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

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

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

Non-pecuniary damages                                            $ 75,000

Loss of Earning Capacity                                           $100,000

Cost of Future Care                                                    $  12,650

Special Damages                                                       $    3,570

Past Income Loss                                                       $       698

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

$1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases. 62 Comments on $1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

Reasons for judgement were released today awarding a Plaintiff nearly $1.3 million in damages as a result of a 2002 motor vehicle collision which occurred at UBC.
The Plaintiff was a pedestrian at the time.  She was struck while walking in a marked crosswalk on a dark and rainy evening.  Both fault and quantum (value of the ICBC claim) were at issue at trial.
The court found that the defendant driver was 100% responsible for the collision.  At paragraph 8 Madam Justice BJ Brown noted that
[8]                In my view, (the Defendant) is 100% responsible for the accident.  She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space.  She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes.  Indeed, she was picking her husband up from teaching a class. 
The Plaintiff was a PhD student looking to earn her degree in chemistry at the tine.  The court found that she suffered some significant injuries which are summarized at paragraph 69 of the judgement:
[69]            (the Plaintiff’s) condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident.  It developed over the days and weeks following the accident, as (the Plaintiff) complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”.  Her complaints exceeded the physical signs. 
The court assessed damages as follows:

(i)

Non-pecuniary damages

$   100,000.00

(ii)

Loss of income/capacity:

Future:

Past:

 

$1,000,000.00

$   150,000.00

(iii)

Cost of future care

$     25,000.00

(iv)

Loss of housekeeping capacity

$     15,000.00

(v)

Special damages

$       4,279.53

In noting that $1,000,000 was appropriate in loss of earning capacity, the court noted that ‘chronic conversion disorder, such as demonstrated by (the Plaintiff), usually evolved into a chronic illness.  Despite treatment, the majority of these patients fail to return to work.  Accordingly, it is unlikely that (the Plaintiff) will earn any significant amount of the course of her lifetime.’
This case is worth reviewing for anyone advancing a contested pscyhological injury claim with ICBC as it gives insight into the complexity involved in prosecuting such cases.

ICBC Claims, Breach of Insurance and Costs

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

I’ve previously blogged about the financial consequences of being in breach of ICBC insurance.
Today reasons for judgemenet were delivered showing some of these consequences in action.
In 2002 the Plaintiff was involved in a car accident.  He was at fault for the accident.  He was in breach of his insurance at the time (he was driving with a suspended licence). And he injured the occupants of one of the vehicles involved in the collision.
The injured parties advanced an ICBC claim and eventually ICBC settled paying out a total of $19,067.38.
ICBC then came after the ‘breached’ Plaintiff to have the money paid back.  ICBC also exercises its statutory right and refused to re-issue a license to the Plaintiff.
Today’s judgement dealt with how much money was owed to ICBC.  The court found that ICBC was entitled to $19,320.38 from the ‘breached’ driver.
This case is worth bringing to the attention of anyone who is thinking of driving in breach of their contract with ICBC.  Doing so can result in significant financial consequences.

$50,000 Pain and Suffering Awarded for Soft Tissue Injuries with Chronic Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

Note: The case discussed in the below entry was overturned by the BC Court of Appeal with respect to the Diminished Earning Capacity Award on March 18, 2010.  You can read my post on the BCCA’s decision by clicking here.
Reasons for judgement were released today compensating a Plaintiff for injuries and losses sustained in a 2004 car accident.
The Plaintiff was driving her daughter to pre-school when her vehicle was rear-ended. The impact was ‘sudden and relatively severe‘ and caused enough damage to render the Plaintiff’s vehicle a write-off.
The court heard from a variety of medical ‘expert witnesses’ and placed the most weight on the Plaintiff’s GP. The court found that the Plaintiff ‘now has chronic pain with her soft tissue injuries and that pain and discomfort, in varying levels depending on activity level, will continue indefenately.’ The court also found that the Plaintiff suffers from ‘anxiety associated witht he accident’ and that ‘(she) is at risk of premature arthritis in her cervical spine and left shoulder‘.
In awarding $50,000 for the Plaintiff’s non-pecuniary loss (pain and suffering and loss of enjoyment of life) the court noted that:

[14] The injuries have affected the plaintiff’s family relationships. She is not able to participate in normal physical family and recreational activities to the same extent as before the accident. She cannot perform housework or garden to the same extent. She presents as a perfectionist and is clearly bothered by these restrictions on activities that she enjoys and takes pride in.

[15] (The Plaintiff) is also anxious and, perhaps, somewhat depressed; her relationship with her husband has been adversely affected, and she is naturally concerned and upset that her children now turn more naturally to their father for physical support and comfort. In addition to the ongoing pain and discomfort that restricts general activities, these factors also affect enjoyment of life. I take them into account in determining a fit award for non-pecuniary loss.

The most interesting part of this judgement for me was the court’s discussion of loss of earning capacity. Here the court found that the Plaintiff does have permanent injuries but that these will have ‘slight, if any, actual impact on her future earnings‘.
What interested me was the courts comments trying to reconcile to seemingly opposed lines of authority from the BC Court of Appeal addressing loss of future earnings. When one asks for an award for ‘loss of future income’ or ‘loss of earning capacity’ one has to prove this loss. There are various ways of doing this at trial.
Here the Plaintiff advanced a claim of loss of earning capacity using the ‘capital asset approach‘ as set out by our Court of Appeal in Pallos v. ICBC. The Defence lawyer argued that a subsequent case (Steward v. Berezan) overruled the law as set out in Pallos.
After listening to this debate the court noted that:
44] With respect, it is not clear, as I understand Steward, how one gets to the capital asset approach without first proving a substantial possibility of future income loss in relation to the plaintiff’s position at the time of trial. I cannot reconcile that approach with the factors first listed in Brown, later summarized in Palmer, and finally approved in Pallos in the passages set out earlier in my reasons.

[45] It would be helpful if the Court of Appeal has an opportunity to address these issues fully. I observe that the Court of Appeal since held in one decision that Steward turned on its facts and did not create any new principle of law. The court also affirmed Parypa in the same decision. See Djukic v. Hahn, 2007 BCCA 203, at paras. 14 and 15.

Here the court held that “there is no reference in Steward to Pallos. Steward, in my view, does not over rule Pallos‘.
Mr. Justice Macaulay went on to reconcile the apparent conflict between these cases by concluding that Steward should be limited to its own ‘narrow factual circumstances‘ and awarding the Plaintiff damages based on the less stingent ‘capital asset approach‘.

$75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 50 Comments on $75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

OK, I’m back in Kelowna, but this time more for pleasure than business, so this case summary will be a little light on the usual details.
Reasons for judgement were relesed today finding a motorist at fault for a 2003 impact with a cyclist. The Plaintiff suffered serious injuries and was awarded close to $500,000 in compensation for his losses and injuries.
In this case the cyclist was travelling on the side-walk. This is prohibited in law but simply violating the motor vehicle act does not automatically make one negligent for an accident. In this case the court found that while the cyclist was unlawfully riding on the sidewalk, he was not responsible for the accident because this did not cause the accident, rather
“the accident was caused by (the Defendant) either failing to stop his vehicle before driving across the sidewalk in accordance with s. 176(1) of the Act, or by failing to look to his right before starting motion after looking away for a period of time during which a person could have appeared to the right of his vehicle.”
Here the court found that the Plaintiff was a credible witness that did not exaggerate his symptoms. The injuries were summarized by the Plaintiff’s treating family physician as follows:
fracture of the distal tibia, laceration of his scalp, laceration of his left shin, post-traumatic periostitis of the left shin, a partial tear of his anterior tibiofubular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa in the ankle/heel area).
In other words, a very serious ankle injury.  Evidence was also led that the Plaintiff suffered from a Mild Traumatic Brain Injury (MTBI) and that this resulted in some on-going cognitive problems.
The Plaintiff was a young man who suffered from a significant period of disability and there was evidence of some permanent partial disability.
Damages were assessed as follows:

a. Cost of future care: $73,078.00

b. Lost wages: $185,684.40 less the amount actually earned by the Plaintiff from December 3, 2003 to the date of trial;

c. Loss of future wages: $72,526.40.

d. Loss of earning capacity: $80,000.00

e. Non-pecuniary damages: $75,000.00

f. Special damages: $2,811.45.

g. In-trust claim: $14,040.00

Sacroiliac Joint Injury nets $48,500 Pain and Suffering in BC Car Crash

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Sacroiliac Joint Injury nets $48,500 Pain and Suffering in BC Car Crash

Reasons for judgement were released today awarding an ‘ideal Plaintiff’ just over $100,000 in total damages as a result of a 2006 BC Car Crash which occurred near Kelowna, BC.
Both fault and quantum (value of the injuries) were at issue at trial. The collision happened when the Plaintiff’s vehicle, which was stationary, was hit by the Defendant’s tractor trailer unit. The evidence that was accepted was that the tractor trailer, while passing the stationary vehicle, jackknifed to its right. The collision was significant causing about $12,000 in vehicle damage.
The Defendant gave a different version of what happened saying that the Plaintiff vehicle ‘suddenly and without warning turning into his vehicle’. This was rejected.
This case is worth reviewing for Mr. Justice Josephson’s findings of credibility. In rejecting the defendant’s evidence he noted that the defence theory ‘is contrary to locig and common sense‘ and that the defendant’s testimony was ‘impatient, dogmatic and almost haughty‘.
As is often the case in ICBC claims the court heard from competing medical expert who disagreed as to the extent of the injuries sustained. Here the court preferred the evidence of the Plaintiff’s expert, a highly regarded rheumatologist who is no stranger to severe soft tissue injuries.
The court accepted the Plaintiff’s doctors evidence of injury which is summarized at paragraph 23 of the judgement reading as follows:
[23] She diagnosed the problem as being with the sacroiliac joint, a joint located between the tail bone and the hip. Ligaments cross over the sacroiliac and can be stretched in a motor vehicle accident, particularly if a foot is pressed on a brake pedal at the time, which can cause the symptoms of pain experienced by the plaintiff. While not certain, Dr. Shuckett was of the opinion that the plaintiff’s hyper-mobility may have exacerbated the injury. This type of injury is difficult to treat when, as in this case, recovery has not occurred. Medicines are not effective as the sacroiliac area does not have a rich blood supply.
In explaining why he preferred Dr. Shuckett’s evidence to the defence doctor’s evidence the court noted that:
[25] I do not place great weight on the evidence of Dr. Schwiegel, a neurosurgeon retained by the defence for an independent medical examination. Dr. Schwiegel does not possess the same degree of expertise as does Dr. Shuckett in this type of injury. He did not diagnose the involvement of the sacroiliac joint in the symptoms, though now agrees that may be the case. Put simply, I prefer the expert opinion evidence of Dr. Shuckett where it conflicts with that of Dr. Schwiegel.
The court found that the effects of these injuries were significant, summarizing them as follows:
[26] In summary, as a result of these soft tissue injuries, the plaintiff has gone from a gifted and active athlete to a person unable to engage in sports and other activities that were a large and important part of her life. It has affected her personal relationships. For example, family and friends now see her retreat to the sofa in pain after a family dinner. Only her strong will and determination has led to some improvement in her symptoms with aggressive physiotherapy. Her future remains “uncertain”. After the expiration of this much time and effort with only modest improvement, it may well be that significant symptoms will continue in the foreseeable future.
$48,500 was awarded for pain and suffering.
Also of interest is the judges awards for past and future wage loss. Here the Plaintiff was a commisioned sales person whose past income loss could not be caluclaed with real precision. Nonetheless compelling evidence was awarded that a loss occurred and an award was made. Simialry, it was found that the injuries may have an impact on future earnings and an award was made for loss of earning capacity.
In making an award for loss of earning capacity the court noted that:

[40] In this case, the plaintiff’s ability to perform at the high level she would have been performing but for the accident will be compromised by her injuries to some degree, though that degree is difficult to measure. Her determination and outstanding personal qualities will diminish that loss. Regular weekly appointments and daily multiple sessions of recommended exercises diminish her ability to perform to the same high level that she would have been able to perform but for the accident.

[41] Her physical limitations, as well, render her less marketable to potential employers in future. Employment requiring even temporary physical stress will not be available to her.

[42] The period of time that the plaintiff will be so affected is also difficult to measure. The best medical evidence is that her future is “uncertain”. That there has been so little improvement over the long period of time since the accident leads to the conclusion that recovery will more likely be long term than short.

[43] The plaintiff seeks a not unreasonable $20,000 for loss of earning capacity. I award the plaintiff $18,000.

Chronic Pain Syndrome and Fractured Spine Net $60,000 for Pain and Suffering

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

In a judgement released today a total of $81,694 was awarded in compensation as a result of a 2004 ‘chain rear end’ accident in BC.
The accident involved mutliple vehicles and the force of the crash was enough to write off the Plaintiff’s car. Fault was admitted by ICBC leaving only quantum of damages at issue.
As a result of crash the court found that the Plaintiff suffered from a fracture at T12 and a disc injury to T11 / T12 and perhaps T9 / T10 (basically fractures to the mid back) and that the Plaintiff ‘has gone on to develop a chronic pain syndrome with discomfort, sleep disturbance and depression.
The court went on to award $60,000 for pain and suffering, $20,000 for Loss of Earning Capacity and just over $1,000 in special damages (out of pocket expenses as a result of the accident.)
This case is worth reading for the judge’s discussion of credibility. When people complain of ‘chronic pain’ in an ICBC claim their credibility is always at issue. The reason is obvious, pain cannot be measured objectively. People can only describe their pain and a judge or jury can believe this descrpiton or reject it. In this case the judge had problems with the Plaintiff’s credibility but accepted that her chronic pain syndrome was legitimate.
More interesting is the judge’s comments on the credibility of the expert witnesses that testified. In this case ICBC, on behalf of the Defendant, hired an orthopaedic surgeon to examine the Plaintiff. He testified, in essence, that the Plaintiff had no serious injuries or ongoing problems. The court rejected this doctor’s evidence finding that ‘it was obvious to me that he had not spent as much time, nor was he as objective in his assessment of the Plaintiff (as her own physicians were). (ICBC’s doctor) impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefoe attach little wieght to his evidence.
This case is also worth reviewing for the judge’s great summary of the law relating to future wage loss at paragraphs 34 and 35.

$75,000 Pain and Suffering Awarded for Headaches and Chronic Pain

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

Reasons for judgement were released today awarding a Plaintiff just under $150,000 damages in total as a result of two ICBC claims.
One thing I’ve been meaning to point out for some time on this blog is that in BC tort claims (which include car accident claims), ICBC is almost never named as a party to the lawsuit. There are a few circumstances when it is appropriate to name ICBC directly but these are few and far between. It is a safe bet that if a case goes to court in BC involving a BC car accident it is more often than not an ICBC claim. I know that this case involves ICBC (despite them not being named as a party) because the defence lawyer is an ICBC in house lawyer from Kamloops. When you are looking at precedents to help you value your ICBC case to determine what a fair settlement, you should know that most any BC car accident case serves as a valuable precedent because even if ICBC is not mentioned or is not the insurer in any given case, each BC case serves as an example of how our courts value injuries in BC.
Getting back to the case – here the Plaintiff was injured in 2 car accidents for which others were at fault. The first in 1998, the second in 2004. In the first accident the Plaintiff was a passenger in a pick-up truck involved in a roll-over accident. In the second the Plaintiff was a passenger in a vehicle that was T-boned. Both crashes were significant and resulted in injuries.
This case is a good example of how complex chronic pain ICBC claims can be when they head to trial. In this case the court heard from over 10 lay witnesses who could comment on their observations of the Plaintiff’s injuries (or lack thereof by the witnesses called by the ICBC defence lawyer). The court also had access to medical evidence from over 6 doctors and other specialists.
The Plaintiff presented a case of chronic pain affecting every single aspect of her life. The defence case was one of injury which significantly improved after 2 years.
The court concluded that, although the Plaintiff ‘exaggerated her claim to some extent‘ she ‘has suffered to some degree from headaches and chronic pain over the past 10 years, and will continue to suffer these in the future, over some limited period of time. Some of her complaints are psychosomatic and she may benefit from counselling‘.
The court awarded damages as follows:
The plaintiff shall recover damages as follows:

– general damages: $75,000

– past income loss: $680

– cost of future care: $4,271.72

– diminished future earning capacity: $60,000

– special damages: $7,753.60

In doing so the court recited some good quotes from previous BC judgements addressing the assessment of damages. These precedents are worth knowing for anyone advancing and ICBC injury claim. Particularly the court referred to a great BC Court of Appeal case summarizing the principles used in the assessment of damages in personal injuries, the key quote being:

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away. Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence … [The factors] include:

[1] whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less marketable or attractive as an employee to potential employers;

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

[4] whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

The court then did a great job of summarizing the two approaches when addressing future wage loss and ICBC claims, summarizing the law as follows:

There are two methods of assessment under this head of damages, although both have the same outcome. The court can either use the “real possibility” approach, and compare the plaintiff’s likely earnings, had she not been injured, with the income she likely now earns, factoring in the positive and negative contingencies; or the court can value the loss of earning capacity as a capital asset (as Finch J.A., as he then was, suggested in Pallos v. ICBC (1995), 100 B.C.L.R. (2d) 260 (C.A.)).

ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.
The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.
The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’
The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.
As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.
No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.
The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.
The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:
[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.
The court awarded $80,000 for ‘general damages’ (pain and suffering).
The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.
This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.
In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.
Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“
This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.
The court summarized the law of ‘failure to mitigate’ as follows:
[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).
The court rejected ICBC’s failure to mitigate arguments.
This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.

Damages of $159,857 Awarded for Soft Tissue Injuries and Migraines

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court compensating a Plaintiff for accident related injuries.
The trial concerned a 2001 BC car accident. Her vehicle was struck in a down-town Vancouver intersection by a left-turning van. Liability (fault) was admitted leaving only the issue of quantum (value) of injuries and losses.
The impact was reasonably significant causing the Plaintiff’s head to jerk to the right and hit the window, then snap back.
At the time of the accident the Plaintiff was a 38 year old operations manager at a Vancouver travel agency. As with many ICBC claims that head to trial the Plaintiff’s pre-accident health was explored at trial in some detail. The court found that, prior to the Vancouver car accident, the Plaintiff ‘continued to suffer regularly from migraine and tension headaches, and from neck and back pain due to stress and postural strain. (the Plaintiff’s) tension induced neck and shoulder pain sometimes precipitated migraines.’
The court concluded that despite these pre-accident problems, the Plaintiff ‘continued to funciton without significant compromise‘ prior to her Vancouver car accident.
As is often the case in ICBC injury claims, the court heard from various medical experts including a psychologist, a psychiatrist, an orthopaedic surgeon and an occupational therapist.
After hearing the competing evidence the court found that “the increase in (the Plaintiff’s) headaches and neck and shoulder pain is causally related to the soft tissue injuries she sustained in the accident. I find that her increased neck and shoulder pain sometimes leads to full-blown migraines. In addition, it is related to other painful headaches that she experiences from time to time.”
The court accepted the expert evidence of Dr. Robinson who is a highly-regarded BC neurologist who specialises in headache disorders. He testified in part that “when patients with a stable migraine disorder are exposed to neck trauma they sometimes suffer an indefinite aggravation of their headaches. Due to the neck pain caused by trauma such patients develop a new way to get headaches, which may or may not develop into full blown migraines“.
In terms of prognosis, the court found that ‘with treatment, (the Plaintiff’s) headaches will probably continue to improve over the course of the next five years.‘ and that ‘the low grade neck and shoulder pain caused by the accident will probably persist indefinitely. As a result some aggravation of (the Plaintiff’s) pre-existing headache condition will also persist‘.
The court awarded $65,000 for non-pecuniary damages (pain and suffering). In doing so the court noted that ‘non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties…for purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide‘.
Thanks to these reasons for judgment, British Colmbian’s now have one more rough guide to help assess the fair pain and suffering value for lingering soft tissue injuries, aggravation of pre-existing injuries and migraine headaches when considering ICBC claim settlement.
This case is also worth a quick read for anyone advancing a claim for loss of earning capacity (future wage loss) as the court does a good job summarizing some of the leading legal precedents in this area at paragraphs 151-155 of the judgment.
The court concluded that, as a result of the Vancouver car accident, the Plaintiff ‘is less able to complete the same high volume of computer based work she could before before the accident and it it sometimes obvious that she is exhasted. In these circumstances, it is apparent that her earning capacity, viewed as a capital asset, has been impaired.’ The court went on to award $75,000 for this loss.