Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries arising from a vehicle collision.
In today’s case (Harder v. Poettcker) the Plaintiff was involved in a 2009 collision. The matter proceeded to jury trial where a jury found the Plaintiff 85% at fault for the crash with the Defendant shouldering the rest of the blame.
The Plaintiff suffered a back injury. He suffered from pre-existing back problems and fibromyalgia. The court found that while the Plaintiff’s symptoms lingered at the time of trial after the 6 year mark these symptoms were due to the pre-existing issues. In assessing non-pecuniary damages at $50,000 Mr. Justice Sigurdson provided the following reasons:
 The plaintiff suffered a moderate soft tissue injury to his lower back and neck in the motor vehicle accident. Those soft tissue injuries were more painful and discomforting to the plaintiff than they otherwise would have been because he has a troublesome back that had in the past required surgery on two occasions.
 However, the evidence does not disclose that the accident caused the need for the plaintiff’s back surgery. In that respect I prefer the evidence of the surgeon Dr. Splawinski to the evidence of the rheumatologist.
 I expect that Mr. Harder became more uncomfortable as a result of the accident and decided to have the surgery privately. I think that he had the surgery more quickly than he otherwise would have had it because of the soft tissue injuries he suffered. That finding is relevant to whether the cost of the private surgery with a shorter waiting list is recoverable.
 I have also concluded that on the evidence the plaintiff has not demonstrated that his fibromyalgia was brought on by the trauma in the motor vehicle accident. However, like his pre-existing back condition, it was an aspect of his pre-existing condition that on the evidence waxed and waned in any event and I think was an aspect of his condition that probably made his injuries from the accident more uncomfortable and debilitating when he had fibromyalgia.
 How long did the injuries from the accident to his lower back and his neck persist?
 Dr. Shuckett thought (as she described in 2015) that they probably continued as he had probably achieved maximum medical improvement. Dr. Splawinski thought that he suffered a soft tissue injury to his neck and lower back and that the symptoms of neck and lower back pain settled down relatively quickly. Dr. Wade described his injury as a mild to moderate soft tissue injury.
 I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.
 Considering all of the evidence, I assess the plaintiff’s non-pecuniary damages at $50,000.
(The below judgement was upheld by the BC Court of Appeal)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychiatric injuries caused by a vehicle collision.
In today’s case (Kim v. Lin) the Plaintiff was involved in a 2007 collision the Defendants admitted fault for. She suffered soft tissue injuries and eventually developed fibromyalgia and a somatic disorder. In assessing non-pecuniary damages at $175,000 Mr. Justice Sewell provided the following reasons:
 I am satisfied, based on all of the evidence that I accept, that Ms. Kim has suffered soft tissue injuries to her back and SI joints as a result of the Accident, which have caused her considerable pain and discomfort. I am also satisfied that as a result of a combination of Ms. Kim’s physical pain and her personal circumstances, Ms. Kim developed the psychiatric disorders diagnosed by Dr. Shane and the fibromyalgia and chronic pain syndrome diagnosed by Dr. Krassioukov.
 I find that Ms. Kim would not have developed the psychiatric and somatic disorders diagnosed by Drs. Shane and Krassioukov but for the injuries she suffered in the Accident. I therefore find that there is a substantial connection between the tortious conduct of the defendants and the damages and injuries from which Ms. Kim suffers.
 I also find that there is no credible evidence that at the time of the Accident Ms. Kim was suffering from a pre-existing condition that would have had an adverse effect on her future health or capacity. I therefore find that there is no basis for making any deduction from her damages based on any substantial possibility that her health or capacity would have declined in any event…
 In this case, I am satisfied that Ms. Kim’s disability is permanent, in the sense that it is more probable than not that she will continue to suffer from the injuries caused by the Accident for the foreseeable future. Ms. Kim has, however, not suffered any degree of cognitive impairment. The evidence does indicate that there has been some improvement in her overall condition since she moved to Nanaimo and that she has benefitted from counselling with Miyoung Cho, a Korean-speaking psychologist.
 Taking all of the circumstances into account, I assess non-pecuniary damages at $175,000.
Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry dealing with such an injury caused by a motor vehicle collision.
In today’s case (Hosseinzadeh v. Leung) the Plaintiff was involved in a 2009 collision caused by the Defendant. She developed chronic pain/fibromyalgia as a consequence and her disabling symptoms persisted to the time of trial. In assessing non-pecuniary damages at $125,000 Madam Justice Warren provided the following reasons:
 Ms. Hosseinzadeh is a middle-aged woman; 43 years old when the accident occurred. The pain she has suffered has been significant, has persisted, has disabled her from most of her former activities, and is unlikely to improve. It has resulted in sleep impairment and has affected her mood. She faces many years of ongoing pain and compromised lifestyle.
 The injuries have affected all areas of Ms. Hosseinzadeh’s life. Prior to the accident, she was able, with ease, to look after all of the cooking, housekeeping, laundry, and shopping for her family. She now depends on her husband and son to do much of this work and, although she can do some housekeeping, what used to take her a few hours each week is now a constant chore that she slowly works at throughout the day, taking frequent breaks. She has been deprived of her favorite activity — cooking meals for and entertaining large groups of friends. Her once vibrant social life of weekly parties, BBQs, and other events with friends has been significantly diminished.
 While Ms. Hosseinzadeh continues to try to exercise regularly, she has had to modify what she does and sometimes she exercises in pain. She used to swim but now does mild exercises in the pool. She used to walk with friends easily but now has to take frequent breaks when she walks. At times her pain not only prevents her from exercising, it leaves her immobile for days at a time.
 A formerly outgoing, sociable, and engaged woman, Ms. Hosseinzadeh is now more reclusive and has to depend heavily on her husband and her son. She must confront the reality that she has an incurable condition that has left her significantly impaired and, on bad days, almost completely incapacitated. All of this has had a significant adverse effect on her overall emotional well-being…
 Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having said that, I did find that the cases referred to by counsel for Ms. Hosseinzadeh to be helpful, particularly S.R. which was very similar in several factual respects. Taking all this into account, I find that an award of $125,000 for non-pecuniary damages is appropriate in this case.
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:
 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.
 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.
 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.
 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.
 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.
 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.
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:
 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…
 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.
Earlier this year I highlighted judicial comments criticising the practice of not having a Plaintiff testify as the first witness in their personal injury claim. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, echoing these comments.
In this week’s case (Charles v. Dudley) the Plaintiff was injured in a 2008 collision. She advanced a case alleging chronic pain and fibromyalgia. The Court found that these claims were not proven on a balance of probabilities and ultimately awarded damages for soft tissue injuries which the Court found “resolved within a few months of the accident“. In criticizing the Plaintiff’s delayed testimony Mr. Justice McEwan provided the following reasons:
 The trial proceeded in a fashion I would have described as unorthodox until recently, with the medical evidence called before the plaintiff testified. Counsel advised that they understand this to be the preferred way to run a personal injury case. I do not know where they get this idea. If persuasion of the trier of fact is the objective, the practice of leading medical opinion unattached to any factual foundation is the most awkward way to go about it. I have observed elsewhere that doctors do not subject their patients to a forensic examination. They generally assume that what the patient tells them is true and attempt to treat their symptoms. Their observations are of assistance to the trier of fact to the degree to which they reasonably conform to the facts that have been established after the plaintiff’s assertions have been tested. It is very difficult to assimilate medical evidence provisionally, that is, with no means of sorting what matters from what does not. A trier of fact obliged to hear a trial this way must go back over such evidence to put it in context. This Court is not alone in making this point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:
 Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses. I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses. I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.
 In any event, owing to gaps in the scheduling of the opinion witnesses, I persuaded counsel to call the plaintiff after the first medical witness had testified to fill out the court day. The case then proceeded with interruptions of the plaintiff’s evidence to accommodate the scheduled witnesses. While occasional scheduling issues may dictate such a course, plaintiffs in personal injury cases should generally be called first, if the point is to put across a coherent case.
When assessing damages in a tort claim, the labels attached to injuries are far less important than the actual consequences of the injuries. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this in the context of a chronic pain case.
In this week’s case (Cantin v. Petersen) the Plaintiff was involved in an intersection collision in 2004. Fault was admitted by the offending motorist. The crash caused injuries resulting in chronic pain which persisted to the time of trial and was expected to continue indefinitely. The medical labels attached to the injuries varied from ‘fibromyalgia‘ to ‘chronic pain syndrome‘. The Plaintiff argued that “it is unnecessary to label the injuries” in the pursuit of lawful compensation.
Madam Justice Bruce accepted that, whatever the label, the Plaintiff’s symptoms were related to the collision and awarded the Plaintiff $150,000 in non-pecuniary damages. In doing so the Court made the following findings:
 While there is generally a consensus among the medical experts regarding the initial diagnosis of Ms. Cantin’s injuries stemming from the accident, there is a considerable division of opinion as to the causes of her current complaints and symptoms. None of the physicians who examined Ms. Cantin and provided expert medical opinions doubted the veracity of her complaints of pain. The dispute among the experts lies in the cause of her current symptoms. While Ms. Petersen argues Ms. Cantin’s physicians have become advocates for her claim rather than independent experts, it is significant that none of the experts had any doubt that Ms. Cantin was suffering real and substantial pain symptoms. In addition, I cannot agree that Ms. Cantin’s physicians were advocates for her claim. They were passionate about their work in the field of chronic pain, and disagreed with the opinions of the defence experts concerning the cause of Ms. Cantin’s continuing symptoms. In my view, this does not render their opinions less reliable or less credible…
 There is no question that Ms. Cantin continues to suffer pain in her upper back, shoulders and neck. None of the medical experts believed she was fabricating her complaints or was malingering. There is no evidence of an intervening event that would break the chain of causation between the aggravation of Ms. Cantin’s chronic pain and the collision. The possibility that Ms. Cantin would have experienced the same symptoms in any event is a factor taken into account in determining damages; it is not relevant to causation. Thus I find that Ms. Petersen is liable for the continuing injury to Ms. Cantin’s upper back, shoulders and neck. A comparison of her condition before and after the accident will determine the quantum of damages and the extent of Ms. Petersen’s responsibility for Ms. Cantin’s present condition.
 Similarly, I find Ms. Petersen liable for Ms. Cantin’s continuing headache pain as these are causally connected to her chronic pain syndrome in her upper and lower body. The extent of Ms. Petersen’s responsibility will be determined by a comparison of Ms. Cantin’s past experience with headaches and her current experience…
 The soft tissue injuries occasioned by the accident have led to the development of serious, chronic pain in Ms. Cantin’s upper and lower spine, hips, and legs. Despite many types of therapy, she has continued to experience serious pain and a drastic reduction in her functional mobility for almost eight years since the accident. Ms. Cantin has lost the ability to work in a competitive labour market; she has no social life outside her home and her relationship with family members has deteriorated substantially as a result of her constant pain and mental distress. She is unable to achieve restful sleep; has suffered a cognitive decline in memory; and has become a social recluse. Her prognosis for any level of recovery is extremely guarded.
 While I believe the quantum of damages suggested by Ms. Cantin, adjusted for inflation, is more reflective of her loss than the range posited by Ms. Petersen, a lower amount is appropriate given the risks inherent in her pre-existing condition. Therefore, I award $150,000 in general damages for pain and suffering.
Reasons for judgement were released today by the BC Court of Appeal making it clear that it is a matter of common sense that chronic pain can, over time, have a detrimental effect on a person’s ability to work.
In today’s case (Morlan v. Barrett) the Plaintiff was injured in a motor vehicle collision. She was ultimately diagnosed with fibromyalgia. At trial the Court awarded significant damages for diminished earning capacity despite the Plaintiff having no past loss of income.
The Defendant appealed arguing that the Judge erred in awarding these damages because the judge relied on “common experience that a person with a stable but persistent energy-draining condition will find it more difficult to continue working as he or she grows older“. The Defendant argued that this was speculative and there was no evidence to suggest this is so.
While some of the Plaintiff’s damages were ultimately reduced, the BC Court of Appeal was quick to dismiss the above argument finding it was simply a matter of common sense that chronic pain takes its toll. In doing so the Court provided the following reasons:
 Accepting that, to use the expression used at trial and at the hearing of this appeal, Ms. Morlan’s condition had “plateaued”, the fact remains that she would forever suffer from debilitating chronic pain along with headaches, symptoms that could be reduced, but not eliminated, by medication. In other words, throughout each and every day of her life, Ms. Morlan would have to cope with some level of discomfort. In my view, it was open to the trial judge to find—essentially as a matter of common sense—that constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person’s ability to work, regardless of what accommodations an employer is prepared to make.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing fibromyalgia.
In this week’s case (Paradis v. Gill) the Plaintiff was injured in a 2007 collision. Fault was admitted. Despite expressing some “reservations in accepting the entirety of the evidence put forth in the plaintiff’s case” Mr. Justice Masuhara accepted that the collision caused an aggravation of pre-existing fibromyalgia which was on-going by the time of trial. In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:
 Applying the principles of causation as set out in Resurfice Corp. v. Hanke, 2007 SCC 7,  1 S.C.R. 333; Athey v. Leonati,  3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336, as well as recognizing the comment that courts should exercise caution when there is little objective evidence of continuing complaints of pain persisting beyond what the defence asserts is the normal recovery period, I find that the Accident aggravated Ms. Paradis’ condition of fibromyalgia. My view is that Ms. Paradis’ pain is predominantly in the mild to moderate range (though it can increase) and relates to her lower back; that she suffered from back and neck pain as well as headaches prior to the Accident but not as great; that she is able to stand far longer than she says; that she has the capacity to lift more than she asserts; and can engage in more activities than the physical capacity concludes. The plaintiff also has full range of motion at her neck, shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet. A significant part of her physical restrictions are not substantially related to aggravation from the Accident but rather to the unrepaired injury to her left knee, the osteoarthritis found in her knees, as well as her weight. However, I find that she has suffered some loss of capacity…
 Ms. Paradis had a history of back, neck and knee pain, and headaches prior to the Accident. Also, the medical evidence indicates that Ms. Paradis has full range of motion in all areas of her body, from her neck to her feet.
 The authorities referred to by the plaintiff in support of its position on quantum largely do not deal with persons with a pre-existing condition of pain comparable to the plaintiff. The cases also deal with persons who enjoyed activities that were more significantly impacted by their injuries than in the instant case. In my view, the injuries in the cases submitted by the defendant are somewhat more comparable to the plaintiff. Also, I accept that Ms. Paradis’ level of pain and disability can be significantly controlled with proper management. The defence’s position that some recognition for the plaintiff not taking reasonable steps to reduce her weight is addressed later under mitigation.
 In all of the circumstances, I assess general damages as $40,000.
This case also appears to be one of the first cases to be prosecuted under the Fast Track with damages exceeding the soft cap. Despite the cap set out in Rule 15-1(1)(a), Rule 15-1(3) states that “nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000“. This week’s case was apparently prosecuted under the fast track (as is evidenced by the Court’s costs award set out in paragraph 119) and had global damages of $116,238 assessed.
As previously discussed, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial. Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
If experts fail to abide by this requirement they risk having their opinions rejected and further being criticized by the Court. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, highlighting such a result.
In last week’s case (Marchand v. Pederson) the Plaintiff was involved in a 2007 motor vehicle collision. It was a rear-end collision and fault was admitted. The trial focused on the value of the Plaintiff’s claim.
The Court heard competing expert witnesses with the Plaintiff’s physiatrist (Dr. Apel) providing evidence that the collision caused various injuries including fibromyalgia.
This opinion was contradicted by a physiatrist retained by the Defendant (Dr. Nowak) who provided an opinion that the collision played a lesser role in the Plaintiff’s symptoms.
Dr. Nowak’s opinion was largely rejected with the court placing little weight on it. Non-pecuniary damages of $65,000 were awarded with the Court providing the following reasons in assessing damages and criticizing the defence expert:
 I find Dr. Nowak’s evidence to be problematic. He initially refuses to answer a question based on assumptions. It is clear that he is wrong in his reading of the intake report of Dr. Kinakin where he assumed that the pain was remaining constant. He is not accurate in the date of the last chiropractic treatment. I am of the view that Dr. Nowak is more of an advocate than an expert and I give very little weight to his evidence. I prefer the evidence of Dr. Apel when it comes to the diagnosis of fibromyalgia and the other conclusions reached by Dr. Apel. I am satisfied that the plaintiff may have improved somewhat from her last visit with Dr. Apel but I am satisfied that she continues to suffer a long term disability in respect to the fibromyalgia in the lower and upper back. I accept Ms. Phillips’ functional capacity evaluation and the limitations that the plaintiff has in respect to job opportunities because of her physical restrictions. I am also satisfied that the report of Dr. Wallace is fair and balanced and should be given a great deal of weight. I accept the plaintiff’s evidence that she stopped seeing her chiropractor, Dr. Kinakin, because she no longer had pain, but the chiropractor asked her to continue to see him because he was of the view that she had subluxation, which is poor posture so he was giving her treatment for that. She confirmed that she did not have any pain when she stopped seeing Dr. Kinakin. I accept her evidence….
 The function of non-pecuniary damages is to compensate the plaintiff for pain, suffering and loss of enjoyment of life and loss of amenities. Taking into account the relatively young age of the plaintiff (she is now 24 years old), the chronic nature of her injuries, the severity and duration of her pain, her disabilities, her emotional suffering and loss of her social and marital life, I am of the view that a proper award would be in the amount of $65,000.