BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury 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 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 ‘post traumatic stress disorder’

$90,000 Non-Pecuniary Assessment for Chronic PTSD

August 13th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological difficulties which arose as a result of a collision.

In last week’s case (Foubert v. Song) the Plaintiff was injured in 2007 collision caused by the Defendant.  The Plaintiff was 60 years old at the time and 65 years old at the time of trial.  The collision caused some soft tissue injuries which made a good recovery.  Unfortunately the collision also caused Post Traumatic Stress Disorder which continued to affect her at the time of trial and led to her early retirement.  In assessing non-pecuniary damages at $90,000 Mr. Justice Punnett provided the following reasons:

[107] The evidence of the plaintiff’s co-workers, son and friends indicates that the plaintiff, prior to the accident, was a high energy and enthusiastic teacher and that those traits carried through into her day to day life. They have all had the opportunity to observe and deal with her both before and after the accident.

[108] I am satisfied that as a result of the accident the plaintiff has gone from an independent, energetic teacher with an active and varied social life to an individual who is no longer able to work as a teacher, particularly of young children, who can no longer tolerate large groups nor the over stimulation of a variety of social situations. Her intention to keep working past 65 years of age has been thwarted as a result of this motor vehicle accident.

[109] Given the age of the plaintiff and the fact that it is now 5 years after the accident I am satisfied that the plaintiff while having recovered from the soft tissue injuries and to a certain extent from the PTSD has not, as noted by Dr. Shane completely recovered. Her present and future level of recovery is evidenced by Dr. Shane’s opinion that her status occupationally is unlikely to change and that she remains unable to return to teaching art.

[110] Having observed the plaintiff, her evidence of the effect of the accident and the corroborating evidence of the lay witnesses, as well as the medical evidence, I am satisfied that the plaintiff will not return to employment.

[111] Taking into account the evidence in this case as well as the authorities cited I am satisfied that an appropriate award for pain and suffering and a modest amount for loss of housekeeping is $90,000.

[112] Given my findings with respect to the pre-accident complaints there shall be no reduction for them.


$75,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries and PTSD

January 31st, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages arising from injuries sustained a motor vehicle collision.

In last week’s case (Smith v. Williams) the Plaintiff was a young veterinarian.  She was involved in a 2009 collision.  The Defendant crossed the centre-line and caused a head-on collision.  The Plaintiff sustained chronic soft tissue injuries and Post Traumatic Stress Disorder (PTSD).  The Plaintiff’s symptoms were on-going at the time of trial.  In assessing non-pecuniary damages at $75,000 Mr. Justice Betton provided the following reasons:

[33] The plaintiff indicated that the accident has left her with a feeling of vulnerability. She is very anxious in a motor vehicle, especially on highways, envisioning accidents unfolding. There are occasional panic attacks. She gets a tingling and pain down her right arm that is aggravated by repetitive motion and particular movements or positions. One of these, I note, was holding her child while breastfeeding. Others relate to her work as a vet.

[34] She spoke of how the physical and psychological injuries have adversely affected her enjoyment of her wedding and her regret for how she reacted to the stresses associated with the wedding toward her husband. For her part, the plaintiff indicates that she simply battles through her restrictions. She says that the more physically demanding her day, the greater the consequences in symptoms…

[43] This plaintiff is a young professional, early in her career. She has historically been a high-achiever, endowed with intelligence, motivation and physical ability. The motor vehicle collision came as she was planning her wedding and the purchase of a business. Her wedding, as described by her, was not the enjoyable experience that she, as a young woman, had dreamed of.

[44] The purchase of the business completed, and she has been able to live up to the work demands of that practice, facilitated in part by the fact that it is less demanding than work she did prior to acquiring the practice. In addition, her absence for maternity leave coincided with her rehabilitation. She has actively engaged in rehabilitation during all of the significant developments in her life, including being a new mother. The Post Traumatic Stress Disorder symptoms linger and also influence the enjoyment of an activity which is part of everyday life, that is, driving…

[53] Taking what one can from those authorities and applying the general principles, as referenced in Stapley, it is my conclusion that an appropriate award for general damages is $75,000.


PTSD Claim By Accident Witness Dismissed as "Too Remote"

February 18th, 2011

If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages.  There are, however, restrictions on when these claims can succeed.  Reasons for judgement were released today addressing this area of law.

In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001.  At the time the Plaintiff was working on Highway 97 near Bear Lake, BC.  The Plaintiff was installing rumble strips on the side of the highway.  The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby.  The Defendant lost control of a pickup truck and collided with the grinder.  The Plaintiff witnessed the crash and was concerned for his friend.  Fortunately Mr. Lance “was not seriously injured“.

The Plaintiff claimed the incident caused PTSD and sued for damages.  The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable.  Madam Justice Gerow agreed and dismissed the lawsuit.  In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:

[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.

[30]         Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.

[31]         Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.


Non-Pecuniary Damages for Disc Herniation and PTSD Discussed, Dr. Davis Criticized

January 26th, 2010

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $340,000 in total damages as a result of injuries and loss from a BC car crash.

In today’s case (Smusz v. Wolf Chevrolet Ltd.) the Plaintiff was involved in a Highway crash near Kamloops BC in 2006.  Fault was admitted by the offending motorist.  The trial dealt with the value of the plaintiff’s claim.  She suffered various injuries including a disc herniation/protrusion in her neck.  In valuing the Plaintiff’s non-pecuniary damages at $100,000 Madam Justice Russell highlighted the following facts:

[87] The plaintiff was 43 years old at the time of this accident.  She suffered injuries which, although not requiring more than a brief visit to the hospital, were nonetheless significant.  The medical evidence was mostly consistent:  her physical injuries include moderate right paracentral disc herniation at C3-4 on the right side and moderate paracentral disc protrusion at C6-7 on the left causing irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which result in chronic left-sided neck, arm and low back pain, dizziness and headaches.  She suffered from PTSD, now substantially resolved, but still suffers from insomnia, occasional nightmares, depression and chronic pain some three years after the accident.

[88] The chronic pain caused by the injuries received in the accident has resulted in depression, no doubt complicated by her difficult financial situation, but the plaintiff was happy and energetic before the accident notwithstanding the fact that she had very little money.

[89] She was able to work in a job which did not require great skill and which did not pay well but in which she could have continued for the indefinite future.  It gave her some income and gave her the sense of participating in her family’s finances.

[90] The evidence of her friends and family support the substantial change she has undergone as a result of the accident.  From a positive, lively person who enjoyed participating in her community, she has become somewhat reclusive and quiet and it appears she may even lose her romantic relationship because her physical limitations interfere with the activities she used to enjoy with her boyfriend.

[91] While she had suffered brief episodes of depression in the past, I am satisfied they were reactive depressions and were fully resolved at the time of the accident.  I have no doubt that because she has suffered depression in the past, she was vulnerable to depression, but she is the thin-skulled plaintiff here rather than a crumbling skull plaintiff.  However, I find that the depression which followed the accident and her chronic pain means that she is at risk of developing an even more severe depression in the future.

[92] Immediately following the accident, the plaintiff also had chest bruising and abrasions which resolved quickly.  Her knee injury troubled her for about six months but is now resolved.

[93] There is a possibility she will require surgery in the future to address the herniation at C6-7 since the conservative treatment measures employed so far have not provided the plaintiff with any relief.  She has resisted this surgery because, even if it is successful, she will be left with continuing neck pain so resort to surgery would only be a desperate measure if she begins to suffer nerve damage which follows from the herniation or if her chronic pain worsens.

[94] The plaintiff’s anxiety is worsened by the possibility she will need surgery in the future.

[95] The plaintiff is also less able to perform her household work than she was and has received assistance from her children.  When she does do her housework, she does it more slowly and with some pain.  This is a substantial change from the enthusiastic homemaker she was before the accident.

[96] I have considered the plaintiff’s loss of housekeeping capacity and the help she has been given and will continue to receive from her children under this head of damages and would assess the loss at $10,000.

[97] Considering the factors listed above, and upon reviewing the case law provided by both counsel, I find that an appropriate award of non-pecuniary damages is $100,000.00, including the loss of housekeeping capacity.

Another noteworthy aspect of this case was the Court’s discussion of one of the defence experts.  Dr. Davis is a psychiatrist who prepared an expert report for the Defendant.  His opinion differed from the Plaintiff’s experts with respect to her accident related injuries.  He was cross-examined in open court and ultimately his evidence was not accepted.  In reaching this decision Madam Justice Russell made the following critical comments:

[81] Dr. Davis’ report differed substantially from those of all other experts.  It is his opinion that none of the plaintiff’s current emotional difficulties stems from the motor vehicle accident.  He is firmly of the view that her depression is solely attributable to her financial problems, her lack of a supporting husband and her limited skills in English.

[82] To support his position, Dr. Davis pointed to the two reactive depressions which had affected the plaintiff before the accident as establishing an “ongoing depression” and therefore her current symptoms were not causally related to the motor vehicle accident of October 2006.

[83] I note that when he wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of appointments with the plaintiff one week following the accident which recorded the occurrence of nightmares and acute anxiety.  Dr. Davis stated that these symptoms were important but appeared to minimize them by indicating they would only be a problem caused by the accident in the first six months or so, at the same time as her soft tissue injuries should have been resolving.

[84] I have reviewed Dr. Davis’ testimony and find it to be argumentative, unyielding and seriously at odds with what I view to be the preponderance of other and more credible medical evidence.  I do not accept his findings.


$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.


$90,000 Non-Pecuniary Damages for PTSD and Chronic Pain

September 22nd, 2009

Reasons for judgment were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $142,000 in total damages as a result of a 2005 BC Car Crash.

In today’s case (Quinlan v. Quaiscer) the Plaintiff suffered various injuries including PTSD and a Chronic Pain Disorder.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000 Mr. Justice Cole summarized the Plaintiff’s injuries and their effect on her life as follows:

[61] There is evidence that the plaintiff has suffered from depression off and on since 1994, including post-partum depression after the births of her children. Additionally, the plaintiff has had a tumultuous relationship with her now ex-husband, which has certainly affected her emotional state. There is evidence, however, that the plaintiff’s prescription for depression medication a few months prior to the Accident was not filled. Dr. Pirolli stated in her report that the plaintiff’s current emotional problems include PTSD and low mood. The PTSD, as I have stated above, is a consequence of the Accident. Regarding the plaintiff’s low mood, Dr. Pirolli stated that it could not “be directly attributed to the accident itself. There is the possibility, however, that any psychological issues present at the time of the accident may have been exacerbated by the accident and its sequelae”. In my view, the plaintiff’s depression prior to the Accident was not significant, and I find that the plaintiff was not suffering from debilitating depression at the time of the Accident.

[62] As mentioned above, the plaintiff’s cuts and bruises resolved within three to six months after the Accident. She is left with a permanent one-inch scar on her elbow, a three and a half inch c-shaped scar on her left knee, and a dark scar on her left shin. Her nose was broken and she had dizziness and headaches. As described in the medical evidence above, the plaintiff’s right wrist pain, right shoulder and right chest area injuries have persisted. Though Dr. Travlos was of the view that the plaintiff would continue to improve over the next 18 months (from his report of April 2007), he stated: “To what extent she recovers is difficult to say at this time and a definitive prognosis cannot be made”. The plaintiff’s problems have not improved to any great extent over the course of the 18 months following that report.

[63] Dr. Travlos was of the view that the plaintiff’s problems of chronic pain syndrome related to the diffused soft-tissue pain that the plaintiff suffered in the right arm and shoulder. In cross-examination he stated that it was unlikely that the plaintiff will fully recover and there is no guarantee that participation in treatment recommendations will result in improvements of those symptoms. The plaintiff’s injuries restrict her ability to participate in physical activities that she formerly enjoyed, such as skiing and baseball. I believe, however, that part of the reason the plaintiff does not participate in these sports is because of a lack of financial resources.

[64] I am satisfied that taking into consideration the plaintiff’s PTSD and her multiple injuries, an appropriate award for non-pecuniary general damages would be $90,000.


$75,000 Non-Pecuniary Damages for Moderate/Severe Post Traumatic Stess Disorder

August 10th, 2009

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.

In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.

ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.

Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

This case is also worth reviewing for the courts awards of Loss of Future Earning Capacity.
In this case the Plaintiff’s past wage loss was modest up to the time of trial totalling neat $6,000. Notwithstanding this minimal past wage loss the Court awarded significant damages of $225,000 for loss of future earning capacity because of the ongoing impact of the Plaintiff’s PTSD on his ability to work in his own occupation.  Paragraphs 28-42 of this case are worth reviewing for anyone interested in the law of damages in BC relating to future wage loss.

$200,000 Non-Pecuniary Damages for MTBI and PTSD

October 14th, 2008

Reasons for judgment were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a signficicant motor vehicle accident which occurred in Burnaby, BC in 2005.

The Defendant lost control of a garbage truck which tipped over and landed on the Plaintiff’s Honda Civic.  A photo of the collision is included at paragraph 2 of the reasons for judgement and this is worth glancing at to get a feel for the severity of this impact.

The Plaintiff was knocked unconsious as a result of the crash.  His Glasgo Coma Scale was 9 by the time the ambulance crew arrived and this qucikly rebounded to 15 by the time the Plaintiff arrived at hospital.

There was no dispute that the Plaintiff suffered various injuries as a result of this crash, what was at issue was the ‘nature and extent of the Plaintiff’s current condiction and the degree to which improvement may occur in the future’.

After hearing various medical evidence the court found as follows:

[35]            (The Plaintiff) has clearly suffered physical and psychiatric injury as a result of the August 19, 2005 collision.  I accept that his injuries caused him headaches, back pain and neck pain and pain in his shoulder.  Likely, he would have had some neck and shoulder problems from his previous condition without the August 2005 injury, however that injury clearly either initiated them anew or made them worse.  The physical problems |(the Plaintiff) suffered because of the August 19, 2005 collision have, by the date of the trial almost three years later, largely resolved as documented in the medical records, however his psychiatric ones have not, and there is an issue that he may still be suffering symptoms of a mild traumatic brain injury in addition to his PTSD and major depressive disorder.  (the Plaintiff) was clearly rendered unconscious by some degree of impact to his head as evidenced by the ambulance crew reports, Mr. Touffaha’s observations and the glass found embedded in his scalp.  I find that (the Plaintiff) probably suffered a mild traumatic injury to his brain at the time of the collision.

[36]            Whether or not (the Plaintiff) still is affected by his mild traumatic brain injury is not clear, particularly because his psychiatric condition can produce the same symptoms at this point.  On the balance of probabilities, I accept the opinion of Dr. Teal, the neurologist, that (the Plaintiff) has not sustained persisting cognitive impairment as a result of traumatic brain injury, and will not have any long-term cognitive sequelae as a result of a neurological injury.

[37]            I also find, on the balance of probabilities that while (the Plaintiff) was initially rendered essentially catatonic for the first six months following the collision, he has since that time made significant improvement, and I accept the opinion of Dr. Wiseman that with a course of cognitive behavioural therapy conducted by a specialist in that field, he will continue to make improvements.  On the other hand, I accept that he will likely continue to have problems and symptoms from his PTSD and depression for the rest of his life.  I find that it is highly unlikely that (the Plaintiff)will be able to return to his employment at Coastal Ford or any other competitive employment.  The medical evidence is that to the date of trial he has been unfit for employment.  He is now 67 years old, an age at which neither the body nor the brain is particularly resilient.  His mental state in my opinion is and will remain too fragile for him to be competitively employed.

[38]            The result of this collision and its consequent injuries to (the Plaintiff) is that he has lost a large measure of who he was.  While human identity is partially associated with physical ability, it is much more related to a person’s mental state and abilities.  (the Plaintiff) is quite simply not the man he was.  Rather than being energetically and happily employed as the lease manager for Coastal Ford, he is unemployed.  Rather than being the social outgoing man he was, he is socially withdrawn and has little or no interest in conversing about anything.  Rather than being the patriarch supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and children.  I find there is a real likelihood he will make progress in these areas so that his life is more enjoyable, however I do not think that will extend to re-employment.

[39]            I assess general damages for the loss (the Plaintiff) has suffered consequent upon the collision for which the defendants are responsible at $200,000.

 


Appeal of $70,000 Soft Tissue Injury Claim Dismissed

October 14th, 2008

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.

The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’

The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome.  The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome.  In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.

The Plaintiff sought damages of over $1.7 Million.  Given the trial judges findings a total of $70,000 in damages was awarded.

The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.  The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.

The Court of Appeal dismissed the appeal.  In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a)  Confronting the Plaintiff

[33]            The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties.  The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70).  The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34]            The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges.  This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada.  In this country, we have an adversarial system, not an inquisitorial one.

[35]            Such a rule would be unworkable with respect to judges in our system.  Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses.  They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36]            The rule in Browne v. Dunn is not suited for application to judges.  The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation.  What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible.  That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37]            In addition, the rule in Browne v. Dunn has not been treated as an absolute rule.  Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence.  This feature of the rule is not adaptable to judges.

[38]            The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations.  The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14).  In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case.  It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25).  Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

 


$86,967.02 Awarded for Chronic Soft Tissue Injuries and Anxiety

May 30th, 2008

Reasons for judgement were released today following a 3 day trial in Vernon, BC in which Mr. Justice Cole awarded a 35 year old plaintiff close to $90,000 in compensation for her losses and injuries as a result of a motor vehicle accident.

This case is worth a read for anyone advancing an ICBC claim or involved in ICBC settlement negotiations concerning the issue of ‘indivisble injuries’. That is, where an event other than the accident has contributed to the injuries sustained in the accident. I will say more about this below.

The Plaintiff was involved in a rear-end accident in Kelowna BC on June 30, 2005. Her vehicle was rearended by a truck driven by the Defendant. As a result of this incident she suffered from various soft tissue injuries and anxiety.

In early 2007, the Plaintiff was almost struck by a vehicle while she was in a cross-walk. This added to her anxiety issues.

The court heard from several medical experts who commented on the Plaintiff’s injuries. This is quite common in ICBC injury claims that proceed to trial as there is often 2 sides to the medical story. In this case, however, the medical evidence addressing the physical injuries was quite similar.

Dr. Laidlow, a physiatrist who often conducts ‘independent medical exams’ for ICBC, testified that the Plaintiff will be “prone to mechanical lower back pain…and may require the odd use of anti-inflammatories during times of flare up“.

Dr. Travlos, another physiatrist well versed in diagnosing and treating injuries related to ICBC claims, stated that “(the plaintiff’s) current residual neck and shoulder symptoms are a result of tjhe accident. It is likely that these symnptons will slowly continue to improve and ultimately resolve….the Plaintiff’s tailbone symptoms are clearly an ongoing issue…..the nature of her current low back / pelvic symptoms is intermittent and this bodes well for further recovery.”

The court also heard from the plaintiff’s family doctor who testified that there was room for improvement in the Plaintiff’s condition.

Possible future treatments for the injuries included trigger point injections, diagnostic injections, a facet joint rhizotomy and medicaitons.

In the end the court concluded that the Plaintiff sufferd a soft tissue injury “that would be described as the upper end of a moderate soft tissue injury that should resolve itself over time“. The court also found that the Plaintiff suffered from anxiety as a result of the collision in 2005 and the near collision in 2007. The Plaintiff claimed she suffered from Post Traumatic Stress Disorder (PTSD) as a result of the collision and this was supported by the evidence of Dr. Neilson. The court, however, held that the Plaintiff did not make out this claim as the Plaintiff did not prove all the facts that were underlying Dr. Neilson’s diagnosis of PTSD.

The court awarded damages as follows:

Pain and Suffering (non pecuniary damages) $60,000

Special damages: $6,045

Past wage loss: $19,522.02

Future medical care: $400

Future Therapy: $1,000

This case did a great job reviewing 2 areas of law which frequently come up in many ICBC claims, namely claims for ‘loss of future earning capacity’ and claims where intervening events add or contribute to accident related injures.

As in many ICBC claims the Plaintiff had an intervening event which added to her anxiety. When valuing the injuries the court did a great job in summarizing how a court is to do so when the subsequent event caused an ‘indivisble injury’.

The court referenced some of the leading authorities in concluding the PTSD claim gave rise to an ‘indivisble injury’.   Most experienced ICBC claims lawyers are familiar with these authoritative cases which the court referred to, particularly:

Athey v. Leonati

EDG v. Hammer

Ashcroft v. Dhaliwal

The court concluded that “I am satisfied, in this case, that the two incidents that the plaintiff was involved in are indivisble. The anxiety caused to the plaintiff by the second incident is directly connected to the accident involving the defendant. Since the individual that caused the second accident was not before the court, as was the case in Ashcroft, where there was a settlement of the claim, the defendant is liable for all of the plaintiff’s damages

Do you have questions about this case or a similar ICBC case involving soft tissue injuries, post traumatic stress or an intervening event?  If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.


 

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