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More from BC Court of Appeal on Jury Trials and Counsel Statements

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.

I recently posted on the potential for mistrials when counsel give their personal opinion in an opening statement to a jury.  Today reasons for judgement were released by the BC Court of Appeal further discussing, amongst other topics, proper opening remarks by counsel in a Car Crash case.
In today’s case (Moskaleva v. Laurie) the Plaintiff suffered serious injuries including a Mild Traumatic Brain Injury (MTBI) in a 2002 motor vehicle collision.  The Plaintiff was crossing with the light in a marked cross-walk in Maple Ridge at the time.
After a 18 day jury trial damages of over $1.9 million were awarded for her injuries and losses.  The Defendant appealed on 5 grounds stating that
1.  the opening submissions of respondent’s counsel were improper and prejudicial;
2.  the cross-examination of a psychiatrist called by the appellant exceeded the bounds of proper cross-examination and thereby prejudiced the jury;
3.  the trial judge’s interventions and questions during the testimony of three expert witnesses called by the defence impugned the credibility of those witnesses.
4.  the appellant alleges that the trial judge erred in his instructions to the jury by failing to explain properly the law relevant to past and future economic loss and by inaccurately stating the appellant’s position on that issue.  The relief the appellant seeks on the first four grounds of appeal is an order for a new trial.

5.  that the awards for non-pecuniary damages, past wage loss, and future economic loss are inordinately high, not supported by the evidence, and inconsistent with the jury’s award for cost of future care.

The Appeal was dismissed on all 5 grounds.  This case is worth reviewing for the courts discussion on these areas of law particularly the permissible scope of cross examination of experts and counsels opening statements.  Below I reproduce the Courts analysis of the opening statement of the Plaintiff’s lawyer:

[19] Under the first ground of appeal, the appellant argues that the opening submissions of respondent’s counsel were improper and prejudicial and resulted in an unfair trial.  To support her submissions that the opening statement failed to conform to the proper function or purpose of an opening, the appellant refers to Halsbury’s Laws of England, 3rd ed. (London: Butterworths, 1953), vol. 3, at 69, and to what was said by Finch C.J.B.C. in Brophy v. Hutchinson, 2003 BCCA 21 at paras. 24-25, 9 B.C.L.R. (4th) 46.  As to the effect of an improper opening statement, the appellant refers to Brophy at para. 48.

[20] The appellant complains that the opening statement contained no explanation as to its purpose and, rather than outlining the facts the respondent expected to prove, gave a description of the accident, the mechanism of a brain injury, and the respondent’s training and employment background, all as if they were established fact, thereby giving the impression that all that was important for the jury to consider was the evidence of the respondent’s symptoms in the aftermath of the collision.  The appellant further submits that in the opening, the respondent’s symptoms and the consequences of the accident were couched in pathos through an emotional appeal to the challenges faced by the respondent as an immigrant to Canada from Russia.  The appellant argues that while the complete effect of the opening remarks of respondent’s counsel cannot be known to a certainty, the character of those remarks was clearly prejudicial.  The appellant contends that the fullness of their effect was to cement for the jury as fact the assertion that the respondent had suffered a brain injury, was incapable of performing work, and had suffered a significant economic loss.

[21] The appellant also complains that a phrase used by the respondent’s lawyer at the conclusion of his opening improperly suggested that the accident, instead of being the result of negligence, was volitional.  In that regard, the appellant refers to the statement in the opening that the appellant “chose to launch her car forward from that stop sign and not pay attention to who was in the cross-walk”.  In the appellant’s submission, the effect was to present the appellant’s case in the context of the respondent as victim and the appellant as culprit.  The appellant argues that the effect was to demonize the appellant at the inception of the trial, thus implicitly characterizing her as a person who intentionally disregarded the interests of others, rather than being merely negligent.

[22] Another complaint the appellant makes is that it was improper for respondent’s counsel to use evidence in the form of photographs in the opening.

[23] In my view, none of the arguments put forward under the first ground of appeal can succeed.

[24] The appellant’s characterization of what was said in the respondent’s opening is overstated and, in some instances, inaccurate.  Prior to counsel for the respondent beginning his opening statement, appellant’s counsel informed the trial judge that he did not dispute that the appellant was negligent but said he was not in a position to admit liability.  As a result of the position taken, liability was obviously in issue.  In the circumstances, for respondent’s counsel to refer to the respondent’s recollection of the accident in his opening statement is unremarkable.  At trial, appellant’s counsel did not object to the description given by respondent’s counsel as to how the accident had occurred and did not complain that respondent’s counsel had “demonized” the appellant.

[25] The suggestion that a miscarriage of justice occurred as a result of what was said by respondent’s counsel in his opening about the circumstances of the accident is further undermined when considered along with the submissions on liability made later in the trial.  Before making his final submission to the jury, respondent’s counsel advised the trial judge and appellant’s counsel that he intended to submit that “one of the reasons why we’re here is because Ms. Laurie [the appellant] says she’s not at fault”.  Appellant’s counsel stated he did not have a problem with that submission and later agreed it was appropriate for the trial judge to instruct the jury to find the appellant negligent.  I further note that during the course of his closing submissions, appellant’s counsel told the jury:

Now, you’ve heard that Ms. Laurie ran her vehicle into the plaintiff.  There’s no doubt.  There’s no doubt that Ms. Moskaleva was in the intersection.  There’s no doubt that Ms. Moskaleva had the right-of-way.  There is nothing that I could say to suggest that Ms. Moskaleva did anything wrong, or that my client demonstrated all the care that she should have.  She didn’t.  She didn’t.  As a result you may find that my client was negligent.  I don’t have anything to say on that.  Nothing I can say.  I think it’s fairly obvious.

[26] In view of the foregoing, there is no substance to the submission that the remarks in the respondent’s opening about the appellant’s manner of driving at the time of the accident resulted in the kind of prejudice that would require a new trial.

[27] In his opening, respondent’s counsel showed the jury some photographs of the respondent and her husband.  Appellant’s counsel had been informed in advance by respondent’s counsel that he intended to use the photographs in his opening and appellant’s counsel told the trial judge he did not have “a problem” with the photographs.  After the opening had been given, appellant’s counsel repeated that he did not object to the use of the photographs.

[28] The appellant’s contention that the respondent’s counsel stated evidence as fact, thereby resulting in prejudice requiring a new trial, ignores the trial judge’s opening instructions to the jury.  Near the commencement of the trial, the judge gave the jury various instructions, including an instruction on the purpose of counsel’s openings.  After referring to the burden and standard of proof, the trial judge said, in part:

I will turn next to the opening remarks of counsel.  One of the Mr. Faheys will begin the trial once I have concluded my remarks.  He will take the opportunity to explain to you what he expects the evidence will disclose and give you an overview of his case.  Counsel for the defendant will do so at a later time after the plaintiff’s evidence has been called.  These opening remarks are made so that you will have a better understanding of the nature of the evidence that the parties intend to call; however, the opening remarks are not evidence and you cannot rely on what the lawyer says in his opening to prove the facts that you have to prove to decide the case.  You must only accept that the case is proven based on evidence that is called at court.

[29] Counsel for the respondent referred throughout his opening to the types of evidence he intended to adduce and what that evidence would show.  He specifically told the jury there would be controversy in the evidence concerning brain injury, concussion, and post-concussion syndrome and asked the jury to pay close attention to the evidence that would be led.  There were some phrases or statements in the respondent’s opening that might have been more carefully couched, but considered in the context in which they were uttered, they were not such as to exclude consideration of the case for the appellant.

[30] After the respondent’s counsel had concluded his opening statement, appellant’s counsel asked the trial judge to remind the jury that the opening was not evidence.  The trial judge decided his earlier instruction was sufficient, and in his charge, the judge reminded the jury that they were to rely on their own recollection of the evidence, not anything said by counsel.

[31] Of considerable significance in regard to this ground of appeal is the fact that appellant’s counsel told the trial judge he was not seeking a mistrial as a result of anything said during the opening.  This is a case in which appellant’s counsel specifically put his mind to the effect of the opening and elected not to seek an order discharging the jury. A deliberate election, such as occurred in this case, is a powerful circumstance militating against the appellant’s submission that a new trial is required to rectify an unfair trial.  While the facts of the case differ from the case at bar, the observation of Hall J.A. in R. v. Doyle, 2007 BCCA 587 at para. 28, 248 B.C.A.C. 307, is apposite:

In my opinion, having made a reasoned decision not to seek a mistrial, I do not consider it is open now to counsel for the appellant to advance an argument that the discovery and use by the judge of the evidence resulted in an unfair trial proceeding.  A rational choice was made at trial by experienced and competent counsel and it would not be appropriate to now allow this point to be the foundation of a contrary position in this Court.

[32] Further support for the view expressed by Hall J.A. may be found in Rendall v. Ewert (1989), 60 D.L.R. (4th) 513, 38 B.C.L.R. (2d) 1 at 10 (C.A.), and in Morton v. McCracken (1995), 7 B.C.L.R. (3d) 220 at para. 13, 57 B.C.A.C. 47.

[33] I would not accede to the first ground.

$220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Psychological Injury Cases, Uncategorized. 51 Comments on $220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for serious injuries and losses as a result of a 2001 Car Accident in Mission, BC.
What was interesting about this case (Polovnikoff v. Banks) was the very unique injuries the Plaintiff suffered as a result of this collision.  Madam Justice Bruce found that the Plaintiff sustained a Mild Traumatic Brain Injury and a Psychotic Disorder as a result of this crash.  While accident related brain injury cases are not all that uncommon it is quite rare to see a claim with an alleged accident related psychotic disorder to proceed to trial.
Madam Justice Bruce awarded $50,000 in non-pecuniary damages (pain and suffering) for the Plaintiff’s brain injury and related cognitive deficits.  In doing so she noted that the Plaintiff suffered from a ‘persistent cognitive impairment with predominant problems with his attention, concentration, ability to hold information, and being in the present with memory difficulties, short term and longer term memory problems‘.
The court then assessed the Plaintiff’s psychotic disorder separately and in valuing this non-pecuniary loss at $220,000 the court noted the following:

[377] Superimposed upon the plaintiff’s cognitive impairment is a completely disabling psychotic disorder. The plaintiff’s mental state has significantly interfered with his ability to function normally in every aspect of his life. His psychotic features adversely affect his ability to think and reason, impair his judgment, cause him to neglect personal hygiene, enhance the adverse impact of his cognitive impairments, including his ability to concentrate and short and long term memory, and make him apathetic about his life and others around him. The plaintiff is plagued by sleeplessness, anxiety, irritability, aggressive or violent feelings, lack of insight, verbal and physical inhibition, and recklessness. Mr. Stanus concluded that the plaintiff was completely unemployable in a competitive market due to his psychotic disorder.

[378] Clearly the plaintiff has undergone a catastrophic loss of enjoyment of life. While there is some doubt about how successful Festival Foods was as a going concern, it is apparent from both the plaintiff’s testimony and the collateral witnesses called by the plaintiff that he really enjoyed running the company and that he had significant skills and talents that have been lost entirely as a result of this disabling mental illness. The plaintiff requires constant supervision and is unable to carry out the simplest tasks. He no longer pays any attention to his physical care and hygiene and has lost interest in all of his pre-accident physical and recreational activities. Based on these factors I award the plaintiff $220,000 for non-pecuniary damages arising out of the psychotic disorder.

Madam Justice Bruce then went on to reduce this award significantly to $68,200 to account for the many other factors that played a potential role in the development of a psychotic disorder in the absence of this accident.  This made for a lengthy judgement almost 500 paragraphs in length.  Below are the highlights of the courts discussion reducing the award for damages for the Plaintiff’s psychotic disorder:

C.        Reductions from Non-Pecuniary Damage Award for Psychotic Disorder

[379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff’s alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff’s clinical presentation.

[380] Turning to the other accidents and subsequent events, it is apparent from the medical reports of Dr. Hunt and the clinical notes of Dr. Yokoyama that the December 2000 accident was the beginning of the plaintiff’s emotional distress albeit his major psychiatric symptoms appeared after the 2001 accident. Both Dr. Gopinath and Dr. Hunt attribute the plaintiff’s “superimposed psychological and psychiatric disturbances” to the injuries he suffered in both the December 2000 and the July 2001 accidents. Only Dr. Smith ruled out any causal relationship between any of the other accidents and the plaintiff’s current psychiatric illness: December 31, 2008 report at p. 19. This accident also appears to be the most seriously disabling for the plaintiff next to the July 2001 accident. Thus I would allocate to this accident 10% responsibility for the damages awarded to the plaintiff for the mental illness he suffers from.

[381] The accident witnessed by the plaintiff in January 2002 caused him to have a panic attack and increased his anxiety level for a brief period. The clinical notes of Dr. Yokoyama indicate the anxiety was improving after only a few days. In addition, this is clearly a non-tortious cause that does not reduce the defendants’ liability. The accident that occurred on October 21, 2002 was also fairly minor and nothing in Dr. Yokoyama’s clinical records indicates the plaintiff suffered any lasting emotional trauma as a result of this event. Accordingly, I attribute no responsibility for loss to the defendant in that case.

[382] The plaintiff was involved in an accident on September 24, 2003. He was a passenger in a vehicle driven by his father when this accident occurred. The van driven by Mr. Polovnikoff became hooked to the rear of a truck and this caused the van to be swung in a circular motion causing damage to the front bumper and two broken windows. When Dr. Hunt saw the plaintiff on November 27, 2003, he was confused, irrational, and having abnormal mental thoughts. The plaintiff disclosed that he was too frightened to drive or be a passenger in a vehicle because of the possibility of another accident. Dr. Hunt was so concerned about the plaintiff’s mental stability that he considered having him committed to hospital for acute psychiatric care.

[383] While the plaintiff appeared much more disturbed than in previous assessments, Dr. Hunt had already seen psychiatric problems developing in June 2003 before this accident had occurred. In addition, there is no follow up visit with Dr. Yokoyama, which was unusual for plaintiff, to indicate that this state of high anxiety continued for an extended period. Indeed, the next visit to Dr. Yokoyama was on February 24, 2004 after another accident had occurred. Thus, although it is apparent this accident caused some deterioration in the plaintiff’s condition, I am unable to find that it was either substantial or long term in its effect. The accident on February 18, 2004, which Dr. Yokoyama concluded had aggravated the plaintiff’s agitation level, was also short lived in effect. During the next visit to Dr. Yokoyama on March 17, 2004 there is no reference to any aggravation of his ongoing concussion symptoms. Thus I reduce the award for both these events by a nominal 2%.

[384] The accident on May 30, 2004 in the parking lot of the Astoria hotel seemed significant to Ms. Lustado. She considered this to be a turning point in their relationship because of the noticeable deterioration in the plaintiff’s emotional demeanour. Dr. Yokoyama’s clinical notes on June 2, 2004 indicate that the plaintiff developed anxiety and tension after this accident in addition to an aggravation of his soft tissue injuries. On August 30, 2004 there is also a reference in Dr. Yokoyama’s clinical records to “regression – post concussion syndrome” which I interpret as some deterioration in the plaintiff’s mental state. Accordingly, I reduce the award by 5% to reflect the damage caused by this defendant’s negligence.

[385] The accidents that occurred on November 18, 2004, March 22, 2005, and November 29, 2006 do not appear to have aggravated to any measurable degree the psychotic disorder suffered by the plaintiff. By November 2004 his symptoms were well developed and the visits with Dr. Yokoyama after these accidents indicate the major concern in each case was an aggravation of the soft tissue injuries.

[386] Finally, the plaintiff was involved in an assault in or about July 2006 which I find exacerbated his emotional problems and led to deterioration in his mental health. Dr. Gopinath reported that following this assault the plaintiff was clearly more paranoid in general and in regard to the police in particular. Dr. Gopinath believed the plaintiff had been “badly shaken up” by this experience and developed symptoms of post traumatic stress disorder. He was having sleep difficulties, waking up with nightmares, and panic attacks. Dr. Gopinath’s December 16, 2008 report also features this assault as significant in the plaintiff’s clinical presentation and he acknowledged in his testimony that the plaintiff’s psychotic symptoms worsened after this event. It was also partly due to this assault that Mr. Polovnikoff moved his son and Ms. Lustado to Keremeos. They wanted to get away from the police and the other stressors in the plaintiff’s life.

[387] While this event is significant, it must be acknowledged that the plaintiff’s psychotic symptoms were well entrenched at this time and his inability to function normally in all aspects of his life had already been a reality for some time. Dr. Gopinath had observed severe psychotic symptoms as early as October 2005 when the plaintiff first came to him for treatment. Accordingly, I find the award should be reduced by a further 5% as a result of this tortious intervening event.

[388] In summary, the non-pecuniary award arising from the psychiatric illness suffered by the plaintiff in the amount of $220,000 must be reduced by a total of 69%. The reduced award is therefore $68,200. The total award for non-pecuniary damages is $118,200 ($50,000 plus $68,200).

The Law of "Adverse Inference" Exlpained in BC Brain Injury Case

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.

One of the most important decisions a personal injury lawyer needs to make when going to court is deciding which witnesses to call in support of the claim.  This is particularly true when it comes to deciding what medical experts will be called in support of an injury claim.
Typically a seriously injured plaintiff will have seen many medical practitioners (GP, specialists, physiotherapists etc.)  If you  fail to call some of these witnesses can that harm your case?  The answer is yes and is contained in the law of ‘adverse inference’.   The law of adverse inference means that the judge or jury are permitted to, in certain circumstances, presume that you failed to call a certain witness (such as your doctor) because that witness would not have helped your case.
Reasons for judgment were released yesterday by the BC Supreme Court, Nanaimo Registry, (Hodgins v. Street) explaining and applying this legal principle in a BC brain injury case.
In this case the Plaintiff was injured in a serious accident in 2004 in Courtenay, BC.   The Plaintiff suffered a moderate brain injury which was expected to have permanent consequences.  In awarding just over $650,000 in total damages for the Plaintiff’s losses Mr. Justice Kelleher summarized the Plaintiff’s injuries and their effect on her life as follows:

[81] In this case, the plaintiff has suffered constant headaches and continues to do so.

[82] Her emotional and other difficulties arising from the brain injury are permanent and affect many aspects of her life.

[83] I am persuaded that Ms. Hodgins’ pleasure in life has been significantly reduced.  Both the plaintiff’s cognitive and physical conditions limit what she can do outside the home.  Her ability to be a mother will be complicated by these injuries.  She will have a loss of opportunity of engaging with her children while they are growing up.  I accept, as well, Dr. Anton’s opinion that neurological recovery after a traumatic brain injury is usually maximal within two years and therefore further recovery cannot be expected.  I accept, as well, neurologist Dr. Donald Cameron’s opinion that she is “functionally disabled to a significant degree”.  Her fatigue, hypersomnilance and dizziness will be permanent.  She is more vulnerable than before to episodes of depression.

In reaching his judgement Mr. Justice Kellehar was asked to draw an adverse inference because the Plaintiff failed to call her GP of many years as a witness.  The judge did in fact draw this adverse inference and in doing so did a great job summarizing this area of the law as follows:

Adverse Inference

[51] The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness.

[52] Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

[53] Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion.

[54] The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192:

…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[emphasis added]

[56] There have been recent developments in the application of this principle in British Columbia.

[57] In Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

[58] That approach was modified in Buksh v. Miles, 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[59] Mr. Justice Macaulay considered this issue in Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, in circumstances similar to those before me.

[60] In that case, the defendant had access to the clinical records.  Mr. Justice Macaulay noted that in Barker, the plaintiff failed to call the specialist and the inference was that the specialist did not support the view of the general practitioner.  In Prato, the specialists were called but not the general practitioner.  His Lordship said at para. 26: “I am less concerned about the lack of supporting evidence from a general practitioner than I would be if the situation were reversed”.

[61] The defendant points to Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, 66 B.C.L.R. (4th) 314, where Josephson J. at para. 60 gave five reasons for declining to draw an adverse inference:

1.         Both parties have produced volumes of medical evidence from a number of doctors;

2.         The complete clinical records of these doctors were disclosed to the defence;

3.         These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;

4.         Having had disclosure of these records, it was open to the defence to interview and call these doctors as witnesses without risk of being blindsided;

5.         These were not doctors whom Mrs. Djukic consulted on a regular basis.

[62] As the plaintiff points out, the decisions in Prato, Djukic and Buksh are consistent with the initiative to streamline trials and make them less costly.

[63] However, there were two peculiarities in the Prato case that bear mentioning.  Of concern was the evidence or lack of evidence from two family doctors.  One of them, Dr. Leong, was not available to testify at trial.  Therefore, the records that were sought to be admitted, which contained opinion evidence, were not admitted.  In the circumstances, Mr. Justice Macaulay declined to infer that the doctor held views inconsistent with those of the specialist.

[64] The other physician was Dr. Hayes.  He had provided a medical report directly to an adjuster at ICBC.  (This was an action for temporary total disability benefits.)  Thus, the defendant had the opinion of Dr. Hayes but declined to call Dr. Hayes.

[65] In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

$115,000 Pain and Suffering Awarded for Mild Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized.

In reasons for judgement released yesterday (Williamson v. Suna) by the BC Supreme Court, Victoria Registry, damages of just over $266,000 were awarded for injuries and losses as a result of a 2004 motor vehicle collision.
The Plaintiff was a 38 year old member of the Canadian Armed Forces at the time of the car crash.  The crash was a significant head on collision.  The issue of fault was admitted focusing the trial solely on damages.
The Plaintiff suffered various injuries and symptoms as a result of this crash including a mild traumatic brain injury, headaches, poor sleep, irritability and difficulties with memory.  While the medical evidence did not rule out further possible recovery the testifying physcians stated that the plaintiff would probably suffer from headaches, neck pain and consequences of the mild traumatic brain injury for many years to come.
In awarding $115,000 for the plaintiffs non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Mr. Justice Goepel summarized the consequences of the injuries on the Plaintiff as follows:

[41]            Prior to the accident, Mr. Williamson was in good health.  He was physically active, and enjoyed activities such as fly fishing, scuba diving, sky diving, and competitive target shooting.  He was a former member of the Canadian national shooting team. 

[42]            After the accident, Mr. Williamson stopped skydiving and scuba diving.  While he still participates in target shooting, the enjoyment that he derives from that activity has decreased.  He explained that the noise from the rifle aggravates his headache, and the kick from the rifle aggravates his neck pain. 

[43]            Before the accident, Mr. Williamson was an active photographer.  He had taken a number of photography courses.  Since the accident, the enjoyment he derives from photography has decreased.  He has difficulty maintaining the static neck positions required to take quality photographs. 

[44]            Mr. Williamson testified that as a result of the accident and his headaches, he now seldom goes out in the evenings.  His irritability has obviously impacted on his family life.  Because of his headaches, he is unable to enjoy his young child as much as he should.

[45]            Mr. Williamson realizes that his injuries, particularly his difficulties with memory and concentration may eventually curtail his military career.  That possibility has caused him considerable anguish and diminished his enjoyment of life.

In addition to non-pecuniary damages, $150,000 was awarded for the Plaintiff’s diminished earning capacity.  Although he missed little time from work in the Canadian Armed Forces and in fact was promoted in the years after the car crash the court found that there was a possibility that the Plaintiff would not be able to continue in his current position or perhaps in the military  altogether as a result of his injuries.  Paragraphs 52-62 are worth reviewing for a discussion demonstrating how damages for future wage loss / diminished earning capacity can be made in an ICBC Injury Claim even where there is no wage loss from the time of the crash to the time of trial.

$40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 61 Comments on $40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.
The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.
Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.

ICBC Injury Claims, Past Wage Loss and Income Tax

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Wage Loss, Uncategorized. 112 Comments on ICBC Injury Claims, Past Wage Loss and Income Tax

I normally don’t blog about tax law but in certain circumstances the interplay of tax law and personal injury law can have very significant consequences in ICBC Injury Claims.
If you are injured through the fault of another in a motor vehicle collision in BC and advance a tort claim for your past wage loss you need to be familiar with s. 98 of the Insurance (Vehicle) Act which limits past income loss awards to past ‘net’ income loss.
Serious injury claims usually take many years before making their way to trial, mostly because it is important for injuries to reach a point of maximum medical improvement before trying to value them.
As a result of this Plaintiffs with serious injuries such as brain or spinal cord injuries often have several years of past wage loss by the time their claim gets to trial.   How then, should s. 98 of the Insurance (Vehicle) Act operate for past wage loss in these circumstances?  Take the following example:
Imagine a Plaintiff who earned $50,000 per year had 4 years of income loss before his ICBC Injury Claim got to trial.  His gross income loss would be $200,000.  What would the net loss be?  Would it be the income tax on $200,000 at today’s rate or would the income be taxed at the lower rate (the taxes payable on a salary of $50,000 in each calaner year)?  
In a 2003 decision named Hudniuk, the BC Supreme Court stated that taxes must be assessed “as if the past income had all been earned at the effective date of the jury’s assessment namely, the first day of trial”  Since 2003 this approach has been generally accepted as being correct.  This approach, in my opinion, unfairly penalized Plaintiffs by taking an amount off their award for taxes far greater then what they actually would have paid in taxes had they earned the income year by year.  Fortunately, very important reasons were released today by the BC Court of Appeal (Lines v. Gordon) adding clarity to the application of section 98. 
In today’s case the BC Court of Appeal weighed in how s. 98 of the Insurance Vehicle Act should be applied.  In doing so the Court first reaffirmed the important principle in tort law that:
Damages should, so far as any monetary award can do so, restore the plaintiff to the position in which he would have stood but for the defendant’s wrongdoing. On this basis they should represent compensation for loss of earning capacity and not for loss of earnings. In a case of personal injuries, what the plaintiff has lost is the whole or part, as the case may be, of his natural capital equipment and to tax him on this is contrary to generally accepted principles of taxation.
The Court then went on to decide that the approach taken by the trial judge in Hudniuk was not inflexible and not appropriate in all circumstances and stated as follows:

[181]        Although the wording of ss. 95 and 98 contemplates the possibility of calculating net income loss for multiple periods between the date of the accident and the date of trial, it is my opinion that the Legislature did not intend to require in every case that gross past income loss be allocated to each of the calendar years between the date of the accident and the date of trial and to never allow net income loss to be calculated on the basis that the compensation for it was all received on the first day of trial.  If the Legislature had so intended, it would not have used the words “for any period” in the introductory portion of the s. 95 definition of “net income loss”.  Rather, if that had been the intention, the Legislature would have used words to the effect of “for each calendar year”.

[182]        In my opinion, the Legislature recognized that there may be difficulties in allocating gross income loss to particular periods between the date of the accident and the date of trial.  For example, as in Hudniuk, a jury may make a finding as to the gross income loss without being asked to allocate the loss to any calendar year or other period, and the judge may consider it inappropriate to speculate on the jury’s reasoning process.  The difficulty could be compounded if, again as in Hudniuk, the tax rules applicable to the income earned in a particular year are different from the tax rules applicable to the income allocated to that year.

[183]        Another example is a situation where the plaintiff was unemployed at the time of the accident and had no imminent prospects of employment.  The judge or jury could make an award for loss of past earning capacity, but it would be artificial to allocate it among different periods.

[184]        In my opinion, by the use of the phrase “for any period”, it was the intention of the Legislature to give a discretion to the judge to determine what period or periods are appropriate for the determination of net income loss in all of the circumstances.  In the two examples I have given, it would be appropriate for the judge to use only one period for the calculation of net income loss (namely, the entire period from the date of the accident to the first day of trial).  In such a case, net income loss would be calculated as if the gross income award was received by the plaintiff on the first day of trial.

[185]        By way of contrast to the two examples I have given, in the situation where, at the time of injury, the plaintiff was working at a job and returned to that job after sufficiently recovering from the injuries, it would be appropriate, absent any complications, for the judge to allocate the gross income loss to the calendar years between the date of the accident and the date of trial as if the plaintiff had continued working.  This would accord with the principle that, insofar as is possible, the plaintiff should be put in the position he or she would have been in if not for the injuries caused by the defendant’s negligence.

[186]        There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred.

[187]        The application of s. 98 in jury trials should be consistent with its application in trials by judge alone.  The judge will typically consult with counsel as to whether the jury will be requested to only make an award for the gross amount of the loss of past earning capacity or to also make a finding of fact with respect to the net income loss prior to trial.  Whether the jury will be requested to provide a lump sum amount of the past gross income loss, or will be requested to provide periodic gross amounts, for use in calculating the net income award, will depend on the circumstances of the case.

[188]        In the present case, the plaintiff did not earn any income between the date of the accident and the date of trial, with the result that there is no complication of using different tax rules for actual and allocated income.  Although the trial judge made a global assessment of the past income loss, he specifically accepted a scenario which allocated projected income among the calendar years between the accident and the trial, and he then applied contingencies to arrive at the award he made.  In the circumstances, it is reasonable to infer that he applied the contingencies to the projected annual incomes on a pro rata basis.

[189]         In addition, it is apparent from the supplementary reasons for judgment that the trial judge felt constrained to follow what he understood to be the inflexible approach of Hudniuk in circumstances where he felt that approach diverted from the damage assessment principle that a plaintiff should be made whole.  It is reasonable to conclude, in my opinion, that if the judge appreciated that he had a discretion to allocate the gross income loss to more than one period, he would have allocated it to each of the calendar years between the accident and the trial on a pro rata basis according to the incomes projected in the scenario he accepted.

This case is certainly good news for any Plantiffs injured in BC motor vehicle collisions.  The flexibility the Court of Appeal has given trial judges in the applicaiton of s. 98 of the Insurance (Vehicle) Act will result in more fair assessments in past income loss by not penalizing plaintiff’s with a tax rate that they never would in reality be exposed to.

Another interesting highlight of this judgement was the Courts comments on past wage loss awards being in reality awards for a diminished capital asset, specifically the court said:

 

[172]        I have already alluded to the principle that past income loss is properly characterized as loss of past earning capacity or loss of a capital asset.  Mr. Justice Pitfield made a similar point when he made reference in para. 40 of Hudniuk to the fact that the jury award was an assessment of damages and not a mechanical calculation. 

[173]        Despite the fact that past income loss is an assessment of damages for loss of a capital asset, there is normally a correlation between the time worked by a person and the amount of income earned by them.  In the majority of personal injury cases, the plaintiff, at the time of the injury, will have been working at a job and will return to the same job when he or she has recovered sufficiently from the injury.  Although it is technically an assessment of damages for loss of capital asset, there is no suggestion that the plaintiff would have worked at a different job if he or she had not been injured, and the assessment of damages does involve a calculation of the income the plaintiff would have earned at the job had he or she not been injured.

A Busy day with ICBC Injury Claims

Written by admin on . 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.

$1.1 Million Awarded for Mild Traumatic Brain Injury with Poor Prognosis

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding $1,186,425 to a Plaintiff who sustained a Mild Traumatic Brain Injury (MTBI) in a British Columbia car collision.  The reasons for judgement were lengthy and consisted of over 400 paragraphs.  This decision is worth reading for anyone advancing an ICBC brain injury claim for some insight into how complex some of the trial issues can be.
The court made the following findings with respect to the Plaintiff’s injuries and prognosis:

(a)        Diagnosis

[275]        Ms. Towson suffered a moderate to severe injury to her neck and back in the October 2002 accident.

[276]        Some of the evidence focused on whether Ms. Towson’s complaints arose from a traumatic brain injury, or from chronic insomnia and ongoing chronic pain.  Whether Ms. Towson’s symptoms arose from a traumatic brain injury in the October 2002 accident or from the chronic pain it caused, which led to the significant weight gain and the chronic insomnia, the symptoms were caused by the October 2002 accident.

[277]        On the question of diagnosis, I prefer the evidence of Drs. Ancill, Krywaniuk, Knazan, Neumann and Feldman over the evidence of Dr. Tomita.  Dr. Ancill has almost four times as many years of experience as Dr. Tomita in the practice of psychiatry.  Dr. Ancill treated Ms. Towson, and saw her 13 times over almost four years.  Dr. Tomita’s opinion was significantly based on his interpretation of Dr. Ancill’s records as demonstrating that Ms. Towson had recovered.  Dr. Ancill did not interpret his own records that way. 

[278]        The weight of the evidence establishes that Ms. Towson suffered a traumatic brain injury, resulting in post-concussion syndrome.  This has resulted in problems with concentration and memory, sensitivity to noise, anxiety and fatigue.  She has chronic pain in the left neck, left shoulder and arm area, and periodic headaches.  Her symptoms are so severe that she is not presently able to work.  She is at risk of further episodes of depression.

(b)       Prognosis

[279]        The question of Ms. Towson’s prognosis is also difficult.  She has made a serious effort to improve, and has been treated with medication, physiotherapy, massage therapy, chiropractory, and psychotherapy.  Despite that, significant symptoms have persisted for six years. 

[280]        In these circumstances, Ms. Towson’s chances of returning to her pre-accident state, or of becoming employable, are poor.  There is room for some hope, through continuing psychotherapy, that she will improve.  There is a small chance that she will improve to the degree that she will be employable.

Damages were awarded as follows:

[400]        Ms. Towson is entitled to judgment against MPS for $1,186,425, consisting of non-pecuniary damages of $185,000, past wage loss of $66,075, $725,000 for her lost future earning capacity, $4,200 for her lost opportunity to purchase the townhouse, $76,000 for the cost of future care, special damages of $10,000, and $120,150 for management fees.  She is also entitled to the applicable pre-judgment interest.

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

Written by admin on . 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

 

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

Written by admin on . 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.