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Liability Denial To the Cusp of Trial Brings Judicial Criticism

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

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:
[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…
The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.

$25,000 Non-Pecuniary Damages For Largely Recovered Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on $25,000 Non-Pecuniary Damages For Largely Recovered Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme, Vancouver Registry, assessing damages for largely recovered soft tissue injuries.
In last week’s case (Hussain v. Cho) the Plaintiff was injured in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  The collision caused soft tissue injuries to the Plaintiff’s neck and upper back muscles (specifically the left erector spinae and thoracic paraspinal muscles).

These injuries kept the Plaintiff off work for 6 weeks.  The injuries largely recovered in the first year following the crash but continued to cause some minimal albeit improving symptoms at the time of trial.  In assessing non-pecuniary damages at $25,000 Mr. Justice Jenkins provided the following reasons:
[21] Based on the above and all of the evidence, I find Ms. Hussain’s injuries arising from the motor vehicle accident of August 24, 2008 consisted of soft tissue injuries to the left erector spinae and thoracic paraspinals evidenced by pain in her mid and lower back, shoulder and neck and as well as headaches. Although Dr. Menzies did state that Ms. Hussain was “probably substantially recovered” from the injuries caused by that motor vehicle accident within one year, she did continue to suffer some pain and headaches for more than a year after the accident. Also, Ms. Hussain’s injuries from the February 2011 “slip and fall” were a “little” worse due to the injuries suffered August 24, 2008…
[26] Considering all of the above findings and authorities, I find the plaintiff to be entitled to a total of $25,000 in non-pecuniary damages which includes $5,000 for diminishment of homemaking capacity. Homemaking was a very significant activity for Ms. Hussain before the accident and it is clear that she struggled at that activity for some time thereafter.

$70,000 Non-Pecuniary Damages Awarded to "Stoic" Plaintiff

Written by admin on . Posted in ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.


Plaintiffs should not be punished with reduced damages in a personal injury claim simply because they are stoic in dealing with their injuries.  Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, discussing this in the context of a chronic soft tissue injury claim.
In yesterday’s case (Courtney v. Huthinson) the Plaintiff was involved in a 2008 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff, a 48 year old logger, suffered a chronic soft tissue injury to his neck which produced symptoms of pain and headaches.  The symptoms continued on to the time of trial and were not expected to further recover.
Despite the chronic nature of the Plaintiff’s injuries he carried on with a stoic attitude minimizing his complaints.  In assessing non-pecuniary damages at $70,000 Madam Justice Power made the following findings with respect the Plaintiff’s injuries and his stoicism:

[16] Dr. MacKean’s opinion was that Mr. Courtney had suffered a Grade two whiplash associated disorder to the cervical spine and upper back with persistent daily neck pain greater on the right than left side, and headaches. She is of the opinion that the ongoing persistent neck pain and headaches is due to injuries sustained in the accident.

[17] Of significance Dr. MacKean noted that:

He has most likely reached the point of maximal medical improvement. It has been almost 3 years following the date of motor vehicle accident and he has not seen significant improvement over the past two years with regards to improvement in his neck pain symptoms.

[18] Dr. MacKean in her report and in her evidence noted that the disc degeneration seen in the MRI was less likely the cause of the ongoing pain he was experiencing since it was asymptomatic prior to the accident…

[23] Mr. Courtney came across in his evidence as a quiet man who was committed to his personal health and fitness and who was conscientious and proactive about pursuing his treatment options. He did not appear to exaggerate or overstate his evidence. When he made errors in his evidence for example with respect to his work history, he acknowledged them and any errors appear to be reasonable based on the passage of time, and Mr. Courtney’s knowledge. He is clearly a hardworking man who has worked through pain caused by the accident in order to provide for his family. The ongoing pain is primarily neck pain which is aggravated by activities which require neck extension and occasional headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney. Based on the evidence I would characterize Mr. Courtney as a stoic individual…

[44] I have already found Mr. Courtney to be a stoic individual who does not complain and indeed his return to work post-collision is consistent with the behaviour of a hardworking, stoic individual. As noted, he should not be penalized as a result of his stoicism.

[45] In all of the circumstances, I conclude that an appropriate sum under this head is $70,000.

$50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 46 Comments on $50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries arising from a motor vehicle collision.
In last week’s case (Milburn v. Ernst) the Plaintiff was operating a motorcycle when it was rear-ended by the Defendant’s vehicle.  The impact “resulted in the motorcycle becoming embedded in the gill of the (Defendant’s vehicle); to the point that only half of the motorcycle could be seen protruding from the front of the car“.
The Plaintiff, although he missed little time from work, suffered soft tissue injuries that were expected to pose long term limitations.  In assessing non-pecuniary damages at $50,000 Madam Justice Fitzpatrick made the following findings and provided the following reasons:

[96] After having considered the evidence from Mr. Milburn, the evidence of his independent witnesses and the medical evidence referred to above, I find as a fact that Mr. Milburn suffered the following injuries as a result of the accident:

a)       he was bruised in the pelvic region, he had wrist pain and he had some cognitive dysfunction and sleep disturbance, all of which were resolved shortly after the accident;

b)       he had some chest pain in the fall of 2007 arising from his temporary use of crutches after the knee surgery;

c)       he had severe pain in his neck, back and shoulder, all of which were largely resolved by December 2007;

d)       the disc bulges found to be present in Mr. Milburn’s spine were not caused by the accident but were rendered symptomatic as a result of the accident; and

e)       he continues to experience discomfort and mild pain in his neck and back from time to time, which increases to the point of severity depending on his level of physical activity and his level of physical fitness…

[105] I accept the evidence of Mr. Milburn that he enjoyed an active and physical life before the accident. In the aftermath of the accident, he experienced significant pain and discomfort relating to his injuries at that time which, for the most part, were resolved by December 2007.

[106] Since the accident, he has struggled to deal with the back and neck pain that arises from time to time, particularly given his employment, which is physically demanding and at times, can be quite physically demanding. He has not, however, required prescription medicine to deal with that, which speaks to the severity of the pain that he experiences from time to time. In addition, his doctors have recommended that with a proper exercise regime and with care taken in the manner of lifting and other physical activities, he should be able to minimize the difficulties that he might otherwise have. This recommendation appears to have been taken up by Mr. Milburn in that he is now regularly exercising on his own.

[107] His need of physiotherapy for some years now has been infrequent, a sign that the need for more formal treatment has not been great, despite what he describes as “flare-ups” in his condition.

[108] Based on the medical evidence of Dr. Badii, which I accept, his condition is not expected to materially improve from this time forward and as such, it is to be expected that Mr. Milburn will continue to suffer some pain in the future.

[109] In addition, I find that the accident has resulted in Mr. Milburn abandoning some of his recreational activities, such as kickboxing, snowboarding and rollerblading. In addition, some of his favourite activities have been curtailed. His love and enjoyment of motorcycling is now somewhat limited to the extent that he has to stop frequently while on long rides. In addition, acting roles with stunt assignments are no longer open to him, an activity that he particularly enjoyed although such roles were limited.

[110] I accept that the accident has also affected his personal life in that he has some pain accomplishing more physically demanding tasks around the home. I note, however, that he continues to enjoy what can only be called very physical activities, and no doubt more enjoyable activities, such as weightlifting, ATVing, scuba diving, snorkeling and horseback riding.

[111] I find that Mr. Milburn is entitled to non-pecuniary damages in the amount of $50,000.

This case is also worth reviewing for the Court’s discussion of the ‘adverse inference‘ principle.  In the course of the lawsuit the Plaintiff obtained two privileged medico-legal reports.  The Plaintiff maintained the claim of privilege through trial and did not introduce these reports into evidence.  The Defendant argued that an adverse inference should be drawn.  Madam Justice Fitzpatrick disagreed and provided the following reasons:

[87] The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case. Cases cited in support include Buksh v. Miles, 2008 BCCA 318 at paras. 30-35, 296 D.L.R. (4th) 608; Bronson v. Hewitt, 2010 BCSC 169 at paras. 323-337, 58 E.T.R. (3d) 14; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 at paras. 118-122. In Buksh, at para. 31, the court cites from Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at 689, that in a personal injury claim, the plaintiff “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so.”

[88] In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn. If so, Mr. Milburn could have been examined on the point and copies of clinical notes obtained, such as was done in Bouchard (see also para. 35 of Buksh). Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superior in respect of the facts to be proved.

[89] Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.

$45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 43 Comments on $45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.
In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month.  Fault was admitted by the Defendants for both collisions.  The crashes caused an overlapping indivisible injury and damages were assessed globally.
The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments.  This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.
In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:

[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…

[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.

[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.

$40,000 Non-Pecuniary Damage Assessment For Chronic Grade 2 Whiplash

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

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing damages caused by a motor vehicle collision.
In last week’s case (Cameron v. Hsu) the Plaintiff was injured in a 2008 collision.  The Plaintiff was rear-ended and pushed into the vehicle ahead of him.  Fault for the crash was admitted by the Defendant focusing the trial on quantum of damages.  The Plaintiff sustained a Grade 2 Whiplash Associated Disorder as a result of the collision.   His symptoms continued at the time of trial some three years following the crash.  In assessing non-pecuniary damages at $40,000 Madam Justice Hyslop provided the following reasons:

[85] I have concluded that Mr. Cameron did suffer neck and shoulder injuries as a result of the accident. As a result of these injuries he suffered headaches. Those appear to no longer occur or are infrequent.

[86] I also conclude that these injuries caused Mr. Cameron difficulties in certain seasons at which time Mr. Cameron sought physiotherapy to resolve the symptoms.

[87] I have also concluded and take into consideration in assessing Mr. Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow] several years before the 2007 accident. I also conclude that before this accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I also conclude that Mr. Cameron has resisted doing exercises designed to assist or improve the mobility and flexibility in his neck and in the area of his upper shoulder…

[99] Mr. Cameron, at the time of the trial, continued to suffer from tightness in the shoulder and neck beyond that of his pre-existing condition. Mr. Cameron did not lose time at work and he never thought he should do so or would do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical treatment only when there was something wrong. The evidence is that Mr. Cameron has difficulty with his neck and shoulder when doing office work and not when working on-site and in good weather.

[100] Mr. Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his physiotherapist, so it is difficult to determine the progress he would have made had he done so. Taking that into consideration, I award Mr. Cameron general damages in the amount $40,000.00 for pain and suffering and loss of enjoyment of life.

Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages and costs for modest injuries following a motor vehicle collision.  Although the claim was straight-forward and damages were within the jurisdiction of the Small Claims Court, the Plaintiff was awarded costs with Mr. Justice Burnyeat finding that the Supreme Court’s summary trial process is a reasonable alternative to the backlog litigants face in Small Claims Court.
In today’s case (Parmar v. Lahay) the Plaintiff sustained a modest whiplash injury as a result of motor vehicle collision.  ICBC ran the “Low Velocity Impact” defence arguing no compensation should be awarded.  The trial proceeded summarily and took less than one day.  The Plaintiff’s evidence was accepted and non-pecuniary damages of $12,000 were awarded.
The Court went on to award costs despite the modest quantum.  In doing so Mr. Justice Burnyeat provided the following reasons:

[9] I cannot reach the conclusion that the legal or factual complexity of the case, the need for discovery of documents and examination for discovery, and the need for a judgment enforceable outside of British Columbia are applicable reasons why this action was commenced in the Supreme Court of British Columbia rather than in Provincial Court.  However, I am satisfied that the summary trial procedure available in the Supreme Court and the availability of costs makes the Supreme Court a preferable and justified forum for this Action.

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court.  In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.

[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court.  In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.  (at para. 14)

[12] I also adopt the statement of Humphries J. in Kanani, supra:

… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).

[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal.  This must be contrasted with the institutional defendant and its unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 9?7 of the Supreme Court Civil Rules is appropriate.  In the case at bar, the application has taken approximately one hour.

[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.

$70,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injury; ICBC Expert Rejected

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.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for motor vehicle related injuries.
In yesterday’s case (Kardum v. Asadi-Moghadam) the Plaintiff was involved in 2 collisions.  He was not at fault for either.   The Plaintiff’s physicians provided evidence that he suffered from chronic soft tissue injuries as a result of these crashes.  ICBC’s expert (Dr. Grypma) provided evidence minimizing the Plaintiff’s injuries.  Mr. Justice Armstrong preferred the Plaintiff’s physicians and concluded that the collisions were responsible for the Plaintiff’s ongoing pain.  In assessing non-pecuniary damages at $70,000 the Court made the following findings:
[112] I conclude that Mr. Kardum suffered a chronic soft tissue injury to his neck, shoulder, and upper back region caused in the accidents of 2007 and 2009. In addition to those injuries Mr. Kardum suffers ongoing chronic headaches and disrupted sleep secondary to his neck pain. His prognosis is guarded and it is unlikely that he will become symptom free. The intensity of these symptoms will vary over time and he will likely achieve some improvement over the next one to two years. The measure of that improvement is unknown but may be a function of his efforts in pursuing the recommendations of Dr. Caillier…
[161] I conclude that Mr. Kardum suffers from chronic pain involving his left posterior lateral neck, his posterior shoulder, and upper back region. He continually has headaches and disrupted sleep secondary to the pain involving his neck. He has some prospect of improvement in symptoms but will likely have a measure of pain or discomfort for the balance of his life…

[173] I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.

[174] I conclude that Mr. Kardum is entitled to non-pecuniary damages of $70,000.

This decision is also worth reviewing for the Court’s comments on the various expert witnesses that testified.  In rejecting ICBC’s independent medical examiner Mr. Justice Armstrong provided the following reasons:

[111] Dr. Grypma is an orthopaedic surgeon. He is not a specialist in rehabilitation medicine. His opportunity to observe and examine Mr. Kardum was restricted to a single 1.5 hour examination on January 31, 2011. He confirmed that Mr. Kardum did not demonstrate any nonorganic symptoms. He was not aware of the amount of damage to the defendant’s vehicle in the first accident. He did not make the same observations of Mr. Kardum’s physical symptoms noted by Drs. Caillier and Schukett. Where there are conflicts between his opinions and the evidence of Drs. Caillier and Schukett, I accept the opinions of the latter two doctors.

The Law of Indivisible Injury Compensation Concisely Summarized

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Rib Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 75 Comments on The Law of Indivisible Injury Compensation Concisely Summarized


If two or more events cause a single “indivisible injury” a Defendant who in part contributes to the injury can be held accountable for the entire loss.  This legal principle was concisely summarized in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Estable v. New) the Plaintiff was injured in a 2003 motor vehicle collision.  She suffered previous and subsequent trauma.  The Court found that while not the sole cause, the collision was a cause of the Plaintiff’s various soft tissue injuries.  The Plaintiff was compensated for these and in doing so Madam Justice Gropper provided the following short and helpful summary of the law of indivisible injury compensation:

[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.

[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant. This was discussed in Bradley at para. 33:

[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[emphasis in original]

[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court made the following findings with respect to her injuries:

[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.

[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him…

[77] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga…

[81] I assess Ms. Estable’s non-pecuniary damages at $30,000.

ICBC's LVI Defence Rejected Yet Again

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.

I’ve written about this topic too many times to give a lengthy introduction other than to say it is clear that the “Low Velocity Impact” Defence is not a legal principle.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, yet again demonstrating this.
In today’s case (Cariglino v. Okuda) the Plaintiff was involved in a 2008 collision.  She was a passenger in a vehicle that was rear-ended.  Fault was admitted.  She suffered various soft tissue injuries.  The vehicle sustained $724 in damage and the Defendant advanced the classic LVI defence arguing that this little damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”.
Mr. Justice McKinnon rejected this argument and in doing so provided the following comments:

[33] No medical opinions were proffered by the defence, rather defence submitted that the plaintiff’s evidence is “unreliable” as she downplays the role of significant family stressors in her life, fixating on the collision as the sole cause of all of her problems, both before and after the collision. Curiously, defence accepts that the plaintiff is credible but not reliable. That seems to me to be a distinction without a difference.

[34] I found the plaintiff to be generally credible and, for the most part, a reliable historian. Certainly she had stresses in her life that created difficulties but she was able to manage these much more easily before the collision. A defendant takes a plaintiff as he finds her. Here the defendant has caused injury to the plaintiff who was in a somewhat fragile state, given her many family issues.

[35] The defendant contends that the very minor nature of the collision would render “improbable” the nature and extent of the injuries the plaintiff contends she suffers. I was not provided with opinion evidence to support that contention and thus am unable to accept the bald proposition that minor damage equals minor injury.

The Court accepted that the Plaintiff suffered various soft tissue injuries which largely improved in the first year following the crash and with further therapy should fully recover.  Non-Pecuniary damages were assessed at $35,000.