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More on Valuing Damages for Modest Soft Tissue Injuries

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


As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges.  The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement.  The best way to do this is to review as many cases as possible dealing with similar injuries.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.
In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC.  Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash.  The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck.  These were acute for three months and disabled the plaintiff from work during this time.  From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash.   Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60]        Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61]        Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62]        I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63]        In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64]        I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present).  Another great resource is Canlii, a free Canadian legal case-law database.

LVI Defence Rejected; $12,000 Awarded For Modest Injuries

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

Further to my dozens of previous posts discussing ICBC’s Low Velocity Impact (LVI) Defence to tort claims involving crashes with little vehicle damage, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, once again rejecting this defence.
Today’s case is a great example demonstrating that compensable injuries can be sustained even in true ‘low velocity impacts‘.  In today’s case (De Leon v. Harold) the Plaintiff was involved in a two vehicle collision in 2007 in Vancouver, BC.  The Defendant rear-ended the Plaintiff’s vehicle.  Fault for the crash was admitted.  The trial focussed on whether the Plaintiff sustained any injuries.
There was no dispute that the collision was minor.  The Plaintiff described the impact as a “bump“.  The Defendant testified that her car “tapped” the Plaintiff’s car.  The modest impact resulted in $0 in vehicle damage.
Despite this the Plaintiff was injured.  The injuries were, fortunatley, relatively modest and made a meaningful recovery within 6 months.  ICBC defended the case based on the LVI program and argued that the Plaintiff was not injured in the collision.  Madam Justice Power rejected this argument and in doing so repeated the following helpful reasons addressing the LVI defence:

[14]         In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:

[5]        The courts have long debunked the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer [1993] B.C.J. No. 474 (S.C.), Thackeray J. as he then was, made the following comments that are still apposite today.

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is the philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have not heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process.”  In particular he noted that there was no evidence to substantiate the defence theory in the case before him. . . .

[15]         In Dao v. Vance 2008 BCSC 1092 Williams J. stated:

[18]      This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is, it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19]      In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle is slight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

Madam Justice Power assessed the Plaintiff’s non-pecuniary damages at $12,000 and in doing so made the following findings about her injuries:

[19]         I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as the result of the accident. I am satisfied that the injuries were substantially resolved within two months of the accident as the result of the plaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completely resolved within six months…

[22]         Having regard to the fact that each award must be based on the unique circumstances of the case, and that the plaintiff’s stoicism is a factor that should not penalize the plaintiff (Giang v. Clayton 2005 B.C.J 163 2005, (B.C.C.A.)), I am of the view that an appropriate award for the plaintiff’s non-pecuniary damages in this case is $12,000. The plaintiff will be awarded $1,200 for four days of lost work as the agreed-to amount of the parties for special damages.

[23]         Therefore the total damage award is $13,200. Costs may be spoken to or written submissions may be made at the agreement of the parties.

No Income Tax Deductions for Depleted Sick Bank Damages

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.


As previously discussed, when a person becomes disabled from work due to injuries and uses up banked sick time they can claim damages to be reimbursed for this loss in a tort claim.
If the tort claim arises from a BC motor vehicle accident the Insurance (Vehicle) Act requires awards for past wage loss to be reduced to take income tax consequences into account resulting in damages only for “net income loss”.  So, when damages are paid for use of banked sick time does the award need to be reduced to take income tax into account?   The answer is no and reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this issue.
In last week’s case (Chalmers v. Russell) the Plaintiff was a school teacher who was involved in two motor vehicle collisions.  The Plaintiff was not at fault for either of these crashes.  As a consequence of injuries sustained the Plaintiff had to use up several thousand dollars of banked sick time available to her through her employment.  Madam Justice Griffin awarded the Plaintiff damages for this loss and in doing so provided the following useful reasons explaining that these awards are not to be reduced to take income tax consequences into account:

[85]         I accept Ms. Chalmers’ evidence that following the first accident, she was so sore and painful that she felt it necessary to take time off work prior to the birth of her child in order to expedite her recovery.  I am mindful that she did not obtain any medical evidence in support of her decision to take time from work.  Regardless, given her advanced state of pregnancy, the trauma of the accident and the pain she was in after the first accident, I consider her decision not to return to work to be reasonable and due to her injuries.  The cost to reimburse the sick bank during this time period is $342.45 per day, totalling $3,766.95.

[86]         As noted in Bjarnason v. Parks, 2009 BCSC 48, depletion of a sick bank is a compensable loss: at para. 56.  However, it is not an income loss so there should be no deduction for income tax in accordance with ss. 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231: Bjarnason at para. 66.

In addition to the above, today’s case is worth reviewing for the Court’s discussion of non-pecuniary damages for mothers whose injuries affect their ability to look after their young children.  In today’s case the Plaintiff sustained various soft tissue injuries which, while not disabling, continued to affect the Plaintiff and interfered with her ability to look after her infant children.  Madam Justice Griffin assessed non-pecuniary damages at $50,000 and in doing so provided the following reasons:

[123] Importantly, Ms. Chalmers has lost the experience of being a relatively pain-free, physically active mother of her infant children during an important period in their young lives.  This is clearly a huge loss for Ms. Chalmers.

[124] I conclude that a reasonable award of non pecuniary damages, that is fair to all parties, is $50,000.

This is not the first time that pain interfering with parenting has been considered a relevant matter by the BC Supreme Court in addressing non-pecuniary damages and you can click here to read a previous post further discussing this topic.

$30,000 Awarded for Moderate, Lingering Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of injuries and losses from a motor vehicle collision.
In today’s case (Rothenbusch v. Van Boeyen) the Plaintiff was involved in a 2 vehicle intersection collision in Mission, BC in 2007.  The Plaintiff was making a left hand turn when his vehicle collided with the on-coming defendant.  The Court found the Plaintiff 30% at fault for failing to yield to the Defendant’s right of way and the Defendant 70% at fault for speeding, failing to keep a proper lookout and failing to take proper evasive maneuvers when he had the opportunity to do so.
The Plaintiff claimed compensation for various injuries although the Court found the Plaintiff failed to prove that some of his more serious injuries were caused by the crash.  Ultimately Madam Justice Ker found the collision caused various soft tissue injuries which did not fully recovery.  The Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $30,000.  In arriving at this amount Madam Justice Ker provided the following reasons:
[180] Mr. Rothenbusch was almost 81 years of age at the time of the accident.  Although retired from hog farming, Mr. Rothenbusch remained active in the community, curling two or three times a week and engaging in volunteer pastoral work at a senior’s lodge and visiting people in the hospital. He also helped a friend at a berry farm by planting and pruning throughout the year and in picking berries during the summer season. In addition to being a hog farmer, Mr. Rothenbusch worked in construction and as a plumber and continued to do his own home repairs and helped others in this area….

242] In the end, the totality of the evidence supports the conclusion Mr. Rothenbusch sustained moderate soft tissue injuries to his neck, lumbar spine, left scapula and left ribs as well as cuts to his face as a result of the accident. The evidence further supports the conclusion that the major disabilities from the injuries were largely resolved by the end of December 2007. However, Mr. Rothenbusch continues to experience intermittent neck and shoulder pain as a result of the injuries from the accident, and he is still restricted in his range of motion for his neck and shoulder. These continuing symptoms have, in part, impacted on his ability to return to all his pre-accident activities….

[255] Mr. Rothenbusch continues to experience intermittent pain in his neck and continues to have difficulties with his shoulder. He is not able to engage in some of the home repair, plumbing activities or berry picking activities he enjoyed prior to the accident.

[256] Although Mr. Rothenbusch may not be as active as a younger plaintiff, it is important to bear in mind that as one advances in life, activities and pleasures sometimes become more limited. In that respect, impairment of the limited activities and pleasures which an individual can engage in becomes more serious: Williams at para. 17.

[257] Having regard to all the circumstances and taking what guidance I can from the authorities provided by counsel, I assess Mr. Rothenbusch’s non-pecuniary damages at $30,000.

In addition to the above, the decision is worth reviewing for the Court’s thorough discussion of “in-trust” claims (claims where plaintiff’s seek compensation on behalf of others who have provided them assistance with their accident related disabilities) which are set out in paragraphs 260-290 of the judgement.

Why Soft Tissue Injury Claims Should Not Be Judged by a Higher Legal Standard

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized. 65 Comments on Why Soft Tissue Injury Claims Should Not Be Judged by a Higher Legal Standard


From time to time BC Courts appear to scrutinize soft tissue injury claims more carefully than claims with objective injuries.  When doing so a very familiar quote from Mr. Justice McEachern is cited where he said “I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”
This quote comes from the 1981 case Butler v. Blaylock and is often advanced by defence counsel in an effort to have a Court dismiss soft tissue injury claims.   This quote has been repeated many times in recent judgements and recently the BC Court of Appeal referenced this authority in Mariano v. Campbell.

However, what was not noted by the Court and should be next time a defence lawyer brings this quote to the Courts attention is that Mr. Justice McEachern’s decision is Blaylock was overturned by the BC Court of Appeal in 1983 where the Court held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.
14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.
In addition to the above, a subsequent case from the Supreme Court of Canada made it clear that all civil cases, regardless of the allegations or the nature of a lawsuit, need to be judged with the same civil standard.  In F.H. v. McDougall the Canadian High Court stated as follows:
I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.  Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.  However, these considerations do not change the standard of proof…
[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care.  I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case.  There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

I hope this ‘history lesson’ helps anyone confronted with an attack on Plaintiff credibility during a soft tissue injury trial.

BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

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

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.
In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).
During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.
It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.


ICBC Injury Claims and Lack of Continuous Medical Complaints

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


Individuals who suffer long-term chronic pain following a motor vehicle collision often attend frequently for treatment to their general practitioner.   These visits generate ‘clinical records‘ which generally document the patients complaints.
These clinical records are usually produced in the course of a subsequent personal injury lawsuit.  ICBC defence lawyers scrutinize these records and see if they can poke a hole in the Plaintiff’s case.  A common tactic is to review these records and see if the Plaintiff complains of the same symptoms at each and every visit.  If not, ICBC may argue that the Plaintiff recovered since there is a lack of continuous complaint.  So, does this mean an injured Plaintiff should make sure they discuss their accident related complaints each and every time they see their doctor?  The answer is no and reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing some of the reasons why this is not necessary.
In this week’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two motor vehicle collisions in 2006.  She was not at fault for either and the trial focused on the value of her ICBC claims.   During the course of trial ICBC’s lawyer argued that the Plaintiff was not credible and that her in Court testimony of chronic pain was contradicted by “temporal gaps” in the Plaintiff’s doctors clinical records.  Mr. Justice Stewart was quick to dismiss this attack and provided the following useful comments in response to the Defendant’s argument:

[9]             Another wing of the defendants’ attack on the plaintiff’s testimonial reliability – more particularly sincerity – focused on what the defendants say is the disparity between the plaintiff’s telling me, in effect, that her pain and suffering in the neck, shoulders and back has been present, persistent and continuous since the first motor vehicle accident in April 2006 and what the defendants describe as telling temporal gaps in what the plaintiff complained of when she was seen by her family doctor, Dr. Sun, over the years.

[10]         The plaintiff, in effect, told me that on any given occasion when she saw Dr. Sun and had her few minutes in the examining room that she went straight to only what was her most significant problem or complaint that day. I accept that. It makes sense in light of how our medical system functions today. Also I infer from the whole of Dr. Sun’s testimony that it was her practice to let the patient take the initiative and that she did not invite the patient to lodge a bill of complaints. Last, I note that – as will become clear later in these Reasons for Judgment – throughout the four years in question in the case at bar the plaintiff has been a woman beset with a myriad of problems for which she sought help or advice from caregivers, only some of which were neck, back and shoulder problems.

Mr. Justice Stewart went on to award the Plaintiff $75,000 in non-pecuniary damages for her accident related injuries.  This case is also worth reviewing in full for the Court’s lengthy discussion of Plaintiff “credibility” and “testimonial reliability” which is set out at paragraphs 5-17.

Mild Soft Tissue Injury Valued at $4,000; BC Supreme Court Rule 14 Discussed

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.
In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:
[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

Non-Pecuniary Damages Discussed for "Waxing and Waning" Soft Tissue Injuries

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


As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.
Not all injuries have the same course of recovery.  Some soft tissue injuries never heal.  Sometimes they cause constant chronic pain.  Other times these injuries largely recover but ‘wax and wane’ with activity.   What is the fair value of a soft tissue injury with symptoms that come and go over the years?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision.  The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.
The Plaintiff suffered soft tissue injuries.  These affected her neck and upper back and caused headaches.  her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime.   Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000.  In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:

[78]         Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.

[79]         They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….

[96]         At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.

[97]         Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.

[98]         It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.

[99]         As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…

[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.

More on ICBC Claims and Lack of Objective Signs of Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 48 Comments on More on ICBC Claims and Lack of Objective Signs of Injury


As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.
In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.
The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.
The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.