Author: admin

More on ICBC Claims and Requests for Particulars

Written by admin on October 9, 2008. Posted in Civil Procedure, Uncategorized. 62 Comments on More on ICBC Claims and Requests for Particulars

Reasons for judgement were released today addressing a request for particulars in a BC car crash case where the issue of fault was admitted.
The Defendants asked the Plaintiff to provide particulars for any claim for special damages and loss of earnings to date. The Plaintiff refused and Defendant’s obtained a court order requiring the same. The Plaintiff appealed and reasons from that appeal were released today.
Mr. Justice Walker dismissed the appeal and in so doing made a few findings addressing requests for particulars that should be of interest to ICBC injury claims lawyers:
First that ‘particulars can only be sought for the following purposes‘

(a) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(b) to prevent the other side from being taken by surprise at the trial;

(c) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(d) to limit the generality of the pleadings;

(e) to limit and decide the issues to be tried, and as to which discovery is required; and,

(f) to tie the hands of the party so that he cannot without leave go into any matters not included.

After canvassing several cases dealing with requests for particulars the court held that:

[32] In my view, providing particulars of the plaintiff’s wage loss and special damages’ claims in a case where liability has been admitted, particularly a routine bodily injury case, serves the purpose of the Rules of Court.

[33] This is a matter where the information sought has to be provided to the defendants at some point in time. The documents relating to the claim for special damages should have been listed in the plaintiff’s list of documents. They were not, and that is troubling.

[34] Delivery of the particulars sought may well shorten the time spent at examination for discovery, but most certainly failing to deliver them will prolong the discovery process.

[35] There is nothing in the Rules of Court stating that the particulars provided are meant to contain the final wage loss and special damages’ amounts. The McLachlin and Taylor text states that particulars of special damages are to be provided as they become known; the textual commentary suggests to me that particulars of special damages should be delivered from time to time as they become known. That makes good sense in a bodily injury case as special damages may only be known on an ongoing basis as the amounts are incurred. Simply because some members of the Bar have fallen into the habit of providing particulars of special damages once, late in the day, is no answer to what the McLachlin and Taylor text says is good practice………

[44] I emphasize again that the information sought by the defendants has to be provided to the defendants sooner or later. Here, the defendants seek that information at an early stage in the litigation. The defendants admitted liability at the outset. They wish to know the value of the claim. The medical receipts should have been produced in the list of documents and were not. Delivery of particulars may assist the defendants in their assessment and approach towards resolution of the claim.

ICBC Claims and Credibility

Written by admin on October 8, 2008. Posted in ICBC Shoulder Injury Cases.

Interesting reasons for judgement were handed down today following a 2 day trial in Vancouver.
The Plaintiff was a passenger on a bus. The bus was involved in a collision in 2005. Fault for the accident was admitted by the negligent motorist. Upon impact the Plaintiff apparently ‘fell from his seat behind the driver of the bus onto the floor, allegedly injuring his hips and shoulder’.
In most ICBC claims the credibility of the injured party is of great imporatance. In this case the Plaintiff’s credibiilty was closely scrutinized. In the course of advancing his ICBC claim he gave false information to ICBC contrary to s. 42.1(2)(a) of the Insurance (Motor Vehicle) Act. He was charged for this, plead guilty and was fined.
The Plaintiff admitted that he had lied to various persons including officials from ICBC, to his family doctor and to his phyisiotherpist. During his examination for discovery the Plaintiff admitted to lying at least 6 times.
Notwithstanding all of this, the court found that the Plaintiff suffered a shoulder injury in the bus accident. MR. Justice made the following findings:
[39] In light of the history of this claim, Gabrilo’s admitted lies, and conviction for those lies, I accept that the evidence concerning the present claim must be carefully, if not scrupulously, examined. On balance, however, I accept that Gabrilo hurt his shoulder in the Accident. ….
[46] In summary, the Plaintiff is entitled to damages arising from the Accident. I am satisfied that the claim arising from his shoulder injury is one that, in the ordinary course of events, would likely have resolved by trial. While he may have ongoing symptoms, it has not been shown that these symptoms were caused by the original Accident. Thus, in my view, he is entitled to damages based only on a claim where the symptoms would have resolved by trial.
The court awarded $13,000 for the Plaintiff’s non-pecuniary damages.
This case is worth reading for anyone interested in how issues of credibility come into play when advancing an ICBC claim.

ICBC Claims, Breach of Insurance and Costs

Written by admin on October 6, 2008. Posted in ICBC Chronic Pain Cases, Uncategorized.

I’ve previously blogged about the financial consequences of being in breach of ICBC insurance.
Today reasons for judgemenet were delivered showing some of these consequences in action.
In 2002 the Plaintiff was involved in a car accident. He was at fault for the accident. He was in breach of his insurance at the time (he was driving with a suspended licence). And he injured the occupants of one of the vehicles involved in the collision.
The injured parties advanced an ICBC claim and eventually ICBC settled paying out a total of $19,067.38.
ICBC then came after the ‘breached’ Plaintiff to have the money paid back. ICBC also exercises its statutory right and refused to re-issue a license to the Plaintiff.
Today’s judgement dealt with how much money was owed to ICBC. The court found that ICBC was entitled to $19,320.38 from the ‘breached’ driver.
This case is worth bringing to the attention of anyone who is thinking of driving in breach of their contract with ICBC. Doing so can result in significant financial consequences.

$25,000 Non-Pecuniary Damages for Neck, Shoulder and Back Soft Tissue Injuries

Written by admin on October 3, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized. 47 Comments on $25,000 Non-Pecuniary Damages for Neck, Shoulder and Back Soft Tissue Injuries

Following a 2 day trial using the Fast Track Rule (Rule 66), reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car accident.
The Plaintiff was injured as a passenger. The offending motorist admitted fault and the trial focused on damages (lawful compensation) only.
The Plaintiff had a range of complaints following the accident including pain in her neck, right shoulder and low back, and a significant increase in the frequency of her pre-existing migraine headaches.
In assessing a fair award for pain and suffering the court made the following finding:

[24] I accept the plaintiff’s evidence that she was injured in the August 9, 2005 motor vehicle accident. In this regard, I note that while the physicians who examined the plaintiff also accepted the plaintiff’s assertions, the fact that they did so does not assist the court in making that finding. Their observations thereafter are of considerable assistance in assessing the possible course of the plaintiff’s recovery, however. It does appear, taking account of what is before me, that the plaintiff recovered functionally very quickly although she may suffer some minor aches and pains that will occasionally interfere with her activities.

[25] The plaintiff has suffered some moderate interference with her life due to pain and suffering. The cases advanced as comparables by the parties are of some assistance in locating this case on an appropriate scale. I assess her damages for pain and suffering and loss of enjoyment of life at $25,000.

The Plaintiff also led evidence that she was able to take advantage of fewer overtime opportunities as a result of her injuries. For this loss the court awarded $20,000.
The court found that the injuries should continue to improve but may linger for a while longer. In addressing loss of earning capacity the court awarded $15,000 making the following findings:
She is capable of doing her work and of working considerable overtime. On the basis of the medical evidence there is good reason to expect that she will fully recover in the next few years, with a modest chance of some limited impairment further into the future. I think some allowance must be made for the possibility that the plaintiff may occasionally suffer losses into the future that are related to the injuries she has suffered. I think the evidence suggests that these losses will be incurred, for the most part, in the next few years. I fix the sum of $15,000 for loss of future earning capacity.

A Busy Day – 3 Car Crash Cases Released by BC Supreme Court

Written by admin on October 2, 2008. Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases, Uncategorized.

There is a lot to blog about today so I will have to keep these case summaries short. The BC Supreme Court released 3 cases today that may be of interest to people advancing ICBC claims.
The first deals with the choice of forum of where to sue. The Plaintiff was in a collision with a tractor trailer in 2007. The crash happened in Alberta. The Plaintiff lived in BC and the owner of the tractor trailer had a registered business office in BC. The Plaintiff started the lawsuit in BC and the Defendant brought a motion that the case should be dismissed or stayed because the lawsuit should have been started in Alberta.
After summarizing the applicable law the court sided largely with the Defendants finding that:

[27] The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.

[28] I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.

[29] I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.

[30] In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.

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The second case released today dealt with Court Costs. Typically when a case succeeds in Supreme Court the winner is entitled to court ‘costs’. In theory this is to compensate the winner for having to trigger the judicial process to get whats fair.
After an 11 day trial as a result of a car accident the Plaintiff was awarded $81,694 in damages for injuries and loss. In the trial the Plaintiff’s claim for past wage loss and cost of future care were dismissed.
The Defendant brought a motion asking the court to award the defendant ‘costs and disbursements for that portion of the proceedings ralted to the cloaims fr past income loss and cost of future care’ amongst other relief. The motion was brought further to Rules 57(9) which states

Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

And rule 57(15) which states

The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.

The court granted the motion stating that:

Analysis and Decision

[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated. I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial. I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.

[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful. I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss. In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity. I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial. In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.

Conclusion

[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson. In addition, the defendant is awarded his costs and disbursements for two days of trial.

________________________________________________________________________________________
The third case of interest released today dealt with a car accident from 2003 which allegedly caused severe psychological injuries.
The crash occurred at an intersection in Surrey. The Plaintiff was turning left on a green light. The defendant entered the intersection approaching from the Plaintiff’s left. The Defendant had a red light. The accident then occurred. The Defendant was found 90% at fault and the Plaintiff was found 10% at fault for failing the see the defendant’s vehicle which was ‘there to be seen’
The most contentious alleged injuries were brain injury and Dissociative Identity Disorder (DID). The plaintiff did seem to suffer from DID, the question was whether the car crash caused this.
The court made the following findings with respect to injuries:

[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness. The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life. At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future. In the aftermath of the accident, her life has been devastated. She can no longer look after herself or her children. She lives in an assisted living facility. She is separated from her husband. Her future prospects are grim.

[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident. The accident clearly terrified her. Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do. She was told that she had suffered a serious brain injury. This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral. Her tinnitus and dizziness are likely permanent. The prognoses for her TMJ problems are guarded. There is some optimism that her pain disorder will improve given her recent change in medication. Similarly, over time her depression should respond to treatment. Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission. Absent her DID, the plaintiff would now be on the road to recovery. DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.

$150,000 was awarded for non-pecuniary damages (pain and suffering and loss of enjoyment of life)

Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Written by admin on October 1, 2008. Posted in ICBC Brain Injury Cases, ICBC Dizziness Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, Uncategorized. 59 Comments on Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck. The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’. The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted. The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)	General damages – non-pecuniary	$200,000.00
(ii)	Past loss of income	$171,250.00
(iii)	Future loss of income earning capacity	$400,000.00
(iv)	Loss of opportunity	$10,000.00
(v)	Special damages	$26,955.75
(vi)	Costs of future care	$77,449.00
(vii)	Management and Tax Gross up	(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury. Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006. He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs. As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination. The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering. As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression. Indeed the literature presented to Dr. Sovio at trial echoed that warning. In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation. He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding. Isolated signs should not be overinterpreted. Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered. …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity. They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment. Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed. I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected. However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

$40,000 Pain and Suffering for Neck, Back and Shoulder Soft Tissue Injuries

Written by admin on September 29, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $90,000 in damages as a result of a 2005 collision.
The Plaintiff was 25 at the time of the BC car crash. He was not at fault for the crash and the trial focussed exclusively on the issue of damages.
The court heard from a variety of experts. The court also viewed surveillance footage of the Plaintiff playing hockey and doing other physical activities. Such surveillance footage often comes to light at the trial of ICBC claims, particularly those inovlving on-going soft tissue injuries.
In awarding $40,000 for non-pecuniary damages (pain and suffering) the court made the following findings:

[15] I am persuaded by the evidence to conclude on the balance of probabilities that (the Plaintiff) suffered a flexion extension injury to the soft tissues of his neck, back and shoulder. Considering the persistent difficulty that he has had with his lower back, the injury is fairly described as moderate in nature. (the Plaintiff) had back trouble related to his rugby injury and on occasion his extremely heavy work load prior to his injury for which he sought treatment, but I accept his evidence that his previous back problems were intermittent and less severe before the accident. (the Plaintiff) had already given up rugby and snowboarding prior to his injury. His ability to play in-line hockey demonstrates that he does not have a functional disability, his problem is that demanding activities can cause the onset of significant pain.

[16] I accept Dr. Travlos’ opinion that:

He will likely still experience intermittent pain flare ups, but should be capable of reasonable physical activity. He will learn to avoid certain recreational activities and certain types of work activities in order to manage his pains and by doing so should have reasonable pain control.

As I have noted earlier, (the Plaintiff) had pain in his back prior to the collision and would have had it in the future if the collision had not occurred, but his motor vehicle injuries have increased his susceptibility to back pain and made that back pain worse when it occurs. I assess (the Plaintiff’s) claim for general damages for pain and suffering which has been and will be caused by his motor vehicle injuries above and beyond that which he would have had had he not been so injured at $40,000.

$45,000 Pain and Suffering for Aggravation of Degenerative Changes

Written by admin on September 26, 2008. Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $45,000 Pain and Suffering for Aggravation of Degenerative Changes

Reasons for judgement were released today awarding a Plaintiff just over $100,000 as a result of a 2006 collision which occurred in Vernon, BC.
The Plaintiff was hit from behind when stopped for a red light. The issue of fault was admitted. The accident resulted in minimal vehicle damage. In many ICBC claims defence lawyers try to get the Judge/Jury to focus on the lack of vehicle damage as opposed to the medical evidence. Here the Court noted that “Although the lack of vehicle damage may be a relevant consideration in considering (the Plaintiff’s) injuries,k it has to be balanced against the evidence of the Plaintiff and the medical evidence.”
The court heard from various medical experts including the Plaintiff’s doctor and 2 physiatrists (physicians specializing in rehabilitation).
The court accepted that the Plaintiff suffered a Whiplash Associated Disorder, cervicogenic headaches, and an onset of pain in previously asymptomatic degenerative changes in her neck. The court further accepted that these injuries will linger for some time but should continue to improve in the coming years.
The court assessed damages as follows:

Non-pecuniary Damages:	$45,000.00
Special Damages:	$2,172.30
Past Loss of Earnings/Opportunity to Earn:	$2,500.00
Loss of Future Earning Capacity:	$25,000.00
Cost of Future Care:	$30,000.00
Loss of Past and Future Housekeeping Capacity:	Nil
TOTAL:	$104,672.30

ICBC Claims and Lawyer Fees

Written by admin on September 26, 2008. Posted in Uncategorized. 119 Comments on ICBC Claims and Lawyer Fees

Reasons for judgement were released today by the BC Court of Appeal reducing a lawyer’s fee for services performed on a contingency basis.
The facts of the case are tragic. The Plaintiff was catastrophically injured when she was 19 months old in a single vehicle roll over accident in 1993.
A claim was started against the driver of the vehicle. Eventually a new lawyer took over the file and acted for the Plaintiff for over 10 years and had to spend over $10,000 of her own money to move the prosecution of the claim along.
The claim eventually settled for the ICBC insurance policy limits. Although the fee agreement permitted the lawyer to charge 33.3% of the settlement the lawyer reduced the fee to 20%.
In these circumstances the fees needed the approval of the Supreme Court and in 2007 the fees were approved. The Office of the Public Guardian and Trustee appeled the approval claiming the fees were excessive in the circumstances.
Interestingly, the guardian of the child took no issue with the legal fees and did not oppose the approved fee of 20%. In other words, the client appeared to be happy with the services performed and the fees charged but the government was not.
The BC Court of Appeal reduced the lawyers fee to about 12% of the amount recovered. In doing so the court summarized some of the factors that are considered when approving contingency fee agreements, specifically:

1. the financial circumstances of the plaintiff;

2. the risk to the law firm where it carries disbursements;

3. the complexity of the issues;

4. the experience and skill of defendant’s counsel;

5. the experience and skill of plaintiff’s counsel;

6. the risk assumed by plaintiff’s counsel that there would be no pay for effort expended;

7. the time expended by plaintiff’s counsel;

8. the importance of the case to the plaintiff; and,

9. whether the settlement is a good settlement.

The court then went on to adopt some generally accepted propositions regarding contingency fee agreements in British Columbia:

[22] He said, in commenting in general on contingency fee remuneration at p. 269:

A solicitor who undertakes the prosecution of a difficult case, the prospects of which are uncertain due to various issues such as liability, causation or damages, is entitled to be well compensated in the event the case is brought to a successful conclusion. Such remuneration must be substantial, but not exorbitant, in order to make up for those cases taken by the solicitor on a contingency fee basis which do not result in success.

[23] In Usipuik v. Jensen, Mitchell & Co. (1986), 3 B.C.L.R. 283, [1986] 5 W.W.R. 41 (S.C.), Madam Justice Southin observed (at p. 297):

In approaching the question of the fairness of any particular contract for fees on a percentage basis, one must remember that there are many kinds of personal injury cases: motor vehicle accidents, medical and other professional malpractice, products’ liability, occupiers’ liability and no doubt other kinds which do not, at the moment, occur to me. Medical malpractice cases are notoriously difficult and expensive to pursue. Expert witness fees in themselves can run to many thousands of dollars.

But actions for negligence in the operation of a motor vehicle may or may not be risky or difficult. Sometimes there is an issue of liability; frequently there is not. Sometimes there is a real difference of opinion on the proper amount of damages between the plaintiff and the Insurance Corporation of British Columbia; sometimes, there is very little.

Do you have questions about this case or lawyers fees and ICBC claims? Feel free to contact me.

$30,000 Pain and Suffering for 2 year 'mild to moderate' Soft Tissue Neck Injury

Written by admin on September 24, 2008. Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff compensation as a result of a 2002 motor vehicle collision.
The collision happened in Victoria. It was a rear end crash and the Defendant admitted fault. This appears to be a crash that fit into ICBC’s Low Velocity Impact (LVI) criteria as the vehicles suffered minimal damage.
The Plaintiff claimed significant injury which was on-going more than 5 years post collision which would impact her future earning capacity. The defence position was that that crash caused a mild soft tissue injury which resolved by October 2003.
The court found that the crashed caused a 2 year soft tissue injury and made the following findings:
[26] I have some difficult in assessing (the Plaintiff’s) evidence. She describes the resulting dent in her car as huge, yet it does not look like that in the pictures and the cost to repair was estimated at only $53. She said she was in incredible pain immediately after the accident, yet Ms. Lobb spoke to her and was under the impression everyone was fine. No ambulance was called, nor did she seek immediate medical attention which I would expect would happen if the pain was immediately “incredible” and “excruciating”. On the other hand, I have no doubt that (the Plaintiff) suffered pain caused by the accident which, as documented by the medical reports, gradually got worse over the ensuing weeks. I also have no doubt that (the Plaintiff) continues to have pain to this day – it seems to me on looking at her that it is written in her face. As Dr. Vincent testified, people do not go for injection therapy unless they have pain. Furthermore, there is evidence from her mother, her friend and her employers that she is not the high energy person she once was. The difficulty is to assess the degree to which the collision is the cause of her pain and the true effect of that upon her life. There is a tendency to attribute a multitude of difficulties following a car accident to that one cause when often there are many…….

[31] (the Plaintiff) bears the onus of proving that the condition for which she seeks compensation was on the balance of probabilities caused by the December 30^th, 2002 collision. I find on the evidence that she did suffer a mild to moderate soft tissue injury to her neck and back as initially diagnosed in her early months of treatment by Dr. Down which was caused by the collision. I am not persuaded, however, on the balance of probabilities, that her condition caused by the accident injuries extended beyond the two year period initially foreseen by Dr. Down. She was clearly on a course of recovery in that two year period. What happened thereafter has not been proven to have been caused by the December 30^th, 2002 collision.

[32] I assess (the Plaintiff’s) general damages for a mild to moderate soft tissue injury to her neck and back extending over a period of two years at $30,000.