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$60,000 Non-Pecuniary Damages for Whiplash and likely Zygapohyseal Joint Injury

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

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of a BC car crash resulting in whiplash claim with a likely zygapophyseal joint injury.
Zygapophyseal joints (also known as facet joints) are the interconnecting joints joining vertebral bodies to one another and it is not uncommon for injury to occur to these joints in motor vehicle collisions.

In this week’s case (Lamont v. Stead) the Plaintiff was involved in a rear end collision caused by the Defendant in Burnaby, BC.  Fault was admitted leaving the Court to deal with the extent and value of the injury claim.   The Defendant accepted he injured the Plaintiff however argued that these injuries substantially resolved within 9 months.  The Plaintiff disagreed giving evidence that her neck injury symptoms were ongoing through trial.
In support of her case the Plaintiff advanced evidence from Dr. Rhonda Shuckett, a well respected BC rheumatologist.  Dr. Shuckett testified that the Plaintiff likely had permanent injuries explaining as follows:

I suspect her left neck injury since the MVA is mainly attributable to soft tissue and perhaps zygapophyseal joint injury…It is already approaching two years since the subject MVA and she remains symptomatic. I think there is a good chance that she is going to continue with her current level of pain. She is not disabled but is impaired to some degree…

Mr. Justice Bernard accepted this evidence and awarded the Plaintiff damages accordingly.  In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering and loss of enjoyment of life) at $60,000 the Court made the following findings:

[30] The evidence establishes that the plaintiff’s prospects for any significant improvement in her neck pain are poor. As a consequence, she faces a considerably altered future; particularly as it relates to her life outside the workplace. Her chronic pain deprives her of much of the enjoyment she found in being physically active, in attending to her family, and in participating in family activities…

[35] In summary, I am satisfied that the plaintiff’s pain is chronic, partially disabling, and likely permanent. Similarly, I am satisfied that the evidence establishes that the plaintiff’s neck pain was caused by the defendant’s negligence, in the sense that it directly caused or materially contributed to it. There is a substantial connection between the plaintiff’s chronic neck pain and the collision, and the plaintiff has shown, on a balance of probabilities, that but for the negligence of the defendant, she would not have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[40]        The loss of enjoyment of life due to chronic neck pain is undoubtedly greater for Ms. Lamont than it would be for a person who has led a more sedentary lifestyle. Ms. Lamont has been actively engaged in strenuous sport throughout her adult life, and this has been a significant feature of life with her husband and children. It is, understandably, a source of great frustration and sadness to her that she has been deprived of the capacity to engage in most of the activities she loved, and to experience them with her family.

[41]        Given the relatively profound nature of the loss to this plaintiff (including compromised household management and parenting), the chronic pain which she must endure, the age of the plaintiff, and the very poor prospects for significant improvement, and, having regard to the similarities between the cases cited by the parties and the case at bar, I assess the non-pecuniary losses of the plaintiff at $60,000.

ICBC's Low Velocity Impact Program – Not a "Legal Principle"

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. 1 Comment on ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.
In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”
In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.

ICBC Injury Claims: Provincial Court vs. BC Supreme Court

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.


When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in.  Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?
Both courts have notable differences.  Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction.  The maximum award for damages that can currently be made in the Provincial Court is $25,000.  The Supreme Court has an unlimited monetary jurisdiction.
For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court.  But what about more modest claims, claims that may fall in the $20,000 – $30,000 range?  Where should these be filed?
While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers.  Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court.  There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.
While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now.  Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.
In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC.  This was a Low Velocity Impact.  ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.
The Plaintiff’s lawyer sought a significantly higher award.  Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500.  In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court.  Specifically Judge Kay stated as follows:
This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically.  This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court.  In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life.  While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.

$50,000 Non-Pecuniary Damages for Chronic Neck/Low Back Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $50,000 Non-Pecuniary Damages for Chronic Neck/Low Back Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the fair assessment of damages for chronic soft tissue injuries.
In today’s case (Baxter v. Jamal) the Plaintiff was involved in a ‘substantial‘ 2005 motor vehicle collision.  The Plaintiff was in her vehicle in an intersection waiting to turn left.  The Defendant “ran a red light and struck the driver’s side door of the plaintiff’s vehicle“.
Despite feeling no pain at the time of the accident the Plaintiff in fact was injured.  Her symptoms came on shortly after the crash and some of them persisted to the time of trial.   In awarding $50,000 for the plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Boyd stated as follows:
[18] Dr. Witherspoon and Dr. Rosemary Nairne Stewart, a physiatrist who conducted an independent medical examination on behalf of the plaintiff in February 2009, both opine the plaintiff has suffered soft tissue injuries to her neck and back.  Since more than three years have passed since the injury, they expect she will continue to experience her current symptoms over the long term and that as a result, she will likely be unable to do physically demanding work.  ..

I am satisfied that pre-accident, the plaintiff was asymptomatic and that since the accident, she has unfortunately been plagued by ongoing neck and back pain which now remain unresolved over four years since the accident.  I accept Dr. Nairne Stewart’s opinion that her condition is either the reflection of the soft tissue injuries (suffered at the time of the accident) which remain unresolved or are the result of the trauma to her back (suffered at the time of the accident), which has rendered a previously asymptomatic condition symptomatic.

[34] I accept Dr. Nairne Stewart’s evidence concerning the plaintiff prognosis, namely that she is “likely to continue to experience all of her current symptoms and limitations over the long term.  She will be unable to do physically demanding work because of her injury.  In sedentary work, she will continue to need a good ergonomic setup in her workstation and the flexibility to change her work tasks and position periodically throughout her workday”.

[35] I accept that these injuries have had a significant effect on the plaintiff’s life, both in terms of her career and her recreational activities. ..

[43] On a revinew of all of the evidence, and considering the significant impact these injuries have had and will continue to have on this young woman, I find that an appropriate award of damages is $50,000.

An interesting part of this decision dealt with the Court’s analysis of the competing medical evidence.  As is common in ICBC Injury Claims the Defence called the evidence of an ‘independent medical examiner’ (orthopaedic surgeon Dr. Maloon) who provided an opinion contrary to the Plaintiff’s treating physician with respect to the extent of the accident related injuries.  The court noted that Dr. Maloon’s competing opinion was ‘obliquely stated‘ and ultimately preferred the evidence of the Plaintiff’s doctors.  This case is worth reviewing for the Court’s discussion of the competing expert evidence and the analysis of the Court in favouring the expert evidence in support of the Plaintiff’s case.


More on ICBC Injury Claims and the Subjective Nature of Pain

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation – it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.
In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia.  Fault was admitted by the rear motorist.   The vehicles did not suffer much damage but the Plaintiff alleged injury.
The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:
She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[?]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.
The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle.  Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries.  Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion.  In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non?pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain.  If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.

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.

Non-Pecuniary Damages Discussed for Neck Soft Tissue Injury, Significant Low Back STI

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

2 cases were released today by the BC Supreme Court dealing with non-pecuniary damages in auto-accident cases which I summarize below to add to this ever-growing free online  pain and suffering caselaw database.  The first case dealt with a soft tissue neck injury; the second with a ‘significant’ low back soft tissue injury.
In the first case (Berry v. LaBelle), the Plaintiff was injured in a 2006 rear-end crash.  Fault was admitted leaving the Court to deal with the value of the claim.
The Plaintiff was a 42 year old drywaller at the time of the accident.  He sued for various damages including past loss of income and diminished earning capacity.  At trial he asked for some $600,000 in total damages for his injuries and losses.  He alleged that he suffered from left handed weakness as a result of the collision which negatively affected his ability to work.  After 4 days of trial, however, his claim proved largely unsuccessful being awarded $0 for his loss of income / diminished earning capacity claims.  The Court did find that the Plaintiff suffered a compensable injury and awarded the Plaintiff damages for non-pecuniary loss (money for pain and suffering and loss of enjoyment of life).
Specifically Madam Justice Baker found that “the only injury resulting from the motor vehicle accident…is a strain to the soft tissues on the left side of the neck“.  In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court noted the following:

[51] Nevertheless, I am satisfied that the strain to the soft tissues on the left side of Mr. Berry’s neck did cause him discomfort for several months after the accident, although it appears that injury did not actually impair range of motion in the neck.  Mr. Berry had full range of motion in his neck the day after the accident; Dr. Fehlau described the range of motion as “good” when Mr. Berry was seen at her clinic on August 17, 2006.  Massage therapy alleviated the discomfort but only temporarily; physiotherapy had more lasting benefits.  The pain did not incapacitate Mr. Berry at work, although he modified some of his tasks to accommodate the injury.

[52] By no later than October 2006 – seven months after the accident, Mr. Berry had returned to his favourite recreational activity – dirt-biking.  According to Mr. Berry’s description, and those of his friend Mr. Van Lingen, cross-country dirt-biking is a very strenuous and even hazardous recreational activity.  Mr. Berry told Dr. Fehlau on October 24, 2006 that his neck became sore after one-half hour of dirt-biking.   I accept that Mr. Berry initially moderated the intensity of his dirt-bike excursions.  However, Mr. Van Lingen testified that before the bike accident in September 2008, Mr. Berry was back to riding as he had before the March 2006 motor vehicle accident.

[53] Mr. Berry and his wife both testified that the neck discomfort had a negative effect on their sexual relationship.  They testified that before the accident, they had sexual intercourse two or three times every day, but that the frequency diminished after the accident because Mr. Berry experienced neck pain during intercourse, particularly when certain positions were attempted.  Mr. Berry and his wife both testified that Mr. Berry was less patient and more irritable when his neck was sore.

[54] Mr. Berry testified that he has given up river kayaking and golfing because of his injuries but I am not persuaded this is true.  Mr. Berry has not made a serious attempt to engage in either of these activities since the accident.  He testified he had gone kayaking once on a lake, and had not attempted river kayaking.  He had not attempted to play golf.  Given that Mr. Berry has been able to continue to do very heavy physical labour at work, and resumed cross-country dirt-biking within seven months after the accident, I do not accept that he is incapacitated from playing a few games of golf annually, or kayaking on a river.  I think it more likely that Mr. Berry has changed his recreational focus to activities he can enjoy with his wife and young son, and to a new interest – on-line computer games – which Ms. Schroeder testified that Mr. Berry plays for hours at a time.

[55] I am satisfied that Mr. Berry has recovered from the injuries caused by the accident.  I consider that an award of $30,000 to be adequate compensation for the temporary impact Mr. Berry’s neck injury has had on his enjoyment of life and, in particular, the discomfort he has experienced when lifting heavy materials at work; while engaging in strenuous recreational activities; and during intimate relations with his spouse.

__________________________________________________________________________________________

The second case released today (Demarzo v. Michaud) considered the onset of pain in a pre-existing but asymptomtic condition, namely a degenerative spine.

The Plaintiff was involved in a March, 2005 rear end collision.  Fault was admitted.  The Court heard evidence that the Plaintiff suffered from relatively severe back pain following this collision.  The parties differed on whether the Defendant was legally responsible for this.  The Defendant argued that he was not stating that the accident related injuries were minor and that a ‘pre-existing degenerative spine‘ and a subsequent event (an incident where the Plaintiff was lifting weights and aggravated her back pain) were responsible for the symptoms. The Defendant argued that the Plaintiff would have experienced her back pain as a matter of course even without the rear-end crash.  (note: this type of a ‘causation’ argument is often advanced at trial in personal injury lawsuits involving plaintiff’s with degenerative changes in their spine).

Mr. Justice Brown largely agreed with the Plaintiff and awarded just over $350,000 in total damages including $85,000 for her non-pecuniary damages.  Specifically he found that the Plaintiff suffered from a “significant soft tissue injury to her lower back” which resulted in chronic symptoms.   In navigating through the Defenses raised and awarding damages Mr. Justice Brown noted the following:

[51] I find that the plaintiff sustained a significant soft tissue injury to her lower back but it is not possible to unravel the plaintiff’s clinical history in such a way that allows a conclusive evidentiary finding on the specific medical legal question of when the plaintiff sustained her annular tear.

[52] The plaintiff’s lower back symptoms have become chronic and I accept Dr. Leete, Dr. Filbey’s medical opinions that she will continue to experience intermittent lower back complaints, especially related to certain activities. This is far from what she was able to do before the accident.

[53] As for the defendant’s contention that the plaintiff’s landscaping activities produced her degenerated spine and that this is the ultimate cause of her symptoms, I prefer the opinions of Dr. Leete and Dr. Filbey that there is no sound medical basis for the proposition that because someone over the years has been active in sports and worked as a landscaper, they are necessarily predisposed to development of degenerative changes in the spine or that such changes are associated with back pain. I understood from the evidence of Dr. Leete and Dr. Filbey that one patient may present with images of a markedly degenerated spine and have no history of symptoms, while another patient may present with marked symptoms, and have images of a perfectly normal spine. I also find that there is no sound medical basis for concluding that the plaintiff would have suffered the symptoms and limitations that she has experienced or that her degenerative spine would have inevitably become symptomatic, absent inducement of symptoms by the trauma of the motor vehicle accident.

[54] The plaintiff’s position is that when she lifted the dumbbells, she experienced immediate onset of pain in the same area she injured in the accident; that this was an exacerbation of the plaintiff’s unresolved injuries; and that there is no evidence to show that she would have experienced her continuing symptoms but for the injuries she sustained in the accident. On the balance of probabilities, I agree with the plaintiff’s position. I find that but for the accident the plaintiff would not have suffered the pain and disability she experienced after accident, including the exacerbation of her injuries on May 29, 2005 and acute flare-up with neurological symptoms in November 2005…

[57] The plaintiff has never returned to her former work as a landscaper or to any of her former recreational activities, at least not with any degree of intensity. She is still unable to play volleyball, cannot run long distances, although she did try running in the last month but at a far lower level than before. She no longer exercises at the gym. She does not enjoy movies in theatres because she finds sitting for long periods very uncomfortable. She explained that the last time she went out with friends, she felt very uncomfortable, but suffered through it as she was too embarrassed to leave. Given her enjoyment of sports and active lifestyle shared with her husband, as well as the loss of her former capacity to be active, this represents a substantial loss for the plaintiff as a person and a spouse. Although the plaintiff will likely improve somewhat in the future, I accept that she will not ever be able return to her former level of participation in recreational activities or regain her former physical capacities; and will continue to experience varying degrees of chronic back pain that will necessitate alteration of her lifestyle.

[58] The accident depressed the plaintiff’s mood, leading to a marriage separation in early spring 2007. Mr. Saliken testified that the plaintiff became depressed, unhappy about living with him in Nanaimo, impatient and angry. Making matters worse was the apparent mindset of Mr. Saliken’s family, who were impatient with the pace of the plaintiff’s recovery and kept asking why she could not work. The plaintiff’s feelings of frustration, augmented by her feelings of diminishment in the eyes of her husband’s family, who she did not yet know well and who had “never seen how hard she could work”, and her feeling that she had become a drain on the household combined with other aggravating factors, ultimately led to arguments and her two months separation from her husband. Fortunately, their bond and commitment to one another were strong enough to allow the plaintiff and Mr. Saliken to weather these adverse emotional affects of the accident and they reconciled. Nonetheless, the plaintiff’s separation from her husband and her emotional distress are emblematic of the degree of suffering and loss of enjoyment of life the plaintiff has experienced. She is entitled to a substantial award for pain and suffering and loss of the enjoyment of life. Bearing in mind that while she will receive compensation for her loss of earning capacity, she has still lost the enjoyment and satisfaction she experienced in her chosen career. I award the plaintiff $85,000 for non pecuniary damages.

Chronic Pain With No Objective Signs Discussed in Injury Litigation

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, Uncategorized.


One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.
Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury.  So how do courts deal with such claims?  Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility.  If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC.  The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her.  The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.
Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses.  The award included $45,000 for non-pecuniary damages.  In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries.  The highlights of the Court’s discussion were as follows:

[12] Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area.  In Dr. Shu’s opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident.  Dr. Shu does not expect a complete recovery as the pain has been on-going since 2005.  He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.

[13] I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson.  I do not think it is necessary to refer to their evidence in any detail.  In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area.  The doctors also all agree that there is no objective evidence of underlying injury causing this pain.  They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.

[14] Dr. McPherson’s initial opinion was that there was no objective evidence of disability.  However in cross examination at trial he did agree that he thought Ms. Sylte still had back pain as of the date of his examination in 2006.  I did not take him to be disagreeing with Dr. Shu’s opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future.  However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.

[15] The conclusion I have reached is that any restriction on Ms. Sylte’s activities is caused by pain rather than physical limitation.  The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.

[16] Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area.  I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…

[18] Ms. Sylte is 51 years old.  She testified that prior to the first motor vehicle accident she was an active, energetic individual.  She enjoyed playing mixed softball, golf and skiing.  She was employed as a nurse’s aide at the Royal Columbian Hospital in New Westminster.  She was a single mother whose adult son, Josh, lived with her.

[19] Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally.  She simply finds these activities too painful to pursue.  In addition she no longer skis.  She indicated that Josh is now required to do many of the more physically demanding tasks around the house.  She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain.  She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.

[20] Josh gave evidence at the trial.  He generally corroborated the drop in Ms. Sylte’s activity level since the motor vehicle accident.  He also indicated that his mother had become much less social after the accident.  Josh, who is now 31, does much of the heavy work around the house.

[21] Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident.  The evidence before me is that these symptoms will be permanent.  I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing.  She is in more or less constant discomfort from the injuries she has suffered.  As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.

[22] I have concluded that there should be a substantial award for non-pecuniary damages in this case.  I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability.  In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.

$50,000 Non-Pecuniary Damages for Chronic Whiplash Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 52 Comments on $50,000 Non-Pecuniary Damages for Chronic Whiplash Injury

Adding to this ever-growing BC “Pain and Suffering” Caselaw Database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff close to $90,000 in total damages as a result of injuries and losses sustained in a 2006 car crash.
In today’s case (Cabral v. Brice) the Plaintiff was in a pick up truck which was rear-ended by a commercial truck driven by the Defendant.  The issue of fault was admitted leaving the Court to determine the value of the Plaintiff’s injury claim.
The Plaintiff had a pre-existing problem from a herniated disc at C6-7 but this made a complete pain free recovery in the years before the crash.  This previous injury did, however, make the Plaintiff more susceptible to being injured in a motor vehicle collision.  The crash caused a soft tissue injury to the Plaintiff’s neck which resulted in mechanical neck pain.  Although there was some improvement in his symptoms by the time of trial he continued to have ongoing intermittent symptoms which increased with activity.  In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Wedge noted the following:

[63] In Unger v. Singh, 2000 BCCA 94, [2000] B.C.J. No. 246, Proudfoot J.A. observed the following at para. 32 concerning the quantum of general damages in soft-tissue injury cases:

After analyzing the many cases cited by both counsel (I will limit my comments to relevant material) I find that the range of damages is indeed wide. Cases involving primarily soft-tissue injury with some emotional problems including sleep disruption, nervousness, depression, seem to be from a low $35,000 to a high of $125,000. However, I caution though that these numbers are only guides.

[64] In Stapley v. Hejslet, 2006 BCCA 34, [2006] B.C.J. No. 128, Kirkpatrick J.A. (writing for the majority) outlined (at para. 46) the factors a trial judge should consider when assessing general damages:

The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff:  Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[69] Mr. Cabral performed light duties at work for one month following the accident, and then returned to his full duties. He undertook a three-month course of physiotherapy, and was participating in all of his pre-accident sports activities by the summer of 2006. He received several further physiotherapy treatments between October 2006 and February 2007. Thereafter, he again underwent treatment for his neck pain in December 2008.

[70] The medical evidence established that Mr. Cabral suffered a significant neck sprain in the accident which, while it does not prevent him from working full-time in his job and participating in his sports activities, continues to cause intermittent pain which increases his fatigue and stress at work and limits some of his activities at home. The evidence established that Mr. Cabral’s recovery has reached a plateau. The evidence further established that his condition will not worsen over time.

[71] Mr. Cabral’s medical condition is not as severe as those suffered by the plaintiffs in the decisions cited by his counsel, although it does share some of the features of those decisions. The medical evidence suggests that his neck pain may now be chronic in nature.

[72] Each personal injury case possesses its own unique facts, and Mr. Cabral’s is no different…

[73] I have concluded that an appropriate award for Mr. Cabral’s non-pecuniary loss is $50,000.

$45,000 Non-Pecuniary Damages for Soft Tissue Injuries to Back, Neck and Shoulders

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

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff just over $88,000 in total damages as a result of a 2006 BC car crash.
In today’s case (Dutchak v. Fowler) the Plaintiff was involved in a rear-end collision.  Fault was admitted by the Defence lawyer leaving the Court to deal with the sole issue of quantum of damages (value of the injury claim).  The Plaintiff suffered various soft tissue injuries which continue to bother her by the time of trial and these had a likelihood of continuing indefinitely into the future.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Sewell made the following observations about the severity of the accident related injuries:

22] While I accept that Ms. Dutchak has genuine symptoms, I do have some concerns that she has unrealistic expectations about the consequences of the physical activities in which she engages.  Ms. Dutchak runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays squash three times a week and cycles for long distances on a regular basis.  These activities undoubtedly cause physiological stresses on her anatomy.

[23] It is apparent that engaging in these physical activities is an important part of Ms. Dutchak’s relationship with her husband.  Both Ms. Dutchak and her husband continue to place a high level of importance on physical activity and a good deal of their personal interactions with one another revolves around physical fitness and exercise activities.  In addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24] I have concluded that Ms. Dutchak is now able to engage in almost all of the activities she did before the accident, but at a price.  That price is a much higher level of pain and discomfort than before the accident.

[25] The preponderance of evidence before me satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely disappear.  However, I am also of the view that there is a reasonable possibility that she will experience some continued improvement as she adjusts to her altered circumstances…

[28] In the result, I conclude that Ms. Dutchak has suffered soft-tissue injuries to her upper back, shoulders and neck which have resulted in stiffness, pain and headaches, all of which are significantly aggravated by strenuous physical activity.  She continues to experience those symptoms.  My conclusion is that there is some prospect of continued improvement but that in assessing damages in this case, I should proceed on the basis that Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other hand, I also conclude that Ms. Dutchak is now able to perform virtually all of the tasks and activities that she did prior to the accident and, in particular, is able to engage in vigorous physical activity.  In carrying out these activities she has no mechanical limitations.  The only restriction on these activities is the pain which they cause.

[29] I have also concluded that Ms. Dutchak is highly motivated to continue with these activities and, in fact, is continuing to perform and engage in them notwithstanding the level of pain and the headaches that she experiences as a result…

In my view, this case is one in which an award of non-pecuniary damages should be at the lower end of the range for cases involving chronic pain.  I say this because Ms. Dutchak is able to engage in all of the activities she formerly did with the assistance of analgesic medicines and in the full knowledge that engaging in activities will often trigger pain for her.  In all the circumstances I award Ms. Dutchak $45,000 for non-pecuniary damages.