ICBC Back Injury (soft tissue) Cases – Page 18

Loss of Commission Income and ICBC Injury Claims

Written by admin on March 10, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today (Tong v. Sidhu)awarding a Plaintiff $30,000 for non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2007 BC Car Accident.
Mr. Justice Cohen of the BC Supreme Court made the following findings with respect to the Plaintiff’s injuries:
[40] In my opinion, the medical evidence and the plaintiff’s testimony supports the conclusion that the plaintiff suffered mild to moderate soft tissue injuries, and that he has made an overall improvement to a level where if he dedicates himself to learning and correctly performing the exercises recommended by Dr. King he will probably experience a full recovery within six to twelve months.
[52] Upon a consideration of the severity and duration of the plaitniff’s accident related injuries and symptoms, and upon a review of the authorities on the range of the general damages submitted by the parties, I find that an award of $30,000 is a fair and appropriate sum to compensate the plaintiff for his general damage claim.
The Plaintiff, who was a commodities broker, also alleged a past and future loss of income although these claims were dismissed. The Plaintiff sought approximately $50,000 for past income loss and $44,000 for future income loss.
In dismissing these damages Mr. Justice Cohen found that the Plaintiff ‘has not proven on the requisite standard that he has suffered past or future income loss‘. Following this conclusion Mr. Justice Cohen engaged in a lengthy analysis of the Plaintiff’s claim for lost income and stated as follows:

[63] First, the only documentary evidence the plaintiff has brought forward to support his claim are his income tax returns and payroll slips for 2007 and 2008. Although he signed an authorization for release of employment information to the defendant, the onus remains on the plaintiff to bring to court any records which would help him to identify the details of his earnings history. He has not produced any employment records to indicate or establish a month over month or year over year trend based on details of income from client or personal trading accounts.

[64] Moreover, the plaintiff did not elicit evidence from Mr. Mok on his commission earnings to provide some comparative evidence regarding the level of earnings from commissions experienced by commodities brokers at Union Securities, or for that matter evidence of the earnings of brokers in other firms with a similar level of experience and client base as that of the plaintiff.

[65] With respect to Mr. Mok, he and the plaintiff were performing the same work and both were earning income from commissions generated by client trades, as well as income from self trades. Mr. Mok did say that he had two streams of earnings and that while his earnings from trades in his own account would not be shown on his T4, both streams of income were shown on his income tax returns. He said that earnings from trading on his own account would be declared under the item of “business income” in his income tax returns.

[66] I find that the plaintiff’s evidence on his precise earnings was at times both contradictory and confusing.

[67] For example, the plaintiff was asked in chief about the line in his 1999 income tax return for “business income”, which shows an amount of $20,805.89 gross and a net loss of $8,323.15. Although the plaintiff initially testified that the loss amount was due to amounts that he had to pay out of his pocket for losses sustained by his clients due to his trading errors, he later changed this testimony to say that the business income item related to a tax shelter investment that he had made, and that this was the amount reported to him by the company as a unit holder. With respect to where he reported his income from self trades he said that he did not report this income in his income tax return as the earnings had gone into his RSP account, although he produced no records to substantiate his evidence on this point.

[68] Finally, I think that there is evidence that completely undermines the plaintiff’s assertion that he is entitled to damages for loss of income, past or prospective.

[69] In cross-examination, the plaintiff agreed with defence counsel that it was not common for him to make earnings in excess of $100,000. He agreed that his earnings jumped substantially in 2004 because of the financing he worked on. He also agreed with the figures from his income tax returns that since 2001, with the exception of 2004, he has earned in the range of $40-50,000 annually. He agreed that 2004 was unusual, adding that it was unusual in the sense that his hard work paid off. He also agreed with counsel that the last year he earned a figure in the same range was in 1996. He agreed with counsel that his average income for the past 7 years has not been in the $80,000 range, but rather closer to $50,000.

[70] The plaintiff agreed with counsel that based on his average earnings over the period leading up to the accident that his income in 2007 was similar to what he had earned in earlier years, with the exception of the year 2004.

[71] The plaintiff testified that for the years 2001-2008 he would rank himself against his peers as being in the middle of the pack, and not on average a top performer. He agreed that his assessment of his ranking has not changed since the accident, and also agreed that essentially, with the exception of 2004, his income has not significantly changed.

[72] Counsel reminded the plaintiff of his evidence that his focus and concentration had been affected by the accident and he was asked whether it had affected his number of clients, to which he replied that he gained and lost clients for all kinds of reasons. When counsel suggested to the plaintiff that he had not lost clients as a result of the accident, he replied that he may have lost or gained clients during the period following the accident. He was not able to say whether in fact the accident related injuries had resulted in a loss of clients.

[73] Mr. Steven Engh is manager of sales at Union Securities. He met the plaintiff when they both worked at C.M. Oliver. He was asked how he would rank the plaintiff as a commodities broker. He replied that the plaintiff would fall in the middle of the pack, and that as far as he knew this had been the case for the past five years. He also said that all of the brokers in his firm have been affected by the current securities market conditions and that this would include the plaintiff’s area of trading. He did agree with plaintiff’s counsel in cross-examination that the securities business is very demanding and that it takes a focused person to succeed.

[74] In the result, I find that on the whole of the evidence the plaintiff has failed to prove his income loss claim. With the exception of the year 2004, the plaintiff’s history of earnings in the seven years leading up to the accident disclose a trend of income much closer to the $50,000 range than his claim of $80,000. This is clearly borne out by his income for the year 2006, a year in which he was completely healthy, had his list of prospects, and presumably was focused and determined to increase his income to a level closer to his exceptional result in the year 2004. Yet, his income for the year 2006, at least from commissions on trades, was not very far off his usual annual earnings in the $50,000 range.

[75] In my opinion, the evidence falls far short of the claim that the plaintiff is making for income loss, past and prospective, and therefore this head of damage must be rejected.

This case is worth reviewing for anyone on commissioned or self employed basis who suffers a wage loss in an ICBC Injury Claim to see how courts scrutinize such claims and to get some insight into the factors and the type of evidence courts find useful in determining whether there has been a past loss of income.

$75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

Written by admin on March 3, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 119 Comments on $75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision. Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.
In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145] Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas. I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time. To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities. The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health. The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146] Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine. Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery. Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147] Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148] Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident. This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident. At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident. I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149] There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder. I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150] With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154] Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve. I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake. Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches. Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier. I bear in mind as well that she has suffered a right frozen shoulder, but that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155] The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident. In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.

ICBC Soft Tissue Injury Claims Round Up

Written by admin on February 28, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 48 Comments on ICBC Soft Tissue Injury Claims Round Up

As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court. In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.
The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC. This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.
All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages. The Court made the following findings with respect to the Plaintiff’s injuries:

(a) That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;

(b) That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;

(c) That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;

(d) That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;

(e) That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;

(f) That when the trapezius muscles in the neck are overworked they become stiff and painful;

(g) That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;

(h) That torn ligaments do not spontaneously heal; and,

(i) That prior to the collision Mr. Jacobsen did not suffer from neck pain.

In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:

[26] In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.

[27] Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days. He is a fit and healthy senior citizen who clearly anticipates living many more years. The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep. He begins his days feeling weary and drained rather than rested and energetic. This compromised start affects all aspects of his daily life. It has taken the lustre off his so-called golden years.

[28] In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.

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The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005. The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:

[29] At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back. There are no objective findings with respect to her injuries.

[30] I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination.

[31] While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location. She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….

[33] I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident. The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program. While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony.

[34] She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active. While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing. One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.

On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.

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The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005. The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial. The court summarized the injuries as follows:

[25] I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back. He has testified to these injuries and much of what he says is supported by other testimony. Several practitioners found objective signs upon palpitation. Two found his body type susceptible to such injuries. I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery. I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.

[26] I am satisfied that he is now able to perform the tasks necessary for a gas fitter. I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic. While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….

[34] Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.

ICBC Injury Claims and Future Wage Loss

Written by admin on February 24, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized. 49 Comments on ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished. Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy, These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…“

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law. In a thorough analysis Madam Justice Smith gave the following reasons:

[140] While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating:

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade. The case turned on its facts and did not establish any new principle of law. Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it. I am satisfied that Steward has no application in the case at bar.

[141] In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident. The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches. The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”. The assessment of damages was upheld on appeal. Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made. He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations. Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations. There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142] MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42] That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations. Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143] I conclude that the approach I should take to the assessment of lost earning capacity has not changed. Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

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On another note, today’s case dealt with chronic soft tissue injuries and serious headaches. In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113] I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports. Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions. Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient. Dr. Jung’s two examinations of the plaintiff were thorough and well-documented. I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence. I also accept the evidence of Dr. Blasberg.

[114] Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back. I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint. There is no evidence that he suffered from these symptoms prior to the motor vehicle accident. I do not find on the evidence that stress causes his symptoms, although it may exacerbate them. I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to. I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115] The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night. The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident. As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment. Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116] Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better.

Pain and Suffering and Your ICBC Injury Claim

Written by admin on February 23, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 107 Comments on Pain and Suffering and Your ICBC Injury Claim

If you have an ICBC Injury Claim for Non-Pecuniary Damages as a result of a BC Car Crash (a tort claim) the best way to determine the potential value of your non-pecuniary damages (damages for things such as loss of enjoyment of life, pain and suffering) is to look at how courts have treated similar ICBC injury claims.
When looking to previous court cases for guidance some of the things you will want to look at are similarities with the type of injury, the severity of injury, the age of the Plaintiff, whether the injury involves a dominant or servient limb, the types of treatments involved and the prognosis. Another useful factor is recency. If you can’t find recent cases with similar injuries and are relying on older cases you should adjust the damages for inflation to get a sense of what they would be worth today.
No two injuries are identical and the best one can usually hope to do is find ICBC Injury Cases with a similar injuries to help establish a potential range of damages. In recognizing the the uniqueness of each ICBC Injury Claim Mr. Justice Halfyard said the following in the case of Tuner v. Coblenz:
It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall. No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity. The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different. The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.
As an ICBC Injury Claims Lawyer I have enjoyed publishing this blog to help people have access to a database of ICBC Injury Claims. Time permitting I intend to keep this service up. To this end, here is the latest ICBC Injury Claims update.
Reasons for judgement were released today by the BC Supreme Court (Rattenbury v. Samra) awarding a Plaintiff $30,000 in non-pecuniary damages as a result of an ICBC Injury Claim.
In today’s case the 23 year old plaintiff was injured when he was involved in an intersection crash in Surrey, BC. The crash occurred when the Defendant attempted a left hand turn in front of the Plaintiff’s vehicle. Fault was admitted leaving only the issue of quantum for trial (value of the claim).
In this case the Plaintiff suffered a concussion and had headaches, neck pain and shoulder pain. These injuries resolved fairly quickly. The most serious injury was an alleged low back injury. The Plaintiff’s physician gave evidence that the collision caused a disc injury to the L5/S1 level of the Plaintiff’s spine.
The court rejected this opinion and found that this disc injury could have easily preceded the car crash given the Plaintiff’s very active lifestyle. The court did find, however, that even if the disc injury was unrelated to the car crash this disc injury became symptomatic with pain because of the collision. The court made the following finding:

[86] I find myself unable to accept Dr. Fritz’s opinion that the disc injury occurred in the motor vehicle accident. Certainly the disc injury does exist but Dr. Fritz agrees that it is impossible to prove when it occurred and it could just as easily have occurred from the plaintiff’s other activities than from the motor vehicle accident. Dr. Fritz did not treat the plaintiff before his accident and it is therefore understandable that he would conclude that the disc injury occurred in the accident when the plaintiff demonstrated a restricted straight leg raising after the accident. However, I do not think that is enough to prove the disc injury occurred in the accident itself.

[87] In my view it is enough to prove, however, that even if the disc injury preceded the accident, it became symptomatic with back pain because of the accident. The evidence is that the plaintiff had no back problems before the accident and was a completely healthy and physically active young man. As a result of the accident he could not play soccer for six months and was unable to do any of the heavy lifting in his job at Black & Lee.

[88] The plaintiff’s evidence of originally not being able to do any heavy lifting at work but being able to do it at the time of his examination in January 2008, and then not being able to do it again by the time of trial, is certainly strange. However Dr. Fritz was never questioned about this evidence and it is logical to me that the plaintiff may have been able to resume the heavy lifting for a time after the accident, with back pain, but over time became too wearing on him and he had to stop.

[89] I am satisfied that it has been proven that the plaintiff has chronic back pain resulting from the disc injury, even if that injury preceded the accident. I must accept Dr. Fritz’s opinion that it is chronic because I have no other medical opinion.

[90] I do conclude, however, this chronic back pain is only mild in nature, in the nature of a nagging back pain that does not disable the plaintiff from pursuing his soccer at the highest level or his golf or any other sports that he used to enjoy, and does not prevent him from working full time at the business in a more supervisory role.

The following damages were awarded after a 2 day trial:
Non-Pecuniary Damages: $30,000
Past Wage Loss: $1,088
Special Damages: $271.56

A Busy day with ICBC Injury Claims

Written by admin on February 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 42 Comments on A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:

30] Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31] I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32] Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:	$35,000.00
Special damages:	$8,500.00
Past loss of wages:	$12,000.00
Loss of capacity:	$20,000.00
TOTAL:	$75,500.00

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:

[109] In summary, my conclusions are as follows:

(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c) Mr. Haag’s claim for past income loss is dismissed.

(d) I award Mr. Haag $60,000 for loss of earning capacity.

(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

(a)	Non-Pecuniary Damages	$30,000
(b)	Loss of Income to Trial	$15,000
(c)	Loss of Earning Capacity	$15,000
(d)	Future Care	$ 500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:

1.	Pain and suffering	$115,000
2.	Past wage loss (gross)	$75,000
3.	Impairment of earning capacity	$262,000
4.	Special damages	$47,400
5.	Future care	$75,000

Whew! Now back to work.

Over $250,000 Awarded for Serious Injuries in ICBC Claim

Written by admin on February 12, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 66 Comments on Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland.
I am still in trial still and only have time for bare bones reporting. In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome. The court’s key analysis of injuries is set out below:

[73] I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74] Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory. There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome. Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75] That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76] Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition. He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period. I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77] Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy. I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy. There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept. In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78] I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome. This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features. None of the pre-accident investigations demonstrated any facet joint issues.

[79] I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur. There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80] That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence. This brings me to the issue of his credibility. In general, I found the plaintiff to be a believable witness. I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81] As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf. Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability. There were no non-organic findings. I found Ms. Fischer to be a compelling witness.

[82] In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83] There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident. Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point. I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future. There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself. As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind. No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D. CONCLUSION

[127] I find the defendant 100% liable for the plaintiff’s damages. Those damages are assessed as follows:

non-pecuniary damages: $70,000.00

past loss of income: $67,500.00

loss of income earning capacity: $120,000.00

future care costs: $17,317.00

special damages: $1,687.46

Total: $276,504.46

ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Written by admin on January 31, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 115 Comments on ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45] In the final analysis, I am unable to place much weight to Dr. Schweigel’s report. I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome.

[46] I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely. She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant. The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries. In today’s case the court largely rejected his opinion and offered the following analysis:

[36] The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008. Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area.

[37] In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints. In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome.

[38] In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including: moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion. Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days.

[39] Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury. In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”. He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”.

[40] The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003. At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun. She was in fact doing quite well.

[41] This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003. At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions. There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008.

[42] While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report. Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.

[43] Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable.

[44] While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury. His categorization of soft tissue injuries struck me as both rigid and simplistic. No peer reviewed journals or other medical literature were produced to support his analysis. Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton.

$25,000 Awarded for Pain and Suffering in ICBC Low Back Injury Claim

Written by admin on January 21, 2009. Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $50,000 in total damages as a result of a motor vehicle collision, $25,000 of which represented non-pecuniary damages (money for pain and suffering).
The collision occurred in 2005. The Plaintiff’s vehicle was rear-ended. The court concluded that the force of the impact was mild.
The court accepted that the Plaintiff suffered a mild muscular injury to his lower back in the motor vehicle accident. The court also found, however, that the Plaintiff was partly to blame for his ongoing symptoms stating that:
[53] The fact that Mr. Moojelski has been long-delayed in returning to a normal state of health results from a combination of inadequate or ineffective exercise and supervision, Mr. Moojelski’s refusal to take prescribed medications in prescribed dosages and his decision to exceed the recommended dosages by some substantial margin. In that regard, Mr. Moojelski admitted that he reported to Dr. McPherson that when he had been prescribed Tylenol 3, he had used 6 tablets every 2 hours, greatly in excess of the prescribed quantity. I find that it is likely that Mr. Moojelski’s mental health was adversely affected by his personal decision to rely on marijuana as a source of relief rather than adhering to his physician’s prescription of anti-depressants, and by not pursuing physical reconditioning of the kind Dr. le Nobel considers appropriate to a man of his pre-accident physical ability and age.
The court found that the Plaintiff should fully recover from his injury. In valuing the pain and suffering claim at $25,000 the court noted the Plaintiff’s role in his prolonged symptoms stating as follows:
[60] In all of the circumstances, I am satisfied that an award of $25,000 as general damages adequately compensates Mr. Moojelski for the pain and suffering he has endured, and for the adverse effect upon his enjoyment of life and the loss of amenities. In that assessment, I have taken into account the onset of a mild depression in March 2006, which was accident-related. However, the depression was prolonged by Mr. Moojelski’s failure to adhere to the use of prescribed medications. His refusal was unreasonable and is therefore reflected in the assessment of general damages.

Brain Injury Claim Dismissed, $55,000 Pain and Suffering for STI's and Hearing Loss

Written by admin on January 2, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.
The Plaintiff was involved in a 2005 motor vehicle collision. It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle. The Plaintiff had a green light and a significant impact occurred.
The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off. Liability (fault) was admitted on behalf of the defendants on the morning of trial. The trial focused on the Plaintiff’s injuries and their value.
The most contentious claimed injury was a concussive injury affecting cognitive abilities. The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges. In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident. But I am not persuaded that it is more probable than not that this occurred.”
Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 – 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.
In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89] I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall. I would describe the severity of these injuries as being moderate.

[90] I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident. Not all of this loss of hearing was caused by the injury. Some of it was attributable to the normal aging process. I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91] I am not satisfied that the plaintiff sustained injury to her brain. Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium.

[92] The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder. Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future. These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions. To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop. But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder. The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation. But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.