In a judgement released today by BC Supreme Court, Madame Justice MacKenzie awarded a total of $30,900 plus wage loss in compensation as a result of a September, 2005 rear-end accident which occurred in Langley, BC.
The Plaintiff was a 55 year old woman. Prior to the accident she suffered from back pain, particularly she had osteoarthritic changes affecting all of her lumbar discs.
ICBC, on behalf of the Defendant, called evidence trying to paint the picture of a minor accident. ICBC called vehicle estimators who gave evidence that the vehicles basically sustained minimal damage. The purpose of this is to cast doubt on the ability of a minor accident to cause injury. The theory is basically that if the vehicle damage is not significant the injuries must not be significant. This tactic is often used by ICBC defence lawyers as a result of ICBC’s Low Velocity Impact (LVI) policy.
After hearing all the evidence the court found that the Plaintiff’s pre-existing condition did not impair her previous activities, that the accident caused mild to moderate soft tissue injuries, that these injuries have resolved somewhat by the time of trial and that there was no evidence of a minor permanent partial disability as a result of her accident related injuries. In other words, she should get better.
The court was not persuaded that a substantial possibility existed that the injuries would result in a diminished earning capacity. The court concluded that “In my opinion, with exercise and motivation, the Plaintiff will return to her condition before the accident”. In the end the court awarded $30,000 for non-pecuniary damages (Pain and Suffering), $400 for special damages (out of pocket accident related expenses), compensation for lost past income, and $500 for future care to permit the Plaintiff to pay for a 6 month gym membership with some supervision with a personal trainer.
In a judgement released today by BC Supreme Court, Madame Justice MacKenzie awarded a total of $30,900 plus wage loss in compensation as a result of a September, 2005 rear-end accident which occurred in Langley, BC.
In lenghty reasons for judgement released today, Mr. Justice Metzger found that injuries sustained in 3 seperate motor vehicle collisions had little impact on the Plaintiff’s functioning having regard to her MS related difficulties.
The only issue at trial was the value of the Plaintiff;s damages, fault for the accidents was admitted by the various defendants. The Plaintiff was diagnosed with MS about 5 months after the first of these 3 car accidents.
The Plaintiff sought a total of $223,550 in damages as a result of the collisions. The Plaintiff did not allege that the collisions played a role in the causation or aggravation of MS, rather that the impact of the accident related injuries on her functioning having regard to her MS was significant.
After over 3 weeks of evidence the trial judge concluded that the collisions caused soft tissue injuries (also referred to as connective tissue injuries) and that these were not particulalry significant.
Addressing the first collision the court concluded as follows:
The evidence is that the plaintiff’s injuries from accident #1 healed in their natural course and their effects were eventually overwhelmed or subsumed by the plaintiff’s unrelated progressive MS symptoms and disability. I am satisfied that the plaintiff’s pain and suffering decreased over a five-month period, ending in August 2003.
The plaintiff did not adduce evidence of a compounding or synergistic effect between her MS and her accident related soft tissue injuries.
On a review of the usual contradictory cases presented by opposing parties, I am satisfied the plaintiff is entitled to $8,500 in non-pecuniary damages for accident #1
Addressing the second collision the court found that
I find that the maximum duration the soft tissue injuries could be reasonably attributed to the motor vehicle accident of January 25, 2005 is from that date until May 3, 2006, when the MS relapse overwhelmed all other concerns. After that point, even if there were residual symptoms, their significance was “miniscule” or unrelated and not attributable to the negligence of the defendant.
From April 1, 2005 to May 3, 2006, the plaintiff’s function was quite high as she was able to maintain a satisfactory level of performance at Royal Roads University. As the plaintiff’s friend Tiffany Young testified, the plaintiff was able to meet with her for coffee, to play scrabble and go on walks, even though she had ongoing low back or other soft tissue injury symptoms. Other friends confirmed Ms. Jacobs’ attendance at dinners, movies and concerts.
It is not clear how many of the plaintiff’s MS symptoms were confused with the soft tissue injury symptoms. The lay witnesses were not in a position to distinguish between the pre-existing symptoms and those that came after accident #2. None of the lay witnesses suggested that the plaintiff did not have an energetic and high degree of function at least until the May 3, 2006 MS relapse. Each described what could reasonably be expected to accompany mild, nagging soft tissue injuries. The plaintiff coped despite these nagging and disruptive symptoms.
Having considered the collection of competing authorities with respect to appropriate non-pecuniary damages, I am satisfied the plaintiff is entitled to $23,500 as a result of the January 25, 2005 collision.
Lastly, the court found that there was “no objective evidence of injury” as a result of the third collision. THe court awarded $1,500 for pain and suffering as a result of that collision.
The Plaintiff’s total award was $36,116. Addressing the central issue in the case the court found that
There is no evidence of a compounding or synergistic effect between the accidents and the MS beyond the temporary and minor reference made by Dr. Devonshire while the plaintiff was undergoing a period of chemotherapy. The plaintiff remained employed and active at all material times until the disabling MS relapse.
Damages are therefore segregated on the basis of three separate accidents with no overlapping injuries and no interplay between the MS and the motor vehicle accidents.
Do you have questions about this case or a similar ICBC case that you would like to discuss with an ICBC claims lawyer? If so feel free to contact the author.
In a judgement released today by Madam Justice Humphries, a total of $58,000 was awarded to a 37 year old plaintiff as a result of a 2004 motor vehicle accident in Vancouver, BC.
The Plaintiff suffered soft tissue injuries in her neck, shoulder and low back. The accident also caused depression which was, according to the court, at least as debilitating as the physical injuries. The court found that the physical and psychological injuries were inter-connected.
The Plaintiff did suffer from pre-existing injuries in all of the above areas as a result of a 1996 motor vehicle accident. Evidence was presented that she was largely recovered from her pre-existing soft tissue injuries and depression by the time of the 2004 accident.
The court summarized her injuries as follows:
“From all the medical reports and from her own evidence, (the Plaintiff) appears to have recovered from the physical effects of this accident by late 2005 or early 2006 in the sense that she had ceased experiencing daily and ongoing pain. However, she continues to have and can expect to have bouts of pain depending on her activities. This is somewhat similar to the same state she was in prior to the accident, when she could work long hours, attending physiotherapy once in awhile if she was experiencing discomfort caused by her job. However, I accept that the effects of over-exertion and work-related activities since the second accident are more limiting than they were just prior to it “
In the end the court awarded $45,000 for pain and suffering (non-pecuniary damages), $3,000 for past wage loss and $10,000 for loss of earning capacity.
If you have an ICBC claim and have suffered from pre-existing injuries that were re-injured or aggravated by a subsequent car accident this case is worth reading to see some of the factors courts consider in these circumstances.
Also of interest is the courts reasoning in awarding some money for past wage loss despite the “flimsy” evidence that was advanced in support of an income loss claim. The Plaintiff was a self-employed photographer and there was no hard evidence of lost income. The court, at paragraph 40, held as follows:
It is only common sense that a self-employed person whose work depends on dealing with the public, persuading people to hire her, and being able to carry heavy cameras and position herself quickly in order to take pictures must be able to rely on physical agility and a pleasant personality in order to work to her full capacity. I accept that (the Plaintiff) was putting in many hours building her contacts and working on various facets of her business just prior to the accident, and due to her temporary physical limitations and some periods of depression, she was able to work less after the accident for a period of time. However, the amount of the loss is not amenable to a calculation, and many of the hours she put in were not necessarily hours for which she would be able to bill a client. As well, her earnings in the years prior to the accident were very low; in fact, she made more in 2004 than she did in 2002 and 2003. I assess an amount of $3,000 for past wage loss based on the plaintiff’s evidence of the restrictions she faced in carrying on with her existing business and the delay in her plans to expand her baby/pet photography.
If you are having difficulty agreeing to settlement of an ICBC claim because of pre-existing injuries or because of a disputed claim for past-loss of income from a self-employed business this case is worth a read to see how our courts sometimes deal with these issues.
Do you have any questions about this case? If so feel free to contact the author.
In the appeal of an award for total damages of $31,380 for soft tissue injuries and psychiatric injuries, the BC Court of Appeal upheld the trial judgement and concluded that the trial judge did not err in his findings.
The Plaintiff unfortunately had experienced both a number of very significant stressors in her life. These came both before and after the October 2002 car accident that was at issue in the lawsuit.
The trial judge found that the 2002 accident “was very traumatic for (the Plaintiff). I accept that she was a very fragile person mentally before the motor vehicle accident. I accept that the motor vehicle accident increased her level of stress and anxiety that pre-existed the accident. I accept that she is in need of psychiatric counselling for this increased level of stress and anxiety caused by the motor vehicle accident. I also accept, however, that most of (the Plaintiff’s) physical complaints are not grounded in any physical injuries but are grounded in her somatoform pain disorder that preceded the motor vehicle accident.”
The trial judge ultimately concluded that the accident caused some “minor short terms soft tissue injury, but that the main injury that she had from the motor vehicle accident was to her mental state through the increase in her level of stress and anxiety requiring psychiatric counselling.”
The Court of Appeal dismissed the appeal and made no changes to the trial judges awards which included $25,000 for pain and suffering.
Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenence company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inetible accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.
In reasons for judgement released today from a Rule 66 “fast-track” trial, Mr. Justice Masuhara awarded a Plaintiff a total of $27,427.67 in compensation as a result of a September, 2004 rear-end accident which occurred in Coquitlam, BC.
The Plaintiff, a 33 year old female at the time of the accident, suffered soft tissue injuries including headaches, dizziness, nausea, sleep disturbance, and various soft tissue injuries.
The majority of the Plaintiff’s pain resolved by the time of trial with the exception of pain in her shoulder girdle and mid back.
The Plaintiff’s family physician testified that she suffered from “soft tissue injuries to her neck and upper back as a result of the accident.” Treatments included trigger-point injections to the Plaintiff’s right shoulder blade muscles.
A physiatrist also gave expert opinion evidence that the accident caused neck injuries that had resolved and further had caused “injuries to her right posterior shoulder girdle region and mid back”. He expected the Plaintiff to make a good or very good recovery but his prognosis of a complete resolution was guarded.
The ICBC lawyer defending the case called an orthopaedic surgeon who had examined the Plaintiff on behalf of the defence. He testified that the Plainitff “suffered a mild to moderate soft tissue injury to her neck and upper back areas“, that he “would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the accident ” and that the “ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the accident“.
The court accepted the evidence of the Plaintiff’s physicians and found that the Plaintiff’s “persisting symptoms in the area of her right shoulder blade are as result of the accident”.
Damages were awarded as follows:
1. Non-pecuniary (pain and suffering): $25,000
2. Past Wage Loss: $974.67
3. Special Damages (out of pocket expenses) $1,453
Mr. Justice Masuhara deals with some common arguments often advanced by ICBC lawyers defending these types of claims including attacks on the Plaintiff’s credibility. His findings were favourable to the Plaintiff and a quick read of this judgement reveals some of the accusations Plaintiff’s often face whem advancing ICBC claims.
ICBC tells you you are at fault and you disagree. What do you do? You gather as much information as possible in support of your claim.
One of the main sources of information to examine is the BC Motor Vehicle Traffic Accident Police Investigation Report (the “Report”). Assuming the police attended the accident scene a copy of this report should have been provided to all motorists involved.
These reports often contain valuable information such as the names of all involved, the exact location of the accident, the names of witnesses and if any charges were laid. If charges were laid, the section of the Motor Vehicle Act that was allegedly violated is often cited in the report. It is a good idea to look up the exact section cited to see what the police allege against the other motorist.
Other information contained the report is coded and most ICBC lawyers know how to intepret this. I thought I would highlight some of the more important codes to share this useful information with my readers.
On the right hand side of the the Report are typed numbers. Assuming you were involved in a two vehicle collision fields 31-33A relate to the first motorist mentioned in the report and fields 34-36A relate to the second motorist mentioned in the report.
The police then fill in these fields with codes for all the “contributing factors” to the collision. Here is what some of these codes mean:
16 = extreme fatigue
19 = fell asleep
22 = illness
23 = Sudden Loss of Consciousness
26 = Pre-existing physical disability
80 = Ability impaired by Alcohol
81 = Alcohol suspected
82 = Ability impaired by drugs
83 = Drugs Suspected
84 = Ability impaired by medication
85 = Driver inatentive
86 = Driver internal / external distraction
87 = Deceased prior to colliison
11 = Backing unsafley
12 = Cutting in
17 = Failing to Signal
18 = Failing to yield the right of way
20 = Following too closely
21 = Improper Passing
24 = Driving on wrong side of road
25 = Pedestrian error / confusion
29 = Ignoring traffic control device
30 = Improper turning
32 = Ignoring officer / flagman / guard
33 = Avoiding vehicle / pedestrian / cycle
34 = Use of Communication / video equipment
35 = Exceeding speed limit
36 = Excessive speed over 40 KH Hour
37 = Driving too fast for conditions
38 = failure to secure stopped vehicle
39 = Driver error / confusion
In additon to the above, the police can code in various factors for “Environmental Conditions” or “other” conditions that contributed the the accident.
I should note that police officers who fill out these reports rarely witnessed the collision themselves and often their allegations of what happened are inadmissible hearsay evidence. It is important to track down all witnesses who can verify these allegations so that there is a source to provide admissible evidence should your ICBC claim ever go to trial.
These reports are a valuable source of information when advancing ICBC claims and it is important for you or your ICBC lawyer to properly interpret these reports to properly advance an ICBC claim.
If you have any questions about your ICBC claim or some of the codes contained in a BC Motor Vehicle Traffic Accident Police Investigation Report feel free to contact the author for help.
After a trial that lasted over 20 days, A Plaintiff who was struck in a cross-walk in Whistler, BC was awarded $718,331 for his losses and injuries.
The accident was significant. The circumstances are canvassed at paragraph 2 of the judgement where it was held that “The Plaintiff was struck on his left side. He flew over the hood of the Defendant’s vehicle. His face smashed into the windshield. He then was thrown off the car landing on the pavement. ”
The Plaintiff suffered serious injuries including facial lacerations, a fractured nose, soft tissue injuries to the left knee, neck and back, a mild traumatic brain injury (also known as a concussion), dental and TMJ injuries, permanent facial scarring, depression, insomnia, fatigue, anxiety, panic attacks, chronic pain disorder and most significantly cognitive defecits due to his injuries.
As is often the case in ICBC claims involving chronic pain and head injury, the court had to deal with a mountain of medical expert witness testimony both for the Plaintiff and for the Defence.
In addition to obtaining opposing medical evidence, ICBC hired investigators to video the Plaintiff surreptitiously. As stated in my last blog, video surveillance is a common ICBC lawyer defence tactic. While ICBC lawyers defending claims don’t hire private investigators in every case, a safe general rule is that the more serious a Plaintiff’s injuries, the more likely the chance that ICBC defence lawyers have hired a private investigator.
Mr. Justice Williamson made an interesting comment regarding surveillance at paragraph 114 of his judgement where he held that “(the occupational therapist hired by ICBC) testified that there was a sense that (the Plaintiff) did not trust her and that (the Plaintiff) considered her as somehow or other a spy for ICBC. I note that the Plaintiff’ concern that ICBC was spying on him was accurate. The corporation hired investigators to video the plaintiff surreptitiously.”
After weighing all the evidence, the trial judge found that the Plaintiff “suffers from chronic pain syndrome, depression and continuing cognitive defecits.”
$135,000 was awarded for pain and suffering. The other damages awarded were as follows:
$450,000 for Loss of Earning Capacity (commonly referred to as future wage loss)
$101,436 for Past Wage Loss
$31,895 for Cost of Future Care
In a case that can be characterized as “the straw the broke the camel’s back”, a Plaintiff was awarded over $90,000 soft-tissue injuries and a L5-S1 disc herniation which were caused (at least in part) as a result of a 2003 car accident.
The Plaintiff was a 47 year old with a long history of back injuries. She had pre-exsting low back pain, neck pain and a bilateral facet-joint arthropathy.
She was involved in a fairly serious car accident in 2003. Her vehicle sustained damage which took close to $5,000 to repair.
At trial both a neurosurgeon and an physiatrist testified on behalf of the Plaintiff. The neurosurgeon’s opinion was that “(the Plaintiff’s) disk herniation was caused by small tears to the annular fibres surrounding the disc which eventually ruptured due to the ongoing stresses from day to day living” and that “(since the car accident) was the last major trauma before (the Plaintiff) experienced the disc herniation, it was a significant contributor to the problem.” The Plaintiff’s physiatrist largely shared this opinion.
ICBC lawyers defending claims often retain orthopaedic surgeons who disagree with treating physicians. This common insurance defence step was followed in this case as the defence lawyers retained an orthopaedic surgeon who testified there was “no objective evidence of ongoing injury to explain the Plaintiff’s ongoing pain“.
The Defence also showed video surveillance of the Plaintiff doing various activities including getting in and out of her car on many occasions with minimal difficulty. I have previously blogged about surveillance evidence and ICBC claims and don’t intend to re-visit this subject at length but will point out that this is a common tactic ICBC lawyers take when defending injury claims and Justice Fenton, at paragraph 10 and 11 of the judgement canvasses the position that many ICBC lawyers take at trial when they have surveillance evidence which shows a Plaintiff potentially overstating injuries.
After hearing all the medical evidence the court accepted the opinions of the Plaintiff’s physiatrist and neurologist and stated that “(the Plaintiff’s) earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find the defendant’s negligence was the only cause of the Plaintiff’s problems after February 13, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries”
The court assessed the Plaintiff’s damages as follows:
1. Pain and Suffering: $65,000
2. Special Damages (out of pocket expenses): $3,118
3. Past Wage Loss: $88,000
4. Cost of Future Care: $5,000
Justice Fenlon then reduced the total award by 40% to account for the risk that the Plaintiff’s pre-existing condition in her spine and her psychological fragility would have detrimentally affected her in the future, regardless of the car accident.
Justice Fenlon did a great job in canvassing the applicable law in determining whether the car accident caused the Plaintiff injury. This case is worth reading to get insight into the factors courts consider when addressing pre-existing injuries that were aggravated by a car accident, and further to see the “thin-skull” legal principle in action which is well canvassed at paragraphs 42-44 of the judgement.
In reasons for judgement released by the BC Supreme Court today, The Honourable Madam Justice Griffin awarded a police officer, who was 26 at the time, a total of $87,231.53 as compensation for her injuries from a 2004 rear end motor vehicle accident.
The Plaintiff was diagnosed with back and neck soft tissue injuries.
The trial judge found that “it is now unlikely that (the Plaintiff) will recover completely from her injuries. She has recovered considerably….however, she is likely to have flare-ups of her symptoms from time to time“.
The Plaintiff called a total of 5 medical witnesses in support of her claim. The medical evidence in support of the claim included:
1. The Plaintiff’s former GP who testified that the Plaintiff did not complain of back or neck pain prior to the car accident.
2. The Plaintiff’s current family physician who testified that the Plaintiff’s injuries cause her to remain vulnerable to aggravated symptoms with physical activity
3. A chiropractor
4. An occupational and sports medicine physician who testified that the Plaintiff had Post Trauamtic Myofascial Pain Syndrome and Mechanical Low Back Pain. He went on to state that “it is my opinion that (the Plaintiff) now has a permanent impairment of her mid back and low back.”
5. A specialist in physical medicine and rehabilitiation (commonly referred to as a physiatrist). He diagnosed the Plaintiff with mechanical low back pain and mechanical neck pain.
The Defense hired an orthapoedic surgeon to assess the Plaintiff. (This is a common step taken by ICBC lawyers in defending soft tissue injury claims). He testified that the Plaintiff had a resolving cervical sprain, that her complaints were minimal and that they would resolve with the passage of time and a continuing exercise program.
The defence doctor’s evidence was challenged in cross-examination and he made some useful admissions including that “the chance of spontaneous recovery is less with the passage of time“.
The trial judge assessed damages as follows:
1. $30,000 for pain and suffering
2. $5,112.60 for past loss of income
3. $2,391 for cost of future care
4. $5,227.93 for special damages (out of pocket expenses incurred as a result of the accident)
5. $70,000 for loss of earning capacity (future wage loss).
The damages awarded for pain and suffering and future wage loss were then reduced by 25% by the trial judge. The reasons provided for this were that “because (the Plaintiff) had a vulnerability to back injury due to her earlier accidents, there was a measurable risk prior to the July 2004 accident that if (the Plaintiff) was to suffer a work injury in her position as a police officer the effects would be serious.”
This reduction of damages is an example of a basic legal principle (that a Plaintiff is not to be over-compensated) in action. The court heard evidence that the Plaintiff suffered previous injuries and the Plaintiff’s own physician testified that “(a previous accident) directly caused her complaints of mid and low back pain and that July 2004 accident aggravted her symptoms”.
This case is a great illustration of the fact that previous injuries do not disentitle a person for compensation if these injuries are aggravated in a later accident. The extent of the pre-existing injuries simply have to be taken into account when properly valuing the damages of the subsequent accident.
Are you looking for an ICBC Lawyer to discuss a similar ICBC injury claim? If so feel free to contact the author for a free consultation.