Skip to main content

$50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

Written by admin on . Posted in ICBC Fibromyalgia Cases, Uncategorized. 59 Comments on $50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.
In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision.  She was 61 years old at the time.   Fault for the crash was admitted by the opposing motorist.  The trial focused on the quantum of damages (value of the claim).
Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition.  In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:





[132] As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

[133] As a result of the accident, Ms. Iwanik also suffered an injury to her left knee, which caused patellofemoral pain syndrome. It may have caused other problems in her knee, but the evidence at trial did not establish anything further. Although there is no record of Ms. Iwanik reporting the knee pain to treatment providers until August, 2008, I accept her evidence that she was initially more focussed on her other pain, and thought that the knee pain would resolve.

[134] I accept Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor compression fracture of her T12 vertebra, and that she suffered a minor head injury with a probable minor concussion which has resolved. However, both of those injuries resolved so quickly that they do not affect the assessment of damages in this case.

[135] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to work at a physically demanding job, and is not capable of working in a 7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which can accommodate her abilities. However, the job is not as well-paid as her work as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to engage in hour-long walks, or to carry heavy items such as laundry and groceries, or to garden for more than 20 minutes at a time in an elevated garden bed. She is no longer able to contribute to her family and community to the extent she previously did….






[142] In all the circumstances, an appropriate award is $50,000.

Trial Management Conferences and the Attendance Requirement

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 23, Uncategorized. 113 Comments on Trial Management Conferences and the Attendance Requirement


The first published reasons for judgement addressing Trial Management Conference attendance requirements pursuant to Rule 12-2(4) were released this week on the BC Supreme Court website.
In this week’s case (Luis v. Haw) the Plaintiff was involved in 4 separate motor vehicle collisions.   A lawsuit was started following each collision and these were set for trial at the same time.  All the Defendants were apparently insured with ICBC.
As the Trial Management Conference neared ICBC made an application requesting that “(the personal) defendants are exempt from attending the trial management conference; secondly, that Mr. Kevin Munt, who appears to be an adjuster at the Insurance Corporation of British Columbia, “represent” the defendants at the trial management conference, and that Kevin Munt be allowed to attend the trial management conference by telephone“.
The Court largely dismissed the application and in doing so Mr. Justice Groves provided the following useful comments about the attendance requirement for Trial Management Conferences:

[19] The first concern raised by the letter and the requisition is the request that Kevin Munt “represent” the defendants at the trial management conference. That is the language in the requisition.

[20] If this is a request for Kevin Munt, who is an adjuster, to appear and that counsel not appear, that is completely inappropriate. Trial management conferences are significant and they are a significant change to the rules. They are mandatory and no trial certificate is issued without the parties attending. Though interlocutory, trial management conferences cannot be done by Masters, who do not hear trials. In my view, this suggests the drafters of the rules have placed significant emphasis on the requirement of trial management conferences.

[21] Noting that, I also then note that there are a number of matters that can be discussed at trial management conferences, as set out in subrule 12?2(9), that require legal analysis and are clearly not within the knowledge of an adjuster representing an insurance company. These include:  (a) a plan as to how the trial was to be conducted; (c) amendments to pleadings within a fixed time; (d) admissions of fact at trial; (e) admission of documents at trial; (i) respecting experts’ reports and issues dealing with experts’ reports; (l) an adjournment of trial; and (m) directing the number of days reserved for trial to be changed.

[22] Without even considering the clear requirement that people are represented in court by counsel or by themselves, it is, from my reading of what is to transpire at a trial management conference, completely inappropriate to suggest that when a defendant has counsel, that someone else, in this case an adjuster, appear essentially as counsel at a trial management conference. It is impossible to imagine how the requirements of a trial management conference can be accomplished by an adjuster appearing on behalf of the defendants, as may be the request in this requisition.

[23] If, however, this is a request that the adjuster attend in substitution of the mandatory requirement of the defendants’ attendance, that is governed by Rule 12?2(5).

[24] Rule 12?2(5) clearly contemplates a circumstance, which may be present here, which is that an individual who has full authority to make decisions for a party in the action or an individual who has ready access to the person or group of persons who collectively have full authority to make decisions for a party to an action can attend in place of a party. It appears from the evidence before me that Kevin Munt may fall into this category. I will say, however, that it is not appropriate for an adjuster to attend on behalf of defendants, unless he or she has the real authority to make decisions for the defendants. It is not good enough to say, as has been said before me, “That exceeds my current authority”, “I have to go back to the committee and they won’t be meeting for another week”.

[25] That, in my view, defeats the whole purpose of Rule 12?2(5). Ready access, the words in the rule, means really that the adjuster has to have either authority to make decisions or the ability, while the court stands down, to make a phone call to get the instructions he requires to properly speak for the defendant at the trial management conference.

[26] This lack of authority cannot be used as an excuse that prohibits the proper conduct of court actions at trial management conferences, when it is such a representation that allows the representative of the defendant to attend in the first place. Clearly the rule contemplates letting those who represent defendants, such as insurance adjusters, attend in the place of defendants. Insurers may wish to not require their defendants to personally attend. I do note however that there appears to be an increasingly internal requirement that defendants attend at trial, even when liability is not at issue. The adjuster who does attend must have the ability to deal with all matters or have ready, immediate access to those who can so instruct…



[33] In conclusion, if the suggestion in this requisition is that Kevin Munt attend on behalf of the defendants, he is not counsel, he cannot attend without counsel.

[34] If this is a request that Kevin Munt attend in the place of the defendants themselves, which is permissible under the trial management conference rule, then I am satisfied, if Kevin Munt has the real authority or has ready access, and by that, immediate access to those who have authority, then he can attend pursuant to Rule 12?2(5).



This decision is also worth reviewing for Mr. Justice Groves discussion of Rule 23-5 and the circumstances when the Court should allow a party to attend a Court Proceeding via telephone.

Credibility Cases Not Suitable for Severance of Issues and Summary Trial

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, Uncategorized.


Earlier this year Mr. Justice McEwan provided reasons for judgement finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial.   Today, reasons for judgement were released confirming this point and finding that where credibility is an issue a case will likely not be suitable for severance or summary trial.
In today’s case (Erwin v. Helmer) the Plaintiff alleged injuries in a trip and fall incident.  She sued for damages under the Occupiers Liability Act.  The Defendants applied to dismiss the case via summary trial.  Mr. Justice McEwan dismissed the application finding that a a summary trial was not appropriate.  In doing so the Court provided the following reasons regarding credibility, severance and summary trials:



[9] This case inherently turns on credibility. While counsel for the plaintiff has not objected to severance, the court must still be concerned with the proper application of summary process and with the sufficiency of the evidence on which it is expected to rule that a party will be deprived of a full hearing.

[10] It appears from what is before the court that the precise nature of the “hole” into which the plaintiff alleges she stepped will not be established with any precision. There nevertheless appears to be a question to be tried on the balance between the risk assumed by the plaintiff and the duty imposed on the defendants to ensure that the premises were reasonably safe. There is simply not enough material presently before the court to reliably make that call. The defendant relies on the fact that the plaintiff had been drinking as if that essentially speaks for itself, but the presence of drinking invitees on the defendant’s premises was, on the material, foreseeable. There is little, if any evidence as to what efforts, if any, were made to render the premises reasonably safe for those who attended the wedding in those circumstances, including, for example, whether paths were designated or lighting was supplied.

[11] The application is accordingly dismissed and, the whole matter will be put on the trial list. The question of severance, if it arises again, should be the subject of an application. Where credibility is a significant issue it should generally be decided on the whole case, not on the fraction of it, unless the test for severance has specifically been met. Otherwise the trier of fact may be deprived of useful information relevant to the over-all assessment of credibility.



Medical Marijuana Costs Deemed Recoverable in BC Personal Injury Claim

Written by admin on . Posted in Uncategorized.

In what I believe is the first award of its kind, damages of $30,000 were recently allowed in a BC personal injury claim for the purchase medical marijuana to help manage the consequences of chronic pain.
In reasons for judgement released earlier this month (Joinson v. Heran) the Plaintiff sued the Defendant surgeon for medical malpractice.  The Plaintiff’s claim was in part successful and damages of just over $310,000 were awarded including a $30,000 cost of future care assessment for medical marijuana.  Mr. Justice Brown provided the following reasons setting out his legal analysis in allowing this claimed damage:

[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary:Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.

[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.

[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.

[423] Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications….

[431] Therefore, I award $30,000 for costs of medical marihuana.

More on Document Disclosure: Hard Drives, Phone and Banking Records

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized. 121 Comments on More on Document Disclosure: Hard Drives, Phone and Banking Records


(Note: I’m informed that the case discussed in the below post is under appeal.  When the appellate decision comes to my attention I will update this post)
As previously discussed, one of the areas being worked out by the BC Supreme Court is the extent of document production obligations in personal injury lawsuits under the New Rules of Court.  Further reasons for judgement addressing this subject were recently brought to my attention.
In the recent (unreported) case of Shackelford v. Sweeney the Plaintiff was injured in a 2009 motor vehicle collision.  He alleged serious injuries including a head injury with resulting cognitive difficulties.  The Plaintiff was a successful self-employed recruiter and his claim included potentially significant damages for diminished earning capacity.
In the course of the lawsuit ICBC applied for various records supposedly to investigate the income loss claim including production of the Plaintiff’s computer hard-drive, phone records and banking records.  The application was partially successful with Master Taylor providing the following reasons addressing these requests:
[7]  In relation to the cellphone records, the plaintiff gave evidence at his examination for discovery that he conducted most of his business over the telephone or the Internet, and he rarely met with people, and therefore it is suggested that the cell phone records relating to his business are probative.  I agree that they can be probative, but I do not believe that the actual phone numbers themselves would be probative in any particular method or way.  What is probative is how much the plaintiff used his phone on a daily or weekly basis to conduct his business
[8]  Accordingly, I am going to order that the cellphone records that relate to his business, from January 1, 2007, to the present date, be produced, but in all circumstances every phone number but the area code is to be redacted….
[13]  The Defendants also seek an order that the plaintiff produce the hard drive from the laptop he was using when he was operating (his recruiting business)…
[17]  …As there is an ongoing obligation by the Plaintiff to produce all business records in relation to this claim, I say that the obligation continues with respect to the hard drive that exists, and that the plaintiff has the obligation to examine the hard drive himself and/or with counsel, and extract any of his business records from there and provide them to the defendants.
[18]  If the Plaintiff requires the services of a technician to assist in that regard, then the cost of that will be borne by the defendants.  Once the business records have been extracted and redacted for privacy concerns, those documents will be henceforth provided to the defendants within 14 days thereafter…
[21]  I think that only leaves bank statements relating to business income.  I think the plaintiff has a positive obligation to provide some information with respect to his income, showing his income being deposited into his bank account.  Where that in the bank statements shows, it should be left unredacted, but where it shows anything related to his wife or private unrelated business purchases , those may also be redacted.
This case is worth reviewing in full for other matters such as a declined request for production of the Plaintiff’s passport and client names.
At this time this case is unreported however, as always, I’m happy to e-mail a copy to anyone who contacts me and requests the reasons for judgement.

What Do Psychiatrists, Wizards and the American Southwest Have in Common?

Written by admin on . Posted in Tort Reform, Uncategorized.

 
OK, this post is a little off-topic but when I came across this bit of legal folklore I had to dig deeper and find out if it was true.
Recently a regular reader of this blog shared a publication with me which stated that in the 1990’s a New Mexico politician became so fed up with psychiatric expert witnesses he proposed an amendment to a State Bill which would have required psychologists and psychiatrists to dress like wizards when giving expert evidence.   The Proposed law stated as follows:
When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts. Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong
A quick internet search fails to reveal any authoritative source verifying this story.  Nor could I find corroboration searching New Mexico’s Legislature’s website.
Having lived in The Land of Enchantment for close to a decade I thought I’d go the extra mile and see if I could verify this story myself.  This morning I went straight to the source and asked  former New Mexico State Senator Duncan Scott whether this bit of legal folklore was fact or fiction.  Mr. Scott, who is now in private practice in Albuquerque, NM, was kind enough to take my phone call.
Turns out the story is true.  Mr. Scott tells me that he tacked this amendment onto a Bill in 1995 and, despite its clearly satirical nature, it passed with a unanimous Senate vote.   The amendment was then removed from the Bill prior to receiving House approval so it never did become law.

$28,000 Non-Pecuniary Damages Assessment for Patellofemoral Pain

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an accident related knee injury.
In this week’s case (Battagliola v. Wal-Mart Canada Corp.) the Plaintiff was shopping in Wal-Mart in 2005 when a metal shelf struck her right knee.  Wal-Mart accepted that they were liable for the incident leaving only quantum of damages (value of the claim) at issue.
The Plaintiff suffered pain and discomfort in her knee following the incident and was diagnosed with patellofemoral pain (knee joint pain).  The symptoms lasted up until the time of trial but were expected to “slowly resolve over time“.
The Court accepted the injury was caused by the incident although expressed concerns that “the negative impacts are not quite as debilitating as asserted” and further that the Plaintiff’s “current limitations are not as severe as her personal account suggests“.  Non-Pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $28,000.  In reaching this assessment Mr. Justice Masuhara provided the following reasons:
[19] Dr. Pisesky opined in his report that Ms. Battagliola suffers from patellofemoral syndrome of the right knee and that the pain associated was brought about directly by the contusion to her right knee on February 15, 2005….
[22] He opined that Ms. Battagliola “will likely have some degree of discomfort in [her right] leg and findings associated with this of patellofemoral irritation indefinitely.” …
[25] The report of Dr. White concluded that upon his examination, Ms. Battagliola “probably had a blow and bruise to the right patella area in the indeterminate past.”  Based on the information he had as of the date of his report, he stated that Ms. Battagliola’s knee injury “should slowly resolve over time but may take a while yet.”…
[33] In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.

Supreme Court of Canada To Address The Law of Causation in Injury Lawsuits

Written by admin on . Posted in Uncategorized. 54 Comments on Supreme Court of Canada To Address The Law of Causation in Injury Lawsuits

(UPDATE June 29, 2012 – the below decision was overturned by the Supreme Court of Canada in reasons for judgement released today.  You can click here to read the Supreme Court of Canada’s reasons)

Last year the BC Court of Appeal provided reasons for judgement in Clements v. Clements in which they tried to clarify the law of causation
In short the BC Court of Appeal provided the following summary of the law of causation in BC negligence lawsuits:

[63]         In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187):

g)         The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation:

1)         Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm;

2)         Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff;

h)         If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation:

1)         It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and,

2)         The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury.

Today the Supreme Court of Canada granted the Plaintiff leave to appeal (permission to appeal).  Clarity in this area of personal injury law will be welcomed by lawyers across Canada and I’ll be sure to report on this case once reasons for judgement are handed down.

$160,000 Non-Pecuniary Damage Assessment for L4-5 Disc Herniation

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


(UPDATE August 8, 2012 – The below judgement was modified in reasons for judgement released today by the BC Court of Appeal.  In short, the Court held the 40% damage reduction was not justified by the evidence and substituted a 20% damage reduction.  The BCCA’s reasons can be found here).
_____________________________________________________________________________________________
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.
In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.  Fault for the crash was admitted focussing the trial on assessing damages.
Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.
The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome.  The Court accepted that the Plaintiff would likely not work in his profession again.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:
[117]     I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….
[155]     The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.
This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.
Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle.  Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records.  The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called.  The Defence asked the Court to draw an adverse inference.  Mr. Justice Pearlman refused to do so and provided the following helpful reasons:
[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.

Lies, Damn Lies and Statistics: Present Value Tables and Your Personal Injury Claim

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 57 Comments on Lies, Damn Lies and Statistics: Present Value Tables and Your Personal Injury Claim


No this post isn’t meant to take a swipe at economists, I just needed to get your attention since I’m discussing the ever exciting topic of positive and negative contingencies in creating present value tables.
Economic evidence often plays an important role in personal injury trials.  Competing experts often have different opinions as to which statistics should be used in valuing the present value of future losses.  Reasons for judgement were released this week by the BC Court of Appeal discussing these contingencies.
In today’s case (Towson v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2002 BC motor vehicle collision.  Her vehicle was struck by an RCMP officer who ran a red light.  While fault was disputed at trial the RCMP officer was found fully responsible for the collision.
The Plaintiff suffered various injuries including a traumatic brain injury resulting in a post-concussion syndrome.  This in turn was largely disabling.   The $1.1 million damage assessment included non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) of $185,000 and a diminished earning capacity assessment of $725,000.
The Government appealed for various reasons although they were unsuccessful with the trial award being largely upheld.   Among the unsuccessful arguments was an allegation that the trial judge erred in her assessment of diminished earning capacity.  In rejecting this argument the Court  provided the following comments about the different contingencies used by competing economists:

[30] The parties each called a witness to give expert opinion evidence in economics and both expert witnesses provided present value tables based on assumptions each specified.  The experts, Mr. Pivnenko for the respondent, and Mr. Hildebrand for the appellant, were both qualified to give opinion evidence in the area of economics.  Mr. Pivnenko provided present value tables regarding the cost of future care which were very similar to the figures Mr. Hildebrand provided.  However, the evidence given by the two experts diverged on the present value tables each provided for use in arriving at future loss of earning capacity.  The difference is readily explained by the assumptions each took into account.

[31] Mr. Pivnenko provided present value tables which took into account the survival rates for B.C. women but did not take into account any other contingencies.  Based on that assumption only, Mr. Pivenko stated that the present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday was $22,716.

[32] Mr. Hildebrand’s present value tables took into account not only survival rates, but also negative labour market contingencies based on an average B.C. female high school graduate.  The latter contingencies he took into account included the individual’s propensity to participate in the labour force, part-time work, and unemployment.  Mr. Hildebrand applied a 40.1% discount for those contingencies, and, on that basis, he arrived at a present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday of $13,609.  Mr. Hildebrand also testified that the overall contingency applicable to B.C. men with the same degree of education would be 20% to 25% rather than 40.1%….

[37] A review of Mr. Hildebrand’s evidence in cross-examination shows that in using a 40.1% negative labour market contingency, he was reflecting only negative contingencies and he agreed that the individual circumstances of a claimant would have to be considered in arriving at any percentage contingency adjustment.

[38] It is plain from her reasons that the judge did not accept that Mr. Hildebrand’s 40.1% negative labour market contingency ought to be applied, without modification, to a projection of the respondent’s likely income from employment to age 65.  The judge found, among other things, that the respondent was “in a better position than the average B.C. high school graduate at the time of the accident, because of her job at the [Justice Institute]”.  The judge also found “a realistic chance” that the respondent “would have attained promotions, and that she would have continued to work despite having children”.

[39] It is also plain from her reasons that the judge did apply a negative contingency discount well beyond the survival rates for B.C. women, which Mr. Pivnenko had used to arrive at the present value of an annual sum of $1,000 per year from the trial date to the respondent’s 65th birthday of $22,716…

[41] For the trial judge to arrive at the present value figure to be applied in this case, taking into account both positive and negative contingencies, could not be an exercise in precision.   To the extent that such an exercise is susceptible of explanation, the trial judge provided more than adequate reasons.  From her reasons, it is plain that she considered the respondent’s chances of recovery to be poor.  In view of that finding, and the legal principles she set out by reference to relevant case authorities, I see no reason to conclude that the trial judge overlooked the slight chance of the respondent recovering to the point of being able to seek some employment.