Richmond v. Channa) involved a two vehicle collision where the Channa vehicle failed to stop at a stop sign controlled intersection and collided with the Richmond vehicle.  While the Court found Channa 25% to blame for the crash the Court held the lion’s share of fault rested with a construction company who blocked visibility to the intersection’s stop sign and placed an inadequate temporary sign in its place.  In reaching this apportionment Mr. Justice Skolrood provided the following reasons:

[110]     In the case at bar, I find that Tien Sher bears primary responsibility for the accident. It is clear from the evidence that the temporary stop sign, which again was in fact a flag person’s paddle, was placed on the construction fence at a point where the line of the fence had already started to curve to the right or to the north. As such, it was not visible to vehicles travelling west on 107A Avenue until just before those vehicles actually enter the intersection with Ring Road.

[111]     Further, the size and placement of the temporary stop sign was wholly inadequate. As noted, it was much smaller than a normal or permanent stop sign. Moreover, its placement on the fence at an awkward downward pointing angle would not necessarily signal to drivers that it was intended to function as a regular stop sign and to control west bound traffic on 107A Avenue.

[112]     It is particularly telling that Mr. Pereira and Mr. Mossey, employees of the City, both identified the temporary stop sign as a safety hazard.

[113]     Tien Sher’s failure to ensure proper placement and size of the temporary stop sign was compounded by its failure to provide drivers with advance warning of the sign. Such advance warning would have been a reasonable and prudent measure in the circumstances, given that the temporary sign was located well away from where the permanent stop sign was situated and, again, was obscured to drivers.

[114]     In the circumstances, I find that Tien Sher’s conduct created an objectively unreasonable risk of harm to drivers of vehicles proceeding west on 107A Avenue towards the intersection (Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 28). I find further that Tien Sher’s negligence caused the accident in that but for its conduct, the accident would not have occurred (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14; Resurfice Corp. v. Hanke, [2007] 1. S.C.R. 333 at paras. 21 – 23 and Clements v. Clements, [2012] 2 S.C.R. 181 at para. 8). In this regard, I accept Ms. Channa’s evidence that had she seen a stop sign, she would have stopped before entering the intersection…

[124]     I have already found that Tien Sher bears primary responsibility for the accident. It’s failure to comply with the minimum standards set out in the Manual, due in large measure to the fact that its designated safety officer did not even know of the Manual’s existence, its failure to erect adequate, or any, warning signs, and its wholly inadequate placement and sizing of the temporary stop sign demonstrates a disregard for the safety of drivers using 107A Avenue and constitutes conduct that is significantly more blameworthy than that of Ms. Channa.

[125]     I apportion liability 75% against Tien Sher and 25% against Ms. Channa.


$48,000 Non-Pecuniary Assessment For Soft Tissue Injuries With Tinnitus

May 29th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered soft tissue injuries with associated tinnitus.

In today’s case (Pichugin v. Stoian) the Plaintiff was involved in a modest rear end collision in 2010.  Fault was admitted.   The Plaintiff was uninjured at the scene but shortly thereafter started to experience neck and back pain.  These symptoms largely recovered by 2012.  In addition to the soft tissue injuries the Plaintiff suffered from tinnitus which was caused secondary to his whiplash injury.  In assessing non-pecuniary damages at $48,000 Mr. Justice Skolrood provided the following reasons:

[66]         I find on the evidence that Mr. Pichugin suffered soft tissue injuries to his neck and back as a result of the accident. Those injuries caused him pain and discomfort for approximately one and a half years after the accident but he improved steadily and his symptoms were largely resolved by the fall of 2012. However, I accept that he continues to experience periodic pain and discomfort in his neck and back, of relatively minor severity, largely related to physical activity…

 

[71]         I am satisfied that Mr. Pichugin’s tinnitus was caused by the accident. Dr. Longridge’s opinion to this effect is supported by the scientific literature as reflected in the Folmer and Greist paper. Even absent the findings in that paper, Dr. Longridge noted again that physicians have long recognized that whiplash can cause tinnitus. The defendant has not established any other likely, or even possible, cause that would serve to undermine Dr. Longridge’s opinion.

[72]         In terms of the impact of his condition on his activities and lifestyle, Mr. Pichugin testified that he is less able to help his wife with things like vacuuming and grocery shopping. However, it was also clear from the evidence that overall Mr. Pichugin is more active than he was prior to the accident as he has increased his activity level following his heart attack.

[73]         With respect to the tinnitus, he testified that while it sometimes causes him difficulty in getting to sleep, once he is asleep it does not interfere with the quality of his sleep. Moreover, he was unable to say with any degree of certainty how much sleep he loses as a result of the condition. Apart from some disruption while reading, there was no evidence that the condition otherwise interferes with his work or his recreational activities…

85]         In my view, the severity and effects of Mr. Pichugin’s tinnitus are less than what was experienced by the plaintiff in Yang and more in line with the condition suffered by the plaintiff in Maddex. However, Mr. Pichugin’s soft tissue injuries were more severe than those of the plaintiff in Maddex. Taking all of the circumstances into account, I find that an appropriate award of non-pecuniary damages is $48,000.

 


ICBC Ruined Our Marriage! “Lost Opportunity of Family Income” Claim Rejected

February 27th, 2014

While BC Courts do recognize that collision related injuries can lead to the demise of a financially interdependent relationship and lead to increased costs, the evidence to advance such a claim must be persuasive.  Reasons for judgement were released this week rejecting such a claim and discussing the requirements of advancing damages for “lost opportunity of family income“.

In this week’s case (Liu v. Bourget) the Plaintiffs were injured in a collision and sued for damages.  They alleged a variety of losses including that they separated, and thereby incurred greater expenses, as a direct result of the accident.  Mr. Justice Skolrood rejected this claim on the evidence and in doing so provided the following reasons:

[272]     Ms. Cheng and Mr. Liu submit that they have incurred increased expenses from the fact that they now live in separate residences which they say is a direct result of the accident. They say that an award of $50,000 is reasonable in the circumstances.

[273]     Ms. Cheng and Mr. Liu cite Grewal v. Brar et al, 2004 BCSC 1157, where the court awarded the plaintiff $30,000 for the possibility that her marriage might fail as a result of the consequences of the accident. The award was in effect a modified award for damages for loss of marriageability, a head of damages that the courts have long recognized.

[274]     This type of award was described by Mr. Justice Lambert of the Court of Appeal in Reekie v. Messervey (1989), 59 D.L.R. (4th) 481 at 494, 36 B.C.L.R. (2d) 316 (C.A.) at 330-331, as follows:

This aspect of the damage award was called “loss of opportunity to marry” by counsel and by the trial judge. But marriage is not the significant point. the significance lies in the loss of an opportunity to form a permanent interdependency relationship which may be expected to produce financial benefits in the form of shared family income. Such an interdependency might have been formed with a close friend of either sex or with a person with whom a plaintiff might have lived as husband and wife, but without any marriage having taken place. Permanent financial interdependency, not marriage, is the gist of the claim. For the sake of simplicity and consistency, I will now usually call this head of loss: “Lost opportunity of family income”.

[275]     Mr. Justice Lambert went on to describe categories of loss arising under this head of damages which are summarized by Mr. Justice Cole in Grewal as: (1) loss of the benefit of increased income, (2) loss of the benefit of shared expenses, and (3) loss of the benefit of shared homemaking (Grewal at para. 157).

[276]     In Grewal, Mr. Justice Cole rejected the defendant’s argument that this type of award was not available to persons who, at the time of the accident, were already involved in a marriage or inter-dependent relationship (paras. 158-159).

[277]     In the present case, Ms. Cheng and Mr. Liu’s claim is premised on their position that their marital separation is a result of the accident. I have found that the accident was one of many contributing factors to the breakdown and that there was a good likelihood that they would have separated in any event. I also note that unlike in Grewal, there is no evidence from an economist or other expert attempting to value the additional expenses resulting from the separation. Nor was there evidence from Ms. Cheng and Mr. Liu outlining their expenses pre and post-accident.

[278]     Taking all of these factors into account, Ms. Cheng and Mr. Liu have not satisfied me that an award under this head is warranted.

 


Facebook “Partying” Quote Impacts Personal Injury Trial

January 3rd, 2014

In another example of social media posts being used in personal injury litigation reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, where a Facebook post impacted the trial of the 52 year old plaintiff.

In today’s case (Raikou v. Spencer) the Plaintiff was involved in a 2011 T-bone collision.   The Defendant admitted fault. The Plaintiff suffered various soft tissue injuries and had complaints lingering at the time of trial.  The court found some of these were related to the collision and some of these were due to pre-existing factors.  The Court also noted that the Plaintiff “had a tendency to overstate or exaggerate her condition somewhat“.  This finding was due in part to a Facebook update where the Plaintiff discussed “partying“.  In illustrating the use of this quote Mr. Justice Skolrood provided the following reasons:

3]         Before turning to that issue, I should note that while I found Ms. Raikou generally to be a credible witness, in my view she had a tendency to overstate or exaggerate her condition somewhat. This is particularly so in her description of her pain as being constant and unremitting.

[54]         By way of example, Ms. Raikou travelled to Greece in July and August of 2011. When she returned, she posted the following entry on her Facebook page on August 20, 2011:

From the airport to Eleni’s and Nick’s wedding. Missed the ceremony but made it to the reception. From the airport home to change and off to the reception. Made it through and had an awesome time. 48 hours without sleep, jet lagged and still partying.

[55]         I agree with counsel for Ms. Raikou that caution must be applied when considering the relevance and import of Facebook entries in that they are but a mere “snapshot in time” and do not necessarily shed light on a person’s overall condition or ongoing complaints: see Guthrie v. Narayn, 2012 BCSC 734 at para. 30.

[56]         Nonetheless, this particular snapshot is inconsistent with Ms. Raikou’s testimony that her pain condition is continuous and unrelenting and that it has effectively precluded her from enjoying any of her pre-accident activities.


$30,000 Non-Pecuniary Assessment for Long Lasting Soft Tissue Injury With “Relatively Minimal” Impact

November 26th, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.

In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.   The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back.  Her symptoms carried on to the time of trial and were expected to continue indefinitely.  Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function.  In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:

[54]         I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.

[55]         I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.

[56]         With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.

[57]          However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.

[58]         It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.

[59]         Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…

[79]         In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain  four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.

[80]         Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.


$35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

September 24th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Smithers Registry, assessing damages for injuries sustained in an assault.

In last week’s case (Abbott v. Glaim) the Plaintiff and Defendant were together at a house party when they became involved in a brief verbal confrontation.  Although the Court was presented with competing versions of what actually transpired the Court ultimately accepted that following the verbal exchange the Defendant “took both hands and pushed (the Plaintiff) backwards off the deck to the concrete pad below”.

The Plaintiff suffered various injuries including a fractured wrist.  In assessing non-pecuniary damages at $35,000 Mr. Justice Skolrood provided the following reasons:

[133]     It will be apparent from the above that I accept Joyce’s evidence that she was pushed down the stairs by Lucy…

[137]     The most significant injury suffered by Joyce was to her left wrist. An initial x-ray of the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius in her left wrist. A cast was applied which she wore until May 19, 2006.

[138]     Joyce underwent physiotherapy treatments for her wrist beginning in early April 2006. She attended 22 physiotherapy sessions over the course of approximately one year. Joyce testified that her wrist continued to cause her pain and discomfort for a considerable period of time, particularly given that her work as a dental hygienist requires her to use both hands and wrists extensively. Joyce described her left hand as the “mirror hand” in that, because she is right handed, the left hand does things like holding the mirror and pulling the patient’s cheek back while the right hand uses the dental instruments.

[139]     As a result of her wrist injury, Joyce was away from work until June 2006. She initially tried to return to work on a full time basis but quickly scaled back from eight to six hours a day because of ongoing difficulties. It was not until August of 2007 that she was able to return to working an eight hour shift.

[140]     In addition to her wrist injury, Joyce testified that she began to experience regular headaches following the incident. Sometime in 2008, she attended a work seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her to consider whether her headaches were the result of a TMJ disorder. She spoke to both her doctor and her dentist about this and she was sent for testing.

[141]     On February 11, 2009, she underwent a CT scan of her head which revealed “focal degenerative activity in the left mandibular condyle.”  The imaging report further notes: “This is an unusual location and raises the possibility that this could be a result of previous trauma.”

[142]     Joyce was examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her symptoms to be consistent with trauma to her TM joints, “particularly an acceleration/deceleration type of an event that would illicit some soft tissue strain on the TMJ supporting structures and lead to a subsequent inflammatory response.”

[143]     However, Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating the incident so he could not conclusively state the cause of Joyce’s symptoms.

[144]     Joyce was prescribed both a night and a day guard to wear in her mouth which are intended to relieve pressure on the TMJ. Joyce testified that she wears the guards and that they have been useful in reducing the frequency of her headaches.

[145]     One other consequence of the incident according to Joyce has been an increased sense of anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant that she continues to take as well as Ativan to deal with the panic attacks. Joyce testified that she no longer takes the Ativan as the frequency of her panic attacks has diminished.

[146]     Joyce testified to the significant emotional upset and embarrassment she experienced as a result of the incident, the effects of which continued to be felt at the time of trial. She said that she strives to be a role model for her 17 year old daughter, and in the community generally, and that it was traumatizing to be involved in an incident of this nature…

[156]     Taking account of all of the evidence and considering the factors articulated by the Court of Appeal in Stapley I award Joyce $35,000 under this head.