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Ikea's "Sophisticated" Washroom Cleaning Policies Derail Slip and Fall Lawsuit

Written by admin on . Posted in Occupier's liability claims.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a slip and fall lawsuit against Ikea.
In today’s case (Dudas v. Ikea Ltd.) the Plaintiff slipped and fell in the washroom and speculated the cause of her fall was water left behind by Ikea’s janitorial contractor.  The Plaintiff sued both Ikea and the janitorial contractor.
Mr. Justice Weatherill dismissed the lawsuit finding the plaintiff’s speculation as to the cause of her fall was insufficient to prove liability but regardless that the washroom cleaning policies, which were followed, were “sophisticated, thorough and detailed” and these were sufficient in defeating the Plaintiff’s allegations of negligence.  In dismissing the claim the Court provided the following reasons:

42]         However, even if the plaintiff had proven on a balance of probabilities that she slipped on water left on the floor by Ms. Kaur while the plaintiff was in the washroom stall, she also has the onus of establishing on the balance of probabilities that she did so as a result of SBS, as an occupier, failing to meet the reasonableness standard required of it under s. 3(1) of the Act.  In my view, the plaintiff failed to do so.

[43]         Mr. Hay, SBS’s Chief Executive Officer, gave detailed evidence regarding the systems it had in place at Ikea for the provision of its maintenance and janitorial services and the training of its staff.  Those systems, policies and procedures are by any measure sophisticated, thorough and detailed.  It is hard to imagine reasonable steps that could have been implemented to improve them.

[44]         The plaintiff submits that it is apparent from the SBS Incident report that Ms. Kaur, the cleaner in question, knew that someone was in the washroom stall while she was mopping the floor, and that it was unreasonable for SBS not to have an established protocol in place for the cleaner to verbally alert patrons who were using washroom stalls to the fact that the floor outside of the stall was being mopped. 

[45]         Mr. Hay agreed that there is no such protocol in place.  He testified that, in such situations, SBS relies on the noise generated by the cleaners during the cleaning process. 

[46]         The plaintiff submits that the failure to have such a protocol was a breach of SBS’s obligations under s. 3 of the Act.  I disagree.  There is no evidence that such a policy exists anywhere in the industry.  Moreover, it raises policy issues relating not only to privacy, but also equality considerations in terms of the potential for hearing persons being preferred over non-hearing persons. 

[47]         This incident took place in a ladies washroom.  The potential for some dampness on the floor ought reasonably to have been expected by anyone using it.  The mere presence of some water on the floor does not constitute an objectively unreasonable risk of harm: Zary v. Canada Mortgage and Housing Corp., 2015 BCSC 1145 at para. 57.

$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

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

Update June 8, 2017 – Today the BC Court of Appeal ordered a new trial in this case finding the trial judge made several errors. 
_________________________________
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.
In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:
63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…
[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.

Peeping Tom Ordered to Pay $93,850 For Recording Step-Daughter

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Duncan Registry, ordering a peeping tom Defendant to pay $93,850 in damages for recording his step-daughter while she was showering and otherwise undressed.
In today’s case (TKL v. TMP) the Court was presented with the following statement of facts –
[16]         On four occasions in the first half of 2011, the defendant surreptitiously video-recorded the plaintiff while she was in the shower and for a period of time shortly after she left the shower. The plaintiff was 20-years-old the first time this happened; on the latter three occasions she was 21. In July 2011, the plaintiff came across the videos on the defendant’s camera. The matter was reported to the RCMP.
[17]         The agreed statement of facts referenced earlier includes a recitation of what was depicted on the video recordings. The following summary of the four recordings is drawn from the agreed statement of facts:
13 January 2011
The plaintiff is seen exiting the bathroom door and entering into her bedroom. She is wearing a towel wrapped around her body and has a towel wrapped around her head. She closes her bedroom door and walks around in her bedroom. She gathers her clothes and takes off her towels. Her entire body, including her buttocks, genital area and breasts are captured on the video clip and in the reflection of mirrors that are against her bedroom wall. She is seen bending over to pull up her underwear.
8 May 2011
The plaintiff is seen entering into the stand-up shower with a clear glass door. She is completely naked and the video-recording captures images of her vagina, breasts and buttocks. It also shows her masturbating in the shower for a couple of minutes. She is next seen shaving and trimming her pubic hair, and shaving her armpits and legs. She then goes back to masturbating and eventually sits on the shower stall floor. She exits the shower stall and dries off.
22 May 2011
The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. He adjusts the angle and zooms in at various times, capturing images of the plaintiff’s vagina, buttocks and breasts. He zooms in on her nipples, zooms out and then re-zooms on her face. She masturbates. After a few minutes of masturbating she washes and conditions her hair, with her arms extended over her shoulders. She is seen getting out of the shower, and images of her breasts, buttocks and vagina are clearly captured.
12 June 2011
The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. The plaintiff can be seen in the shower completely naked. She is captured exiting the shower and her breasts and vagina are within view.
In finding these actions breached BC’s Privacy Act and assessing non-pecuniary damages at $85,000 Mr. Justice Thompson provided the following reasons:
20]         By spying on and video-recording the plaintiff as described above, the defendant committed disturbing violations of the plaintiff’s personal privacy. Subsection 1(1) of the Privacy Act provides that it is a tort for a person, wilfully and without a claim of right, to violate the privacy of another. Little analysis is necessary on the facts of this case to reach the conclusion that the defendant has committed this statutory tort. The defendant acted wilfully. The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed, and changing her clothes in her bedroom with the door closed. The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy. The defendant’s liability for the statutory tort is beyond question…
[52]         My sense is that the plaintiff in the case at bar has suffered a greater degree of pain, disability, emotional suffering, impairment of family and social relationships, and loss of lifestyle than the plaintiffs in the Malcolm and L.A.M. cases. I conclude that the quantum of compensatory damages awarded in those cases would be wholly inadequate compensation in the case at bar. I award $85,000 for general damages, of which $25,000 is allotted to take account of the aggravated features of the case — I agree with the plaintiff that the damages ought to be significantly increased in response to the defendant’s thoroughly undignified and humiliating actions.
 

"Costs Awards Should Not Punish Plaintiffs From Taking Forward Meritorious Claims"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.
In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial.  Prior to trial ICBC issued a formal settlement offer of $125,000.  At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.
ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs.  The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages.  In reaching this decision Madam Justice Sharma provided the following reasons:

[29]         The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.

[30]         The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.

[31]         Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.

[32]         Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.

[33]         The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.

$45,000 Non-Pecuniary Assessment for "Persistent Episodes of Low Back Pain"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgment were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a persistent low back injury.
In the recent case (Jones v. McLerie) the Plaintiff was involved in a 2011 rear-end collision that the Defendant admitted fault for.  The collision caused a low back soft tissue injury that persisted to the time of trial with symptoms flaring with heavier physical activity.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:
[37]         I find that Mr. Jones continues to be significantly affected by persistent episodes of low back pain triggered by heavier physical exertion. Mr. Jones struck me as a somewhat stoic individual, inclined to understate the impact of his condition. He is the sole breadwinner of his young family, and he seems determined not to let his symptoms substantially interfere with his life. That having been said there have been some restrictions imposed on his physical activities and his enjoyment of life has been negatively impacted, to a relatively minor though not insignificant extent, and his relationships with family members has been adversely affected….

[39]         Exercise – or the lack thereof – has been and will be a key component in his recovery. I am struck by Dr. Helper’s opinion that Mr. Jones has a “good probability of maintaining his low back symptoms at a mild degree of severity with a dedication to fitness…”. I am not, contrary to the submission of the defence, going to reduce Mr. Jones’ damages award for a failure to mitigate by reason of him not having undertaken a regular exercise program; the strains of coping with a young family and with changes in his employment have, in my view understandably, led to him not making exercise a priority. However Dr. Helper’s assessment has brought home how critical exercise will be. Mr. Jones, with a young family to care for her, would appear to be strongly motivated to dedicate himself to exercise recovery program that will, as Dr. Helper says, maintain his symptoms at a mild degree of severity.

[40]         There is, of course, a risk that he will not do so, but in that eventuality any worsening of his symptoms would, going forward, substantially arise from his own failure to mitigate, limiting the defendant’s responsibility…

[50]         I assessed his general damages in the amount of $45,000.

Defamatory Facebook Post Leads to $65,000 Damage Award

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay $65,000 in damages following a defamatory Facebook post.
In today’s case (Pritchard v. Van Nes) were neighbors who had “tensions” between them.   The Defendant published some troubling posts on Facebook that “in their natural meaning and by innuendo, bore the meaning that the plaintiff was a paedophile“.   The court found that these suggestions “were completely false and unjustified“.
The Plaintiff successfully sued the Defendant for defamation.  In awarding $50,000 in general damages and a further $15,000 in punitive damages Mr. Justice Saunders provided the following reasons:

[122]     The seriousness of Ms. Van Nes’ defamatory Facebook post, her replies, and the comments of her “friends” cannot be overstated. An accusation of paedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity. The identity of Mr. Pritchard is especially relevant in this case. Through his engagement in extra-curricular activities he occupies a position of trust as a music teacher for children. Through hard work and dedication to his students, he had earned the community’s respect and admiration, as clearly established on the evidence. I find that he now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point.

[123]     The vehicle through which Ms. Van Nes chose to publicize her defamatory accusations provided the court with further evidence of the damage to his reputation; that there were individual replies from 37 of Ms. Van Nes’ Facebook “friends” within less than 24 hours clearly documents the quick degradation of Mr. Pritchard’s estimation in the eyes of others..

[131]     I do not find that the claim of malice has been made out. Taken in its entirety, the evidence of the defendant’s actions – her self-centred, unneighbourly conduct; her failure to respond reasonably to the plaintiff’s various complaints, particularly regarding her dog; and her thoughtless Facebook posts – point just as much to narcissism as to animosity. Her belief that the decorative mirror hung on the exterior of the plaintiff’s house was some sort of surveillance device was simply ridiculous, speaking, to be blunt, more of stupidity than malice.

[132]     The defendant, as I see it, appears to have thoughtlessly taken to a social medium to give vent to her feelings, making reckless statements without any regard to the consequences. She certainly ought to have anticipated the potential impact of her remarks; whether she actually did so has not been proven.

[133]     The defendant’s subsequent actions bear none of the indicia of malice discussed at para. 191 of Hill: she removed the posts relatively quickly, probably when the gravity of the situation became apparent to her through the police presence at the plaintiff’s home; she did not seek to publicize the proceedings, giving rise to further dissemination of the defamation; she did not file a defence.

[134]     Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135]     I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, a punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publically denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.

[136]     I award the plaintiff additional punitive damages of $15,000.

"Legitimate Cause for Concern" When Defendant Offer Fails To Include Full Costs and Disbursements

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, depriving a Defendant of double costs that they otherwise would have been awarded where their formal settlement offers failed to include separate costs and disbursements.
In today’s case (Lanz v. Silver Lady Limousine Services Ltd.) the Plaintiff was involved in two separate collisions and sued for damages.  A jury dismissed both lawsuits.
Prior to trial ICBC provided a formal settlement offer of $50,000 and 50% of costs and disbursements.  This was later withdrawn and replaced with a settlement offer of $70,000 inclusive of costs and disbursements and finally one of $80,000’new money’.  The Plaintiff rejected all of these offers.
The Plaintiff conceded the Defendants were entitled to costs for being on the winning end of the lawsuit but argued no double costs should be awarded as the offers ought not to have reasonably been accepted.  In depriving the Defendant of double costs Madam Justice Sharma expressed concern about the Defendant’s reluctance to include full costs in their offers and noted as follows:

[22]         The defendants first offered $50,000 plus only 50% of costs; their last offer was $80,000 “new money” inclusive of costs and disbursements. In my view, there is a legitimate cause for concern when a defendant’s offer does not include costs and disbursements in a personal injury case where liability and damages are at issue. It could be seen as a tactic discouraging the plaintiff from gathering evidence to substantiate her claim in the first place. Plaintiffs carry the evidentiary burden to prove their case and they are obliged to bring forward expert medical evidence. In this case, the defendant’s offer was made more than a year after the plaintiff’s original offer, when presumably significant costs may already have been incurred with no indication from the defendants that settlement was a possibility.

[23]         In the context of this case, I do not find the defendants’ offers to be ones the plaintiff ought to have accepted because they did not include costs and disbursements as discrete items. I see nothing about this case that justifies penalizing the plaintiff for failing to correctly guess the jury would not accept her claims. I conclude that awarding double costs amount to imposing a heavy penalty on a plaintiff that was forced to endure the unpredictability of a jury trial. I find the day before trial, she had reasonable basis to pursue her case at trial. The defendants’ offers were devoid of discrete recognition of costs and, in my view, that was a disincentive to settle.

[24]         The defendants’ application for double costs is dismissed

$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011.  Fault was admitted on behalf of the rear driver.  The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police.  The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.
In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:
 

[119]     The plaintiff is 39 years old. 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.  This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

[132]     After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.

$45,000 Non-Pecuniary Assessment for Persistent but Not Disabling Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for persistent moderate soft tissue injuries.
In today’s case (Matharu v. Gill) the Plaintiff was involved in a collision which the Defendant was found liable for.  She suffered moderate soft tissue injuries to her neck and shoulder which persisted to the time of trial and were expected to linger for sometime after although the ultimate prognosis was generally favorable.  In assessing non-pecuniary damages at $45,000 Mr. Justice Butler provided the following reasons:

[30]         When I consider the medical opinions and the evidence regarding the nature and duration of Ms. Matharu’s symptoms, I arrive at the following conclusions:

a)       Ms. Matharu suffered a moderate soft tissue strain to her neck and shoulders. She also suffered a mild low back strain.

b)       Ms. Matharu’s pre-existing conditions have affected the length of time it has taken and will take for her to recover from the injuries. In particular, the inflammatory polyarthropathy made her more susceptible to persistent soft tissue pain. Her mild anxiety condition has also had some impact on the persistence of her symptoms.

c)       In spite of persistent pain for three years, Ms. Matharu has continued with most activities at home and at work. She has managed to do this with the assistance of family, friends and work colleagues. She can fairly be described as somewhat stoic.

d)       Ms. Matharu did not follow Dr. Sanghera’s recommendations to continue with physiotherapy and active rehabilitation for about 12 months. Similarly, prior to the accident, she did not take part in recommended regular exercise. Her failure to do so for a period of time after the accident has likely resulted in some prolongation of symptoms. However, it is unlikely her symptoms would have resolved by trial, even if she had continued with the recommended therapy.

f)        Ms. Matharu continues to experience symptoms related to the injuries suffered in the accident. The symptoms will continue to resolve and there is a good chance they will fully resolve within the next one to two years.

…

[37]         When I examine the circumstances in this case and the factors highlighted in Stapley, the important factors here are the length of time Ms. Matharu has suffered ongoing soft tissue pain, the extent of that pain, and the impact it has had on her ongoing activities. In that regard, I accept that she is stoic and has continued to do most things. However, I also find that she was frail and somewhat limited in what she could do before the accident. Accordingly, the injuries have imposed a limitation on her activities and lifestyle which has impacted her more than such injuries would have done to someone who was more vigorous and did not suffer from inflammatory polyarthropathy.

[38]         In all of the circumstances, I conclude that a fair award for non-pecuniary damages is $45,000. However, that does not end the matter. Ms. Matharu did not follow Dr. Sanghera’s recommendations and I have accepted his evidence that had she done so she would likely have had some improvement in her symptoms. Accordingly, I find the defendant has satisfied the onus to prove that Ms. Matharu failed to mitigate her loss. I would accordingly reduce the non-pecuniary damage award by 10%.

$95,000 Non-Pecuniary Assessment for Chronic Pain and Somatic Symptom Disorder

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $95,000 for a plaintiff suffering from chronic pain and a somatic symptom disorder following a vehicle collision.
In today’s case (Dabu v. Schwab) the Plaintiff was involved in a 2011 collision the Defendant admitted fault for.  The Plaintiff injured her neck back and shoulder and developed chronic pain syndrome along with a somatic symptom disorder with a relatively poor prognosis.  In assessing non-pecuniary damages at $95,000 Mr. Justice Steeves provided the following reasons:
[51]         Overall, there are findings of physical limitations and an undisputed psychological disorder that are related to the 2011 accident. These continue and they affect the life and work of the plaintiff. I note that Dr. Shane opines that the prognosis is that the plaintiff’s psychological functioning will remain stable. From his previous comments about the persistence of somatic symptom disorder and chronic pain syndrome I take his meaning to be that these conditions will continue. This is generally consistent with the prognosis given by Dr. Misri that the prognosis is poor, if not guarded (based on different diagnoses). There is also evidence that the plaintiff’s symptoms are slowly improving and her specialist in physical medicine and rehabilitation believes she can increase her activities and she should do so…

[53]         In the subject case the plaintiff has managed to work full time and this brings her considerable satisfaction and contributes positively to her emotional well-being. However, she is not able to work at the same level as before the accident and her home life has become reduced in a significant way so she can recover from and rest for work. She also has limitations in what she can now do at work. This is discussed in more detail below under loss of future earning capacity. As a matter of non-pecuniary damages it is enough to say that the plaintiff has not lost the enjoyment that her work gives to her but there has been a related loss because of the limitations her pain and suffering have placed on her home life.

[54]         As above, the defendant relies on prior decisions for her position that the range for non-pecuniary damages in this case is $40-50,000. For example, in the Matias decision non-pecuniary damages were assessed at $50,000. However, in that case bilateral frozen shoulders were found to be very significant for the plaintiff’s disability but they were found to be unrelated to the accident in dispute. In Chen, a decision from 2004 where non-pecuniary damages of $35,000 were awarded, there were soft tissue injuries somewhat similar analogous to the ones in the subject case but the psychological diagnoses related to pain were absent. The Rabiee judgment can be similarly distinguished.

[55]         With respect to the authorities relied on by the plaintiff for her range of $128,000 to $135,000, in Poirier an award of $100,000 for non-pecuniary damages was given but the plaintiff’s condition was likely permanent and the prospect for improvement was guarded. In Hosseinzadeh there was significant pain to the point of rendering the plaintiff immobile for days at a time (at para. 103) and damages of $125,000 were awarded. Damages of $130,000 were given for non-pecuniary damages in S.R., where the trial judge accepted an expert opinion that the plaintiff would not fully recover to her former self despite completion of a pain program (at para. 169) and her ability to participate in one of her most passionate goals in life, her faith, was limited (at para. 172). Finally, in Morlan, the plaintiff could no longer work in her pre-accident work which brought her considerable satisfaction. The Court of Appeal considered non-pecuniary damages of $125,000 to be generous but not excessive.

[56]         In the subject case the plaintiff’s own expert believes she can increase her activities at home and at work and she continues in her work which brings her considerable satisfaction and enjoyment.

[57]         With the above in mind I conclude that an appropriate amount of non-pecuniary damages in this case is $95,000.00.