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$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

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

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.
In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision.  Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries.  In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179]     The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180]     Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181]     With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182]     On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183]     Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184]     Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185]     Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186]     I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192]     Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.

$100,000 Non-Pecuniary Assessment for Chronic PTSD

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for post traumatic stress disorder as a result of a vehicle collision.
In today’s case, (Harmati v. Williams) the Plaintiff was involved in a 2011 rear end collision that the Defendant accepted fault for.  She suffered PTSD and a generalized anxiety disorder following the crash and the Court accepted these conditions were caused by the collision.  In assessing non-pecuniary damages at $100,000 Madam Justice Choi provided the following reasons:
[48]         Dr. O’Shaughnessy was steadfast in his opinion when he testified that Ms. Harmati’s PTSD was as a result of the accident. He wavered on cross examination that the generalized anxiety was a result of the accident. I accept Dr. O’Shaughnessy’s testimony and diagnosis and found him to be a forthright and helpful expert witness…

[70]         On a balance of probabilities, I find that Ms. Harmati’s present disability, both physical and psychological, is a result of the accident. I accept Dr. O’Shaughnessy’s opinion that the PTSD was triggered by the accident, and I am satisfied that there is a substantial connection between the injuries Ms. Harmati suffered in this accident and her present symptoms sufficient to impose liability on the Defendants. Just as the Defendants are liable for any physical injuries caused to Ms. Harmati, they are too liable for any psychological injuries that arose from this accident.

[71]         I find that but for the accident, Ms. Harmati would not have suffered from pain in the neck, head and back or post-traumatic stress disorder. While Ms. Harmati may have had a more extreme reaction to the accident than most, she is better described as a “thin skull” than a crumbling one. The injuries she has suffered were not inherent in her original position and would not have occurred had the accident not happened…

[81]         A few lay witnesses testified as to Ms. Harmati’s ongoing limitations.

[82]         Mr. Gosling testified that Ms. Harmati is responsible for most of the cleaning, but that they don’t keep a clean house, and that Ms. Harmati is responsible for most of the cooking. She does more now than she did when they first cohabited because she is no longer working. I found Mr. Gosling a measured and careful witness, whose evidence I found credible.

[83]         Mr. Gosling testified that Ms. Harmati does not want to be a burden, so she will insist on performing tasks that then require her to rest, such as carrying groceries and pots of boiling water.

[84]         Mr. Derek Carswell worked with Ms. Harmati at Electronics Art. They were both hired on the same day in 2010 and became friends. Prior to the accident, he described her as “bubbly, enthusiastic and lots of energy”. After the energy, he testified that she was “subdued, lacking vital energy”. He said they played video games with their respective partners and that after the accident, she could not play video games for long because she needed to rest and due to nausea. Mr. Carswell testified that some video games are virtual reality games, involving wearing a headset and a screen which wraps around your face, and is an immersive gaming experience. Ms. Harmati has been unable to participate in this type of game since the accident…

[88]         Having considered the evidence and cases, it is my view that an award of non-pecuniary damages in the amount of $100,000 is appropriate.

$135,000 Non-Pecuniary Assessment for Ruptured Breast Implant, Chronic Physical and Psychological Injuries

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

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry assessing damages for numerous injuries sustained by a pedestrian struck by a vehicle.
In today’s case (Starchuk v. Hannig) the Plaintiff was a customer standing in a store “when a vehicle driven by the defendant, Helmutt Hannig, crashed into it. Ms. Starchuk was pushed into the wall of the deli, breaking the drywall.”
The Plaintiff suffered a host of psychological and physical injuries including a breast implant capsular tear requiring surgical repair.  In assessing non-pecuniary damages at $135,000 Mr. Madam Justice Brown made the following findings:

[101]     In summary, I am satisfied that as a result of the motor vehicle accident of May 13, 2013, Ms. Starchuk has suffered soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. I accept that Ms. Starchuk:

1.       will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;

2.       would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and

3.       has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her…

[103]     I have considered the cases provided to me by each of the parties. It is trite to state that no two injuries and no two plaintiffs are the same (Boyd v. Harris, 2004 BCCA 146 at para. 42). Considering the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in my view the appropriate award for damages for Ms. Starchuk’s pain and suffering is $135,000.

Failure to Mitigate Cuts Pain and Suffering Award in Half

Written by admin on . Posted in ICBC Psychological Injury Cases.

Update November 6, 2017 – Today the BC Court of Appeal dismissed an appeal of the below judgement
_____________________________________
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, cutting a Plaintiff’s non-pecuniary damage award in half due a failure to mitigate loss.
In today’s case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s non-pecuniary assessment of $140,000 was reduced by 50%.  In reaching this result Mr. Justice Verhoeven provided the following reasons:
[116]     She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse. ..

[121]     In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially.  She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.

[122]     I doubt that the plaintiff has engaged in physical exercise to the extent recommended. Physical exercise has been consistently recommended to her. In examination in chief she testified that she followed the exercise advice of Dr. Chu and of her physiotherapist to the greatest extent possible.  However on cross examination she was vague and evasive about the extent to which she had followed this advice. She testified that she tried to do what was recommended but could not recall exactly. Currently she participates in pilates at a local facility 3 to 4 times per week. Her husband candidly acknowledged that she was not doing much exercise other than attending pilates. However the evidence concerning exercise does not allow me to derive sufficiently firm conclusions that would be necessary to conclude that the defendant has met its burden to establish a failure to mitigate in this respect.

[123]      A question is whether the plaintiff’s refusal to attempt to return to work and her reluctance to accept and failure to obtain full psychiatric treatment is rooted in her accident injuries, such that a deduction for failure to mitigate would not be appropriate. However there is no basis for such a finding in the medical or other evidence. The plaintiff is highly educated and intelligent. There is some evidence that she has experienced some cognitive difficulties but these are not severe. She displayed considerable intelligence in giving her evidence, especially in describing her previous work. I do not accept that the plaintiff was impaired in her rational decision-making capacity in relation to her career and her treatment…

[216]     Based on all of the circumstances of this case, including consideration of the cases cited to me my both counsel, in my view a fair and reasonable award for non-pecuniary loss is $140,000

[217]     I reduce this by 50% to $70,000 on the basis of failure to mitigate loss.

$265,000 Non-Pecuniary Assessment for PTSD and Major Depressive Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

In what is one of the highest non-pecuniary awards in Canadian history for psychiatric injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $265,000 for psychological injuries stemming from a collision.
In last week’s case (Hans v. Volvo Trucks North America Inc) the Plaintiff was operating a fully-loaded tractor trailer when, without warning, all electrical power failed and the vehicle started to jack-knife.  The trailer struck the cab of the truck and forced the vehicle off the road.
The Court found that the vehicle manufacturer was responsible for the collision because “Volvo was negligent in the installation of the hardware that was supplied by Norgren on the cab positive terminal of the Truck, and that the total loss of electrical power resulted from that negligent installation.”
The Plaintiff, while not suffering significant physical injuries, sustained profound psychological consequences including PTSD and a major depressive disorder secondary to this.  In assessing non-pecuniary damages at $265,000 Mr. Justice Davies provided the following reasons:

[479]     Mr. Hans’ injuries were life altering in every respect.

[480]     The evidence of not only Mrs. Hans but also that of Mr. Hans’ daughter and his many friends who testified establishes that before the collision Mr. Hans was a gregarious, fun-loving, competitive, hard-working, ambitious and financially driven young man with boundless energy.

[481]     Although he had gained weight as a truck driver he was still a man with great strength and athletic ability resulting in a prodigious capacity for hard labour which he immensely enjoyed. His one-time employer Ron Collick described Mr. Hans as “a jolly giant”.

[482]     Mr. Hans lived a socially and emotionally rewarding life often centered on work but also often involving his family, his friends of many years and his love of travel which he shared with Mrs. Hans and their children both in North America and in India.

[483]     Mr. Hans shared a loving partnership with his wife as her husband, business partner, and as a father to their children.  He was a full participant with Mrs. Hans in all aspects of their children’s lives and in household responsibilities.

[484]     Mr. Hans was a proud man with a taste for good clothing who cared for his appearance. Socially he was often the center of attention – while dancing or even while playing with children.

[485]     Over the seven years since the collision all of that has changed drastically because of PTSD accompanied by Mr. Hans’ suffering from a Major Depressive Disorder that arose as a consequence of PTSD.

[486]     Mr. Hans is now emotionally and socially a shell of his former self.

[487]     His gregariousness has been replaced by isolation and withdrawal from contact with friends and family.

[488]     His love of fun has been replaced by depression, agitation and volatile bursts of anger. 

[489]     Competitiveness has been replaced by lethargy.

[490]     Ambition has turned to resentment and the blaming of those he believes have ruined his life.

[491]     Where he once ran and played sports he now walks aimlessly. Dr. Thinda reported that Mr. Hans has a slow gait due to psychomotor retardation or the effects of the medication he is prescribed for his psychiatric symptoms.

[492]     Mr. Hans’ capacity for and love of hard work have been replaced by indolence and despair.

[493]     He neglects his personal hygiene and cares little for his appearance. He is irritable and has significant problems with concentration and memory. He suffers from nightmares, sleeplessness and bad eating habits.

[494]     He has little interest in his children and must be coaxed to attend their activities. When he does, he is often uncomfortable, disinterested or both.

[495]     Mr. Hans is no longer active in the partnership that he and Mrs. Hans forged during the years of their marriage before the collision. He does not share in responsibility or workload but rather requires supervision and care.

[496]     He has attempted suicide three times each of which has seen him hospitalized for extended periods.

[497]     His life is now ruled by pharmaceutical intervention to attempt to overcome the symptoms of PTSD and Major Depression which dominate his existence. Without that medication his existence is further threatened.

[498]     Mr. Hans faces a future of continued pharmaceutical and psychiatric intervention as well as close supervision as his treating medical professionals, family and friends attempt to preclude the active manifestation of his suicidal ideation.

[499]     While it is a positive sign that Mr. Hans has not attempted suicide for more than 5 years since his last attempt, that must be measured against the medical intervention and supervision that has been necessary to attain that modest success.

[500]     Mr. Hans’ self-loathing and despair were starkly evidenced by his testimony at trial as well as by his anger and resentment at those whom he holds responsible for the loss of his capacity to care and provide for his family and enjoy life as he once did.

[501]     The totality of the medical evidence establishes that there is little prospect that Mr. Hans will ever recover socially, emotionally or mentally from the effects of the collision.

[502]     The prognosis for real progress after almost seven years of the debilitating effects of PTSD and Major Depressive Disorder from which Mr. Hans suffers is guarded at best and bleak at worst…

[528]     Considering that factor together with all of the other factors enumerated in Stapley to which I have alluded I have concluded that the appropriate award for Mr. Hans’ past and future pain and suffering and loss of enjoyment of life is $265,000.

 

$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

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.

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.
In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.
In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.

$95,000 Non-Pecuniary Assessment for Chronic Pain and Somatic Symptom Disorder

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $95,000 for a plaintiff suffering from chronic pain and a somatic symptom disorder following a vehicle collision.
In today’s case (Dabu v. Schwab) the Plaintiff was involved in a 2011 collision the Defendant admitted fault for.  The Plaintiff injured her neck back and shoulder and developed chronic pain syndrome along with a somatic symptom disorder with a relatively poor prognosis.  In assessing non-pecuniary damages at $95,000 Mr. Justice Steeves provided the following reasons:
[51]         Overall, there are findings of physical limitations and an undisputed psychological disorder that are related to the 2011 accident. These continue and they affect the life and work of the plaintiff. I note that Dr. Shane opines that the prognosis is that the plaintiff’s psychological functioning will remain stable. From his previous comments about the persistence of somatic symptom disorder and chronic pain syndrome I take his meaning to be that these conditions will continue. This is generally consistent with the prognosis given by Dr. Misri that the prognosis is poor, if not guarded (based on different diagnoses). There is also evidence that the plaintiff’s symptoms are slowly improving and her specialist in physical medicine and rehabilitation believes she can increase her activities and she should do so…

[53]         In the subject case the plaintiff has managed to work full time and this brings her considerable satisfaction and contributes positively to her emotional well-being. However, she is not able to work at the same level as before the accident and her home life has become reduced in a significant way so she can recover from and rest for work. She also has limitations in what she can now do at work. This is discussed in more detail below under loss of future earning capacity. As a matter of non-pecuniary damages it is enough to say that the plaintiff has not lost the enjoyment that her work gives to her but there has been a related loss because of the limitations her pain and suffering have placed on her home life.

[54]         As above, the defendant relies on prior decisions for her position that the range for non-pecuniary damages in this case is $40-50,000. For example, in the Matias decision non-pecuniary damages were assessed at $50,000. However, in that case bilateral frozen shoulders were found to be very significant for the plaintiff’s disability but they were found to be unrelated to the accident in dispute. In Chen, a decision from 2004 where non-pecuniary damages of $35,000 were awarded, there were soft tissue injuries somewhat similar analogous to the ones in the subject case but the psychological diagnoses related to pain were absent. The Rabiee judgment can be similarly distinguished.

[55]         With respect to the authorities relied on by the plaintiff for her range of $128,000 to $135,000, in Poirier an award of $100,000 for non-pecuniary damages was given but the plaintiff’s condition was likely permanent and the prospect for improvement was guarded. In Hosseinzadeh there was significant pain to the point of rendering the plaintiff immobile for days at a time (at para. 103) and damages of $125,000 were awarded. Damages of $130,000 were given for non-pecuniary damages in S.R., where the trial judge accepted an expert opinion that the plaintiff would not fully recover to her former self despite completion of a pain program (at para. 169) and her ability to participate in one of her most passionate goals in life, her faith, was limited (at para. 172). Finally, in Morlan, the plaintiff could no longer work in her pre-accident work which brought her considerable satisfaction. The Court of Appeal considered non-pecuniary damages of $125,000 to be generous but not excessive.

[56]         In the subject case the plaintiff’s own expert believes she can increase her activities at home and at work and she continues in her work which brings her considerable satisfaction and enjoyment.

[57]         With the above in mind I conclude that an appropriate amount of non-pecuniary damages in this case is $95,000.00.

$100,000 Non-Pecuniary Assessment for Chronic Back and Neck Pain

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

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic neck and back pain caused by a vehicle collision.
In today’s case (Tourand v. Charette) the Plaintiff was injured in a 2009 rear end collision that the Defendant accepted responsibility for.
The Plaintiff suffered chronic neck and back pain as a result with symptoms lingering at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $100,000 Mr. Justice Joyce provided the following reasons:

[119]     It is true that there were occasions in the past when the plaintiff experienced episodes of neck, shoulder and back pain, for which she received chiropractic treatments. Some of these episodes were associated with prior motor vehicle accidents and others appear to have been brought on by the physical activities in which she engaged, including her participation in karate. However, I am satisfied, on the whole of the evidence, that prior to the Accident the plaintiff was not experiencing the kind of chronic pain and symptomology in her neck and low back that she has experienced since the Accident in question. I am satisfied that the causal connection between her present symptomology neck and low back and the Accident has been established. In short, but for the Accident the plaintiff would not be in the physical condition that she now finds herself.

[120]     Ms. Tourand plaintiff had some pre-existing degenerative changes in her neck and low back, but I am satisfied that her current symptoms are not due simply to the progression of that degeneration. Rather they are due to either an aggravation of a pre-existing condition or to trauma that has made symptomatic that which was not previously symptomatic.

[121]     I accept that in the years before the Accident, the plaintiff was a physically active, social person, who enjoyed life and was enjoyable to live with and be around. I find on the basis of the evidence of her husband and friends that she is now a very different person. The Accident has negatively impacted her ability to enjoy physical activity and perform former household management tasks to the same extent as before. It has led to difficulty sleeping, depression and has affected her marital relationship.

[122]     On the other hand, I also find that the other life events that the plaintiff has endured since the Accident, in particular, the difficulties that her children experienced and with which she has been integrally involved, have probably contributed to the severity and prolongation of her symptoms.

[123]     Ms. Tourand is not, however, incapacitated. She can still manage most of her household chores, with moderation and careful sequencing of the tasks. There seems to be consensus among the experts that Ms. Tourand is capable of some employment, provided it does not involve heavy physical tasks and provided she is not required to either sit or stand in one position for a prolonged period of time.

[124]     I am also of the view that it is probable that the plaintiff’s physical capacity and general well-being will improve if she becomes more active, including: engaging in a program involving further physiotherapy under the direction of a kinesiologist or physiotherapist, swimming and psychotherapy to deal with the emotional affects of her symptoms. In my view, based upon a consideration of all of the evidence, it is still open to the plaintiff to accept that advice and follow that treatment path; and that, if she does so, she can expect to achieve some further reduction in her symptomology and improvement in her functioning and enjoyment of life…

[128]     Considering the nature of the chronic pain caused by the motor vehicle Accident; the poor prognosis for anything like a full recovery; the relatively young age of the plaintiff; and the effects that the symptoms have had and will likely continue to have on the quality of her life in the future, I assess non-pecuniary damages at $100,000.

$50,000 Non-Pecuniary Assessment for Mild Soft Tissue Injuries With Somatic Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for soft tissue injuries with psychological overlay caused by a collision.
In today’s case (Zaluski v. Verth) the Plaintiff was involved in a 2011 collision caused by the Defendant.  Fault was admitted.  The Court did not accept all of the Plaintiff’s evidence but did accept the collision caused soft tissue injuries with a somatic disorder.  In assessing non-pecuniary damages at $50,000 Mr. Justice Tindale provided the following reasons:

142]     Based on all of the evidence I do however accept that the plaintiff did receive a mild soft tissue injury to her neck which affected her shoulders and back. I also accept Dr. Riar’s evidence that the plaintiff as a result of the MVA as suffered a somatic symptom disorder as well as anxiety and depression. I do not accept that the plaintiff has been disabled for any lengthy period from working as a result of these injuries. She was able to work significant hours at the Phoenix Medical Imaging well after the MVA. She only missed one day of work from the Nechako Medical Clinic as a result of the MVA.

[143]     In my view the plaintiff has exaggerated the severity and duration of her physical symptoms. I do not accept that her psychological condition disabled her from working.

[144]     The plaintiff does not suffer from disorders such as fibromyalgia, Post Traumatic Stress Disorder or severe and prolonged headaches. The cases that the plaintiff relies upon are of individuals who are much more seriously injured than the plaintiff in this case and have many of the above noted disorders…

[147]     In my view given the nature and duration of both the plaintiff’s physical and psychological injuries and considering the factors in Stapley the appropriate amount for non-pecuniary damages is $50,000.

BC Court of Appeal Addresses Threshold in Proving Psychological Injury Claim

Written by admin on . Posted in ICBC Psychological Injury Cases.

Update June 2, 2017 – The below decision was overturned today by the Supreme Court of Canada 
Reasons for judgement were released today by the BC Court of Appeal confirming the threshold that has to be met to successfully prove a psychological injury claim.
In today’s case (Saadati v. Moorhead) the Plaintiff was involved in a collisions and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  The BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.
In reaching this finding the BC Court of Appeal provided the following reasons:

[28]        I do not accept Mr. Saadati’s argument that the above quoted passage brought about a change in the law.  I agree with the decision in Healy, wherein Mr. Justice Sharpe, writing for a five-member panel of the Court of Appeal for Ontario, held that Mustapha did not remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition:  paras. 39-63.  As discussed in that decision, this requirement is also the law in the United Kingdom, Australia, and New Zealand.  I also agree with the reasoning on this point in the judgment of Mr. Justice Joyce in Kotai:  paras. 64-69.

[29]        In the alternative, Mr. Saadati submits there was medical evidence at trial to support a finding he suffers from a recognizable psychiatric condition.  In that regard, he states in para. 67 of his factum:

[T]here was clearly expert evidence before the court.  While that evidence may have had limited weight due to the inadmissibility of evidence relied on by Dr. Mok, it was still before the court.  It is submitted that even under the strictest version of the test proposed, Mr. Justice Funt was permitted to find compensable psychological harm.

Dr. Hiram Mok is a psychiatrist who prepared an expert report tendered by Mr. Saadati.  That report was based on an evaluation of Mr. Saadati which took place in the summer of 2010, more than a year after the fifth accident.

[30]        The difficulty with this argument is that the trial judge, who had before him both Dr. Mok’s report and his viva voce testimony, was not satisfied Mr. Saadati had proven he suffers from a recognized medical condition.  Given, as Mr. Saadati concedes, Mr. Mok’s evidence was of “limited weight”, it is not for this Court to make a finding based on that evidence that the trial judge was not prepared to make.

[31]        In the further alternative, Mr. Saadati submits, based on para. 41 of Odhavji Estates, that even if he did not prove he suffers from a “recognizable … psychopathological harm”, he is nonetheless entitled to damages on the basis that he proved he suffers from a “visible and provable illness”.  He says that “illness” was visible to his family and friends and that a medical diagnosis is not required.  I disagree.

[32]        In my view, it is apparent from how those expressions are used in the cases cited in para. 41 of Odhavji Estates—Guay v. Sun Publishing Company, [1953] 2 S.C.R. 216 at 238, and Frame v. Smith, [1987] 2 S.C.R. 99 at 127-129—that both connote a medically recognized condition that affects a person’s health or well-being.  Absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness.

[33]        For the above reasons, I am of the view Mr. Saadati did not prove an entitlement to compensation arising out of the second accident.