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Why BC's "Minor" Injury / Tribunal Laws Are Vulnerable to a Charter Challenge

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

British Columbia is not the first jurisdiction in Canada to take away the rights of the public in order to strengthen insurer profits.  This has been done in other Provinces and legal challenges to injury cap laws have withheld constitutional challenge.  BC, however, has gone further than simply capping damages and combined these with a system that forces ‘prescribed’ injury victims away from Court and into a Civil Tribunal.  This combination leaves BC’s recent legislation vulnerable to legal challenge.
In the simplest of terms, when you are injured in a crash and sue the at fault motorist for your losses ICBC, BC’s government controlled monopoly auto insurer, can allege your injuries are “minor”.  When they do so, even if the allegation is frivolous, your claim gets steered out of Court and into a Civil Tribunal.   From there the Tribunal has the exclusive jurisdiction to decide if your injury is, in fact, “minor” (a term which encompasses many serious injuries).  BC requires the injured party to bear the burden of proving the injury is not minor.  If you can’t clear this hurdle you can’t go to Court unless the Tribunal also decides there is “a substantial likelihood that damages will exceed the tribunal limit“ (or in other very limited circumstances).
BC created a two tiered justice system.  One for ‘minor‘ injury claimants and one for others.  If you don’t have a “minor” injury you can choose where you wish to sue.  If you have an alleged “minor” injury you have no choice.  You have to go to the Tribunal and clear their barriers before being given permission to go to Court.
The gatekeeping function of who is forced into the Tribunal is based solely on the physical and mental characteristics of the claimant.
If you have something as benign as a hairline fracture in your finger you can go to court. If you have PTSD, a concussion, depression or another psychiatric condition you get funnelled to the Tribunal.  Why is this a problem?  Section 15 of Canada’s Charter of Rights and Freedoms protects individuals from discrimination based on “mental or physical disability“.
Section 15 of the Charter reads as follows (key words emphasised by me)
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
BC’s system violates the plain language of this constitutional protection.   The benefit of the law is going to Court.  The barrier is a mental or physical disability used as the sole criteria to determine whose rights are taken away.
If a Court finds s. 15 is violated BC will have to prove this discrimination “can be demonstrably justified in a free and democratic society.”  It stretches the imagination on how taking away the public’s judicial rights based on protected grounds in order to save an insurer money meets this test.
There can little doubt that the Tribunal system is designed to be unfair and affords lesser justice to litigants compared to the BC Supreme Court –

  • BC’s Attorney General admitted during debate that they designed this system to discourage people from having a lawyer and wanting lay litigants attending the Tribunal against an insurance “specialist“.
  • The Government carved themselves out of the Tribunal’s jurisdiction making them immune from lawsuits before it.
  • The Tribunal limits the expert evidence litigants can use and further limits the cost recovery available for hiring experts.
  • Tribunal cases have extremely curtailed appellate rights.  These are limited to judicial review under the strictest standards compared to the more robust rights a litigant would have after a BC Supreme Court trial.
  • Tribunal adjudicators, unlike BC Supreme Court Justices, are not appointed by the Federal Government and do not enjoy the job security Justices do.
  • The Tribunal itself is designed by the BC Government, the same entity that controls ICBC and has been taking their profits for years.
  • Litigants before the Tribunal are afforded fewer rights in the realm of civil procedure.

This is not a case of Government creating a separate but equal route to justice for people with modest claims. This is not a case of Government giving people a choice between different forums.   This is a case of Government using Charter protected grounds to force individuals with prescribed mental and physical injuries to overcome further obstacles before being allowed access to Court.
BC’s new laws come into force on April 1, 2019.  A Charter challenge will be right on its heels.

"Minor" Injury Victims Limited To Single Expert and Curtailed Budget By Civil Resolution Tribunal

Written by admin on . Posted in ICBC Minor Injury Caps.

This week the BC Government published more details surrounding their new legal regime for collision victims ICBC alleges to have ‘minor’ injuries.  In short it limits expert witness rights and limits fee recovery for the expenses of hiring experts.
The Accident Claims Regulation provides as follows:
– allows “on the request of a party or on the tribunal’s own initiative” for the tribunal to “appoint an expert to conduct an independent medical examination with respect to a person’s injuries related to an accident claim”
– the scope of the examination and report that follows can comment on “the nature and extent of the person’s injuries; the person’s diagnosis; the person’s condition at the time of the independent medical examination; the person’s prognosis.”
– the claimant is restricted, as a default position to “introduce expert evidence from one expert” separate from any expert the Tribunal chooses for an independent medical examination.
– the claimant can ask the tribunal for permission to have up to two additional experts “if the tribunal considers that the introduction of additional evidence is reasonably necessary and proportionate to the accident claim”.
– the following restrictions on costs recovery, both for expert witnesses and overall, are set out
(i) $2 000 is the limit prescribed for expenses and charges payable in
relation to each expert, including any expenses and charges payable
in relation to reports or other evidence prepared by each expert
providing expert evidence, and
(ii) $5 000 is the total limit prescribed for all recoverable fees, expenses
and charges, including any expenses and charges payable under
subparagraph
Just to break down how this work.  If you are injured in a crash and ICBC alleges you have a ‘minor’ injury (whether your injury is minor or not) you will have to go to the Tribunal.   The Tribunal will have to decide if your injury is minor.  If not you are free to go to Court.  If it is deemed ‘minor’ you will remain stuck in the Tribunal for quantum to be decided unless you persuade the Tribunal that there is “a substantial likelihood that damages will exceed the tribunal limit“.  These barriers must be overcome with a limited budget and experts because as a default you will be limited to one expert and can only recovery $2,000 for that expert’s services even if more is charged.

British Columbia's "Minor" Injury Law Says One Year Actually Means Forever

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

Yes, you read that right.  12 months is 1 year but according to new Laws and Regulations passed by British Columbia 12 months actually means forever.
What am I talking about?  Earlier this year the BC Government passed a law capping non-pecuniary damages for what they call ‘minor’ injuries.  The law states that if the injuries cause “serious impairment“, however, that they are no longer minor and not subject to the cap.  Seems fair enough right?  Read on.
To meet the definition of ‘serious impairment‘ in section 101(1) of the Insurance (Vehicle) Act the injury must not “be resolved within 12 months” and meet whatever further criteria the government dog-piles on via Regulation.
Last week the Government published their Regulations which added the requirement in addition to the 12 month duration required in the Act the injury must basically be disabling to lead to ‘serious impairment‘.  Then, they went further and said the 12 month injury also has to be permanent with a requirement that “the impairment is not expected to improve substantially”.
So when the Government tells you that injuries that last more than 12 months are not subject to the cap they are lying.  They in fact require the injuries to be disabling and permanent to shed the restrictions of the cap.
This inconsistency between the Act and Regulations appears illogical, incoherent and contrary to the stated intention of capping minor injuries.  A situation that opens the harsh Regulation to judicial challenge.  Probably one of many to come by British Columbians impacted by these new laws in 2019.

Understanding ICBC's "Minor Injuries" For Crashes After April 1, 2019

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

This week the BC Government released their regulations setting out the framework for ICBC’s ‘minor injury’ scheme which will be in force for people involved in BC collisions after April 1, 2019.
First and foremost it should be emphasized that the term ‘minor injury’ is misleading.  It is a political term used to make the public ok with having your rights stripped.  In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition.  With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold.  Here is the rundown.
Section 103 of the Insurance (Vehicle) Act notes that everyone in a BC crash after April 1, 2019 that suffers ‘minor’ injuries have their non-pecuniary damages capped at an amount set by regulation.  The regulations released last week set the cap at $5,500.
The term “minor injury” is defined in section 101 of the Act as follows:

a physical or mental injury, whether or not chronic, that

(a)subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b)is one of the following: 

(i)an abrasion, a contusion, a laceration, a sprain or a strain; 

(ii)a pain syndrome;

(iii)a psychological or psychiatric condition; 

(iv)a prescribed injury or an injury in a prescribed type or class of injury;

The Regulations went on to expand this list with the following ‘prescribed’ injuries

a. a concussion that does not result in an incapacity

b. A TMJ disorder

c. a WAD injury

A TMJ disorder was defined to mean “an injury that involves or surrounds the tempomandibular joint.“.

A WAD injury was defined to mean “a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;

(b) a fracture or dislocation of the spine”

Sprain was defined to mean “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn“.

Strain was defined to mean “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn“.

Psychological or Psychiatric Condition is defined as follows:

a clinical condition that

(a) is of a psychological or psychiatric nature, and

(b) does not result in an incapacity

The word “incapacity” was defined as well with the Regulations noting as follows:

in relation to a claimant, means a mental or physical incapacity that

(a) is not resolved within 16 weeks after the date the incapacity arises, and

(b) is the primary cause of a substantial inability of the claimant to perform

(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession.

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

So, if you have any of the above “minor injuries” you are facing capped non-pecuniary damages.  A concussion by default is minor but if it does result in the above definition of ‘incapacity’ it will not be subject to the cap.  The same goes for psychological or psychiatric conditions.

A “minor” injury can also get around the cap if it results in  “serious impairment or a permanent serious disfigurement“.

These terms have also been defined as follows:

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a)is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b)meets prescribed criteria.

The “prescribed criteria” set out in the regulations basically mirror the test for ‘incapacity’ with the regulations stating as follows:

The claimant’s physical or mental impairment must meet the following  prescribed criteria:

(a) the impairment results in a substantial inability of the claimant to perform

(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

(b) the impairment is primarily caused by the accident and is ongoing since the accident;

(c) the impairment is not expected to improve substantially.

You will see from this combination the injury not only has to last more than 12 months as set out in the Act but the Regulations went on to basically require the injury to be permanent to not be considered minor.

Even if a ‘minor’ injury goes on to meet the test for no longer being considered minor ICBC has the right to argue that it is still minor if you did not follow their treatment protocols with s. 101(2)(3)(4) of the Act holding as follows

(2)Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a)the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b)the injury

(i)results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii)develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3)An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4)For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

And who has the burden of proving an injury is minor?  Not ICBC.  You must prove your injury is not minor if ICBC suggests otherwise with the regulations noting “In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury“.

BC Government's ICBC Law Labels Collision Brain Injuries "Minor"

Written by admin on . Posted in ICBC Minor Injury Caps.

Earlier this year the BC Government called ICBC a ‘dumpster fire’.  They suggested drastic overhaul was needed to keep the Crown insurer alive and well.  In order to let them keep their monopoly the rights of British Columbians injured through careless drivers would need to be stripped.
But don’t worry, the Government assured us, only those who suffer ‘minor’ injuries will have their rights reduced.  All who watch Government know, however, that the Devil’s in the details.  Today those details came out and their assurances were misleading.  Many major injuries are caught in their ‘minor’ injury dragnet.
In an April 2, 2018 press release the Government assured the public “brain injuries” would not be labeled as minor.  Today Regulations were published that flat out state otherwise.
These Insurance (Vehicle) Regulations label a “concussion” as a “minor injury“.  A concussion is a brain injury.  There is no grey here.  The Government lied.
This brain injury inclusion is in addition to those injuries they previously told us are minor including

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

There is already press out suggesting that “if psychological injuries, including minor concussions, last longer than four months, the caps no longer apply. If any physical injury lasts longer than 12 months, in those cases caps will not exist.”  This is not accurate.  The regulations create a far more onerous workaround to this ‘minor’ injury cap than simply having symptoms persist for more than 4 or 12 months respectively.  I will tackle that in a subsequent article. For now, I just wanted to call a spade a spade.  The government lied.  British Columbians’ rights have been drastically stripped for insurance company profit.

$100,000 Non-Pecuniary Assessment For Disc Herniation With Poor Prognosis

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and likely permanent back pain arising from a vehicle collision.
In today’s case (Domijan v. Jeon) the Plaintiff was involved in a 2012 collision the Defendant accepted fault for.  The crash caused an L4-5 intervertebral disc injury with central disc herniation.  The prognosis for recovery was poor and the Plaintiff was expected to have some degree of back pain for the rest of his life.  In assessing non-pecuniary damages at $100,000 Madam Justice MacDonald provided the following reasons:

[109]     I am not convinced that the plaintiff’s issue is simply pain relating to lumbar facet joint syndrome as put forward by Dr. Rickards. In fairness to Dr. Rickards, he stated this diagnosis in guarded terms using the word “possibly” numerous times. I prefer the testimony of Dr. Nikolakis and Dr. Appleby, that the plaintiff has a disc protrusion, specifically an L4-5 intervertebral disc injury with central disc herniation. This is based on the onset of pain being temporally related to the accident and the objective findings in the scans. As Dr. Nikolakis reported:

I was able to view the images from this diagnostic study [the March 3, 2014 MRI scan]… This investigation reveals desiccation of the L4-5 intervertebral disc along with a central disc herniation posteriorly and bulging of the intervertebral disc and anteriorly as well. There is a loss of disc height, which is significantly different relative to the healthy disc above and below this level….

[110]     I accept Dr. Nikolakis’ and Dr. Appleby’s evidence regarding diagnosis and am satisfied on the balance of probabilities that Mr. Domijan’s pain is due to an L4-5 disc protrusion in his lower back, which was caused by the motor vehicle accident. It is more likely than not that the plaintiff will have ongoing, albeit partially resolved, back pain for the remainder of his life…

[128]     Here there was no evidence that the plaintiff suffered from psychiatric issues, such as depression, from the accident. He has demonstrated success post-accident despite the demanding physical labour of his work. He works through the pain, although he often suffers. He is certainly not completely disabled. It is clear that the plaintiff is not a complainer, he keeps his pain largely to himself, and overall presents as a stoic young man.

[129]     It would be improper to penalize Mr. Domijan for his stoicism, a factor that should not, generally speaking, be held against a plaintiff: Stapley at para. 46; Clark v. Kouba, 2014 BCCA 50; and Giang v. Clayton, 2005 BCCA 54 at para. 54.

[130]     I note that the plaintiff was a relatively young man at the time of the accident and now faces his adult life with chronic pain, although his pain has diminished since he changed his career to that of a railway conductor.

[131]     I do not give much weight to the defendant’s submissions that participation in sport typically decreases with age as career and family obligations increase, or that the plaintiff never intended to pursue soccer professionally, in my assessment of non-pecuniary damages. The evidence suggests that Mr. Domijan was an avid soccer player and would have continued to play regularly but for the accident.

[132]     In all the circumstances, I consider an appropriate award of non-pecuniary damages to be $100,000. This amount recognizes the plaintiff’s ongoing pain, loss of enjoyment of life, especially his inability to participate in sports, and the longevity of his claim.

BC Lawsuit For Alberta Car Crash Dismissed for Lack of Jurisdiction

Written by admin on . Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, dismissing a BC lawsuit on grounds that it had no jurisdiction over an Alberta based collision claim.
In today’s case (Brooks v. Leithoff) the Plaintiff was involved in a total of 5 collisions.  Four of the five occured in BC.  The third occured in Alberta.  The Plaintiff sued the Alberta motorist in BC alleging the crashes all gave rise to a single indivisible injury.
The Defendant sought to have the claim dismissed on the basis that there was no connection to BC to the crash.  The Court agreed with the Defendant and dismissed the lawsuit.  In doing so and finding the claim should have been filed in Alberta Madam Justice Power provided the following reasons:

[49]         When I consider the plaintiff’s arguments, I am not persuaded that the facts that the plaintiff points to are sufficient to displace what I view to be the clear weight of case law in British Columbia:  neither the plaintiff’s residency in British Columbia, nor the fact of indivisible injuries, nor the fact that the plaintiff is suffering ongoing damages in British Columbia, are, by themselves, sufficient to establish a clear and substantial connection to British Columbia.  When these three elements are combined, do these elements together then prove sufficient to ground jurisdiction?  I cannot conclude that they do.

[50]         During the course of argument, the plaintiff fairly conceded that some of the plaintiff’s arguments related to forums conveniens, which is not something I should take into account at this stage.  The plaintiff may have to mount two separate trials on substantially the same evidence as a result of this ruling, but again, that is not a factor I should take into when determining whether jurisdiction has been established.

[51]         During arguments, counsel for the plaintiff also suggested that if I did not accept that there was jurisdiction under s. 3(e) of the CJPTA, I could nevertheless exercise my residual discretion under s. 6 of the Act to find that this Court has jurisdiction.

[52]         In my view, this argument must fail because the exercise of discretion under s. 6 requires that either a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or b) that the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.  The fact that the plaintiff has already commenced an action in Alberta leads me to conclude that it is open to the plaintiff to continue litigation of this matter in that jurisdiction.

[53]         During the arguments before me, counsel for the plaintiff also pointed to concerns relating to fairness, and the practical difficulties that Ms. Brooks would face in bringing two separate but essentially identical claims in two separate jurisdictions.  While I appreciate these practical difficulties, there are times when appeals to fairness in the law must yield to the demands for clarity and order in the law.  The words of Mr. Justice La Forest in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at 1058, although made in a somewhat different context, are nevertheless applicable here:

While, no doubt … the underlying principles of private international law are order and fairness, order comes first.  Order is a precondition to justice.

[54]         Overall, it is my view that the weight of the case law clearly establishes that the facts here are not sufficient to establish a real and substantial connection to British Columbia.

[55]         In the result, the defendant’s application to strike and dismiss the plaintiff’s claim for want of jurisdiction in British Columbia is granted.

 

$85,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Somatic Symptom Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of a pre-existing psychiatric condition from a vehicle collision.
In today’s case (Hrnic v. Bero Investments Ltd.) the Plaintiff was involved in a 2013 collison that the Defendants accepted fault for.  The crash caused both physical injury and an aggravation of a pre-existing somatic symptom disorder.  In assessing non-pecuniary damages at $85,000 Mr. Justice Saunders provided the following reasons:

[35]        I find the plaintiff suffered physical injuries in the accident. I am not persuaded that the purely physical injuries were significantly disabling in respect of the plaintiff’s activities of daily living, or her employment, for more than approximately 18 months following the accident. There is no reason to believe that there is a physical, i.e. orthopaedic or neurological, cause of Ms. Hrnic’s current symptoms.

[36]        However, I find that the plaintiff also suffered at the time of the accident from a pre-existing, but not disabling, psychiatric condition – somatic symptom disorder – that was aggravated by the accident, and which, superimposed on the actual physical injuries she did temporarily suffer, has become functionally disabling.

[37]        I do not find any real or substantial possibility that the pre-existing somatic symptom disorder would have become disabling, but for the subject accident. In that respect, the defendants “take the victim as they find her”, and there is no discounting of the defendants’ degree of liability on account of the plaintiff’s original position as regards the claims for loss of past and future earning capacity.

[38]        Given the longstanding nature of the plaintiff’s disorder, and given her resistance to recommended medical treatment, I find it likely that her disability will not substantially improve up to her previously planned retirement age of 65, and beyond. There is some possibility that Ms. Hrnic may undergo some spontaneous improvement, and some possibility that she may elect some form of medical treatment that will benefit her. But these are very modest possibilities, and are properly accounted for as contingencies through very modest reductions in damages…

[52]        I award the plaintiff non-pecuniary damages of $85,000.

$70,000 Non-Pecuniary Assessment After Sheriffs Negligently "Takedown" Courthouse Visitor

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, ordering Sheriff’s to pay just under $70,000 in total damages to a plaintiff who was injured when they were forcibly removing him from a BC courthouse.
In the recent case (Sweeney v. British Columbia) the Plaintiff was attending the Victoria Registry of the BC Supreme Court to file some papers pertaining to a Residential Tenancy matter.  Sheriff’s approached him and asked to search his backpack.  After some misunderstanding about his consent to do so he was forcibly removed.  In the process the Plaintiff was actively resisting in that “he was trying to pull his arm away from Acting Sergeant Kain’s hold on it because of the pain in his arm” and displayed “a negative attitude towards the authority of the sheriffs“.
A sheriff executed a takedown of the Plaintiff and the court found they were negligent in doing so.  The takedown caused various injuries including “a laceration to his forehead, a concussion, exacerbation of pre-existing injuries to his right arm and shoulder and a rotator cuff tear to his right shoulder.“.   The court assessed non-pecuniary damages for these injuries at $70,000 but reduced the award by 5% for contributory negligence on the part of the plaintiff.
In explaining why the sheriffs were negligent Madam Justice Matthews provided the following reasons:

[90]         I find that both sheriffs believed that Mr. Sweeney was trying to break free. I find that they were in a dangerous situation because they were at the top of two sets of cement stairs separated by a set of glass doors. While they both testify that they never lost control of Mr. Sweeney, they both testified that they were concerned that they would lose control and that would be dangerous to them. Acting Sergeant Kain was also concerned about the woman coming up the stairs.

[91]         I am mindful to not second guess the sheriffs given the dangerous situation they were in. However, I am of the view that they created this dangerous situation by marching towards the stairs notwithstanding the hazards the stairs presented and that Mr. Sweeney was struggling from the outset.

[92]         Both sheriffs decided to cease the escort and to execute maneuvers to maintain control over Mr. Sweeney. They decided this independently and made different decision about what to do to manage the situation.

[93]         The Sheriff Policy Manual requires the sheriffs to use the minimum amount of force necessary to gain control of a subject. I accept the opinion of Mr. Summerville, supported by the evidence of Acting Sergeant Kain, that putting Mr. Sweeney against the wall was far safer than a takedown in the circumstances given the stairs and a very hard ground surface onto which Mr. Sweeney was forcibly put down. A takedown was not, as the Sheriff Policy Manual requires, the minimum force necessary in the circumstances. I conclude that a takedown was not within the reasonable range of options available.

[94]         I find that the sheriffs both breached the standard of care in taking physical control of Mr. Sweeney at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. I conclude that they sheriffs breached the standard of care by failing to communicate after each of them decided to change course their course of action. I find that Deputy Sheriff Bergen breached the standard of care in executing a takedown.

[95]         The defendants do not dispute that the takedown caused injury to Mr. Sweeney. Accordingly, the plaintiff has established negligence against the sheriffs.

$105,000 Non-Pecuniary Assessment For Major Depression and Conversion Disorder With Seizures

Written by admin on . Posted in ICBC Psychological Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Prince George Registry, assessing damages for chronic psychological injuries following a collision.
In today’s case (Chevalier v. Gray) the Plaintiff was involved in a 2014 collision.  It was a t-bone type impact and the Defendant accepted fault.
As a result of the crash the plaintiff suffered a major depressive disorder along with conversion disorder with accompanies seizures.  Prognosis for full recovery was poor and the injureis were partially disabling.  In assessing non-pecuniary damages at $105,000 Mr. Justice Tindale provided the following reasons:

[258]     In this case the plaintiff suffered musculoligamentous strains of the cervical spine as well as mild headaches, a mild strain of the thoracic area and a muscular strain of the lumbar spine. She also sustained a wrist injury.

[259]     The defendant had a duty of care to the plaintiff to take reasonable care to avoid causing her physical and mental injuries.

[260]     The plaintiff certainly had pre-existing vulnerabilities to her mental health. Dr. Tomita however opined that the MVA was a predominant cause of both her conversion disorder and major depression. Dr. Udamaga opined that the MVA was a predominant factor that precipitated a decline in her mental health leading to a diagnosis of conversion disorder.

[261]     The evidence discloses that the plaintiff thought her vehicle was on fire when she was trying to extricate her elderly mother from the vehicle. She developed a sense of guilt about causing her mother’s injuries and ultimate death even though she was not at fault for the MVA.

[262]     Both Dr. Tomita and Dr. Udamaga testified that it was unlikely that the plaintiff would have developed conversion disorder absent the MVA.

[263]     The evidence discloses that the effects of the mental injuries to the plaintiff have been pronounced, long-lasting and debilitating.

[264]     The evidence also discloses that symptoms of the conversion disorder in the form of the plaintiff’s legs twitching regularly and for a prolonged period of time and as Mr. Chevalier described her shivering as if she was cold started shortly after the MVA. These symptoms became very pronounced in September 2014.

[265]     Taking into account all the evidence on this case the MVA was a material contributing cause to the plaintiff’s physical injuries and to her psychological injuries. The plaintiff was involved in a serious motor vehicle accident where she was physically injured and witnessed her ailing mother being injured. It is reasonably foreseeable that the plaintiff would suffer psychological injury.

[266]     But for the MVA the plaintiff would not have received the physical injuries that she did as outlined by Dr. Laidlow and would not have developed a major depressive disorder and a conversion disorder with seizures…

[270]     Taking into account the plaintiff’s condition prior to the MVA, the plaintiff’s injuries and poor prognosis, the effects that her psychological injuries have had on her personal and work life and the case authorities provided by the plaintiff an appropriate award for non-pecuniary damages is $105,000.  This takes into account the real and substantive future possibilities, both positive and negative that could impact the plaintiff’s life.  In this case, it is primarily the negative possibilities caused by her pre-existing chronic pain and intermittent mood disorders that must be accounted for.