Skip to main content

ICBC Claims, Medical Experts and Evasive Opinions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 45 Comments on ICBC Claims, Medical Experts and Evasive Opinions

Reasons for judgement were released today awarding a Plaintiff $50,000 for non-pecuniary loss (pain and suffering) as a result of injuries sustained in a 2004 rear-end BC car crash.
The Plaintiff suffered various injuries including chronic pain, a disc herniation in her neck, a soft tissue injury to her neck, anxiety and depression.  The chronic pain was the most significant symptom that was focused on at trial.
The Plaintiff called various witnesses to support her injuries including her family doctor.  The Defendant, on the other hand, relied on the opinion of an ‘independent medical examiner’ who ICBC frequently uses in the defence of car accident injury claims (Dr. Schweigel).
In awarding $50,000 for pain and suffering the Court made the following findings:

[26]            I am satisfied that as the result of the Defendants’ negligence, the Plaintiff suffered an injury to her shoulder and knee, a soft tissue injury to her neck and back which included a disc herniation; and an aggravation of her anxiety disorder and depression symptoms.

[27]            Specifically, with respect to her psychological injuries, I am satisfied that as a result of the collision her anxiety disorder and depression symptoms worsened, and that the worsening included the development of additional phobias such as a fear of crowds, social interaction, and driving.  There has been some improvement with respect to these symptoms.  For example, the Plaintiff is now able to drive her vehicle and her fear of social interactions has lessened some.

[28]            There has also been some improvement in her physical injuries.  In particular, her knee and shoulder injuries resolved within a short period.

[29]            As far as her chronic pain injury is concerned, I am satisfied that it arises primarily from the soft tissue injuries to her neck and back and from her disc herniation.  However, the severity of the pain from these injuries is aggravated or intensified by her anxiety disorders.  As her anxiety or stress levels increase, her chronic pain also increases in severity.

In ICBC injury claims judges and juries are often asked to pick between competing medical opinion evidence.  It is not uncommon to read reasons for judgment in ICBC injury claims where a Plaintiff’s treating physicians support injuries while ICBC’s doctors testify that the injuries are not related to the trauma or that the injuries are not as severe as presented by the Plaintiff.
In today’s case Madam Justice Sinclair Prowse gave the following reasons in preferring the treating doctor’s opinion over Dr. Schweigel’s.  Cases such as this one are worth reviewing for anyone preparing to take their ICBC injury claim to trial where there is competing medical evidence:

[34]            In any event, on all material issues, the Plaintiff’s evidence was consistent with and supported by other evidence.  In particular, the evidence of her injuries was supported by the evidence of her family doctor, Dr. Leong – a witness whom I found to be credible and on whose evidence I relied.

[35]            As the Plaintiff’s treating physician, Dr. Leong had seen the Plaintiff over a long period of time. Dr. Schweigel, on the other hand, only saw the Plaintiff on one occasion for about an hour to an hour and a half.

[36]            Throughout her testimony, Dr. Leong presented as a measured person who was endeavouring to be clear, accurate and fair.  Her answers were thoughtful and balanced.  Her testimony was both internally consistent and consistent with the other evidence.

[37]            For example, it was Dr. Leong’s opinion that the collision caused the Plaintiff’s disc herniation in one of two ways:  (1) either the collision caused the herniation completely; or (2) if the herniation pre-dated the collision, then the collision caused the herniation to become symptomatic.  This evidence was based on the fact that the Plaintiff did not display any symptoms of cervical disc herniation prior to the collision.  Although she had experienced some pain in her neck which had occasioned the earlier x-ray, that pain was occasional rather than chronic.  It was also different in kind from the type of pain that can arise from disc herniation and that the Plaintiff experienced after the collision.  Furthermore, the x-ray taken shortly before the collision did not show a disc herniation.

[38]            Dr. Schweigel, on the other hand, was evasive and argumentative in his evidence.  He gave opinions in this trial that were inconsistent with opinions that he had tendered in other trials, demonstrating that he was not impartial but, rather, tailored his evidence to favour the party that had called him.  For example, in this trial he opined that arthritis could not be triggered by trauma whereas in another action he gave the opposite opinion.

[39]            Dr. Schweigel opined that the Plaintiff had suffered a mild soft tissue injury to her neck and back as a result of this collision and that that injury had probably resolved itself within 3 to 4 months.  He opined that the disc herniation pre-dated the collision as such conditions can arise from a longstanding arthritic condition and that, in any event, the Plaintiff’s chronic pain arose from neither the herniation specifically nor the collision generally but, rather, from her psychological or psychosomatic problems.

[40]            However, during cross-examination, he did concede that trauma could trigger further degeneration. He further went on to testify that if this injury did not pre-date the collision, that it would probably have arisen within 2 to 3 years to a maximum of 5 years.  In my view, this opinion contradicts his initial opinion that a disc herniation cannot be caused by trauma or become symptomatic because of trauma.

[41]            For all of these reasons, I found Dr. Schweigel’s evidence to be unreliable.  I preferred the opinion of Dr. Leong.  Where her opinion differed from the opinion of Dr. Schweigel, I relied upon her opinion.

More on ICBC Injury Claims and Low Velocity Impacts

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today awarding a Plaintiff $21,500 for pain and suffering plus ‘special damages’ (accident related out of pocket expenses) as a result of a 2005 motor vehicle collision.
While the judgement does not mention ICBC directly (BC personal injury tort judgements rarely mention who the insurer for the defendant is) this case appears to me to be one which was defended on the basis of ICBC’s Low Velocity Impact (LVI) program.  The reason why I reach this conclusion is because the defence lawyer argued that “this was such a minor motor vehicle accident that no damages should be awarded”.  This is a standard argument behind ICBC’s LVI program.
The accident did not occur at a significant rate of speed and resulted in little vehicle damage.  The Plaintiff’s vehicle cost approximately $1,500 to repair.
The Plaintiff’s injuries are discussed at paragraphs 5-16 of the reasons for judgement which I reproduce below:

[6]                She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw. 

[7]                The doctor told her to “take it easy”.  She went home and put an ice pack on her wrist and shoulders. 

[8]                The pain in her wrist resolved within a month of the accident.  The pain in her neck lasted for approximately a year and a half.  Massage therapy helped with the pain in her neck; she developed better range of motion.

[9]                She also began to experience headaches which resolved within a year and a half of the accident.

[10]            The muscles in her jaw tightened and she experienced pain.  She described the jaw pain starting after the accident as minor, though it continued to get worse.  She still has some symptoms of jaw pain but it has improved with the use of a night guard.

[11]            Three weeks after the accident she developed chest pains.  She first noted the chest pains when she was jogging.  She did not have this pain prior to the accident.  When she developed the pain she stopped jogging.  She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.

[12]            Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.

[13]            She did not play tennis for almost a year and a half because the right side of her body was sore.

[14]            She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions.  She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays.  Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.

[15]            She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.

[16]            The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments.  She had approximately 10 physiotherapy treatments between June and November 2006.  She also had chiropractic treatments on 6 occasions in February and March 2006.

The court, in awarding damages, made the following findings:
[26]            Here, however, I am satisfied that the plaintiff is a credible witness.  She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate.  Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements….
[28]            I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness.  There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment.  I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216.  I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982.  The plaintiff is also entitled to her costs.

Small Claims Court Awards $10,000 for 4 month Soft Tissue Injury ICBC Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Whiplash Cases.

 (Image created by and used with permission of High Impact)
I usually focus my ICBC case law reports on cases from the BC Supreme Court and BC Court of Appeal but reasons for judgement were recently released from the Provincial Court of BC (commonly referred to as Small Claims Court) which caught my eye.
The Plaintiff was involved in a rear-end crash in May 2005.  From the judgement it appears to me to be a claim that fit ICBC’s Low Velocity Impact criteria (LVI) where ICBC takes the position that no compensable tort claim exists. 
The Plaintiff’s vehicle sustained little damage.  The evidence presented by the Plaintiff, her husband and her doctor was ‘fairly consistent’ and the court accepted that the Plaintiff suffered a ‘whiplash injury’ to her neck and back.
The court made the following findings “I accept that there is a four month injury from start to finish with approximately two months off work.  On those facts, it is my standard view and backed up by a number of cases, which oddly enough comes in directly between what the claimant puts forward way up at the upper end and what the defendant puts forward way down at the lower end, my view of this has been throughout coming towards the figure of $10,000 and that is the figure that I do award“.
The Plaintiff was also awarded her lost wages and special damages (out of pocket accident related expenses).
This judgement was only 3 pages long which is unusual for an ICBC personal injury case and makes for very easy reading.  I can’t find this judgment on the BC Provincial Court website but will post a link to the judgement if it becomes published.  This case shows how well suited the Provincial Court can be in some circumstances in dealing with ICBC injury claims involving minimal injuries which resolve quickly.

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 67 Comments on Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

$55,000 Non-Pecuniary Damages for Musculoligamentous Injuries

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

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.
Both collisions were rear-end crashes.  The first occurred in February, 2004, the second in July of the same year.  Fault was admitted by ICBC on behalf of the Defendants in both accidents.  This trial dealt with quantum of damages (value of these injury claims).
The Plaintiff had generally good health before the collisions.   After the collisions she suffered from various symptoms.  The extent of her injuries and their relationship to the crashes was at issue at trial.
The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions.  The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.
The court awarded damages as follows:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

$75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.
The Plaintiff was 23 years old at the time of trial.  He was injured in 3 collisions, the first of which occured when he was only 10 years old.
The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).
The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years.  The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.
Damages were awarded as follows:

Non-pecuniary damages                                            $ 75,000

Loss of Earning Capacity                                           $100,000

Cost of Future Care                                                    $  12,650

Special Damages                                                       $    3,570

Past Income Loss                                                       $       698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings.  That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury.  Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.
Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine.  Specifically he noted that: 
[19]            The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms.  There have been few objective physical findings.  However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years.  It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.
 

$70,000 Non Pecuniary Damages for Disc Herniation and Labral Tear

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases. 1 Comment on $70,000 Non Pecuniary Damages for Disc Herniation and Labral Tear

Reasons for judgement were released today awarding a Plaintiff close to $120,000 in damages as a result of a 2006 BC car accident.
The accident occurred when the Defendant failed to see the Plaintiff’s vehicle and struck the driver’s side door of the Plaintiff’s vehicle.
All the doctors who gave evidence at trial agreed that the Plaintiff ‘suffered a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain…’
The issue at trial was one of causation, that is, did this accident (which apparently did not cause a lot of vehicle damage) cause the Labral tear?  After hearing from several medical witnesses Madam Justice Gerow concluded that there was a causal connection, finding that ‘I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that (the Plaintiff’s) degenerative disease is minimal at this point.’
Dealing with the argument ICBC often makes at LVI trials (low velocity impact) that ‘the force of the accident was not such that it could have caused the injuries to the lumbar spine’ Madam Justice Gerow stated as follows:

35]            The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle.  The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries. 

[36]            Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered.  The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37]            As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.

In the end, damages were assessed as follows:

Non Pecuniary Damages: $70,000

Past Wage Loss: $13,452

Loss of Earning Capacity: $30,000

Special Damages: $1,498

Cost of Future Care: $5,000

This case is worth reading for anyone advancing an ICBC claim where the issue of causation of a disc bulge is at issue to see the types of competing positions that can be advanced by the doctors at trial along with the analysis that a court can engage in to navigate the waters of expert opinions.

ICBC Claims and Treating Physicians

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

In reasons for judgement released today Mr. Justice Holmes awarded an injured Plaintiff a total of $8,500 in damages as a result of injuries sustained in a 2005 BC car accident that occurred in 100 Mile House.
The Plaintiff was a passenger at the time.  His wife was driving.  The vehicle left the roadway and rolled onto its roof.  Liability for the accident was admitted by ICBC but the issue of damages was contested.
The Plaintiff led medical evidence that he suffered from ‘mechanical lower back pain’ amongst other injuries as a result of this crash.  He advanced a ‘significant claim of loss of earning capacity’.
The cause of the Plaintiff’s back pain was at issue at trial.  The court largely rejected the Plaintiff’s claim and found that the Plaintiff had pre-existing back pain which was exacerbated as a result of the collision.   The court found that the Plaintiff’s exacerbation ‘either resolved or significantly diminished within a few months of the accident.  The Plaintiff’s more serious complaints of back pain and spasm did not occur until months later…‘ 
The court summarized its findings at paragraph 48 as follows:
[48]            I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005.  That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident.  He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility.  Treatment was by continuing chiropractic and exercise.  He was able to perform his work and operate his business with minimal interference.  I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.
The Plaintiff did not call his treating chiropractor and his family physician to give evidence.  The court was critical of this and it appears that this was a main factor which fueled the court’s decision.  The court highlighted this fact as follows:

[37]            I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38]            Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action.  Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39]            I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005.  I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

If you are advancing and ICBC claim and have pre-existing injuries it is a good idea to consider calling your treating doctor to give evidence to explain your pre and post accident status to the court.  Failing to do so may result in an ‘adverse inference’ where the court may conclude that your treating doctor would have given evidence damaging to your case.

Left Turn Inersection Crashes and the Law in BC

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 63 Comments on Left Turn Inersection Crashes and the Law in BC

Reasons for judgement were released today by the BC Supreme Court concerning a 2005 intersection crash that occurred in the lower mainland of BC.
The Plaintiff was making a left hand turn from Hastings onto Willingdon.  At the same time the Defendant was operating a vehicle coming the opposite direction on Hastings.  A collision occurred.  There were no independent witnesses to this crash.  Both the Plaintiff and Defendant testified and as can be expected their evidence differed to several facts with each blaming the other for the crash.
Madam Justice Dardi preferred the Plaintiff’s evidence over the Defendant’s finding the Defendant testified in ‘an evasive and less straightforward manner’.
The court found that the Plaintiff was clearing the intersection on a stale yellow light and at the time the Defendant entered the intersection ‘it was not safe from him to do so on a very late stage amber or red light.  He should have stopped’.  The court found the Defendant 100% responsible for this intersection crash.
In reaching this decision Madam Justice Dardi summarized the law relating to left-hand turn intersection crashes as follows:

[34]            Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the right-of-way in situations where a driver is making a left turn:

When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[35]            An immediate hazard exists if the oncoming vehicle must make a sudden or violent avoiding action to prevent a collision: Aerabi-Boosheri v. Retallick, [1996] B.C.J. No. 143 at para. 8.

[36]            Section 128 of the MVA governs the duties of drivers when a traffic light turns yellow.  It states, as far as is relevant, as follows:

128      (1)        When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a)        the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety…

[37]            Who has the statutory right-of-way is informative; however, it does not determine liability in an accident.  Drivers with the statutory right-of-way must still exercise caution to avoid accidents where possible.  In Walker v. Brownlee, [1952] 2 D.L.R. 450, Cartwright J. states at paras. 46-47:

[46]      The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

[47]      While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

The Plaintiff suffered from various soft tissue injuries.  The court summarized the Plaintiff’s injuries at paragraph 57 as follows:
[57]            Dr. Steinson was an impressive witness.  I accept his opinion that the plaintiff has developed a myofascial pain syndrome in his neck and trapezius as a consequence of the injury in the motor vehicle accident.  I also find that the episodic pain that the plaintiff continues to experience is mild to moderate.  Dr. Steinson’s prognosis for the plaintiff is guarded.  Based on the medical evidence, the likelihood is that the plaintiff’s symptoms will continue to improve over the next few years although there is a possibility that his episodic pain may persist further into the future
The court awarded the following damages:

(1)        Non-pecuniary loss $30,000;

(2)        Loss of future earning capacity $20,000;

(3)        Cost of future care $2,000; and

(4)        Special damages $500.

$24,515 Damages Awarded for Moderate Soft Tissue Injury

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

Reasons for judgement were released today awarded damages as a result of injuries sustained in a 2005 Kamloops, BC car crash.
The Plaintiff’s vehicle was rear-ended as she slowed to make a right hand turn.
Normally in such rear-end cases liability (fault) is admitted but in this case liabilty was disputed.  The Defendant claimed that the accident was caused by the actions of the plaintiff when she ‘accelerated in front of him, cut him off and themn braked quite dramatically at the corner (of the intersection).’
The court rejected this defence and found that “this is not a case where the evidence supports a conclusion that the plaintiff’s vehicle cut in front of the defendant in such a way as to alleviate his responsibility‘.  The defendant was found 100% to blame.
In terms extent of injury, the court made the relevant findings at paragraphg 50 of the judgement, which I set out below:
[50]            I conclude that (the Plaintiff) sustained a moderate soft tissue whiplash injury in December 2005 which caused pain and discomfort to her neck and back and resulted in her experiencing headaches.  These symptoms were initially acute, causing her to miss approximately three weeks of work and necessitating that she take pain medication and treatment, most notably physiotherapy.  The pain and discomfort at times extended to her hip area.  It gradually subsided with the passage of time.  It was significantly resolved within three to four months of the accident, but she continued to experience some discomfort and limitation of her activities, albeit on a gradually improving basis, over time, up to the point of trial.  At trial, all of the complaint of headache had resolved but there was some lingering discomfort and stiffness in her neck and back.  That discomfort is essentially resolved at this time, and there is every reason to conclude that she has not sustained any permanent damage.  With proper exercise and self-care, there will be a complete resolution
The court awarded $22,000 for these moderate soft tissue injuries, $2,163.21 for lost wages and $351 for special damages.
This is a short crisp judgement dealing with issues that often arise in ICBC claims.  This case is worth reviewing for anyone involved in an ICBC injury claim to see some of the factors court’s consider when valuing soft tissue injuries and addressing the issue of fault in a rear-end crash.