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Physician's Evidence Rejeced for Lack of "An Open Mind" Regarding Collision Related Injury

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

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:
[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:
1.     He took what can only be described as a cursory history from Ms. Sekihara;
2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;
3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;
4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.     he was evasive at times in his oral testimony.
[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.
[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 
[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 
[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 
[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.

$130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized. 57 Comments on $130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry dealing with such an injury.
In last week’s case (SR v. Trasolini) the Plaintiff was involved in a 2007 rear end collision.  Fault was admitted by the Defendant.  Although causation was vigorously contested, the Court conclude the collision caused a fibromyalgia condition which left the plaintiff partially disabled with chronic symptoms.  In assessing non-pecuniary damages at $130,000 Madam Justice Ballance provided the following reasons:
[169]      The injuries sustained by Ms. R. have caused her years of suffering, fluctuating degrees of chronic pain all over her body that is sometimes quite severe, and the concomitant diminution of joy and pleasure to most aspects of her life.  Although her symptoms have gradually improved, particularly in the year or so leading up to trial, they remain sufficiently significant to continue to meet the diagnosis of fibromyalgia.  The expert opinion evidence that I accept is skeptical that Ms. R. will ever fully recover to her former self despite her completion of the Pain Program, commitment to physiotherapy and other treatment modalities and reasonable exercise when she is able.
[170]     A formerly outgoing, sociable and highly energized and engaged woman, Ms. R. is now more reclusive and has had to lean heavily on her aging mother to perform her share of household chores and, for about a six-month period, to assume most of her personal grooming.  She worries about her future, including how she will be able to care for her elderly mother in the passing years.
[171]     The Accident has left Ms. R. to confront the grim reality that she has an incurable and complex syndrome that manifests as chronic pain and an array of other unwelcome physical, psychological and cognitive impairments.  For years to come, possibly indefinitely, she will be vulnerable to episodic aggravation of her physical symptoms, which in turn, will disrupt her sleep and produce an adverse effect on her overall emotional and cognitive well-being.  The person she was before the Accident has been forever altered.
[172]     While the toll taken on Ms. R. by the ill-effects of the Accident have been life- altering domestically, emotionally, recreationally, socially and vocationally, the most deleterious consequence for her is that it has limited her ability to fully realize her most passionate of life’s goals, namely to serve her faith.
[173]     I have reviewed all of the cases placed before me by counsel.  I do not propose to review them in detail as they provide general guidelines only, other than to say that only one of the authorities relied on by the defendants involved a plaintiff afflicted with fibromyalgia or a chronic pain syndrome.  Ms. R.’s authorities are far more instructive in light of their factual similarities to her circumstances; even still, they are not determinative.
[174]     Having considered the evidence as a whole and the application of the governing principles, it is my opinion that a fair and reasonable award for Ms. R.’s non-pecuniary damages is $130,000.

Defence Psychiatrist Rejected for Basing Opinion on "Facts That Are Wrong"

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

In my continued effort to highlight judicial scrutiny of expert witnesses, reason for judgement were released last week by the BC Supreme Court, Kamloops Registry, rejecting an expert psychiatric opinion.
In last week’s case (Moritz v. Schmitz) the Plaintiff was injured in a 2007 collision.  She was 17 years old at the tine and “was a healthy teenager“.  The collision caused chronic soft tissue injuries along with a worsening of pre-existing psychological difficulties.  The Court awarded $80,000 for the Plaintiff’s non-pecuniary damages.
In the course of trial the Defendant called a psychiatrist who provided an opinion that the collision was not the cause of the Plaintiff’s aggravated pscyhological difficulties.  In rejecting this opinion Madam Justice Gropper provided the following critical comments:
[70]         Dr. Solomons goes on to suggest that, in his opinion, it is “most likely that the course of her psychiatric difficulties after the accident was related to stressors unrelated to the accident”, referring to matters that occurred prior to the motor vehicle accident. He then concludes that the plaintiff would have experienced the same symptoms even if the accident had not occurred. Again, Dr. Solomons does not provide a foundation for his opinion that the problems Ms. Mortiz faced before the accident are of greater significance than those she faced because of the accident. He was aware that the plaintiff suffered from physical injuries but he does not turn his mind to whether those injuries may have affected her psychiatric functioning.
[71]         Dr. Solomons does not explain his emphasis on pre-accident events. This same observation in respect of Dr. Solomon’s emphasis on pre-accident events was made by Mr. Justice Willcock in Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at para 135:
Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident.
[72]         I also note that Dr. Solomons’ final paragraph under the “Opinion” section of his report is based on “facts” that are wrong. He says Ms. Moritz was “psychiatrically disabled before the accident and was not working at the time of the accident.” He fails to note that she was 17 years old and in grade 12 at the time of the accident. She was not psychiatrically disabled from working. He says that “[s]he had no psychiatric requirement for time off work as a result of the accident since she was already on long term psychiatric disability … .” Again, she was not off work because of her psychiatric disability before the accident; nor was she on long-term psychiatric disability. In all of the circumstances, I am unable to accept Dr. Solomons’ opinion.

"Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"

Written by admin on . Posted in ICBC Chronic Pain Cases. 53 Comments on "Plaintiffs are not Given Carte Blanche to Undertake any and all Therapies Which They Believe Will Make Them Feel Good"


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, underlying the importance of having medical opinion evidence in support of claimed special damages in an injury claim.
In this week’s case (Redl v. Sellin) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant and there was no disagreement that the Plaintiff suffered from a chronic pain disorder as a result of her collision related injuries.  What was disputed was the significant treatment related expenses the Plaintiff advanced at trial.
The Plaintiff advanced special damages of over $46,000.  The Court disallowed many of these noting there was no medical evidence to justify many of these expenses.  In rejecting much of the sought special damages claim Mr. Justice Saunders provided the following reasons:
[44]         Ms. Redl is advancing a claim for special damages which is remarkable in its size and scope. The total amount sought is $46,501.22…
[55]         Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch(1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff’s physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness. I accept the argument expressed through Dr. Frobb, that a patient may be in the best position to assess her or his subjective need for palliative therapy. I also accept the plaintiff’s counsel’s argument that in the circumstances of any particular case, it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. In the words of Prof. K. Cooper-Stephenson inPersonal Injury Damages in Canada, (2d ed., 1996) at p. 166:
Even prior to the Supreme Court’s endorsement of the restitution principle [in Andrews v. Grand & Toy Alberta Ltd. and Arnold v. Teno], in the area of special damages the courts had been prepared to allow optimum care, and damages were awarded for expenses of a character that stretched far beyond the resources of even an affluent Canadian.
That being said, and while Dr. Frobb’s paradigm of the patient becoming their own physician may have at least a superficial appeal, plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good.
[56]         In the present case, Ms. Redl undertook an extraordinarily wide variety of therapies, some without advice, and some less conventional than others. She did so at considerable expense. It is probable, in my view, that she undertook this course of action in part through a desire to recover quickly and in part on the basis of her positive past experience, pre-accident, with massage therapy and chiropractic. However, her firm beliefs notwithstanding, there is no medical evidence that the therapies she undertook accelerated her return to work or have otherwise improved her physical condition. With regard to the palliative effect of the therapies, Ms. Redl did not experiment with trying one modality at a time. She did not experiment with lengthening the time between appointments. There is no evidence that the palliative effect of these therapies was any greater than what may have resulted from the use of over-the-counter medications. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Redl’s physical or mental well-being is or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies, than it would be if she had stuck to her pre-accident pattern of weekly or bi-weekly massage and monthly chiropractic treatments.
[57]         I am allowing, as special damages, the cost of her first 12 massage therapy sessions ($936.50), and her first 12 chiropractic treatments ($930), as such would have been reasonable during the acute phase of Ms. Redl’s recovery. Beyond that, I find that had the accident not occurred, the pre-accident pattern of these treatments likely would have continued up to the present date, even had the accident not occurred, and no greater frequency of treatment has been demonstrated to have been reasonable.
[58]         I am further allowing the cost of massage therapy sessions she underwent when on cruise vacations in September 2010 and March 2012, when she experienced flare-ups ($650). I am also allowing the physiotherapy ($210) and kinesiology ($453) expenses, as they were incurred on medical advice, and the 14 acupuncture treatments rendered at Dr. Frobb’s clinic ($2,100). The expense of the Pilates course is also allowed ($3,974.92), as being in furtherance of core strengthening, which Dr. Frobb referred to as a priority. I am disallowing the balance of the massage therapy, acupuncture and chiropractic expenses, and the claims for naturopathic and reflexology treatments, as not having been demonstrated as reasonable.

$60,000 Non-Pecuniary Assessment For Chronic Pain At Pre-Existing Surgical Site

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

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.
In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision.  The Defendant admitted fault.  Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh.  He was left with a level of nerve damage at the surgical site.  Following the collision this pain was aggravated.  The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor.  In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons:
[3]             The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation.
[4]             Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life…
[22]         There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment.
[23]         The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own…
[49]         In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.

Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, ICBC Thoracic Outlet Syndrome Cases. 63 Comments on Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

When assessing damages for injuries the BC Supreme Court will not address the injuries as ‘items on a grocery list’.   The exact label attached to an injury is far less important than the ways in which an injury compromises a Plaintiff’s life.  This was highlighted in a recent judgement from the BC Supreme Court, Kamloops Registry.
In the recent decision (McKay v. Powell) the Plaintiff was involved in three rear-end collisions.  As a result she suffered from a chronic pain disorder.  As is often the case, in the course of her lawsuit the Plaintiff was assessed by a variety of physicians who had competing diagnoses for the Plaintiff’s symptoms, namely fibromyalgia vs thoracic outlet syndrome.  Demonstrating that whatever the correct diagnosis, the symptoms were caused by the collision and the plaintiff was entitled to appropriate compensation, Mr. Justice Meiklem provided the following reasons:
[44]         Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel’s diagnosis of fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there will be no full recovery…
[50]         Considering the cited cases, the individual circumstances in the present case, and the factors relevant to assessing this head of damages as set out in Stapley v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of $65,000.

$85,000 Non-Pecuniary Assessment for Bilateral Carpal Tunnel Syndrome and Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Wrist Injury Cases.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing non-pecuniary damages for a host of injuries including a broken nose, bilateral carpal tunnel syndrome requiring surgery and chronic soft tissue injuries.
In this week’s case (Mayervich v. Sadeghipour) the 72 year old Plaintiff was injured in a 2007 crash.  Liability was admitted by the Defendant.   The Plaintiff suffered chronic injuries in the crash with symptoms persisting to trial.  While there was some room for further improvement some symptoms were expected to last indefinitely   In assessing non-pecuniary damages at $85,000 Mr. Justice Grauer provided the following reasons:
[57]         In my mind, the significant features of this case are these: 
·                 As a result of the accident, Mrs. Mayervich suffered a constellation of injuries, the most significant of which has been myofascial injury in the neck and back resulting in a chronic pain condition accompanied by a major depressive order and cognitive difficulties. 
·                 Included the constellation were a deviated septum (broken nose), and injuries to the arms and hands that culminated in bilateral carpal tunnel syndrome.  Both of these conditions required surgical intervention and both have resolved.  There was additional discomfort from injuries to the abdomen and chest. 
·                 These injuries have had a significant impact on Mrs. Mayervich’s quality of life.  The myofascial injuries in particular continue to interfere with her activities of daily living and recreation and have impaired her ability to interact with her husband, her daughters, and her grandchildren. 
·                 Mrs. Mayervich has already experienced nearly 5½ years of physical pain, depression, emotional upheaval and cognitive difficulty as a result of the accident. 
·                 It is likely Mrs. Mayervich will experience real improvement if she undertakes a program such as that recommended by Dr. Posthuma; full recovery however is unlikely, and a real possibility remains that she will experience no significant recovery. 
[58]         In my view, these features bring Mrs. Mayervich’s situation closer to the cases cited by counsel by the plaintiff than those cited by counsel for the defendants.  The award of $125,000 approved by the Court of Appeal in the Rizzolo case was to a considerably younger man who had suffered debilitating chronic pain affecting all aspects of his life but who had been able to return to his pre-accident employment.  In Hsu, on the other hand, the most recent of the three cases relied on by the defence where the award was $30,000, the plaintiff suffered from chronic neck and back myofascial disorder but this was an aggravation of pre-existing soft tissue conditions from a previous accident that had already given rise to chronic pain. 
[59]         Each case must of course be decided upon its own facts.  Considering all of the facts discussed above, I assess Mrs. Mayervich’s non-pecuniary damages at $85,000.

$85,000 Non-Pecuniary Assessment for Knee Injury With Potential CRPS

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

Reasons for judgement were released this week by the BC Supreme Court, Williams Lake Registry, assessing damages for a chronic knee injury.
In this week’s case (Anderson v. Shepherd) the Plaintiff suffered a “major injury” to his knee when he was struck by the Defendant’s vehicle crushing his knee “between the car door and the frame of the vehicle“.  Fault was admitted focusing the trial on damages.
The Plaintiff’s knee injury required surgical intervention and resulted in chronic pain.  He was diagnosed with potential Complex Regional Pain Syndrome because of his knee trauma.  His pain symptoms were expected to linger indefinitely.  In assessing non-pecuniary damages at $85,000 Mr. Justice Davies provided the following reasons:

[58] Although the medical opinions differ with respect to whether Mr. Anderson may suffer from complex regional pain syndrome because of the injuries to his knee, and also whether patellar maltracking was caused by or made symptomatic by the collision, I am satisfied by the totality of the evidence that the knee pain Mr. Anderson has suffered and continues to suffer, as well as the mobility issues he has experienced and continues to experience, are genuine and were all caused by the collision.

[59] I am also satisfied on a balance of probabilities that the negative effects upon Mr. Anderson’s life arising from the left knee injury were caused by the collision and the defendant’s negligence, and would not have occurred but for that negligence…

[75] My consideration of the totality of the evidence in this case leads me to conclude that:

1) Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.

2) Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.

3) No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.

4) Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.

5) Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.

6) The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.

84] Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.

[85] Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.

[86] Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.

[87] After considering the totality of the evidence and the principles enunciated in Stapley, and the authorities to which I was referred by both counsel, I have determined that an award of $85,000 is necessary to appropriately compensate Mr. Anderson for his non-pecuniary losses.

$125,000 Non-Pecuniary Assessment For Fractured Ankle and Psychological Injuries

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages for physical and psychological injuries resulting from a motor vehicle collision.
In last week’s case (Verge v. Chan) the Plaintiff was injured in a 2006 head-on collision.  She was 34 at the time and lived a ‘farming lifestyle’ which required significant strenuous labour.  The Plaintiff suffered a fractured ankle and psychological injuries both of which lingered to the time of trial and impeded with her physical lifestyle.  In assessing non-pecuniary damages at $125,000 Mr. Justice Greyell provided the following reasons:

Ms. Verge suffered soft tissue injuries to her neck and back, a fractured right talus, bruising to and pain in her chest, and pain in her left shoulder, both knees, and hip.

[7] She continues to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder (“PTSD”), depression and chronic pain…

[72] The injury she sustained in the accident of December 6, 2006, has had a significant effect on her physical and mental health.  She is left in virtually constant pain with an unstable ankle such that she can no longer perform the tasks she used to perform on the farm and about the house or enjoy the hobbies and recreational pursuits she used to enjoy pre-accident.  She has developed mental health issues, including PTSD and depression, which will require a significant course of treatment before she can return to work.  As a result of her injuries, the work opportunities which will be available to her are less than pre-accident.  She has lost the farming lifestyle she enjoyed and her family, marital, and social relationships have been impaired…

78] After considering the evidence, the factors enumerated by the Court of Appeal in Stapley, and the authorities cited by counsel, I award non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Assessment for Chronic Injuries Caused by Two Collisions

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

Reasons for judgemet were released last week by the BC Supreme Court, New Westminster Registry, assessing damags for injuries sustained in multiple collisions.
In last week’s case (Bansi v. Pye) the Plaintiff was involved in two collisions, the first in 2005, the second in 2008.  The Plaintiff was faultless for both collisions focussing the trial on an assessment of damages.  The Plaintiff suffered varoius injuries which were recovering when they were aggravated by the secod crash.  These included various soft tissue injuries and headaches which were expected to last indefinatly and to limit the Plaintiff in his trade in construction management.  In assessing non-pecuniary damages at $75,000 Mr. Justice Jenkins provided the following reasons:

[33] Also at page 7 of her report of January 11, 2011, Dr. Caillier listed “The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation of pre-existing symptoms involving the neck, upper back, and lower back regions.

5.         Soft tissue musculoligamentous injury involving the neck, upper back, and posterior shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to participate in the functional, recreational, and vocational activities of his choosing.

[34] Further at page 9, Dr. Caillier stated:

It is my opinion, given the chronicity of Mr. Bansi’s physical symptoms, both following that of the first motor vehicle accident as well as ongoing since the time of the second motor vehicle accident, the likelihood of him becoming pain-free is very poor…

[42] The two MVAs have had a significant negative impact on Mr. Bansi’s lifestyle and quality of life. Mr. Bansi had previously been very active and energetic whether in working on home renovations, exercising at the gym, cycling, washing family vehicles, participating in family events, services and prayers at the temple, working at household chores including maintenance of the gardens and yard, driving family members for appointments, shopping and much more.

[43] Since the MVAs, he has had considerable difficulty driving for any significant time, he no longer looks after the family gardens and yard, rarely socializes with family or at the temple, lacks motivation, spends more time alone in his suite at the family home, rarely takes care of his young niece and nephew, no longer goes on bike rides with his sister and has clearly had significant problems in carrying out his duties on construction sites. Not only has he had difficulty performing the work, his productivity is considerably impaired and what were simple physical tasks now take much longer. His employers have also noted his decrease in production and energy on the work site which I will address further in his claim for past loss of income and diminished earning capacity…

[52] …Considering that the injuries sustained by Mr. Bansi are not seriously challenged, his lower back injury is likely permanent, having to start his rehabilitation over again after the 2008 MVA will have an impact on his psyche, the difficulties he is having in performing previously simple tasks which were part of his job as a construction manager, the likelihood of him having to persevere with chronic pain in the future, and the resulting loss of enjoyment of life, I find an appropriate award of non-pecuniary damages to be $75,000.