Month: June 2016

$85,000 Non-Pecuniary Assessment for Chronic Persisting Headaches

Written by admin on June 13, 2016. Posted in ICBC Headache Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for long standing headaches caused by a vehicle collision.
In today’s case (Woelders v. Gaudette) the Plaintiff was involved in a rear end collision that the Defendant admitted fault for. The Plaintiff suffered a variety of injuries some of which recovered and some of which did not. By the time of trial, some 8 years following the collision, the Plaintiff continued to suffer with ongoing headaches and associated symptoms which were expected to continue into the future. In assessing non-pecuniary damages at $85,000 Madam Justice Ballance provided the following reasons:
[150]     Ms. Woelders was 31 years old when the Accident happened. For more than six years, she has been plagued by headaches and pain in her neck/upper back/right shoulder region and in her face and jaw, together with a simmering muscle tension that can transform into pain. The intensity and frequency of Ms. Woelders’ chronic symptoms have declined over the years and her overall condition has improved in large measure due to her sheer grit and determination (to her credit) coupled with her diligent rehabilitation efforts and implementation of pain management strategies. Even so, and while there is a slim chance she may enjoy some marginal improvement going forward, her symptoms are enduring and continue to be problematic and remain susceptible to exacerbation by commonplace tasks and maneuvers at work, at home and recreationally.
[151]     The ill‑effects of the Accident have negatively impacted the quality and enjoyment of Ms. Woelders’ interactions with her children. She experienced pain and difficulty nursing her youngest and lifting and carrying both her children. She is reluctant to pick them up for fear she will trigger her symptoms. She goes through much of her life on-guard, evaluating whether certain movements will activate her symptoms and trying to make the modifications that may be required.
[152]     Ms. Woelders is from a close‑knit family. Since the Accident, she has curtailed her participation in family gatherings, has all but ceased organizing them, and feels the need to leave get‑togethers early when her symptoms flare.
[153]     I accept the evidence of Ms. Woelders’ twin sister, Ann Pimentel, to the effect that Ms. Woelders was in peak physical condition before the Accident. Ms. Pimentel spoke with emotion about how her sister’s injuries have visibly aged her and that she had lost her “spark” after the Accident. Ms. Woelders’ husband and mother gave similar testimony, which I also accept.
[154]     Ms. Woelders’ formerly high-energy and optimistic personality has been overshadowed by a less positive, more serious self with less energy and spark. I accept her mother’s evidence that she has recently made a point of taking the children after school on Fridays primarily because her daughter is drained at the end of the work week and needs time to rest and rejuvenate.
[155]     The medical evidence indicates that Ms. Woelders will be prone to headaches and periods of aggravation of her unresolved symptoms for years to come, and likely indefinitely to one degree or another. In prior cases, I have observed that enduring pain, even when it is intermittent, can compel unfavourable adjustments to one’s work life and lifestyle and cloud the pleasures of life, as it clearly has in Ms. Woelders’ case. Taking care to not aggravate her residual symptoms and trying to manage her pain, even during the times that things seem to be under control, has become part of Ms. Woelders’ everyday life or, as she aptly put it, her “new normal”. This is an unwelcome new reality for Ms. Woelders and her family.
[156]     Ms. Woelders finds certain kinds of housework difficult. Although she continues to perform most of her pre‑Accident share of the housekeeping, it is not done to her pre‑Accident standards. The evidence concerning her compromised housekeeping capacity was under‑developed at trial. I accept that she has impairments in this regard but am not persuaded that they justify a stand-alone award of damages as Ms. Woelders has urged. Instead, I have considered it as a factor in the assessment of her non-pecuniary damages.
[157]     I have reviewed the authorities placed before me by counsel. The cases submitted by the defendant are, for the most part, factually distinguishable in material ways and are less instructive than those relied by Ms. Woelders. In any event, the case law only provides rough guidelines for what is, at its core, a highly individualized assessment: Karim v. Li, 2015 BCSC 498 at para. 120. Having regard to the Stapley factors and to the other case authorities in the context of the evidence in the case at hand, in my opinion, a fair and reasonable award for Ms. Woelders’ non-pecuniary damages is $85,000.

Formal Offer Delivered 2 Business Days Before Trial Sufficient to Trigger Costs Consequences

Written by admin on June 9, 2016. Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that a formal offer delivered 2 business days prior to trial was sufficient to trigger costs consequences.
In the recent case (Manoharan v. Kaur) the Plaintiff sued for personal injuries and 2 business days prior to trial delivered a formal offer of $425,000. This was rejected by the Defendant and at trial damages in excess of $900,000 were awarded. The Defendant argued that double costs should not be awarded because of how late the offer was presented. In rejecting this argument Mr. Justice Affleck provided the following reasons:

[2] As would be expected both parties at that time had been actively considering the question of how to evaluate the likely damage award and to assess whether an offer made by the other party ought reasonably to be accepted. The defendant suggests she was pressed for time to respond to the plaintiff’s offer and if double costs are to be awarded they ought not to be assessed from the beginning of the trial.

[3] In my opinion, the defendant had ample time to respond to the plaintiff’s offer and to consider whether the offer was one which reasonably ought to have been accepted.

[4] The final judgment awarded exceeded $900,000. I have considered the factors enumerated in Rule 9–1(6) and conclude the plaintiff is entitled to party and party costs on Scale B up to the beginning of the trial and double costs for the trial itself.

Plaintiff Facebook Photos Help Undermine Personal Injury Claim

Written by admin on June 9, 2016. Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, largely rejecting claimed damages in a personal injury lawsuit due in part to concerns with the Plaintiff’s credibility and further due to Facebook photos entered as evidence at trial.
In the recent case (Brennan v. Colinders) the Plaintiff was involved in a 2012 collision. The Defendants admitted fault. The Plaintiff alleged the collision caused chronic problems which continued up to the time of trial. The Court rejected this finding the collision related consequences had resolved. In awarding $20,000 in non-pecuniary damages Madam Justice Baker provided the following critical comments regarding the Plaintiff’s credibility along with noting the impact of Facebook photos:
[11] I found, in general, that Mr. Brennan is not a credible witness. He proved to be a very poor historian. While some of the problems with his testimony could perhaps be considered the result of poor memory or carelessness, there were also instances of what I consider to be a failure to respond honestly and truthfully to questions asked; and a tendency, often demonstrated, to shade or colour his testimony in a way he perceived to be helpful to his case. Some of his testimony was contradicted not only by the testimony of defence witnesses, but also by other witnesses called on behalf of the plaintiff. While testifying, Mr. Brennan frequently contradicted himself. He gave different versions of the same events at different times….

[103] Since March 2012, Mr. Brennan has acquired a new hobby, which, judging by the numerous photographs he has posted on his Facebook page, provides him with considerable satisfaction. Mr. Brennan testified that he obtained a firearms permit and a friend purchased a handgun for him. He has posted numerous photographs of himself in various poses with this weapon.

[104] Mr. Brennan testified he had attempted camping on one occasion but after one night found sleeping on the ground too uncomfortable. Again, the timing of this attempt was unclear.

[105] I am prepared to accept that for a short time after the March 2012 accident, Mr. Brennan would have found his usual recreational and social activities less enjoyable than before the accident injuries exacerbated his chronic condition, but that within six months post-accident he was not prevented from participating in the activities to the same extent he had prior to the accident.

[106] Counsel provided the Court with various authorities: George v. Doe, 2015 BCSC 442; Dhaliwal v. Pillay, 2015 BCSC 509; Graydon v. Harris, 2013 BCSC 182; Kahle v. Ritter, 2002 BCSC 199; Lamong v. Stead, 2010 BCSC 432; Zvatora v. Liberman, 2000 BCSC 306, Friesen v. Fiddler, 2003 BCSC 1955; Dymond v. Wilson, 2001 BCSC 244;Boyd v. Shortreed, 2009 BCSC 1468; and Ryan v. Kakowich, 2011 BCSC 835. None of these authorities deals precisely with the situation of a plaintiff who was already largely incapacitated prior to an accident involving a minor exacerbation of pre-existing debilitating symptoms. I find the range of awards in the cases cited by defendants’ counsel to more closely reflect the facts in this case.

[107] I award the sum of $20,000 for non-pecuniary damages.

$75,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

Written by admin on June 7, 2016. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

Adding to this site’s soft tissue injury case archives, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic low back and neck soft tissue injuries.
In today’s case (Lampkin v. Walls) the Plaintiff was involved in a 2009 rear-end collision caused by the Defendant. The Defendant admitted fault. The Plaintiff suffered injuries to his neck and back which remained symptomatic at trial, were expected to carry on to the future and resulted in a permanent partial disability. I assessing non-pecuniary damages at $75,000 Madam Justice Watchuk provided the following reasons:

[129] I substantially agree with the application by Mr. Lampkin of the factors as set out in Stapley v. Hejslet. I accept the following facts with respect to these factors:

(a) Age of the Plaintiff: Mr. Lampkin is currently 46 years old. Both he and his wife are involved in raising their two children, Lexxus and Nathaniel. Prior to the accident, Mr. Lampkin enjoyed taking Lexxus to the park and playing soccer with him. As a family, they enjoyed going to the beach for barbeques and attending festivals. A great deal of this enjoyment has not been possible since the accident. Given his age, Mr. Lampkin has less opportunity to heal or find alternative ways to enjoy recreational activities.

(b) Nature of the Injury: Mr. Lampkin has been experiencing pain primarily in his neck and back for over 6 years. He reported those and other injuries immediately following the accident, and he continues to experience them although in lesser degrees. The pain affects his work and his day-to-day activities including driving, playing sports and playing with his children. At the end of a work day, Mr. Lampkin’s injuries are aggravated leaving him with little energy or patience to pursue his usual after work activities.

(c) Severity and duration of the pain: Mr. Lampkin’s injuries tend to vary depending on his activities. When he has had time to rest, the severity of his pain is manageable. However, after a work day, Mr. Lampkin requires pain medication to manage the pain. His symptoms are focused in his neck and back. The medical evidence supports that, in particular, Mr. Lampkin’s low-back symptoms are unlikely to resolve.

(d) Disability: Mr. Lampkin is partially restricted in many of his activities and has not been able to return to cricket. He is careful not to aggravate his neck or back. He now takes much longer to do things than he used to and is frustrated by his lack of energy.

(e) Emotional suffering: There is no doubt that Mr. Lampkin is clearly frustrated by his injuries. Ms. Rouse explained that Mr. Lampkin is much more irritable than he used to be.

(f) Impairment of life: Mr. Lampkin no longer plays cricket and is less interested in hobbies such as attending festivals, going to the beach or playing soccer. Doing too much tends to aggravate his symptoms.

(g) Impairment of family, marital and social relationships: Although Mr. Lampkin and Ms. Rouse have reconciled since the accident, Mr. Rouse has noted a significant change in Mr. Lampkin. He often does not have energy or is in too much pain to play with Lexxus. He is also much more irritable than he used to be.

(h) Impairment of physical and mental abilities: The injuries to his neck and back have directly impacted his ability to play soccer, basketball and cricket. Mr. Lampkin used to enjoy staying active but is now concerned that these activities will aggravate his symptoms.

(i) Loss of lifestyle: Mr. Lampkin and Ms. Rouse were carefree people. They now have to deal with their continued loss of income, particularly with raising a young family. Mr. Lampkin is also worried about his ability to partake in his sons’ lives and wants to be able to play sports with them.

(j) The plaintiff’s stoicism: Mr. Lampkin is resilient and hardworking. He takes pride in his ability to provide for his family and his skills. Despite the continued pain, Mr. Lampkin has continued to work in physical jobs, working as many as seven days per week. He was fortunate to have two employers in landscaping who made accommodations to assist him.

…

[140] It is necessary to consider each case individually and I find that all of the cases relied on by the plaintiff have important differences with the plaintiff’s circumstances here. However, I find that those cases are informative for circumstances where the plaintiff has somewhat similar injuries and is limited to varying degrees in both their jobs and recreational pursuits. Mr. Lampkin is no longer able to perform the heavy tasks that he has relied upon to learn a living. In addition, he had excelled in cricket for his entire life and is no longer able to play this sport that was central to his identity both in St. Vincent and Canada. Considering all of the factors, I find that an appropriate award for non-pecuniary damages is $75,000.

Caselaw Dismissing Opinions of Expert Insufficient to Derail Court Ordered Medical Examination

Written by admin on June 1, 2016. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding that past history of judicially rejected opinions is not in and of itself enough to dis-entitle a Defendant to compel a Plaintiff to attend an independent medical exam with their chosen physician.
In today’s case (Wohlleben v. Dernisky) the Plaintiff sued for personal injuries. In the lawsuit the Plaintiff agreed to be examined by a defense selected orthopedic surgeon and also agreed that a neurologist examination “was justified” but refused to consent to the Defendant’s chosen physician based on past court judgments rejecting the expert’s opinion. In finding this was not, in and of itself, sufficient Master Bouck provided the following reasons compelling the appointment

[10] Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.

[11] Wheeler v. White, [1983] B.C.J. No. 2494 is a case where the plaintiff objected to the psychiatrist chosen by the defendant. The master accepted the expert evidence provided by another psychiatrist that, to have a valid psychiatric examination, the plaintiff is required to open up and allow the psychiatrist into their private world. This requires great trust. Further, at para. 7 of theWheeler decision at the chambers level:

[7] … It is sufficient, in my opinion, for the plaintiff to have a reasonable apprehension that the examination will be fraught with peril. …

[12] The plaintiff in the present case does not, in my view, have such a reasonable apprehension. If she does have an apprehension that the examination will be fraught with peril, which is not her evidence, her apprehension is not reasonable.

[13] It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:

[22] … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …

[14] There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.