ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.

In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month.  Fault was admitted by the Defendants for both collisions.  The crashes caused an overlapping indivisible injury and damages were assessed globally.

The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments.  This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.

In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:

[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…

[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.

[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.

Reasons for judgement were released last week by the BC Court of Appeal setting aside a jury verdict and ordering a new trial in a motor vehicle collision injury claim.  The Court found that the Jury’s award for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) was “almost derisory” and not compatible with the other awards made.

In last week’s case (Evans v. Metcalfe) the Plaintiff was injured in a 2006 collision.  The Plaintiff sought substantial damages.  A jury was not receptive to much of the Plaintiff’s claim and awarded a fraction of the sought damages.  The awards included $6,000 in special damages, $10,300 for past loss of income and $1,000 for non-pecuniary damages.  The trial judge found these awards to be “shockingly unreasonable”.

The Plaintiff appealed arguing the non-pecuniary damage award could not be reconciled with the other awards.  The BC Court of Appeal agreed stating that the other awards were consistent with a finding of a 9 month injury and a $1,000 pain and suffering award is not compatible with such a finding.  In ordering a new trial the BC Court of Appeal provided the following reasons:

[9] In the present case, there was a body of medical evidence that did not depend on the veracity or reliability of the appellant plaintiff or her primary treating physician that was supportive of the thesis that she continued to suffer from the sequelae of the April 2006 accident throughout 2006 into the early months of 2007. As I earlier noted, the quantum of the awards made by the jury under the heads of past income loss and special damages are reasonably susceptible of the interpretation that the jury made a factual decision that the effects of the accident did persist for about nine months post-accident.

[10] In my respectful opinion, these findings of the jury as reflected in their pecuniary awards make the award for non-pecuniary damages very anomalous. It is not impossible that the jury may have taken a quite censorious view of the appellant because of her economic circumstances or because of her conduct in importuning the physician to give her a note in aid of possible financial advantage. These would not be judicious reasons for denying her an appropriate award of non-pecuniary damages. As I observed, there was a body of credible evidence that would support an award under this head significantly greater than the amount awarded at trial. While there can be considerable variance in awards made under this head as the cases cited to us demonstrate, this award seems almost derisory.

[11] Generally this Court must be very restrained in any interference with a jury disposition as a consistent body of precedent makes plain. However, I have been persuaded that this is one of those rare cases where the interests of justice make intervention appropriate. The degree of anomaly in the respective awards, coupled with a very real possibility of the triers of fact taking an unduly severe view of the appellant’s conduct unrelated to her physical condition persuade me that the award made by the jury for non-pecuniary damages cannot stand.

[12] We were invited by counsel for the appellant to either fix awards under various heads ourselves, or refer the matter to the trial judge for assessment. The latter course does not commend itself to me for two reasons:  the judge has previously expressed certain fairly strong preliminary views and it is of course the right of the defendant respondent to choose the forum of a jury if so minded. As to the possible remedy of this Court adjusting upward awards made by the jury, this is very much dependent on factual issues, including particularly issues of credibility. Historically this Court has been properly reluctant to engage in factual determinations in this class of matter. In my view, the only appropriate resolution of this case is to set aside the order made at trial and order a new trial and I would so order.

Reasons for judgement addressing quantum of damages were released last year by Arbitrator Camp in an ICBC UMP Dispute assessing $75,000 in non-pecuniary damages for a Claimant who suffered relatively modest injuries.

In last year’s case (Undisclosed v. ICBC) the three Claimants suffered injury in a 1996 collision in Washington State.  At trial each was awarded over one million dollars.  As the at fault motorist was under-insured the Claimants applied to ICBC for UMP.  They had to re-litigate the value of their claim as the Washington Jury award was not binding on ICBC for UMP purposes.

The collision injured all occupants of the vehicle all of whom were related to each other.  The Claimant and her three daughters were injured, some of these injuries were severe.  While the Claimant’s injuries themselves were not severe her “matriarchal role…has been significantly and adversely affected“.  In assessing non-pecuniary damages at $75,000 Arbitrator Camp provided the following reasons:

97.  With respect to general damages for pain and suffering, this is a claim in my opinion in which more attention needs to be paid to the rubric of “suffering” than “pain”.  I turn to a few fairly recent British Columbia decisions which offer guidance in this area….

102.  Hence, in addition to listing “emotional suffering” (not defined) as a common factor influencing the award of non-pecuniary damages, the Stapley case considers, and adds commentary and an award for the “loss of lifestyle”.

103.  In Kuskis v. Tin, 2008 BCSC 862, the plaintiff suffered from a worsening of a pre-existing migraine disorder, a new form of headache and low grade but persistent neck and shoulder pain as a result of soft tissue injuries caused by a motor vehicle accident.  In awarding Ms. Kuskis non-pecuniary damages, the court noted that she was “sometimes exhausted, irritable and unhappy”, and while she could work, travel and socialize most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain.  Specifically, her ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue (para 143).

104.  Other factors taken into consideration under the general concept of “pain and suffering” include: anxiety, depression, deleterious impact on quality of life (specifically comparing personality and lifestyle before and after the accident) (see Djukic v. Hahn, 2006 BCSC 154 at paras. 61-64); changes in personality including being more “withdrawn and distracted”, increased tiredness, and inability to enjoy activities previously enjoyed (see Fox v. Danis, 2005 BCSC 102 at paras. 112-122); and depression affecting concentration and attention (Maillet v. Rosenau et al., 2006 BCSC 10 at paras. 63-65).

105.  I find that Mrs. T has suffered much more than just aches, pains and headaches.  Her world was and is hinged on her matriarchal role that has been significantly and adversely affected by this accident as described above.  Taking all of the circumstances into account, I find an appropriate award of damages for pain and suffering to be $75,000.

Reasons for judgement were released this week providing feedback on valuing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) noting that injuries cannot be addressed in a piece-meal fashion and instead the total consequences need to be considered.

In this week’s case (Engqvist v. Doyle) the Plaintiff was involved in two collisions.  She was not at fault for either.  The crashes caused various soft tissue injuries which required diagnostic medial nerve blocks and depending on the result the possibility of facet rhizotomies.  The Plaintiff also sustained a dental injury.   Given the planned further medical intervention there was likelihood of improvement but also a good chance that the Plaintiff’s injuries would pose permanent difficulties.  Global Non-Pecuniary Damages of $70,000 were assessed for the Plaintiff’s injuries.

In arriving at this figure Mr. Justice Rogers provided the following comments addressing the fact that it is wrong to stack injuries in assessing non-pecuniary damage awards:

[28] The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.

[29] I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.

[30] I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.

For a discussion of the factors BC Courts do consider in assessing non-pecuniary damages you can click here for a podcast I uploaded last year.

As previously discussed, frequent doctor visits in and of themselves add no value to a personal injury claim.  Seeing a doctor simply to ‘paper’ a personal injury claim really does nothing to add to the amount of compensation a claimant is entitled to receive not to mention that it creates a costly and unnecessary burden on the medical system.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that medical visits to address ‘inconsequential‘ matters with a view to assisting a personal injury claim are frowned upon.

In this week’s case (Hough v. Wyatt) the Plaintiff was involved in a 2009 collision.  He sued seeking over $350,000 in damages.  The Court largely rejected the Plaintiff’s claim finding that while the collision did cause some injuries these were little more than a ‘minor degree‘ of aggravation of pre-existing injuries.  Non-Pecuniary damages of $15,000 were assessed.

In the course of the judgement Madam Justice Stromberg-Stein had provided the following critical comments:

[9] Mr. Hough was a very difficult witness. He is a poor historian, which is understandable given his extensive medical history. However, he bears the burden of proof. He was argumentative, abrasive, sometimes rude, often unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly demonstrates an attitude of entitlement to insurance benefits, at one point indicating he doesn’t understand the problem here, it is only insurance money. He reports everything, no matter how inconsequential, even a broken fingernail, so if there is a problem in the future, he can get compensation. The trouble for Mr. Hough is he was a medical disaster before the accident, and the defendant is not obliged to pay for all that ails him or ailed him. Mr. Hough’s pre-existing medical condition, his original position, as outlined in the evidence of Dr. Waiz, and what Mr. Hough can recall, would have manifested debilitating effects in any event, regardless of the accident. His original condition would have detrimentally affected him even absent the defendant’s negligence. The defendant is not required to compensate him for debilitating effects not caused by the accident….

[14] Dr. Waiz’s evidence is unsatisfactory on many levels, not the least of which his manner in which he managed Mr. Hough’s care with increasing doses of narcotics. His records are unreliable. He blames computer programs and computer generated forms. He has been willing to fill out reports to benefit Mr. Hough, for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough could be compensated, and claiming a wrist fracture was a WCB injury due to ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough now claims was caused by the accident for the same reason. Where it has suited Mr. Hough, Dr. Waiz has reported to WCB Mr. Hough is unable to work in any capacity. Now he was reporting to this court that, because of the accident, Mr. Hough cannot work. The concern is he is parroting what Mr. Hough wants him to say.

While it is true that serious injuries warrant higher damage awards than minor injuries and that serious injuries typically result in more medical appointments, the mere number of doctor’s visits in and of themselves do not assist in valuing a personal injury claim.  You can click here for a short discussion addressing the factors Court’s often consider when assessing non-pecuniary damages (money for pain and suffering) in a BC personal injury lawsuit.

As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges.  The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement.  The best way to do this is to review as many cases as possible dealing with similar injuries.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.

In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC.  Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash.  The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck.  These were acute for three months and disabled the plaintiff from work during this time.  From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash.   Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60]        Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61]        Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62]        I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63]        In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64]        I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present).  Another great resource is Canlii, a free Canadian legal case-law database.

Further to my dozens of previous posts discussing ICBC’s Low Velocity Impact (LVI) Defence to tort claims involving crashes with little vehicle damage, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, once again rejecting this defence.

Today’s case is a great example demonstrating that compensable injuries can be sustained even in true ‘low velocity impacts‘.  In today’s case (De Leon v. Harold) the Plaintiff was involved in a two vehicle collision in 2007 in Vancouver, BC.  The Defendant rear-ended the Plaintiff’s vehicle.  Fault for the crash was admitted.  The trial focussed on whether the Plaintiff sustained any injuries.

There was no dispute that the collision was minor.  The Plaintiff described the impact as a “bump“.  The Defendant testified that her car “tapped” the Plaintiff’s car.  The modest impact resulted in $0 in vehicle damage.

Despite this the Plaintiff was injured.  The injuries were, fortunatley, relatively modest and made a meaningful recovery within 6 months.  ICBC defended the case based on the LVI program and argued that the Plaintiff was not injured in the collision.  Madam Justice Power rejected this argument and in doing so repeated the following helpful reasons addressing the LVI defence:

[14]         In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:

[5]        The courts have long debunked the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer [1993] B.C.J. No. 474 (S.C.), Thackeray J. as he then was, made the following comments that are still apposite today.

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is the philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have not heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process.”  In particular he noted that there was no evidence to substantiate the defence theory in the case before him. . . .

[15]         In Dao v. Vance 2008 BCSC 1092 Williams J. stated:

[18]      This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is, it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19]      In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle is slight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

Madam Justice Power assessed the Plaintiff’s non-pecuniary damages at $12,000 and in doing so made the following findings about her injuries:

[19]         I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as the result of the accident. I am satisfied that the injuries were substantially resolved within two months of the accident as the result of the plaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completely resolved within six months…

[22]         Having regard to the fact that each award must be based on the unique circumstances of the case, and that the plaintiff’s stoicism is a factor that should not penalize the plaintiff (Giang v. Clayton 2005 B.C.J 163 2005, (B.C.C.A.)), I am of the view that an appropriate award for the plaintiff’s non-pecuniary damages in this case is $12,000. The plaintiff will be awarded $1,200 for four days of lost work as the agreed-to amount of the parties for special damages.

[23]         Therefore the total damage award is $13,200. Costs may be spoken to or written submissions may be made at the agreement of the parties.

Reasons for judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair range of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic pain caused by the negligence of others.

In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a motorcycle accident in 2005.  The Defendant was found fully at fault for the crash.    The Plaintiff suffered a fractured tibia and fibula.  These bony injuries went on to good recovery however the Plaintiff was left with chronic pain as a consequence of the collision.  At trial the Plaintiff was awarded $562,000 in total compensation for the injuries including a non-pecuniary damages award of $125,000.  (You can click here to read my post summarizing the trial judgement)

The Defendant appealed arguing that this assessment was inordinately high.  The BC Court of Appeal disagreed and held that in cases of chronic pain which affect functioning there is nothing inappropriate with non-pecuniary damage awards well over $100,000.  Specifically the BC High Court held as follows:

[32]         A review of those cases supports the respondent’s argument that the trial judge’s award of $125,000 was within the acceptable range.  In Moses v. Kim, 2007 BCSC 1388, the plaintiff was struck while crossing the Trans-Canada highway, breaking his legs.  While the breaks healed, the plaintiff was left with pain in his legs, back and hip.  As he had been a very physical person prior to the accident, hunting, fishing, logging and playing sports, much of his life was affected.  In addition to restricting the activities he could enjoy, this led him to become shorter tempered and angrier.  He was awarded $165,000 in non-pecuniary damages.

[33]         The plaintiff in Funk v. Carter, 2004 BCSC 866, was also struck by a vehicle and suffered broken legs, as well as some soft tissue injuries.  While the plaintiff underwent surgery, the injuries did not heal well, and he was left with chronic pain and impaired mobility.  As with the case at bar, and with Moses, the plaintiff had been “very fit” prior to the accident, and had “a great deal of difficulty adjusting psychologically”.  As a result, he was awarded $140,000 in non-pecuniary damages.

[34]         Moore v. Brown, 2009 BCSC 190, was a case similar to that at bar where the plaintiff was on a motorcycle when struck by the defendant.  He suffered substantial injuries, including a shoulder injury, a leg ligament tear, knee problems and a foot injury.  The accident also led to chronic neck pain, headaches and lumbar problems.  Three years later, at trial, the plaintiff was still experiencing difficulties, including an altered gait and difficulty continuing in his work as a geo-scientist.  The trial judge awarded non-pecuniary damages of $115,000.

[35]         In Dufault v. Kathed Holdings Ltd., 2007 BCSC 186, the plaintiff fell while descending the stairs at the defendant’s business.  The fall resulted in knee injuries that the trial judge accepted would likely require knee replacement surgery.  This was exacerbated by chronic pain, hip problems, and some resultant mild depression.  Taking these considerations into account, the trial judge awarded $110,000 in non-pecuniary damages.

[36]         Finally, in Mosher v. Bitonti, 1998 CanLII 5186 (B.C.S.C.), the plaintiff sued two defendants for separate accidents.  The trial judge found that the plaintiff had suffered fractured right leg bones as a result of the first accident, which caused muscular damage.  He accepted that these were “very significant injuries” and that the plaintiff had suffered a painful recovery.  While there was a small chance of future degenerative arthritis, the plaintiff was left with a normal gait, but with some difficulty squatting, kneeling or crouching.  Those injuries resulted in the plaintiff being awarded $80,000 in non-pecuniary damages.

[37]         As can be seen from those cases, trial judges have assessed non-pecuniary damages at well over $100,000 where there is an element of significant ongoing pain and, particularly, where the plaintiff had previously enjoyed an active lifestyle or a physical vocation….

[39]         I agree with the respondent that the trial judge did not assess damages on the basis of a well-resolved fracture.  Rather, the award for non-pecuniary damages was largely based on the trial judge’s conclusions that the respondent suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life.  Viewed in this way, the award cannot be said to be inordinately high.  The chronic pain cases cited by the trial judge support her assessment.

[40]         I would not accede to this ground of appeal.

Another point of interest in today’s case were the Court’s comments about gathering new evidence after trial to challenge an award for ‘diminished earning capacity‘.  At trial the Plaintiff was awarded $250,000 for his loss of earning capacity.  The Defendant appealed and asked the Court of Appeal to force the Plaintiff to produce “documents pertaining to his employment since the trial“.  The BC High Court refused to do so and provided the following useful comments:

[43]         An appellate court should decline to exercise its discretion to make an order to admit “new evidence”, unless that evidence would tend to falsify an assumption that the trial judge made about what was, at the time of judgment, the future:  see Jens v. Jens, 2008 BCCA 392 at para. 29, citing North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d) 201 (C.A.)(sub nomNorth Vancouver (District) v. Lunde).

[44]         It is unnecessary for me to review in detail the nature of the evidence tendered on the application by the appellant and in reply by the respondent.  Suffice it to say that the conclusions the appellant contended should be drawn from her proposed new evidence were clearly and persuasively refuted by the respondent in an affidavit and, in any event, did not rise to the necessary factual standard that would properly form the basis for a successful application for admission of new evidence.

As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.

In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.

The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.

The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.

Reasons for judgement were released this week by the BC Supreme Court, Port Alberni Registry, awarding a Plaintiff just over $220,000 in total damages for injuries and loss sustained as a result of a 2007 BC motor vehicle collision.

In this week’s case (Haley v. Gust) the Plaintiff was operating her motorcycle when she was struck by a left-turning motorist.  The Defendant admitted full fault for the crash.  The trial focused on the extent of and value of the Plaintiff’s injuries.

The Plaintiff’s most serious injury was a tear to her posterior cruciate ligament in her left knee.  The injury was expected to lead to long term pain and limitations with the possibility of a total knee replacement in the years to come.  In awarding the Plaintiff $75,000 for her non-pecuniary damages Madam Justice Dardi made the following findings about the extent of the injury and it’s interference with the Plaintiff’s life:

[50] In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…

[57] She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….

60] While she attempts to remain as active as possible (she now participates in “quadding”), she remains limited when compared to her pre-accident activities. Since the accident, she has become very cautious about any activity that might injure her knee. She is no longer able to participate in mini-triathlons and dirt-biking with her family. She cannot ski or participate in water sports. It is likely she will continue to be restricted for the rest of her life to some degree in respect of the scope of the activities she would have enjoyed but for the accident.

[61] I have also considered as a factor in my assessment the adverse emotional impact of Ms. Haley’s inability to pursue a line of work which she clearly enjoyed…

[65] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Haley’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $75,000.