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$63,000 Awarded for Soft Tissue Injuries and Chronic Pain in ICBC Claim

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

Reasons for judgement were released this week by the BC Supreme Court (Atwater v. Reese) awarding a Plaintiff just over $63,000 in total damages as a result of a 2006 motor vehicle collision.
The Plaintiff was a pedestrian who sustained injuries when struck by a car.  In my experience ICBC often denies liability in these circumstances with a hope of having the court find the pedestrian at least partially at fault for not keeping a proper lookout.  In this case the ICBC Defence Lawyer argued that while the motorist was at fault the Pedestrian was contributorily negligent.  The first part of the judgement deals with this allegation and in finding the driver 100% responsible Mr. Justice Macaulay stated as follows:

[16]            I do not accept that the plaintiff was negligent in failing to watch the car as she walked in front of it.  Nor do I accept that she could have avoided the accelerating car if she had been watching.  Once in front of the car, the pedestrians were within a foot or so of the car.  There is no evidence to support the contention that the plaintiff, who was walking ahead of her sister, could have avoided the impact in the circumstances.

[17]            The impact occurred because the defendant was going through the motions of driving without actually paying any attention to what was there by way of pedestrian hazard.  I find that the defendant is entirely responsible for the accident.

In assessing the Plaintiff’s non-pecuniary damages at $50,000, Mr. Justice Macaulay made the following findings with respect to her injuries and prognosis:

[38]            I am satisfied that the plaintiff suffers from chronic pain but I share the view of the various professionals that her condition is still amenable to improvement provided she increases her tolerance for recreational activity.  She gave up too easily and must try harder so that she can avoid the physical and emotional downward spiral associated with inactivity.  I am also, however, satisfied that the plaintiff’s pain experience is real and not otherwise subject to conscious psychological control.

[39]            There is, accordingly, a risk that the pain will continue albeit, hopefully, at a lesser level with appropriate rehabilitation.  I do not expect her general pain level to increase nor is the plaintiff at risk of harming herself by increasing her activity level.

[40]            To the plaintiff’s credit, she missed minimal time from work after the accident.  This may have unwittingly contributed to her slow recovery and certainly affected her ability to participate in non-work activities.  She now has moved to more sedentary office work and is not waitressing as much.  The continuing waitressing she does now is of a lighter variety than before.  These changes should help over time, as well.

[41]            In my view, the plaintiff sustained a lower moderate soft tissue injury that has resulted in chronic pain and mild anxiety.  She is capable of achieving greater recovery than she has to date in spite of the time that has passed since the accident.

When trying to value your Non-Pecuniary Damages (pain and suffering) in an ICBC Injury Claim it is important to find cases with similar injuries and a similar prognosis to help establish a range of potential damages.  I intend to keep reporting non-pecuniary damages highlights in ICBC Injury Claims and look forward to growing this database.  As always, any feedback from my readers is welcome!

$40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 61 Comments on $40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.
The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.
Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.

More on ICBC Injury Claims and the LVI Defence

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

I’ve blogged and written many times about ICBC’s Low Velocity Impact Program (LVI) and today Mr. Justice Williams shared his opinions about the so called LVI defence.
In today’s case (Munro v. Thompson) the Plaintiff suffered a whiplash injury in a 2006 motor vehicle collision.  The Court found that the impact was indeed quite minimal when considering the vehicle damage.  In awarding $9,000 for the Plaintiff’s injuries (which the court found largely resolved several months following the collision) Mr. Justice Williams summarized the law as it related to Low Impact Collisions as follows:

[50]            The issue of the legitimacy of injury claims arising from accidents in which property damage is very minor is one that comes before the court not infrequently.

[51]            The accident at bar was a low velocity collision where damage to the vehicles 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 principal evidence in support of the plaintiff’s claim is subjective, that is, it is his self-report.  There is not a great deal of objective evidence to support his description of the injuries he claims to have suffered.

[52]            In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles 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, it is probably more likely that resulting injuries will be less severe than where the forces were greater, such as to result in significant physical damage to the automobiles.  However, I would not hold that out as a reliable thesis, but rather a statement of very general expectation. Suffice to say, I do not accept that there can be no injury where there is no physical damage to the vehicles.

[53]            With respect to the lack of objective evidence of physical injury and ongoing symptoms, it is well accepted that the court must be cautious in assessing the evidence.  The determination must be made in a way that the outcome will be fair to both the plaintiff and the defendant.

[54]            The plaintiff, to succeed in his claim, must establish on a balance of probabilities that this incident caused injury to him, and that those injuries entitle him to an award of compensatory damages against the defendant.

[55]            I am satisfied in this case that Mr. Munro was injured as a consequence of the accident, notwithstanding its apparently minor nature.  Accordingly, it is necessary to determine the extent of the effect of those injuries on him and the quantum of the damages to which he is entitled.

If you are injured by the fault of another in a BC Car Crash and ICBC tells you that your crash fits their LVI criteria therefore you suffered no compensable injuries its worth reviewing cases like this.  ICBC’s LVI policy is not the law, it is simply a corporate policy that has no legal force.  If you were injured in a car crash through the fault of another in BC your rights to make a tort claim are not diminished any because of the amount of vehicle damage. 

ICBC Claims and the Onset of Pain in Pre-Existing Conditions

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

Reasons for judgement were released today by the BC Supreme Court (Haines v. Shewaga) awarding a Plaintiff $34,000 in non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2005 car crash in Nanaimo, BC.
One of the issues in this case which frequently comes up in ICBC Injury Claims is that of pre-existing conditions.
The Plaintiff was 22 at the time of the crash.  He never had mid back pain in the years prior to the collision.   His back was injured in the collision and he continued to have symptoms in his backat the time of trial (some 3 years later).   After receiving medical treatment it was discovered that the Plaintiff had pre-existing (although asymptomatic) condition known as degenerative disc disease.  
The court found that the Plaintiff suffered various soft-tissue injuries in the crash, namely that:
[62]            I accept that the plaintiff sustained a mild to moderate whiplash type injury to the soft tissues of his neck, upper back (on the right side) and mid back, as well as a minor injury to his sternum area (likely from the seatbelt).  I find that the plaintiff had substantially recovered from all of these injuries by the time of trial, except for the injury to his mid back.  I accept that he still experiences pain in that area, after heavy and prolonged physical exertion.  Some aspects of the work that he does as a deck installer will continue to cause him some pain, from time to time.  But based on the whole of the evidence (and particularly on the plaintiff’s work record), I am not satisfied there is a substantial possibility that this pain will disable him from working. 
With respect to the Plaintiff’s pre-existing and but now symptomatic degenerative disc disease Mr. Justice Halfyard found as follows:
[69]            In my view, there is no significant conflict between Dr. Filbey and Dr. Warren on the subject under discussion.  Nor would I discount Dr. Warren’s evidence on the ground that he now works almost exclusively for ICBC.  I accept the opinions of both of these medical experts.  As a consequence, I find that the plaintiff’s complaint of mid-back pain following the accident is strongly corroborated by the medical findings and opinions.  There is no evidence whatever to suggest that the plaintiff had experienced pain in his mid-back before the accident, and he firmly denies this.  I infer from the evidence given by the doctors that pain in the thoracic spine area from whiplash-type injury is far less common than pain in the cervical and lumbar spine.  In the result, I am satisfied on the balance of probabilities that the motor vehicle accident caused the plaintiff’s latent pre-existing degenerative condition to become painful.
So how then, does a court value injuries when a pre-existing condition contributes to the duration of traumatic injury?
Here, Mr. Justice Halfyard reduced the Plaintiff’s award for pain and suffering by 15% to account for the chance that the Plaintiff’s degenerative disc disease would have become symptomatic at some point in time in the future even if the accident did not occur, thus the damages of $40,000 were reduced to $34,000.
On a different note, this claim is worth reviewing to see how BC Courts can deal with the issue of credibility in ICBC Injury Claims.  The credibility of the Plaintiff often plays a crucial role in ICBC Soft Tissue Injury Cases.  Here the ICBC Defence Lawyer challenged the credibility of the Plaintiff.   The court indeed concluded that the Plaintiff was ‘not a credible witness’ and paragraphs 37-60 are worth reviewing for anyone interested in a discussion about factors courts consider when weighing the credibility of a Plaintiff in an ICBC Injury Claim.

BC Personal Injury Claims Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 55 Comments on BC Personal Injury Claims Round-Up

On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision.  In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:

[101]        The trial occurred about five years following the accident.  Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities.  He is stoic and is inclined to push through pain until it becomes intolerable.  He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers.  He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.  

[102]        The evidence demonstrated on a balance of probabilities that these problems were caused by the accident.  Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods.  All the problems had resolved prior to the accident.  The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.

A highlight of this decision for me was the court’s discussion of credibility.  One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff.   That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:

[6]                The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain.  I quote portions of pages 397-399 of those reasons for judgment:

The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then 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.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.

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The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC.  The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome.  Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue.   The Plaintiff was found 60% at fault for the collision.

In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:

[127]        I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back.  Further, I am satisfied that she developed and continues to suffer chronic pain as a result.  I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.

[128]        I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:

…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

[129]        Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail.  He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.

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The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC.   The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches.  In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:

[112]        The issue of causation in this case is determined by applying the factors in Athey.  Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event.  I disagree.  I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident.  Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35. 

[113]        Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation.  In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch.  The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future.  The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication.  Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004.  I accept that he has tried every mode in an effort to alleviate his symptoms.  In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help.  I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.

[114]        Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness.  These are frustrating and to some extent debilitating.  He also has jaw, or temporal mandibular joint arthralgia and myofascial pain.  He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue. 

[115]        It is understandable that these conditions have affected him emotionally.  The opinion of Mr. Koch corroborates the plaintiff’s evidence.  I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms. 

I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims.  As always, I welcome any feedback from all my visitors.

Loss of Commission Income and ICBC Injury Claims

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

Reasons for judgement were released today (Tong v. Sidhu)awarding a Plaintiff $30,000 for non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2007 BC Car Accident.  
Mr. Justice Cohen of the BC Supreme Court made the following findings with respect to the Plaintiff’s injuries:
[40]            In my opinion, the medical evidence and the plaintiff’s testimony supports the conclusion that the plaintiff suffered mild to moderate soft tissue injuries, and that he has made an overall improvement to a level where if he dedicates himself to learning and correctly performing the exercises recommended by Dr. King he will probably experience a full recovery within six to twelve months.
[52]            Upon a consideration of the severity and duration of the plaitniff’s accident related injuries and symptoms, and upon a review of the authorities on the range of the general damages submitted by the parties, I find that an award of $30,000 is a fair and appropriate sum to compensate the plaintiff for his general damage claim.
The Plaintiff, who was a commodities broker, also alleged a past and future loss of income although these claims were dismissed.   The Plaintiff sought approximately $50,000 for past income loss and $44,000 for future income loss.
In dismissing these damages Mr. Justice Cohen found that the Plaintiff ‘has not proven on the requisite standard that he has suffered past or future income loss‘.  Following this conclusion Mr. Justice Cohen engaged in a lengthy analysis of the Plaintiff’s claim for lost income and stated as follows:

[63]            First, the only documentary evidence the plaintiff has brought forward to support his claim are his income tax returns and payroll slips for 2007 and 2008.  Although he signed an authorization for release of employment information to the defendant, the onus remains on the plaintiff to bring to court any records which would help him to identify the details of his earnings history.  He has not produced any employment records to indicate or establish a month over month or year over year trend based on details of income from client or personal trading accounts.

[64]            Moreover, the plaintiff did not elicit evidence from Mr. Mok on his commission earnings to provide some comparative evidence regarding the level of earnings from commissions experienced by commodities brokers at Union Securities, or for that matter evidence of the earnings of brokers in other firms with a similar level of experience and client base as that of the plaintiff.

[65]            With respect to Mr. Mok, he and the plaintiff were performing the same work and both were earning income from commissions generated by client trades, as well as income from self trades.  Mr. Mok did say that he had two streams of earnings and that while his earnings from trades in his own account would not be shown on his T4, both streams of income were shown on his income tax returns.  He said that earnings from trading on his own account would be declared under the item of “business income” in his income tax returns.

[66]            I find that the plaintiff’s evidence on his precise earnings was at times both contradictory and confusing.

[67]            For example, the plaintiff was asked in chief about the line in his 1999 income tax return for “business income”, which shows an amount of $20,805.89 gross and a net loss of $8,323.15.  Although the plaintiff initially testified that the loss amount was due to amounts that he had to pay out of his pocket for losses sustained by his clients due to his trading errors, he later changed this testimony to say that the business income item related to a tax shelter investment that he had made, and that this was the amount reported to him by the company as a unit holder.  With respect to where he reported his income from self trades he said that he did not report this income in his income tax return as the earnings had gone into his RSP account, although he produced no records to substantiate his evidence on this point.

[68]            Finally, I think that there is evidence that completely undermines the plaintiff’s assertion that he is entitled to damages for loss of income, past or prospective.

[69]            In cross-examination, the plaintiff agreed with defence counsel that it was not common for him to make earnings in excess of $100,000.  He agreed that his earnings jumped substantially in 2004 because of the financing he worked on.  He also agreed with the figures from his income tax returns that since 2001, with the exception of 2004, he has earned in the range of $40-50,000 annually.  He agreed that 2004 was unusual, adding that it was unusual in the sense that his hard work paid off.  He also agreed with counsel that the last year he earned a figure in the same range was in 1996.  He agreed with counsel that his average income for the past 7 years has not been in the $80,000 range, but rather closer to $50,000.

[70]            The plaintiff agreed with counsel that based on his average earnings over the period leading up to the accident that his income in 2007 was similar to what he had earned in earlier years, with the exception of the year 2004.

[71]            The plaintiff testified that for the years 2001-2008 he would rank himself against his peers as being in the middle of the pack, and not on average a top performer.  He agreed that his assessment of his ranking has not changed since the accident, and also agreed that essentially, with the exception of 2004, his income has not significantly changed.

[72]            Counsel reminded the plaintiff of his evidence that his focus and concentration had been affected by the accident and he was asked whether it had affected his number of clients, to which he replied that he gained and lost clients for all kinds of reasons.  When counsel suggested to the plaintiff that he had not lost clients as a result of the accident, he replied that he may have lost or gained clients during the period following the accident.  He was not able to say whether in fact the accident related injuries had resulted in a loss of clients.

[73]            Mr. Steven Engh is manager of sales at Union Securities.  He met the plaintiff when they both worked at C.M. Oliver.  He was asked how he would rank the plaintiff as a commodities broker. He replied that the plaintiff would fall in the middle of the pack, and that as far as he knew this had been the case for the past five years.  He also said that all of the brokers in his firm have been affected by the current securities market conditions and that this would include the plaintiff’s area of trading.  He did agree with plaintiff’s counsel in cross-examination that the securities business is very demanding and that it takes a focused person to succeed.

[74]            In the result, I find that on the whole of the evidence the plaintiff has failed to prove his income loss claim. With the exception of the year 2004, the plaintiff’s history of earnings in the seven years leading up to the accident disclose a trend of income much closer to the $50,000 range than his claim of $80,000.  This is clearly borne out by his income for the year 2006, a year in which he was completely healthy, had his list of prospects, and presumably was focused and determined to increase his income to a level closer to his exceptional result in the year 2004.  Yet, his income for the year 2006, at least from commissions on trades, was not very far off his usual annual earnings in the $50,000 range.

[75]            In my opinion, the evidence falls far short of the claim that the plaintiff is making for income loss, past and prospective, and therefore this head of damage must be rejected.

This case is worth reviewing for anyone on commissioned or self employed basis who suffers a wage loss in an ICBC Injury Claim to see how courts scrutinize such claims and to get some insight into the factors and the type of evidence courts find useful in determining whether there has been a past loss of income.

How Much is the Pain and Suffering Worth in my ICBC Injury Claim?

Written by admin on . Posted in ICBC Soft Tissue Injury Cases. 56 Comments on How Much is the Pain and Suffering Worth in my ICBC Injury Claim?

One of the most frequent questions I get asked as a BC Personal Injury Lawyer is ‘how much is my pain and suffering worth?’.
This is an important question for anyone injured through the fault of another in a BC motor vehicle collision.  When negotiating with ICBC the playing field is typically imbalanced in that the ICBC claims adjuster has lots of experience in valuing personal injury claims.   Unless you are an injury claims lawyer you understandably would have little experience in valuing pain and suffering and may need help valuing this loss.  
It is important to empower yourself for the negotiation because in tort claims ICBC is negotiating on behalf of the person that injured you (the tort claim is, after all, made against the other persons policy of insurance). Practically speaking, this means that this imbalance in experience can work as a huge disadvantage, particulary if you think the ICBC adjuster is ‘your’ adjuster.  
With this in mind, here is some basic informaiton on paind and suffering and ICBC tort claims.  Pain and Suffering is awarded under the legal head of damages called ‘non-pecuniary loss’.  One of the best ways to value pain and suffering in an ICBC tort claim is to find cases with similar circumstances and injuries to see what damages were awarded.  When you find several similar cases a range of damages starts to become apparent and this range can serve as a useful guide in helping you understand the potential value of your ICBC personal injury tort claim.
Reasons for judgement were released today (Hoang v. Smith Industries Ltd.) dealing with the issue of pain and suffering in a BC motor vehicle collision tort claim.  In awarding the Plaintiff $19,000 for his non-pecuniary loss as a result of soft tissue injuries Madam Justice Russell summarized the law of non-pecuniary damages as follows:

[32]            The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[33]            There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] 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, 2005 BCCA 54 (B.C. C.A.)).

$75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

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In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision.  Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.
In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145]        Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas.  I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time.  To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities.  The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health.  The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146]        Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine.  Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery.  Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147]        Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148]        Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident.  This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident.  At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident.  I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149]        There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder.  I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150]        With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154]        Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve.  I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake.  Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches.  Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier.  I bear in mind as well that she has suffered a right frozen shoulder, but  that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155]        The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident.  In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.

 

ICBC Soft Tissue Injury Claims Round Up

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As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court.  In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.
The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC.  This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.
All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages.  The Court made the following findings with respect to the Plaintiff’s injuries:

(a)        That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;

(b)        That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;

(c)        That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;

(d)        That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;

(e)        That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;

(f)        That when the trapezius muscles in the neck are overworked they become stiff and painful;

(g)        That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;

(h)        That torn ligaments do not spontaneously heal; and,

(i)         That prior to the collision Mr. Jacobsen did not suffer from neck pain.

In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:

[26]            In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.

[27]            Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days.  He is a fit and healthy senior citizen who clearly anticipates living many more years.  The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep.  He begins his days feeling weary and drained rather than rested and energetic.  This compromised start affects all aspects of his daily life.  It has taken the lustre off his so-called golden years.

[28]            In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.

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The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005.  The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:

[29]            At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back.  There are no objective findings with respect to her injuries.

[30]            I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination. 

[31]            While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location.  She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….

[33]            I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident.  The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program.  While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony. 

[34]            She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active.  While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing.  One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.

On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.

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The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005.   The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial.  The court summarized the injuries as follows:

[25]            I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back.  He has testified to these injuries and much of what he says is supported by other testimony.  Several practitioners found objective signs upon palpitation.  Two found his body type susceptible to such injuries.  I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery.  I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.  

[26]            I am satisfied that he is now able to perform the tasks necessary for a gas fitter.  I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic.  While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….

[34]            Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.

ICBC Injury Claims and Future Wage Loss

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized. 49 Comments on ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished.  Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy,  These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1.      The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.      The plaintiff is less marketable or attractive as an employee to potential employers;

3.      The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.      The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…“

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law.  In a thorough analysis Madam Justice Smith gave the following reasons:

[140]          While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating: 

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade.  The case turned on its facts and did not establish any new principle of law.  Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it.  I am satisfied that Steward has no application in the case at bar. 

[141]        In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident.  The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches.  The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”.  The assessment of damages was upheld on appeal.  Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made.  He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations.  Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations.  There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142]        MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42]  That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations.  Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143]        I conclude that the approach I should take to the assessment of lost earning capacity has not changed.  Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

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On another note, today’s case dealt with chronic soft tissue injuries and serious headaches.  In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113]        I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports.  Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions.  Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient.  Dr. Jung’s two examinations of the plaintiff were thorough and well-documented.  I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence.  I also accept the evidence of Dr. Blasberg.

[114]        Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back.  I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint.  There is no evidence that he suffered from these symptoms prior to the motor vehicle accident.  I do not find on the evidence that stress causes his symptoms, although it may exacerbate them.  I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to.  I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115]        The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night.  The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident.  As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment.  Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116]        Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better.