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 ‘vertigo’

$110,000 Non-Pecuniary Assessment for “Likely Permanent” Vertigo

February 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary loss at $110,000 for chronic vertigo symptoms.

In today’s case (Wright v. Mistry) the Plaintiff was involved in a 2006 collision.  Liability was disputed but the Court found the Defendant fully at fault.

The Plaintiff suffered chronic vertigo and an exacerbation of pre-existing depression.  In assessing non-pecuniary damages t $110,000 Madam Justice Choi provided the following reasons:

[54]         While each case depends on its own facts, the award should be fair and measured against other similar cases. In Stapley v. Hesjlet, 2006 BCCA 34 at paras. 45-46, the Court of Appeal set out a non-exhaustive list of factors to be considered in making this award. These include the age of the plaintiff; the nature of the injury; severity and duration of the pain; disability; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. The plaintiff’s stoicism should not penalize the plaintiff.

[55]         Mr. Wright was 56 at the time of the accident and was 65 at the time of trial.

[56]         Mr. Wright suffered a number of injuries in the accident. He had soft tissue injuries that resolved within six months of the accident. He developed vertigo which has lasted for ten years and is likely a permanent condition. In addition, he has ongoing testicular pain from a fall related to the vertigo. His impairment also caused exacerbation of his pre-existing depression.

[57]         Mr. Wright noted that his vertigo has robbed him of much of his enjoyment of life, especially by limiting how much time he can spend with his grandson, and how they can play together…

[60]         I find the facts in Moukhine to be most helpful here. Moukhine considered a 53- year-old computer programmer who developed Visual Vestibular Mismatch after a motor vehicle accident. Madam Justice Watchuk awarded $90,000 for general, non-pecuniary losses.

[61]         Non-pecuniary awards will always turn on a complex factual matrix. I find, considering all of the circumstances, that $110,000 is fair and just compensation for Mr. Wright’s loss.


Visual Vestibular Mismatch Leads to $90,000 Non-Pecuniary Assessment

April 21st, 2015

Adding to this site’s archived cases addressing visual vestibular mismatch following a vehicle collision, reasons for judgement were released today by the Supreme Court, assessing damages for such an injury.

In today’s case (Miolla v. Fick) the Plaintiff was involved in a modest 2013 rear end collision.  The Defendant admitted fault but argued that given the minor nature of the crash the Plaintiff was not injured.  The Court rejected this argument and concluded the plaintiff suffered from soft tissue injuries and a visual vestibular mismatch which caused a chronic balance problem which largely interfered with the Plaintiff’s ability to work.  In assessing non-pecuniary damages at $90,000 Mr. Justice Myers provided the following reasons:

[30]    Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch.  In his direct evidence he briefly described that as disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo.  A longer explanation was provided in his report:

Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. Complaints of dizziness caused by checkered floors, busy carpets or patterned tiles is seen. Dislike of elevators and escalators, which caused dizziness is common. Busy television programs, such as car chases and hockey games cause dizziness. Scrolling a computer causes dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation.

[31]    He concluded that this was caused by the accident:

Onset of dizziness subsequent to the accident means, in my opinion, that the accident is the [probable] cause. There are measured abnormalities on balance tests. She has an abnormal result on Computerized Dynamic Posturography (CDP), compatible with a disturbance involving the balance system of the inner ear. This is an objective test. She has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with an abnormality on the left side. This is an objective test. OVEMP measure the macula of the utricle, one of the gravity detecting organs of the inner ear…

[42]    …I accept Dr. Longridge’s report and conclusion.

[61]    A closer case – in fact one remarkably similar to the one at bar – is Moukhine v. Collins, 2012 BSCS 118.  In that case, the 53-year-old plaintiff also suffered visual-vestibular mismatch.  That impaired his ability to work as a computer programmer by 50%.  His previous activity level was curtailed, as was the nature and extent of his outdoor activity level.  Damages were assessed at $90,000.  Based on that, I assess general damages at $90,000.


Useful Insight into Cross-Examination in an ICBC Brain Injury Claim

September 14th, 2009

When involved in an ICBC Injury Claim it is natural to want to know what the trial experience can be like. The best way to experience what the Court process is like is to actually attend a live trial and watch the evidence play out before you.  This is easy enough to do, particularly in larger centres around the Province, like in Vancouver or New Westminster, as an injury trial is occurring on almost any given day.

If you can’t do this you can read past court judgements to get a feel for the ways these claims can proceed at trial.  While this is not nearly as enlightening as witnessing a live trial some useful insight can still be gleaned.  If you are looking for a court judgement giving insight into the court process Reasons for judgement were released today reproducing extensive portions of a Plaintiff’s cross examination in an ICBC Brain Injury Claim that are worth reviewing in full.

In today’s case (Trevitt v. Tobin) the Plaintiff was injured in a 2004 Motorcycle Accident in Surrey, BC.    The Defendant pulled into the Plaintiff’s line of travel while making a left hand turn.  The Defendant ultimately conceded the issue of fault.

The trial focused on the injuries the Plaintiff had the the appropriate award for compensation.  The Plaintiff alleged that he suffered a traumatic brain injury and as a result would suffer a serious ongoing disability.  The Plaintiff sought over $1.5 million dollars in total damages.

The Plaintiff’s claim with respect to his injuries and the extent of disability was largely rejected with Mr. Justice McEwan finding that “the physical evidence does not account for a head injury or concussion“.  In the end the Court found that the Plaintiff suffered from “general bruising and shaking up in the accident” and following a setback in his career ambitions he suffered from “ongoing difficulties with headaches, tinnitus and some balance issues“.  The Court found that these issues were ongoing by the time of trial (some 5 years later).  The Plaintiff’s non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) was valued at $60,000.

The Court heard from many very qualified physicians who gave opinion evidence with respect to the Plaintiff’s medical condition.  As is often the case in ICBC Injury Claims the court heard competing expert evidence from physicians called by the Plaintiff and the Defendant.  In determining which experts had the more useful evidence Mr. Justice McEwan pointed out that “what any given doctor ‘believes’ is only helpful to the extent taht the underlying information is plausible by the standards of the court“.

To this end, the The Plaintiff’s credibility and reliability were put squarely at issue in this trial.    The Defence lawyer argued that credibility was central to this case and engaged in an extensive cross examination relating to the Plaintiff’s credibility as a witness.  Portions of this cross examination are set out in paragraphs 15-18 and these give good insight into what cross-examination can be like in Injury Litigation.   Ultimately Mr. Justice McEwan held that the plaintiff gave some “unusual” and “inconsistent” evidence and that “he quite clearly cannot be relied upon for the accuracy of his observations about his condition“.