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$20,000 Non-Pecuniary Assessment For 3 Year Soft Tissue Injuries With Good Prognosis

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

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for fairly modest injuries caused by a motor vehicle incident.
In the recent case (Ward v. Zhu) the Plaintiff was a passenger on a bus that stopped suddenly throwing her to the ground.  This occurred as the driver was avoiding a collision with another motorist.  Fault was admitted by the other motorist.  The Plaintiff suffered soft tissue injuries and although these remained symptomatic at the time of trial (over three years following the incident) they did not significantly impair the Plaintiff.  In assessing non-pecuniary damages at $20,000 Mr. Justice Goepel provided the following reasons:

[30] In this case, there is limited evidence that supports Ms. Ward’s claim for loss of enjoyment of life and loss of amenities. Ms. Ward missed no time from work as a result of her injuries. Within two months of her injuries, she was trying out for a soccer team. The only amenities referenced in her evidence concerned reductions in running and walking and difficulty in 2011 sitting through a concert. On the evidence that has been led at this trial, I cannot find that Ms. Ward’s enjoyment of life has been significantly compromised by this accident.

[31] There is also limited evidence in relation to pain and suffering. Ms. Ward abandoned physical therapy and chiropractic treatments shortly after the accident. She went long periods of time without seeking any medical advice concerning her injuries. She did not say anything to her family doctor concerning these injuries until January 2011. The defendant submits that the lack of complaints to medical practitioners supports his submission that Ms. Ward substantially recovered within weeks of the accident.

[32] I do not accept that conclusion. In 2009, Ms. Ward had other difficulties in her life which explain why she did not actively seek treatment for these injuries. I accept her evidence that she did not aggressively seek medical treatment because she mistakenly believed the injuries would resolve without medical assistance.

[33] I find that Ms. Ward did suffer an injury in the fall on the bus. I accept that those injuries have impacted her for more than three years. Her decision not to actively treat her injuries immediately following the accident has undoubtedly prolonged her recovery. When Ms. Ward finally started an active regime of chiropractic and massage treatments her condition improved. Dr. Dyment testified that Ms. Ward’s injuries are now slowly resolving. The evidence does not allow me to conclude that her injuries are permanent.

[34] While Ms. Ward’s recovery has been prolonged, the impact on her life is considerably less than the plaintiffs in Deiter and Parker, although somewhat greater than the plaintiffs in the cases cited on behalf of the defendant. While the cases provide a general range of appropriate damages, all cases ultimately must be decided on their own facts.

[35] I award $20,000 in non-pecuniary damages. This award includes an allowance for the difficulty that Ms. Ward has had or will continue to have in performing her usual household tasks with less efficiency and comfort than she did before the accident: Helgason v. Bosa, 2010 BCSC 1756 at para. 160.

$60,000 Non-Pecuniary Assessment for Chronic Back Soft Tissue Injury

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

Reasons for judgement were released last month by the BC Supreme Court, Kamloops Registry, assessing damages for a chronic soft tissue injury following a collision.
In the recent case (Cartwright v. Cartwright) the 15 year old plaintiff was injured as a passenger in a single vehicle collision.  The driver admitted liability.  The Plaintiff suffered a soft tissue injury to her back which resulted in chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Fisher provided the following reasons:
[20] There is no question that Ms. Cartwright suffered soft tissue injuries to her neck and back in the motor vehicle accident on June 17, 2007, which resulted in ongoing pain symptoms. She had pain immediately following the accident and has continued to have pain throughout her back since that time. The issue is the extent to which this ongoing pain has affected and will continue to affect her life…

[22] I found Ms. Cartwright to be a credible witness but a poor historian about the nature and intensity of her pain symptoms and how they affected her life and her work. I agree with the defendant that she provided little detail about her symptoms. At the time of the accident, she said that her neck and shoulders were “sore” and her back was “just stiff”. She said it was painful working in that she had to rely on others to do things like move tables and chairs and carry pallets of cutlery. Other than that, she described things as being “difficult” or “painful”, and said that she was not able to work because of “back pain.”  Surprisingly, she said nothing about the effect of her pregnancy on her back pain. She said that she can get headaches two to three times a week and migraines “at least a couple a month”, but said nothing about how intense they are or how they affect her. She said that she went to a counsellor “a few times for anxiety about the accident” and she still has anxiety “towards vehicles” without describing in any way the anxiety and how it affects her.

[23] This lack of any detail makes it difficult to assess the nature and severity of Ms. Cartwright’s ongoing pain. However, I am satisfied that her evidence, along with the medical evidence, establishes that she suffered strain to the muscles and ligaments of the thoracic and lumbar regions and strain to the muscles of the cervical region as a result of the accident. I accept Dr. Farren’s description of Ms. Cartwright’s back pain as “moderate in severity and chronic in nature”. There is no evidence about the severity and nature of her headaches or the nature and extent of the anxiety she experienced as a result of the accident.

[24] These injuries have caused her ongoing and chronic symptoms of myofascial back pain, some tension headaches and a modest exacerbation of a pre-existing tendency towards migraines. The chronic back pain will likely continue but there is a substantial possibility that it will diminish with proper rehabilitation that includes a regular exercise program…

[48] Ms. Cartwright has been moderately affected by her chronic back pain and will continue to be affected by it in the future, but there is a substantial possibility that the pain will diminish and be quite manageable with proper rehabilitation and regular exercise. Given the evidence and relevant factors in this case, it is my view that a fair award of non-pecuniary damages is $60,000.

Non-Pecuniary Assessments With Pre-Existing "Chronic" Conditions

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault focusing the trial on an assessment of damages.  The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back.  He was also on a disability pension as a result of a chronic lung condition.
The collision caused soft tissue injuries which aggravated his pre-existing pain making his symptoms more “enduring in nature and markedly more severe“.    Mr. Justice Voith noted that this was a marked change in the Plaintiff’s pre-accident condition and assessed non-pecuniary damages at $100,000.  In doing so the Court provided the following reasons:

[35] The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.

[36] I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.

[37] There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.

[38] Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true…

[48] Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.

Defence Expert Criticized; $60,000 Non-Pecuniary Assessment for Lingering STI's and PTSD

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, independent medical exams. 59 Comments on Defence Expert Criticized; $60,000 Non-Pecuniary Assessment for Lingering STI's and PTSD

Unreported reasons for judgement were recently released by the BC Supreme Court, Nanaimo Registry, addressing damages for “chronic, but not disabling” soft tissue injuries and post-traumatic stress arising from a motor vehicle collision.
In the recent case (Pitts v. Martin) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  The extent of the Plaintiff’s damages were at issue.  As is common in personal injury litigation, the Defendant produced an expert witness who provided evidence disagreeing with the Plaintiff’s physician as to the extent of the ongoing injuries and their connection to the collision.  Mr. Justice Dley was not receptive to this evidence preferring the Plaintiff’s treating physicians.  In rejecting the Defendant’s expert Mr. Justice Dley provided the following criticism:
[31]  Dr. Dommisse provided an opinion that confirms the soft tissue injury.  However, he opines that stress aggravates the physical injuries and that with proper counselling the stress would ease off; that would improve the physical injuries.  Dr. Dommisse agreed that the stress affectibng Ms. Pitts resulted from the collision.
[32]  His opinion ignores the fact that Ms. Pitts has had counselling and that she has been provided with coping techniques.  Dr. Dommisse was not critical of the counselling that had been provided and deferred that aspect of the injuries to the counsellors who had previously treated Ms. Pitts.
[33]   His opinion failed to consider that Ms. Pitts required some assistance at work.  He conceded that to be a significant factor.
[34]  Dr. Dommisse noted muscle spasm in the trapezius muscle.  However, in his opinion as to whether the collision caused Ms. Pitts’ disabilities, he did not include any reference to the spasms.  Instead, he referred to Ms. Pitts’ complaints as being subjective.  He did not provide a satisfactory answer as to why such an objective symptom would have been left out of his analysis.
[35]  Dr. Dommisse failed to consider the fact that Ms. Pitts suffers pain and discomfort from some of her work-related activities, particularly heavy lifting.  Those symptoms are brought on without any stress.  That significant omission from his report destroys any reliability that might be attached to his opinion that “it is unlikely that Ms. Pitts’ current disabilities were caused by the accident”.
[36]  Dr. Dommise commented that counselling from Ms. Pitts’ stress and anxiety will likely improve her symptoms.  His evidence did not provide any basis for that opinion to be reliable.  It ignores the reality that counselling has already been provided and there is no suggestion that the treatment was in any way lacking.  I am not satisfied that any further counselling is likely to resolve or further improve Ms. Pitts’ present condition.
In assessing non-pecuniary damages at $60,000 Mr. Justice Dley provided the following reasons:
[47]  It is now four years post-accident.  Ms. Pitts has been diligent in pursuing rehabilitation measures.  Ms. Pitts still has some lingering injuries – they are chronic, but not disabling.  Ms. Pitts can carry on with her everyday life and work, but she has limitations because she must be careful so as not to aggravate her injuries.  She continues to suffer from the post-traumatic stress of the collision.  She has learned coping techniques, but that has not eliminated the disorder.
[48]  Taking into account the injuries sustained and the impact they have had and will continue to have, I assess general damages at $60,000.
As noted this judgement is not reported therefore not publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests one.

$50,000 Non-Pecuniary Assessment for Frozen Shoulder and Chronic Soft Tissue Injuries

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained as a result of a motor vehicle collision.
In last week’s case (Wepryk v. Juraschka) the Plaintiff was involved in a 2008 collision.  She was a passenger and the driver of her vehicle lost control resulting in a roll over collision.  Liability was admitted.  The 43 year old Plaintiff suffered soft tissue injuries and while she was able to continue working as a hairdresser these injuries limited her abilities to do so.  In assessing non-pecuniary damages at $50,000 Mr. Justice Ehrcke provided the following reasons:

[9] All of the doctors are agreed that Ms. Wepryk suffered soft tissue injuries to her neck, left shoulder, and upper back as a result of the accident, and that she continues to experience pain, discomfort and occasional headaches from these injuries at the time of trial, three and one-half years after the accident.

[10] In addition, Dr. Chan was of the opinion that Ms. Wepryk suffered adhesive capsulitis or frozen shoulder as a result of the accident. Dr. Loomer did not agree with that conclusion. Dr. Chu had no opinion on the causation of the adhesive capsulitis. Dr. Smith agreed with the opinion of Dr. Chan. On a balance of probabilities, I accept the opinion of Dr. Chan, although not a great deal turns on this, since, as Dr. Chu expressed it, the left adhesive capsulitis is “the least of her problems”.

[11] There was also a disagreement between Dr. Smith and Dr. Tessler regarding the causation of left C-8 sensory neuropathy. Again, I find that nothing of significance turns on this, as these symptoms were minor and transient.

[12] The important fact is that the defendants accept that Ms. Wepryk suffered soft tissue injuries to her neck, her left shoulder, and between her shoulder blades, and that she continues to experience pain to this day. As Dr. Smith put it in his report dated February 26, 2012:

More than three years have passed since Ms. Wepryk’s motor vehicle accident of December 5, 2008. In terms of prognosis, Ms. Wepryk unfortunately has fallen into the 10% of patients still with symptoms more than two years after their motor vehicle accident. Therefore, Ms. Wepryk’s prognosis to return to pre motor vehicle accident levels of functioning is poor, and Ms. Wepryk must now learn to cope with what I believe is a permanent functional impairment.

[13] I accept that conclusion, notwithstanding that Dr. Loomer expressed a “hope” of improvement. In cross-examination, even he agreed that there is no definite evidence that she will get better.

[14] It is likely, therefore, that Ms. Wepryk will continue to suffer from the pain to her neck, left shoulder and upper back, along with occasional headaches. Her symptoms are aggravated when she has to perform activities that require her to raise her arms, or to use her left shoulder. This has an impact on her work as a hairdresser, which requires such activities. It also has an impact on her recreational activities and activities of daily life….

[35] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Here, the plaintiff, who was 43-years-old at the time of the accident and who enjoyed an active lifestyle, suffered soft-tissue injuries to her neck, left shoulder, and upper back. Now, more than three and one-half years after the accident, her pain and discomfort have not fully resolved, and she is likely to have some residual effects for the indefinite future. She continues to have headaches three or four times a month, and she cannot engage in vigorous physical activities, particularly those that require her to raise her left arm above her shoulder-level, without experiencing pain. She therefore finds it difficult to be as physically active as she was before the accident. She says that she has gained some weight as a result, although the medical evidence suggests that any weight gain has been modest.

[36] In the circumstances of this case, on the facts as I have found them, and considering the factors set out in Stapley v. Hejslet, I find the proper assessment of non-pecuniary damages to be $50,000.

$45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases, Uncategorized. 52 Comments on $45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for injuries sustained in a collision.
In this week’s case (Coutakis v. Lean) the Plaintiff was involved in a rear-end collision in 2008.   The crash was of ‘considerable force‘.  While there was competing evidence as to the exact speed of impact the Court made the following common sense observation “The precise speed does not matter.  What does matter is that there is no evidence that the force of the collision, given the defendant’s estimated speed, would have been insufficient to cause the injuries complained of“.
The collision caused low back soft tissue injuries in addition to a C-7 disc herniation with nerve root impingement causing pain and weakness in the Plaintiff’s arm.

The Plaintiff was a retired maintenance engineer but made spare money in his retirement painting houses.  The injuries disabled him from this work.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[47]In summary, Mr. Coutakis was an active and relatively healthy person prior to the motor vehicle accident, with no significant low back pain other than the occasional flare-ups which we are all subject to, and with every reason to expect a healthy and active retirement.  His plan to keep working at painting was reasonable, and there is a significant probability to be attached to his thought of continuing to work, health permitting, approximately to age 75.  His current complaints disable him from pursuing his employment as a painter.  I find that his current complaints were materially contributed to by the accident.  There is no basis, on the evidence, for concluding that any pre-existing degenerative changes in his cervical or lumbar spines – the cervical herniation, and the lumbar disc bulging – would have become symptomatic but for the accident, and certainly not to the present level of dysfunction and disability.

[48]There is some reason to hope for some modest resolution of Mr. Coutakis’ complaints with continuing conservative treatment.  However, the only expert witness to express any significant degree of optimism is his family physician, Dr. Cox.  Dr. Cox is not a specialist and I am not inclined to give his optimism a great deal of weight.  He did not have the benefit of Dr. Rothwell’s report, when he examined Mr. Coutakis in September 2010.

[49]I regard the possibility of Mr. Coutakis making any really significant recovery to the level of having a pain-free life, as small.  Even if he were to recover to the level where he might be physically able to resume work, the question at that point would be whether he would be inclined to do so, given his age; with all that he has been through, at that point it would be entirely reasonable for Mr. Coutakis to retire fully and enjoy what is left of his healthy retirement years…

[52]I assess non-pecuniary damages at $45,000.

$100,000 Non-Pecuniary Assessment For S1 and Sciatic Nerve Irritation

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain caused by low back nerve root irritation.
In this week’s case (Stanikzai v. Bola) the Plaintiff was involved in a 2007 motor vehicle collision.  The Plaintiff sustained various soft tissue injuries and in addition the crash caused persistent low back pain involving the Plaintiff’s S1 and sciatic nerves.  The Plaintiff’s symptoms were expected to continue with the prognosis being “quite guarded“.

Mr. Justice Smith assessed non-pecuniary damages at $100,000 although reduced this amount by 15% to account for a “measurable risk” that the Plaintiff would have experienced similar symptoms even without the collision due to pre-existing factors.  In arriving at this assessment Mr. Justice Smith provided the following reasons:
[24] Dr. Yu also believes the accident caused a low back injury that resulted in left sided sciatic pain with “obvious clinical signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff had pre-existing degenerative disc disease, but that is a very common condition and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on cross-examination that the plaintiff’s disc degeneration is severe for a person his age. Dr. Yu and Dr. Caillier also agreed that the disc degeneration put the plaintiff at increased risk for back pain and sciatica and that disc herniation and resulting pain can occur without any significant trauma…

[26] Dr. Caillier said that given the chronic nature of the plaintiff’s symptoms, he is likely to have ongoing low back and radiating leg pain as well as sensory disturbance and weakness in the left leg. Although she says some improvement may be possible with medication and a physical reconditioning program, his prognosis “remains quite guarded.” She said his ability to work will be effected by his low back symptoms and resulting limitations in “sitting, standing, lifting, carrying, bending, twisting, crouching, as well as any other impact activities.” She concludes:

It is my opinion that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August 25, 2007 have had a significant negative impact upon his future employability as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am also in agreement that there will be some longterm disability associated with his symptoms, whether he chooses to go forward with surgical or nonsurgical options.

[27] Dr. Yu said the plaintiff’s symptoms will likely “persist for the foreseeable future.” Although surgery could be performed to remove the bulging disc, Dr. Yu said even that is unlikely to provide complete relief.

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion…

[31] The Defendants agree that the plaintiff suffered some injury, but say his spine was already in a severely degenerated condition and the accident only aggravated or accelerated that pre-existing condition. They also say there was a significant risk that condition would have detrimentally affected the plaintiff in the future even without the accident. Those are issues to be considered on assessment of damages. Based on the only medical evidence that is before me, I find that the plaintiff has a low back injury, with associated nerve root involvement, that was caused or contributed to by the accident.

[32] I also find that the plaintiff has experienced and will continue to experience low back pain. Based on his evidence and that of other witnesses, I find that he remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities, and that the pain significantly interferes with his quality of life…

[42] Apart from what I have found to be a real possibility of future back problems in any event, I find Majer and Crane to be the most comparable. Both cases involved ongoing and likely permanent back pain that, while not completely disabling, severely limited the plaintiff’s work and recreational activities. Both involved pre-existing conditions that were asymptomatic at the time of the accident, although the plaintiff in Crane had, like this plaintiff, a previous history of back pain. The court awarded non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.

[43] If I had not found the plaintiff to have been at significant risk for back problems, I would have assessed non-pecuniary damages of $100,000. In recognition of that risk, I apply 15 per cent reduction and assess non-pecuniary damages at $85,000.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

Written by admin on . Posted in BCSC Civil Rule 14, ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.

$40,000 Non-Pecuniary Assessment for "Longstanding" Soft Tissue Injuries Caused by Impaired Driver

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

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, assessing damages for long standing soft tissue injuries.
In this week’s case (Hahn v. Barnes) the Plaintiff was injured in a 1998 collision.  He was 5 years old at the time sitting as a passenger in a vehicle that was rear-ended by the Defendant.  The Defendant was found fully at fault with the Court noting that she was “under the influence of alcohol and not paying attention to her driving“.
The Plaintiff was 19 by the time of trial and testified that he sustained injuries to his neck and back and that his symptoms carried on since the collision.  The Court accepted this evidence and assessed non-pecuniary damages at $40,000.  In doing so Mr. Justice Tindale provided the following reasons:

[71] Credibility is the central issue in this case. I have had an opportunity to view the plaintiff, his mother, his father and his soccer coach Mr. Pohl give evidence. I accept that they are all honest witnesses. There are no notations regarding the back problems of the plaintiff in the clinical records of Dr. McKinley. Unfortunately, Dr. McKinley is not here to give evidence regarding the accuracy of his clinical records. I accept the evidence of the plaintiff, Sharon Hahn, and Keith Hahn regarding the plaintiff’s back symptoms. I find the plaintiff’s back symptoms are from the motor vehicle accident on June 16, 1998.

[72] I also accept the plaintiff’s, Sharon Hahn’s and Keith Hahn’s evidence relating to the neck symptoms. The plaintiff clearly had neck pain after the accident and there was some radiographs suggesting pre-cervical soft tissue swelling at the time of the accident. I find that the plaintiff’s neck symptoms are from the motor vehicle accident of June 16, 1998. I also find, given the evidence of doctors Dommisse and Travlos, the plaintiff’s neck and back symptoms can be defined as chronic in nature…

[76] In this case, the plaintiff is young, and has a long standing neck and back injury. However, the plaintiff’s injuries are not severe or disabling. I do not have any evidence that the injuries have caused the plaintiff any emotional suffering…

[78] An appropriate award for Non-Pecuniary damages, given the length of the plaintiff’s symptoms and the nature of the neck and back strain, is $40,000.

$50,000 Non-Pecuniary Assessment for Soft Tissue Injuries "Superimposed on Other Problems"

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In last week’s case (Sharifi v. Chaklader) the Plaintiff was involved in a 2008 collision in Vancouver BC.  She was a passenger in a van travelling through an intersection when it was struck by a left hand turning driver.  The Defendant was found fully liable for the crash.  The Plaintiff had some pre-existing problems and the collision superimposed soft tissue injuries on these.  These remained symptomatic at the time of trial.  Despite some concerns with the Plaintiff’s evidence the Court assessed non-pecuniary damages at $50,000.  In doing so Mr. Justice Willcock provided the following reasons:

[99]Weighing the evidence as a whole, I find that Ms. Sharifi suffered a musculoligamentous soft tissue injury to her cervical spine, upper back and shoulders on July 10, 2008.  Those injuries were superimposed on a pre-existent left shoulder injury and on some pre-existent neck pain.  Additional pain and suffering following the motor vehicle accident did not cause, but must have contributed to, the level of her ongoing stress and anxiety, and contributed to her tendency to suffer from migraine headaches.  The injury sustained in the motor vehicle accident has continued to trouble her since; it has affected her capacity to enjoy life, and caused her to suffer an income loss.

[100]On a balance of probability I cannot find Ms. Sharifi suffered a concussion or an injury to her low back.  Nor am I satisfied on the evidence that she has established she has suffered or is likely to suffer from post-traumatic degenerative osteoarthritis as a result of the soft tissue injury sustained in the July 2008 accident…

[103]Damages must be assessed on the basis that the plaintiff has suffered a soft tissue injury superimposed on the other problems documented in the records: a history of some neck pain, a left recurrent shoulder injury that limited her ability to lift, occasional migraine type headaches, stress, anxiety, fatigue and depression-like symptoms (but not clinical depression).  Damages must be assessed on the basis some continuing recovery is probable.  The functional impact of the injury is overstated by Ms. Sharifi.  She is capable of most activities of daily living. I am not satisfied she has established that she is disabled from clerical employment…

[119] …I assess non-pecuniary damages in this case at $50,000.