ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘pain and suffering’

BC Court of Appeal Discusses Non-Pecuniary Damages for Chronic Pain

September 14th, 2010

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.


BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

June 16th, 2010

Reasons for Judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair award for pain and suffering for accident related Thoracic Outlet Syndrome.

In today’s case (Bransford v. Yilmazcan) the Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection crash involving a taxi and the issue of fault was admitted.  The matter went to trial before a Jury and they were asked to decide the value of her claim.

The evidence showed that the Plaintiff suffered from post traumatic Thoracic Outlet Syndrome.   The Plaintiff had various therapies including surgical intervention but nothing provided long term relief.  By the time of trial her symptoms kept her from competitive employment.  The Jury ultimately awarded over $1million in total compensation for her injuries and losses.  This award included $385,000 for her non-pecuniary damages.

The non-pecuniary damages award was then reduced to $327,350 to bring it in line with the general Canadian cap on non-pecuniary damages in negligence cases.  The Defendant then appealed seeking a new trial.  The BC High Court largely dismissed the appeal but did reduce the non-pecuniary damages to $225,000 which is one of the highest valuations for pain and suffering in BC for Thoracic Outlet Syndrome that I’m aware of.  In doing so the Court provided the following reasons:

[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.


$75,000 Non-Pecuniary Damages for Chronic Shoulder Injury

April 20th, 2010

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff just over $137,000 in damages as a result of a BC car crash.

In today’s case (Moussa v. Awwad) the Plaintiff was injured in a roll over accident.  She was a passenger at the time.   The driver lost control of the vehicle and “swerved across the two eastbound lanes, then off the highway and into the ditch separating the east and westbound lanes of traffic, flipping at least once, landing on the roof, and flipping back onto its wheels, this time facing west. By the time the defendant’s vehicle came to a rest, the roof was crushed and the car windows were shattered.

ICBC admitted fault on behalf of the driver focusing the trial on the value of the Plaintiff’s claim.

The Plaintiff suffered various soft tissue injuries which improved.  His most serious injury was shoulder pain which caused restrictions and was not expected to recover.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000 Madam Justice Russell provide the following analysis:

I find that the plaintiff sustained injuries to his neck, left shoulder and left arm as a result of the Accident. While most of the injuries have resolved, the plaintiff continues to suffer pain and limitations with respect to his left shoulder. Various areas of the left shoulder have been implicated, including the AC joint, rotator cuff, and coracoid process. Although there was great confusion in the medical evidence about the mechanics of the injury to the plaintiff’s shoulder, whatever the mechanism of the injury, and in light of my finding that there was no intervening event, I am satisfied on a balance of probabilities that the ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004 Accident.

[154] None of the medical experts gave a positive prognosis of recovery or even improvement, and none could suggest further intervention or treatment that could contribute to a better prognosis for recovery. The plaintiff will, therefore, continue to face limitations and disabling symptoms related to pain in his left shoulder as a result of the Accident…

[160] The purpose of non-pecuniary damages is to compensate the plaintiff for losses such as pain, suffering, disability, inconvenience and loss of enjoyment of life from the time of the Accident for as long as such losses will likely continue. In Stapley v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19, the majority of the Court of Appeal emphasized that:

… 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. … An award will vary in each case ‘to meet the specific circumstances of the individual case’.

[161] The Accident has impacted the plaintiff’s life profoundly. In the months immediately following the Accident, the plaintiff experienced flashbacks, intense pain and had difficulty sleeping. After the acute pain passed, the plaintiff continued to suffer from increases in pain when working and difficulty sleeping. To try to redress this, he underwent surgery, which was frightening for him, and required further rehabilitation. However, in the long run the surgery was not successful, his pain continued, and his prognosis for recovery is not good.

[162] Aside from pain, the plaintiff has experienced a loss of enjoyment of life. The plaintiff does not travel because it is difficult to carry or manage his luggage, he no longer engages in many of his recreational activities, he has experienced a great deal of emotional difficulty and he continues to restrict situations in which he may find himself a passenger in another vehicle.

[163] The plaintiff’s most significant limitation is related to work because he remains unable to work consistently and for extended periods of time at a computer and his discomfort and disability are directly proportional to the amount of time that he spends at the computer or operating a video camera. The plaintiff enjoyed his work and his career was a source of pride for him. Now his enjoyment of his work is undermined by his ongoing pain and disability…

166] In light of the injuries sustained by the plaintiff in the Accident and the negative prognoses contained in the medical evidence, I find the plaintiff is entitled to an award of $75,000 for general damages.

You can click here to access my archived summary of other recent BC Claims dealing with shoulder injuries.


$60,000 Non-Pecuniary Damages for Whiplash and likely Zygapohyseal Joint Injury

April 3rd, 2010

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of a BC car crash resulting in whiplash claim with a likely zygapophyseal joint injury.

Zygapophyseal joints (also known as facet joints) are the interconnecting joints joining vertebral bodies to one another and it is not uncommon for injury to occur to these joints in motor vehicle collisions.

In this week’s case (Lamont v. Stead) the Plaintiff was involved in a rear end collision caused by the Defendant in Burnaby, BC.  Fault was admitted leaving the Court to deal with the extent and value of the injury claim.   The Defendant accepted he injured the Plaintiff however argued that these injuries substantially resolved within 9 months.  The Plaintiff disagreed giving evidence that her neck injury symptoms were ongoing through trial.

In support of her case the Plaintiff advanced evidence from Dr. Rhonda Shuckett, a well respected BC rheumatologist.  Dr. Shuckett testified that the Plaintiff likely had permanent injuries explaining as follows:

I suspect her left neck injury since the MVA is mainly attributable to soft tissue and perhaps zygapophyseal joint injury…It is already approaching two years since the subject MVA and she remains symptomatic. I think there is a good chance that she is going to continue with her current level of pain. She is not disabled but is impaired to some degree…

Mr. Justice Bernard accepted this evidence and awarded the Plaintiff damages accordingly.  In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering and loss of enjoyment of life) at $60,000 the Court made the following findings:

[30] The evidence establishes that the plaintiff’s prospects for any significant improvement in her neck pain are poor. As a consequence, she faces a considerably altered future; particularly as it relates to her life outside the workplace. Her chronic pain deprives her of much of the enjoyment she found in being physically active, in attending to her family, and in participating in family activities…

[35] In summary, I am satisfied that the plaintiff’s pain is chronic, partially disabling, and likely permanent. Similarly, I am satisfied that the evidence establishes that the plaintiff’s neck pain was caused by the defendant’s negligence, in the sense that it directly caused or materially contributed to it. There is a substantial connection between the plaintiff’s chronic neck pain and the collision, and the plaintiff has shown, on a balance of probabilities, that but for the negligence of the defendant, she would not have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[40]        The loss of enjoyment of life due to chronic neck pain is undoubtedly greater for Ms. Lamont than it would be for a person who has led a more sedentary lifestyle. Ms. Lamont has been actively engaged in strenuous sport throughout her adult life, and this has been a significant feature of life with her husband and children. It is, understandably, a source of great frustration and sadness to her that she has been deprived of the capacity to engage in most of the activities she loved, and to experience them with her family.

[41]        Given the relatively profound nature of the loss to this plaintiff (including compromised household management and parenting), the chronic pain which she must endure, the age of the plaintiff, and the very poor prospects for significant improvement, and, having regard to the similarities between the cases cited by the parties and the case at bar, I assess the non-pecuniary losses of the plaintiff at $60,000.


BC Civil Sexual Abuse Lawsuits – A Video Discussion

March 30th, 2010

Here is a video I recently uploaded to YouTube providing a brief overview of some of the unique legal issues that provide an advantage to abuse victims when suing in the BC Civil Courts:

Last month I authored a handful of articles discussing some of the unique laws that apply to Civil abuse claim lawsuits.  These include the law of limitation periods, the law of non-pecuniary damages, and the law of vicarious liability.

Due to some of the positive feedback I received after authoring these articles I thought it may be helpful to summarize some of my advice in this brief video.  I hope this video and these articles are of some assistance.


$40,000 Non-Pecuniary Damages for Young Mom With Soft Tissue Injuries

November 26th, 2009

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $43,000 in total damages to a Plaintiff as a result of a 2005 car crash.

In today’s case (Daniels v. Haaksma) the Plaintiff was a passenger in a vehicle that was rear ended.  As a result of the collision she suffered “mild to moderate soft tissue injuries to her lower and mid-back, and moderate soft tissue injuries to her neck. ”  Mr. Justice Ehrcke found that while these injuries “resulted in considerable pain, discomfort and loss of range of motion, as well as headaches and loss of sleep”  these largely improved after 6 months and ‘substantially recovered” 3.5 years after the crash when the Plaintiff was injured in a subsequent collision.

In awarding $40,000 for non-pecuniary damages for the Plaintiff’s pain and suffering and loss of enjoyment of life the Court stressed the fact that the Plaintiff was a young mother at the time of the crash and that her injuries caused her to lose out “on experiencing the full joy of raising her son when he was an infant“.  In assessing the Plaintiff’s damages at this figure Mr. Justice Ehrcke made the following findings:

[41] As set out above, I have concluded that the plaintiff suffered mild to moderate soft tissue injuries to her lower and mid-back and moderate soft tissue injuries to her neck as a result of the 2005 accident, resulting in pain, discomfort, and loss of range of motion, headaches, and loss of sleep. These symptoms were particularly acute for the first several months after the accident, but they improved about 75 percent after six months. She continued, however, to experience some pain and discomfort over the next two years. By the time of the subsequent accident in October 2008, she was substantially recovered and did not have any continuing limitations on her ability to work…

[45] One important factor in the present case is that the plaintiff’s injuries came at a particularly unfortunate time for her, when she was trying to care for her infant son. This was her first child. He was only four months old at the time of the accident. As a result of her injuries, she could not enjoy a carefree experience of playing with him. She could not lift him without someone else’s assistance. She had to have someone hand the child to her when he needed feeding. Because she was breast feeding, she was reluctant to take painkillers to relieve her pain. It is a cliché, but true, that children are young only once. The plaintiff feels that as a result of the accident she lost out on experiencing the full joy of raising her son when he was an infant. That is a loss that she can never recover. This was a great disappointment to her.

[46] The evidence in this case also establishes that the accident put considerable stress on the plaintiff’s relationship with her fiancée. He was working long hours at his new business, and when he came home, he had to take on housekeeping chores that would normally have been shared. He described how, as a result of the accident, the plaintiff was no longer the active person she had been, and how much of the fun went out of their relationship.

[47] Particularly important in this case is the fact that the plaintiff had been an accomplished soccer player prior to the accident. This was clearly a very important part of her life. She had been playing since she was a young child. She played on three different leagues at a very high level. She had travelled to foreign countries with her team. To a large extent, her social life revolved around her athletic activities. It was an important factor in initially bringing the plaintiff and her fiancée together. After the accident, she found she could not play soccer. She tried for a month or so in 2006, but had to stop…

[50] On the evidence, I am satisfied that the plaintiff tried to resume playing soccer in 2006 and perhaps again in 2007 and that she stopped playing because she felt the pain from her injuries prevented her from playing at the level she had previously been accustomed to. I am satisfied that this is a factor that should properly be taken into account in assessing non-pecuniary damages…

[53] In my view, the severity of the injuries, the length of their persistence, and the effect which they had on the plaintiff’s life in the present case are more serious than in the cases cited by the defendant, and somewhat less serious than the cases cited by the plaintiff. At the end of the day, every case is unique and must be determined on the basis of its own facts.

[54] I am satisfied that in the circumstances of the present case the proper assessment of non-pecuniary damages is $40,000.


$45,000 Non-Pecuniary Damages for Soft Tissue Injury of Foot

November 12th, 2009

Reasons for judgement were released today (Lutz v. Lim) awarding a Plaintiff just over $64,000 in total damages as a result of 2 BC motor vehicle collisions.

Fault was admitted for both crashes leaving the court to deal with the issue of damages.  The Plaintiff suffered a complicated soft tissue injury to his right foot as a result of the first crash.  The Plaintiff’s doctors gave the following opinion with respect to the Plaintiff’s foot injury:

In summary, Mr. Lutz continues to experience significant pain in his right foot, in spite of orthotics and custom-made workboots. He is able to function at work but finds that, after he has been on his feet for more than two hours at a time, the pain in his foot increases. I believe he has a permanent partial disability as a result of the initial motor vehicle accident of April 26th, 2005, when a car ran over his right foot….

Because of the change of foot position, the increased metatarsalgia, and the swelling that occurred around the time of the accident, I think that the accident has given him significant change in his foot shape and deterioration in his foot function as it existed prior to this point.

I think, with regard to the future, he will require custom orthotics and shoes to maintain his employment…

I also think that this would help him improve his recreational activities.

I think that there will be ongoing disability from this injury. He is unlikely to be able to take employment that requires a greater degree of loading of the forefoot than he presently has. His job is well-suited to his various musculoskeletal injuries, but if he has to take part in a job that requires a greater degree of physical activity, I suspect that his foot will become the most rate-limiting area. Therefore, a job more strenuous than he presently has would be inappropriate unless further reconstructive surgery was done to his foot.

In awarding the Plaintiff $45,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his foot injury Mr. Justice Verhoeven summarized the severity of the injury and the effects on the Plaintiff’s life as follows:

[101] Doing the best I can on the evidence, I conclude that the plaintiff has suffered a substantial amount of damage to his foot in the MVA. I conclude, as well, that the MVA has caused a permanent disability in his foot. I conclude that the risk of surgery being required is caused by the MVA injuries. On the evidence, I am unable to find that there was a measurable risk of surgery being required prior to the MVA injuries….

[110] In my view, and adopting the language used by Major J. in Athey v. Leonati, the plaintiff’s foot injury is more in the nature of a “thin skull” case than it is of a “crumbling skull”. The plaintiff’s prior foot injury left him vulnerable to future injury. There is little more than speculation to suggest that his current complaints and his ongoing need for treatment would have or might have occurred in any event. There is therefore insufficient evidence to allow me to reduce the award based upon such a contingency…

[124] In summary, the plaintiff now has had foot pain steadily for the past four-and-a-half years. He has a permanent partial disability with ongoing discomfort in relation to the foot. There is some restriction on his work activities, although he has not made a claim for loss of earnings or earning capacity. He was 38 years of age at the time of the first MVA. He is now 42. There is a significant risk of surgery being required as a result of the accident injury. Although he has not lost any time from work and for the most part he has carried on with his pre-MVA activities, I take into account his stoical nature. He has had to wear orthotics in his footwear and this will continue indefinitely. He suffered a minor injury to the right hand as well.

[125] I accept the submission of plaintiff’s counsel that an appropriate compensation for non-pecuniary loss arising out of MVA No. 1 is $45,000.


$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

October 13th, 2009

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.

In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.


The Art of Valuing Pain and Suffering in ICBC Injury Claims

September 18th, 2009

Today reasons for judgment were released by the Vancouver Registry of the BC Supreme Court in 2 separate Injury Claims where Pain and Suffering was valued.  In each case the Plaintiffs suffered different injuries which affected their respective lives to different degrees.  Yet both Plaintiffs were awarded exactly $55,000 for their non-pecuniary damages.  How can this be?  The answer is that valuing claims for pain and suffering is an art, not an exact science.

When asking a personal injury lawyer how much a claim for pain and suffering is worth it is difficult  if not impossible to value a claim at an exact dollar figure.  The only accurate answer is “whatever the judge or jury gives you“.  Instead of attaching an exact dollar figure to any claim personal injury lawyers learn that claims can best be valued within an approximate range of damages.  One judge can award a plaintiff $50,000 for a disc herniation and another can award a plaintiff with the exact same injuries $80,000 and there is nothing wrong in law with this so long as the award falls within the accepted range of damages for similar injuries.

Today’s cases demonstrate this quite well.  In the first case (Morrison v. Gauthier) the Plaintiff was injured in a 2006 BC Car crash.  Her vehicle was rear-ended in Coquitlam BC.  The Defendant was fully at fault for the crash.

The Plaintiff suffered fairly severe injuries which included an L4-5 disc herniation which from time to time “puts pressure on the L4 nerve root and that the result for the plaintiff is not just pain in the low back – which is always her lot – but intense pain that, amongst other things, travels down the back of her leg“.  In addition to this the Plaintiff suffered soft tissue injuries and a concussion in the collision.

Mr. Justice Stewart found that the effects of the Plaintiff’s back injuries were likely permanent and had a rather profound impact on her.  He stated that “the effect…on the Plaintiff’s life was dramatic…her capacity to (keep her work and home environment in order) has been severely reduced . ”  He went on to find that the Plaintiff was incredibly athletic before the collision and “was a woman who on the basis of the evidence placed before me, I can only describe as a dynamo” and as a result of the car crash “she became…ornery.  She withdrew from her friends.  She became moody and – stunning for her – one who sat idly watching television and gaining unwelcome weight.  To some extent she became – utterly new to her – a chronic complainer.”  Lastly he stated that (the defendant) “managed to reduce a woman operating at an athletic level undreamt of by 99% of the population to a woman who must now, often, be helped out of a chair.  (the Plaintiff’s) compensable loss if overwhelming“.

Mr. Justice Stewart awarded the Plaintiff $55,000 for her non-pecuniary damages.,

In the second case (O’Rourke v. Kenworthy) released today by the BC Supreme Court the Plaintiff was involved in a 2004 BC Car Crash.  The Defendant was 100% at fault.  Madam Justice Wedge found that the Plaintiff was injured in the crash.  Specifically the court found that the Plaintiff suffered from neck and back pain which was “severe for several months, which then alleviated considerably over the next year or so.”  The Plaintiff curtailed many of the physical activities which she enjoyed by after about a year she “resumed most of these activities despite continuing ot experience pain“.   By the time of trial she “continued to have pain in her neck and back, but it is not disabling.  She has been able to work, and she is currently able to work.  She participates in numerous sporting activities and continues to hike, which is her first love.  She has continued to travel extensively.   No medical professional offered the opinion that (the Plaintiff’s) pain is chronic in nature, or that it is caused by anything other than soft tissue injuries.  They all agreed that her symptoms are expected to improve and will likely resolve gradually over time…At most (the Plaintiff) is at risk of suffering exacerbation’s of her pain if she engages in certain rigorous activities.”

Scrutinizing the facts of the above two cases the first Plaintiff appears to have suffered more severe injuries which had a more profound effect on her life.  Yet both were awarded the exact same figure for pain and suffering.  This does not necessarily mean that either award was wrong in law, rather the difference can readily be explained by the fact that pain and suffering awards are assessed within rather large ranges of acceptable damages.  A more severe injury valued on the lower end of its respective range of damages can equal a more minor injury valued on the generous end of its range.

In the end, cases like this speak to the art of assessing pain and suffering in BC Injury Claims.  As with any art ‘feel‘ becomes important and this is gained through time and experience.  The more cases you read, the better you will get at the art of valuing non-pecuniary damages and determining the potential value of any given BC Injury Claim.


$50,000 Non-Pecuniary Damages for "Mechanical Spine Pain"

September 15th, 2009

Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, awarding total damages of just over $95,000 as a result of a 2005 BC Car Crash.

In today’s case (Mar v. Young) the Plaintiff was rear-ended while in a vehicle on the Island Highway near Nanoose, BC.   Fault was not formally admitted.  Mr. Justice Bracken found the rear vehicle 100% liable for the collision.

A physiatrist who gave evidence on behalf of the Plaintiff explained that he suffered from mechanical spine pain as a result of the collision and this was different from a soft tissue injury because “mechanical spine pain originates in the tissues that are part of the spine itself and not the muscle or soft tissue that surround the spine.  These tissues lay quite deep under the skin and provide support for the spine itself.”

In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Bracken summarized the accident related injuries and their effect on the Plaintiff’s life as follows:

[37] On all of the evidence I conclude that the plaintiff suffered injuries to his thoracic and lumbar spine and that while his condition has improved he has not yet fully recovered.  The physical examinations conducted by Dr. Wahl and Dr. McKean indicate that the plaintiff has good range of motion of his neck and hips, but that he still has pain in his mid and lower back.  Both doctors testified that the plaintiff says that his pain and discomfort prevents him from carrying out his normal day-to-day activities of work and recreation, but the doctors disagree on his prognosis.  Dr. McKean considers it quite possible that the plaintiff will continue to experience some pain that will affect him for the foreseeable future.  Dr. Wahl is more optimistic and believes that there will at least be significant improvement and possibly full recovery.

[38] I find that the plaintiff still experiences pain 4 years post accident and it is likely that he will do so for some time to come.  It is clear from the evidence that he can carry out many of his normal activities, but not without some pain.  He has limited many of his activities somewhat and says that he is still prevented from participating in others.  There is no supportive objective medical evidence other than the disc bulge and early degeneration in the lumbar spine that Dr. Wahl considered to be within the normal range for the plaintiff’s age.  The plaintiff has been able to continue working, at times for long periods at a time, but he has experienced pain and discomfort and says that he must get up and move around and stretch at frequent intervals to ease his discomfort.  Former co-workers corroborate his evidence on his work related limits.  He purchased an expensive chair for use when he is working at his computer, but while it helps him, it does not completely eliminate pain and discomfort.

[39] The defendant noted that the plaintiff seemed to move easily and without obvious pain while he was in the courtroom.  I agree that the plaintiff seemed to have a reasonable range of flexibility when rotating from his hips and he could move his arms easily.  That does not seem inconsistent with the observations of both Dr. McKean and Dr. Wahl, but both note that the plaintiff continues to complain of pain in the mid to lower back.  The plaintiff testified that he still experiences some pain in that part of his back and his wife and friends corroborate his evidence.  There is no evidence before me to contradict that evidence.  No doubt the injuries have taken some time to resolve, but I accept that the plaintiff still has some pain and discomfort from the injuries caused by the accident.

[40] While each of the cases referred to above were cited as cases that had similar fact patterns, as it was stated in Tong v. Sidhu, above, no two cases are exactly alike and in the final result each case stands on its own facts.  In this case I find that the plaintiff’s injuries are more serious than the range suggested by the defendant.  The injuries have lasted with diminishing disability for 4 years and will likely continue to affect the plaintiff for a considerable period of time to at least some degree.

[41] The plaintiff has a sedentary job and to some extent that is an advantage as he is not likely to be exposed to the need for any hard physical labour in the course of his work.  However, he will likely spend the majority of his working life sitting at a desk working on a computer.  The impact of even mild pain or discomfort in his back will be a problem that will affect his concentration and ability to focus on his work.  He will have to take frequent short breaks from his work to compensate.  He will be at least somewhat limited in his recreational and home maintenance activities, although I accept Dr. Wahl’s view that the impact of his injuries will likely diminish over time as his condition improves and his disability lessens.

[42] On all of the evidence, it is my view that an award of $50,000 is appropriate for non-pecuniary damages.