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More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, Uncategorized. 55 Comments on More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

Artery Studios – Thank You and Welcome Aboard!

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases. 48 Comments on Artery Studios – Thank You and Welcome Aboard!

I’d like to take a quick moment to thank the good people at Artery Studios, Inc. in Toronto, Ontario.

Artery Studios specializes in the creation of custom medical illustrations, animations and interactive media for medico-legal and other purposes.

Here are two samples of their work:

If you are advancing a personal injury claim and are preparing for mediation or trial you should give serious consideration to obtaining custom designed demonstrative illustrations. The impact of quality demonstrative evidence in the legal process cannot be understated. When dealing with traumatic injuries pictures often speak louder than words and these illustrations can help educate Judges, Jurors and Insurers about the specifics of an injury claim. Education leads to persuasion which in turn can help achieve a better result.

Artery Studios Inc. has generously agreed to provide medico-illustrations for use in my blog posts. I look forward to displaying their work on this site and welcome the opportunity to enhance my articles with the use of these quality illustrations.

Thank you very much and welcome to the BC Injury Law and ICBC Claims Blog!

Non-Pecuniary Damages for Avulsion Fracture of Knee and Credibility Discussed

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 61 Comments on Non-Pecuniary Damages for Avulsion Fracture of Knee and Credibility Discussed


Reasons for Judgement were released today by the BC Supreme Court addressing two noteworthy topics, the non-pecuniary damages for a right knee avulsion fracture with good resolution and the potential consequences of testimony which overstates the effects of an injury in an ICBC court case.
In today’s case (Dodsworth v. Krenus) the Plaintiff was struck by a vehicle while he was walking in a crosswalk in North Vancouver, BC.   Fault was admitted by the motorist.  The Plaintiff sustained various injuries the most serious being “an avulsion fracture of the insertion of the lateral collateral ligamentous complex of his right knee where it inserted in the fibular neck“.
As significant as this sounds the fracture was ‘minimally displaced’ did not require surgical intervention and made a good recovery.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Masuhara noted the following:
[34] Mr. Dodsworth suffered a serious injury and endured considerable pain particularly during the first few weeks following the accident.  He suffered multiple bruises and abrasions from the accident, in addition to the avulsion fracture.  He was on pain medication for a month, wore a knee brace for four months, his mother testified to his significant pain during the first few days of the accident, he suffered a rectal tear caused by the constipation from the pain medications, he had to attend physiotherapy 2 to 3 times a week for months, and he was unable to bear weight on his injured leg for about three months.  On the other hand, he had sufficient ability to within a few days of the accident to attend his family doctor’s office, attempt to take classes at UBC, attend traffic court in North Vancouver to dispute traffic violations, to go shopping and make purchases to replace his pants, prescription glasses, and laptop computer that had been damaged in the accident, and start physiotherapy. ..
[36] …The medical evidence indicates that there is a risk, though small of the plaintiff developing early degenerative osteoarthritis in his right knee as a result of the accident.  The plaintiff has regained full range of motion in his right knee with no residual knee instability; as well, he has full range of motion of his lumbar spine.  This evidence also indicates that there is an even chance he will continue to suffer some intermittent, occasional annoying and disabling low back pain for the foreseeable future.  In terms of neurologic injury, the plaintiff did not suffer any permanent neurologic injury as a result of the accident.

[37] I note the evidence of the plaintiff’s family physician since birth who stated in his report that “in time Justin will become completely asymptomatic”. ..

[39] Having reviewed the cases provided by each of the parties and having regard to the specific circumstances of this case with respect to the inconvenience, loss of enjoyment of life and the pain and suffering the plaintiff has experienced, and making allowances for risks, I assess general damages as being $45,000.

I’ve written many times about the crucial role Plaintiff credibility plays in any BC personal injury lawsuit or ICBC claim.  Pain is inherently subjective and cannot be measured.  If a Plaintiff lacks credibility this will directly impact the value of a claim.  The role of credibility in injury litigation was highlighted once again in today’s case where Mr. Justice Masuhara found that the Plaintiff’s “testimony was overstated in regards to his disabilities“.  This finding in all likelihood affected the Court’s valuation of the Plaintiff’s non-pecuniary loss.  In coming to this conclusion the Court made the following key comments:

[38] I find that Mr. Dodsworth’s testimony was overstated in regard to his disabilities.  I say this in light of the following:

(a)      his full participation as a camp leader for two summers at Camp Elphinstone post-accident .  He was one of two leaders in charge of ten campers on a continuous basis for two weeks at a time over the entire summer.  He would lead the children in a wide variety of activities such as hiking, camping, swimming, climbing high ropes, sailing, field games, kayaking, canoeing, etc.  I note that this included lifting and carrying a large war canoe, kayaks, hobie cats, and canoes.  There is no indication that he had any limitations in these activities other than his own statement.

(b)      his ability to ski on double diamond runs as he indicated in his examination for discovery.  In this regard, I did not accept his correction at trial that he was actually in the Seventh Heaven area an intermediate ski area.  Mr. Dodsworth’s vagueness, lack of recall or inconsistencies during the trial reduced the level of reliance to be placed on his more recent recall of events and the level of his injuries generally.

(c)      his ability to successfully complete within a concentrated period of time all of his lifeguarding certifications and subsequent annual re-certifications, all of which involved a fairly high level of physicality and concentration;

(d)      his ability to carry on as a lifeguard and swim instructor, though I note at one point he did not take on any shifts as a swim instructor but did not tell his supervisor.  My view is that this was more related to his claim than his disability;

(e)      his ability to successfully complete his education in an expeditious fashion; and

(f)       his vagueness or lack of recall relating to events surrounding previous employment, his diversion, and inconsistency between the aforementioned activities and his claimed disability.

Given all of his activities I am not persuaded that his pain is or will be as debilitating as submitted.  I do not view the ongoing complaints as significant as those suffered by the plaintiffs in the cases he cited to the court, including the extent of his right knee injury.

As readers of this blog know a common theme in injury litigation is that ‘stoic’ plaintiffs are not punished by reducing the value of their claims due to their tough attitudes.  This can be contrasted with numerous cases where damages are assessed at a lower range where Courts find plaintiffs have overstated their injuries.  A good lesson to learn for lawyers and clients alike is that a tough attitude in the face of injury is not a bad thing.

Neck, Low Back and Knee Soft Tissue Injuries Discussed

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

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.
In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued.  All three trials were heard together.  His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed.  This left the court to deal with the Plaintiff’s motor vehicle accident claims.
The first motor vehicle collision happened in 2003.  The Plaintiff was 15 at the time.  He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk.  The issue of fault was admitted.  The Plaintiff suffered a knee injury and eventually had arthroscopic surgery.  Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury.  In arriving at this figure the Court highlighted the following facts:
86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident.  He suffered discomfort and a restriction in his activities.  In the first three weeks after the Second Accident, Evan missed six full days of school.  He found it difficult to crouch or kneel and felt that the knee was unstable.  He was not able to carry out his part-time job as a football referee.  He used crutches for a month or two and then used a cane.  He found it difficult to use the crutches because this caused additional pain in his right wrist.  His parents rented a wheelchair for him to use at home.  He was unable to take part in part-time work over the Christmas holidays…

[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee.  The structural injury was mild.  If there was damage to the ACL, it was not significant and healed quickly.  As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury.  All of the doctors accept that there was a severe strain to the right knee.  The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.

[101] The experts also agree that Evan should have been symptom free sometime after June 2006.  However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms.  The question that remains is whether Evan falls within that small subset.  If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau.  This question raises the issue of Evan’s credibility….

I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents.  There are simply too many inconsistencies in his case to accept his assertions at face value…

[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident.  There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident.  I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints.  I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status.  In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort.  Specifically, I find that the symptoms persisted for four or five years…

[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.

The second accident was a rear-end car crash.  Fault was admitted.   The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury.  In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:

[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant.  By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…

[135] Given my findings, the cases referred to by the plaintiff are of little assistance.  In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur.  Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation.  In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.

In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility.  In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role.  Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence.   Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“.  This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.

$75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 98 Comments on $75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis


A common issue courts have to address in injury litigation is the effect of trauma on pre-existing asymptomatic arthritis.  Often times after people are injured X-rays and other diagnostic tests reveal arthritic changes in joints which produced no pain prior to the trauma.  Often times accidents cause these pre-existing conditions to become painful.  A theme which usually comes up in these types of cases is whether the degeneration would have become painful at some point in time without the trauma.  Reasons for judgement were released today by the BC Supreme Court dealing with such an injury to the knees.
In today’s case (Michal v. Begg) the Plaintiff was injured in a 2003 motor vehicle accident.  The driver of the Plaintiff’s vehicle lost control and hit a concrete highway divider.  The crash was significant destroying the vehicle on impact.
The plaintiff sustained various injuries including the onset of pain in his knees.  The Plaintiff did not have pre-existing knee pain but on examination arthritic changes which would have pre-dated the accident were noted.  The accepted medical evidence was that even if the Plaintiff did not have the accident he would have likely eventually experienced pain in his knees but the trauma accelerated this.  Mr. Justice Curtis assessed the Plaintiff’s non-pecuniary damages at $75,000.  In arriving at this figure the court noted the following about the extent and effect of the accident related injuries:

[26] In summary, I find it proven on the balance of probabilities that as a result of the December 18, 2003 collision, Miroslav Michal suffered a whiplash injury aggravating a pre-existent mild recurrent neck pain, which is now continuing on about the same course as it would have had the 2003 accident not occurred, injuries to his head, right shoulder, right and left wrists, fingers and elbow strains, rib injury and a buttock contusion, all of which has resolved fairly quickly, and injuries which have produced symptoms persisting to the present time, namely to his right ankle, right foot and left and right knees.

[27] The right knee was clearly injured in the collision as is demonstrated by the immediate appearance of pain, swelling and stiffness.  That knee had pre-existing degenerative changes which were not symptomatic prior to the collision, but were clearly made symptomatic following it.

[28] There is no immediate medical record of Mr. Michal complaining about left knee problems.  That knee also had pre-existing degenerative changes which were not symptomatic prior to the accident.  I am satisfied, however, that the collision did aggravate the condition of the left knee and caused it to become symptomatic afterwards.  Mr. Michal has testified that was the case and his testimony is supported by the observations of Mr. Begg and his Aikido instructor.  Mr. Michal is clearly not a complainer and I accept that early left knee symptoms were simply overlooked in dealing with more urgent matters.

[29] Both knees were showing pre-existing signs of degeneration in all three compartments.  The outlook for his knees was that the degeneration could continue and would have at some point become symptomatic even if there had not been any December 18 injuries.  It is likely his knees would have got bad enough to affect his function even if he had not been injured.  How long that would have taken is not clear – Dr. Anton offers the opinion that “The pre-existing changes would probably have become symptomatic absent the accident but that could have taken five years or longer.”  Dr. Sovio in his report of March 6, 2006 was of the opinion that:

He, in all likelihood, had pre-existent degeneration which predisposed him to this problem and regardless he would have had some difficulties with his knees in the future. It is difficult to say when this would have shown up but it would likely have presented itself in the relative near future.

[30] On the evidence, I find it reasonable to attribute Mr. Michal’s knee symptoms to the date of his surgery in January and April of 2007 to the collision, but I find that, while the collision injuries remained a contributing factor, his failure to recover as expected from his knee surgery and his worsening condition from September 2007 onward was attributable to the fact that he had degenerative knees as well as the fact that they had been made worse by the collision induced injuries.  It is probable that Mr. Michal would have ended up having arthroscopic surgery to his knees even without his 2003 injuries but that surgery was probably significantly sooner because of the December 2003 injuries.

[31] The plantar fasciitis in his right foot has become chronic but the medical opinion is that it should be cured.  His right ankle does not show evidence of significant injury.  I accept that these have troubled him as he has described to the date of his trial, but I find that they remain treatable and should not pose a significant problem for him in the future.

[32] Considering the pain and suffering Mr. Michal has had from his injuries, and the significant loss of enjoyment of life they have caused him, in particular forcing him to forego his long time interest in martial arts, I assess Mr. Michal’s claim for general damages at $75,000.

$55,000 Non Pecuniary Damages for Chronic Soft Tissue Injuries

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

Reasons for Judgement were released today by the BC Supreme Court, Vernon Registry, (Donnelly v. Durham) awarding a Plaintiff just over $67,000 in total damages as a result of a BC Car Crash.
The Plaintiff’s collision occurred in 2005 and was a significant rear end impact that resulted in $10,000 of damage to her vehicle.  The issue of fault was admitted by ICBC’s lawyer leaving the court to deal with the issue of quantum of damages.
The Court found that the 52 year old plaintiff was “healthy and active with no history of musculoskeletal injuries” before the crash.  Mr. Justice Cole found that the Plaintiff suffered various injuries as a result of the crash which continued to limit her by the time of trial.    The Court accepted the evidence of Dr. Apel, a specialist in physical medicine.  Mr. Justice Cole summarized her evidence as follows:

[23] Dr. Apel, a specialist in physical medicine and rehabilitation, in a report dated February 8, 2008, diagnosed the plaintiff with mechanical lower back pain, pain in the buttocks, mechanical pain of the thoracic back, pain in the back of the thigh and in the area of the inside of the knee.

[24] In regards to the plaintiff not recalling hitting her knee in the accident, Dr. Apel explained that the knee is connected to the hip and buttock by way of the IT band and the tension in the plaintiff’s hip and lower back could cause malalignment of the thigh which can then cause pain to the inside of the right knee.

[25] Dr. Apel was of the view that the plaintiff’s injuries and symptoms are due to the collision and considering the negative prognostic factors, her age, chronicity of symptoms, and lack of improvement to date, that the prognosis for complete symptom resolution is guarded.

In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Cole stated as follows:

[33] I am satisfied that the plaintiff was a credible witness, that she had no pre-existing injuries that were ongoing at the time of the motor vehicle accident. I also accept her evidence with respect to her current symptoms, and more particularly with respect to her right knee and I am satisfied that her right knee was injured in the motor vehicle accident and therefore, but for the defendant’s negligence, her injuries would not have occurred.

[34] As a result of the motor vehicle accident, the plaintiff sustained soft tissue injuries to her neck, back, right hip and right knee with radiating pain into her foot. She has also suffered from persistent painful headaches. Her symptoms, besides the radiating pain, have plateaued and her prognosis for any further recovery is guarded.

[35] I am satisfied that the plaintiff is a stoic individual who has done her best to work through her pain and that due to the length of time that she has had difficulties with her back and headaches, a long term prognosis is guarded…

[38] I find that the appropriate award for non-pecuniary damages is $55,000. This includes compensation for the plaintiff’s loss of future housekeeping capacity, which I found to be significant. Entertaining, cooking and keeping a clean house were some of the plaintiff’s priorities and activities that she derived a great deal of pleasure from.

$80,000 Non-Pecuniary Damages for Knee Injury and Chronic Pain

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

(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care.  The BC Court of Appeal judgement can be found here)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.
The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC.   The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.
The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months.  His knee, however, sustained long term injury.  Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.”    Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.
In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:
[36] Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home.  Pain is, of course, inherently subjective.  Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention.  Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression.  Both are of the view that he would benefit from psychiatric intervention.  That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…
[39] As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual.  It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance.  Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life.  It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels.  The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise.  However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception.  My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.

[55] Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians.  I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act.  I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct.  Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.

[56] The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner.  According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain.  Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms.  Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise.  I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective.  It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression.  Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:

With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.

[57] Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.

$40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 63 Comments on $40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Adding to this “pain and suffering case-law database” reasons for judgement were released today dealing with damages for a knee injury and soft tissue injuries sustained in a BC Car Crash.
In today’s case (Hill v. Durham), the Plaintiff was involved in a 2005 rear end accident.  The Plaintiff was a passenger at the time and the issue of liability (fault) was admitted at trial.  The trial focused on the extent of the Plaintiff’s accident related injuries and their value.  In total, damages of just over $77,000 were awarded including an award of $40,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In arriving at this figure Mr. Justice Barrow summarized the Plaintiff’s accident related injuries and prognosis for these as follows:
[22] Dr. McKenzie saw Ms. Hill in early October 2006. In his consultation report of October 12, 2006 he wrote that Ms. Hill’s problem seemed to be localized to a particular tendon in the knee and he thought that it may be the “result of trauma during the motor vehicle accident”. He prescribed exercises and ordered some further diagnostic imaging. An MRI was performed in January 2007 and it revealed two things:  thinning of the patellar cartilage in the knee joint and greater than normal water content in one of the bones, a condition technically described as subchondrial bone marrow edema. Dr. McKenzie testified that edema such as that found in Ms. Hill’s knee is caused by one of two things:  trauma or excessive wear and tear. When it is caused by excessive wear and tear it is accompanied by other findings visible on x-ray. Those other findings were not present in Ms. Hill’s knee, and as a result Dr. McKenzie concluded that the edema she is experiencing is as a result of trauma. He noted that Ms. Hill’s left knee has neither of the conditions. He testified that the degree of trauma necessary to cause this condition would “not be trivial”. He said that the problems are consistent with the kind of trauma that might be sustained by hitting a knee on the dash in motor vehicle accident…

25]         To a degree the resolution of this issue and other issues turns on the reliability and credibility of Ms. Hill. In general I found Ms. Hill to be a careful and credible witness. She testified that she had experienced bumps, bruises and injuries of various kinds over the course of her life. She said that she had always recovered reasonably quickly and completely from these events. She expected to do likewise following this accident. In general she impressed me as someone not prone to dwell on or overstate her physical problems. I accept that she now believes she struck her knee in the collision, although she has reached that conclusion not because she specifically remembers doing so but rather on the basis of the circumstantial evidence. She testified almost in passing that at one of her first yoga classes, within a month of the motor vehicle accident, she told her teacher that she was experiencing difficulties with her right knee. I accept her evidence on that point, and accept that she became aware of the discomfort in her knee reasonably shortly after the accident. Further, I am satisfied that she did not strike her knee after the accident in a manner that would give rise to the condition Dr. McKenzie found. I think it more likely than not that, as Dr. McKenzie noted, Ms. Hill was experiencing a number of more significant pains in the immediate aftermath of the collision and it was only as those pains subsided and her activity level increased that she became aware of the difficulty in her right knee.

[26]         I am satisfied that Ms. Hill’s right knee problems are caused by the motor vehicle accident.

[27]         The prognosis for this injury is guarded. Dr. McKenzie’s opinion is that the condition is often chronic. In February 2007 he prescribed a knee brace for use when exercising in a way that strains the knee. In his opinion, Ms. Hill may require renewals of that brace as well as periodic support from physiotherapists and medications for pain and inflammation. Ms. Hill reported to Dr. Dodek in October 2008 that her knee symptoms were improving.

[28]         Ms. Hill’s other injury is to the soft tissues of her back. She has headaches secondary to that injury. In his October 28, 2008 report, Dr. Dodek expressed the view that her “long term prognosis for recovery…remains good” notwithstanding that almost three years had passed since the accident. Dr. Travlos, in his November 1, 2007 report, wrote that Ms. Hill’s headaches would continue to reduce in frequency and would likely return to their pre?accident level. As to her right mid and low back difficulties, he expressed no opinion on future prognosis. He did, however, encourage Ms. Hill to add cycling to her exercise program and to reduce her reliance on physiotherapy. He also thought that her consumption of over-the-counter analgesics could and should be reduced. Dr. Apel, in her September 12, 2008 report, concluded that the prognosis for complete recovery is guarded however the prognosis for significant symptom reduction is fair to good. In her view, Ms. Hill’s current exercise program is insufficient and with appropriate changes, including increased focus on stretching, she will experience further symptom reduction…

[34]         Turning to the authorities, the injuries sustained by the plaintiffs in Menhinick, Wery, and Houghton (Litigation Guardian of), are generally similar to those suffered by Ms. Hill. The prognosis for each of those plaintiffs, however, was more guarded than I find is the case for Ms. Hill. The injuries sustained by the plaintiffs in the other authorities cited by counsel for Ms. Hill are all significantly more serious. On the other hand, I am satisfied that Ms. Hill’s injuries are more significant than those suffered by the plaintiffs in Krogh and Job.

[35]         In summary, Ms. Hill suffered a moderate soft tissue injury to her back. That injury remains problematic almost four years after the accident. I am satisfied that it will continue to improve. Her knee injury is less painful but is likely to last longer, if not indefinitely. Based on all of the evidence and a consideration of all of the authorities cited by counsel, I find that the appropriate award for non-pecuniary damages is $40,000. Although not asked to, I would allocate that award $25,000 to the back injury and $15,000 to the knee injury. I have not reduced the award to account for Ms. Hill’s pre?existing knee problems because I am satisfied they would not interfere in any significant way with her recreational and other activities.

Hyperextension Knee Injuries from Car Crashes Discussed

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

Reasons for judgment were released yesterday by the BC Supreme Court, Vancouver Registry (Cabrera v. Sandhu), awarding a Plaintiff close to $350,000 in total damages for injuries and loss as a result of a 2003 BC Car Crash including an award of non-pecuniary damages of $60,000.
The collision occurred in Coquitlam, BC.    It was a near head on collision for which the Defendant admitted fault.  The issue at trial was quantum of damages (value of the Plaintiff’s claim).
The Plaintiff suffered various injuries including a “medial meniscus tear” which was stabalized through arthroscopic surgery.  The Plaintiff also had a ‘partial tear of her ACL which had scarred back to her PCL” which required a second surgery to correct.  The Plaintiff did not fully recover from these knee injuries by the time of trial and it was accepted that she was plateaued and “left with a significant and permanent disability.”  It was also found to be probable that the Plaintiff would need further knee surgery in the future.
One of the key issues at trial was weather the knee injury was related to the collision because the Plaintiff’s knee complaints did not come until sometime after the crash.  In accepting that the knee injuries were related to the crash Mr. Justice Rice accepted the evidence of the Plaintiff’s surgeon, Dr. Guy, who gave evidence that “it is common that passengers seated in the front of a car sustain knee injuries after having their foot braced against the pedal or floor board at the time of an accident.  In that position, injuries occur as a result of hyper extension of the knee during the collision”
In addition to the knee injury Mr. Justice Rice found that the Plaintiff suffered from various soft tissue injuries described as a “mysofacial pain of the neck, upper and low back regions“.    These injuries had ‘resolved somewhat” by the time of trial but caused occasional pain to the Plaintiff.    The Plaintiff’s non-pecuniary loss was valued at $60,000 for these injuries.

Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases. 46 Comments on Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Reasons for judgement were released today (Wormell v. Hagel) by the BC Supreme Court, Kamloops Registry, awarding a Plaintiff just over $570,000 in total damages as a result of a 2003 injury.
The facts behind the injury are a little unusual.  The Plaintiff was standing on top of cargo on a flat bed truck.  At the same time, the Defendant was operating a crane and intended to lift the cargo.  The cargo shifted while the Plaintiff was still standing on it and in the “agony of the moment” the Plaintiff jumped off the truck to the ground which was some 12 feet below.  In jumping on the ground the Plaintiff suffered various injuries including a “crush fracture to the left ankle and a tear to the anterior cruciate ligament of his right knee“.
The Defendant was found at fault for this incident for operating the crane at a time when it was unsafe to do so.  The Plaintiff was found faultless for jumping to the ground in the “agony of the moment” and Mr. Justice Goepel did a good job summarizing this principle of law at paragraphs 35-37 stating as follows:

[35] A party who acts negligently and creates a danger carries a heavy onus if he then seeks to cast any blame for the accident on the injured party:  Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273 (C.A.) at para. 16, aff’d [1971] S.C.R. 669.

[36] The standard of care applied to individuals in emergency situations is not one of perfection. The law in such circumstances was explained in Walls v. Mussens Ltd. et al(1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A):

… I think the plaintiff is entitled to invoke the “agony of the moment” rule as an answer to the allegation of contributory negligence made against him. The rule is stated by Mr. Glanville Williams in his work Joint Torts and Contributory Negligence at p. 360-1:

It is well settled that where a sudden emergency arises through the fault of the defendant, the plaintiff who acts reasonably in an attempt to extricate himself is not guilty of contributory negligence merely because he unintentionally aggravates the situation. Also, where the plaintiff is compelled to make a quick decision in the ‘agony of the moment’ he is not expected to take into account all the considerations that a calmer appraisal of the situation might present to the mind. Perfect foresight and presence of mind are not required. This rule, sometimes called the ‘agony of the moment’ rule, is merely a particular application of the rule that the standard of care required of both plaintiff and defendant is that of a reasonable man.

The Law of Torts, 3rd ed., by J.G. Fleming contains the following statement at p. 247:

On the other hand, a person’s conduct in the face of a sudden emergency, cannot be judged from the standpoint of what would have been reasonable behaviour in the light of hind-knowledge and in a calmer atmosphere conducive to a nice evaluation of alternatives. A certain latitude is allowed when in the agony of the moment he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable conduct in such a situation, and he will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly took the wrong course.

The rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: see The “Bywell Castle” (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards,[1931] 2 D.L.R. 521, [1931] S.C.R. 167.

The test to be applied in circumstances such as those as in the case at bar is, in my opinion, not whether the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency.

[37] In this case, Mr. Hagen’s negligent act caused the emergency situation. Mr. Wormell did not have time to determine with any certainty whether the load was going to fall or stay. He had to make a quick decision in the “agony of the moment”. He chose to jump clear. As it turned out, that was the wrong decision because the load itself did not come off the truck. Matters, however, could have turned out otherwise. In deciding to jump away from the load Mr. Wormell did something an ordinary prudent man might reasonably have done under the stress of the emergency.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 Mr. Justice Goepel noted the following about his injuries and their effect on his life:

[96] Mr. Wormell’s injuries are permanent and will impact him for the rest of his life. He has undergone one surgery and will have to undergo at least one more for an ankle fusion. He also possibly faces surgery to reconstruct his ACL.

[97] In the months immediately following the accident, he was in significant pain. The March 2004 surgery reduced his pain and made his injuries more manageable. He now works steadily but seldom can do more than three or four hours of physical work. As his ankle worsens during the day, more of his weight bears on his right leg which aggravates his knee problems.

[98] If the fusion surgery is successful, he will have less pain in his ankle and will be more functional at work. The fusion will, however, cause some permanent limitations.

[99] Prior to his injuries, he was active in sports but he has not been able to return to sports in any meaningful way. This will not improve…

[105] I accept Mr. Wormell’s evidence as to why he has not undergone the fusion surgery. That surgery will leave him incapacitated for six months to a year. Given his ongoing financial obligations, he has not been able to afford to take the necessary time off to have the surgery.

[106] As is often the case, none of the cited cases involve the identical combination of injuries as that suffered by Mr. Wormell. That said, the cases cited by the defendant are closer to the mark. In particular, in this regard, I refer to the Graham and Nicoll cases which both involved serious leg injuries to men of an age similar to Mr. Wormell. I award $95,000 in non-pecuniary damages.