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In a Tweet – The Best Argument for Government Legalizing Self Driving Cars

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Last year I discussed how governments could and should put personal injury lawyers such as me out of business by taking human error out of the driving equation and embracing self-driving vehicles.  OK, it would not put me out of business but it would create a huge dent.
Today I read a tweet that sums up the argument in under 140 characters far more persuasively then anything I’ve ever said.  I’ll just leave it here –
Tweet Self Driving Cars

Formal Offer Delivered 2 Business Days Before Trial Sufficient to Trigger Costs Consequences

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that a formal offer delivered 2 business days prior to trial was sufficient to trigger costs consequences.
In the recent case (Manoharan v. Kaur) the Plaintiff sued for personal injuries and 2 business days prior to trial delivered a formal offer of $425,000.  This was rejected by the Defendant and at trial damages in excess of $900,000 were awarded.  The Defendant argued that double costs should not be awarded because of how late the offer was presented.  In rejecting this argument Mr. Justice Affleck provided the following reasons:

[2]            As would be expected both parties at that time had been actively considering the question of how to evaluate the likely damage award and to assess whether an offer made by the other party ought reasonably to be accepted. The defendant suggests she was pressed for time to respond to the plaintiff’s offer and if double costs are to be awarded they ought not to be assessed from the beginning of the trial.

[3]            In my opinion, the defendant had ample time to respond to the plaintiff’s offer and to consider whether the offer was one which reasonably ought to have been accepted.

[4]            The final judgment awarded exceeded $900,000. I have considered the factors enumerated in Rule 9–1(6) and conclude the plaintiff is entitled to party and party costs on Scale B up to the beginning of the trial and double costs for the trial itself.

Caselaw Dismissing Opinions of Expert Insufficient to Derail Court Ordered Medical Examination

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding that past history of judicially rejected opinions is not in and of itself enough to dis-entitle a Defendant to compel a Plaintiff to attend an independent medical exam with their chosen physician.
In today’s case (Wohlleben v. Dernisky) the Plaintiff sued for personal injuries.  In the lawsuit the Plaintiff agreed to be examined by a defense selected orthopedic surgeon and also agreed that a neurologist examination “was justified” but refused to consent to the Defendant’s chosen physician based on past court judgments rejecting the expert’s opinion.  In finding this was not, in and of itself, sufficient Master Bouck provided the following reasons compelling the appointment

[10]         Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.

[11]         Wheeler v. White, [1983] B.C.J. No. 2494 is a case where the plaintiff objected to the psychiatrist chosen by the defendant. The master accepted the expert evidence provided by another psychiatrist that, to have a valid psychiatric examination, the plaintiff is required to open up and allow the psychiatrist into their private world. This requires great trust. Further, at para. 7 of theWheeler decision at the chambers level:

[7]        … It is sufficient, in my opinion, for the plaintiff to have a reasonable apprehension that the examination will be fraught with peril. …

[12]         The plaintiff in the present case does not, in my view, have such a reasonable apprehension. If she does have an apprehension that the examination will be fraught with peril, which is not her evidence, her apprehension is not reasonable.

[13]         It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:

[22]      … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …

[14]         There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.

$35,000 Non-Pecuniary Damages for "Temporary Aggravation of Pre-Existing Conditions"

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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Regisry, assessing damages for the temporary aggravation of a pre-existing condition following a vehicle collision.
In the recent case (Vintila v. Kirkwood) the Plaintiff “suffered from long-term and disabling chronic pain and depression” although she was enjoying improvement in this condition for 16 months until she was involved in a 2011 rear-end collision caused by the Defendant.  The collision aggravated her pre-existing injuries and set back the progress she enjoyed in the months prior to the collision.
In assessing non-pecuniary damages at $35,000 Mr. Justice Bernard provided the following reasons:
42]         I am in agreement with the foregoing submission. At the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her completely disabled from work and eligible for CPP disability benefits since 2005, and for similar private insurance benefits since 2002. While Ms. Vintila enjoyed some improvement in the management of her chronic pain in the MonaVie period, there is no evidence or suggestion that her underlying chronic and debilitating conditions had resolved. Ms. Vintila became slightly more physically active and inclined to attempt some physical activities previously eschewed; she was, nevertheless, always in the shadow of her chronic and disabling conditions, wary of flare-ups, and unable to cease collecting of disability benefits. ..
[46]         In light of the foregoing, I find that Ms. Vintila is a crumbling skull plaintiff. The evidence that Ms. Vintila’s pre-existing conditions were manifest and disabling at the time of the accident is convincing; moreover, the evidence is clear that her conditions were severe, chronic, long-term, and disabling from work. A relatively short pre-accident period of improvement in her pain symptoms is, in all the circumstances, insufficient to categorize Ms. Vintila as a “thin-skulled” plaintiff…

[53]         In the case at bar, the defendants’ negligence brought Ms. Vintila’s temporary improvement in her chronic pain symptomology to an abrupt and disheartening end. Ms. Vintila suffered from pre-existing chronic, long-term, deteriorating conditions that had almost completely disabled her in the past and were destined to do so in the future; nonetheless, at the time of accident she was experiencing a period of some relief from very debilitating pain. This window of respite was closed by the accident, and the evidence suggests that it is most unlikely to be re-opened. The pain from the aggravation of Ms. Vintila’s pre-existing conditions caused her to return to taking narcotic medications and to cease activities that improved both her physical and mental well-being and her overall enjoyment of life.

[54]          Given Ms. Vintila’s age, physicality, history, and rather grim long-term prognoses, I am satisfied that it was most unlikely that the aforementioned window would have been open for very long. In one sense, this accentuates the degree of loss to Ms. Vintila. The relief she lost was precious because it was most unlikely to endure for many years. In another sense, however, it necessarily limits the award for non-pecuniary losses.

[55]         Having regard for the factors in Stapley v.Hejslet, supra, the defendant’s negligence temporarily aggravated Ms. Vintila’s pre-existing conditions, increased her pain levels, and marked the end of Ms. Vintila’s relief from depression and the enjoyment she found in some social interaction, in performing simple household tasks, in interactions with her sons, and in making gift baskets. Ms. Vintila lost a sense of optimism she had for her future.

[56]         Of the two cases cited by ICBC, I am satisfied that Johal is much more similar to the case at bar. While each case and plaintiff is unique, Johal offers useful guidance in the assessment of a fitting award for Ms. Vintila’s non-pecuniary losses, which I assess at $35,000.

Expert Witness Plagiarism Concerns Lead to Strong Criticism of Medico-Legal Report

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In my ongoing efforts to highlight judicial criticism of expert witnesses who stray into advocacy, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, excluding an expert report for numerous reasons including concerns about plagiarism.
In today’s case (Anderson v. Pieters) the defence objected to the admissibility of a report generated by the Plaintiff’s physician on numerous grounds.  The Court excluded the report finding ” I would not qualify Dr. Sank as an expert capable of offering the opinion evidence tendered in the April Report.”.
The Court went on to note a far more serious concern, namely that the physician “acknowledged in his direct testimony that he had lifted passages from the Steilen Article, copying them into his report without attribution“.
The physician explained this was inadvertent but the Court did not believe this noting “I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence“. In ruling the report was inadmissible for this transgression Mr. Justice Saunders provided the following reasons:

[57]         Lastly, Dr. Sank’s use of the Steilen Article raises very serious concerns as to bias and as to whether Dr. Sank has in fact fulfilled his duty to the court to provide an independent opinion. The concerns arise out of the failure to acknowledge his source material, and out of what he chose to copy, and what he chose to leave out.

[58]         Regarding the copying of the Steilen Article, I would say first that I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence. As can be seen from the excerpts in the Appendix to these Reasons, not only did he add a few words to the passages he copied, he included two of the citations in the Steilen Article and renumbered them (renumbering notes 110 and 111 as his own notes 1 and 2), effectively representing those citations as the product of his own research. It is inconceivable that he was not conscious of the fact that his April Report was lacking necessary citation of the Steilen Article, and the fact that he was misrepresenting large portions of the narrative as his own work product. This was plagiarism, pure and simple. The plagiarism, and Dr. Sank’s failure to acknowledge it as such, were dishonest, and severely impact his credibility.

[59]         The offence is not mitigated by the fact that the segments copied by Dr. Sank might be viewed as uncontroversial descriptions of basic human anatomy. The issue here is not whether the science is accurately stated. The issue is that Dr. Sank, who in fact had so little understanding of the neuro-vascular anatomy that he had to undertake research, is purporting to speak about the issues with authority, through almost entirely utilizing words, phrases, and a manner of expression that are not his own, without disclosure. He is misrepresenting his grasp of the material, and is thereby substantially exaggerating his expertise.

[60]         The final concern is Dr. Sank’s failure to acknowledge the fundamentally speculative nature of his proposed diagnosis. Given the tentative nature of the propositions put forward in the Steilen Article, there is clearly no basis for him offering his opinion as being “highly probable”. In this regard his report stands in contrast to the expert opinion evidence of the otologist Dr. Longridge, who, in his August 19, 2015 report, explicitly acknowledges the lack of support for his opinion in the medical literature. In failing to express his opinion in the guarded, careful manner used by the authors of the Steilen Article, Dr. Sank was not forthright. He in fact substantially exaggerated the strength of his opinion, apparently at least in part on the basis of a misapprehension as to the need to present a “black or white” opinion. Given his relationship to the plaintiff as her treating physician, this exaggeration of his opinion’s strength gives rise to significant concern as to bias.

[61]         In submissions on the voir dire, the plaintiff’s counsel argued that Dr. Sank did exactly what we want an expert to do: equipped with information from his patient and from other specialists, he undertook research, and as a medical practitioner he reached a medical diagnosis. I find Dr. Sank’s report markedly deficient, and I find him to have fallen short of the standard of independence that is required of an expert witness.

[62]         On any second-stage assessment of the April Report, the foregoing issues would reveal the report to have no substantial benefit, weighing strongly against its admission. On the “costs” side of the ledger, the concerns canvassed in White Burgess are present. It is apparent that admitting even a sanitized version of the report deleting reference to the inadmissible opinions of the chiropractor would risk the jury potentially being exposed to inadmissible evidence through inadvertence in the course of his cross-examination, given the extent to which Dr. Sank relied upon it. The defence would be obliged to call experts of its own in reply to Dr. Sank, lengthening the trial and imposing a further burden on the jury. Though the defence would now be relatively well-positioned to attempt to undermine Dr. Sank through cross-examination, there would remain the risk of the fact-finding process being distorted by evidence of little real value.

[63]         These concerns as to admissibility are not of the sort ideally addressed through instructions to the jury. The concerns are so broad that the necessary instruction to the jury would be something tantamount to a direction that they give the April Report no, or at best, very little weight. There is, practically speaking, nothing to be gained by burdening the jury with it.

[64]         Even absent my finding as to Dr. Sank not being sufficiently qualified under the first stage of the admissibility test, I would for these reasons rule against admission of the April Report.

Mr. Justice Saunders set out the below, as an appendix to his reasons, “some of the passages lifted from the article – in the column to the left – with the comparable passages from the April Report set out alongside for comparison, to the right. Original wording inserted by Dr. Sank is indicated in bold face.”

Expert alleged plaigarism

expert alleged plaigarism 2

BC Court of Appeal – ICBC Disability Benefits Can Be Revived Beyond 104 Week Mark

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In late 2014 the BC Supreme Court rules that ICBC wage loss benefits can be ‘revived’ if a collision related injury which was initially disabling retriggers disability beyond the 104 week mark.  ICBC appealed but in reasons for judgement released today the BC Court of Appeal upheld the trial court’s reasoning.
In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008.  She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year.  The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.
The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits. At trial Mr. Justice Baird ordered ICBC to reinstate the benefits.  ICBC appealed but the trial judgment was upheld. In finding ICBC wage loss benefits can be revived the BC Court of Appeal provided the following reasons:

[23]         ICBC argues that that was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.

[24]         Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.

[25]         In my opinion, the decisions in Rashella and Andrews have been overtaken by Halbauer and Charlton.

[26]         Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.

[27]         I would dismiss the appeal.

Court Questions Whether "WCB Defence" Applies to Indivisible Injuries

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Last year Mr. Justice Burnyeat reasoned, in Pinch v. Hofstee, that a Plaintiff’s damages for indivisible injuries must be reduced to the extent that one of the events causing/contributing to the injury arose from a matter where tort litigation is barred by the Workers Compensation Act.
Last week ICBC asked a Court to uphold this reasoning in a separate lawsuit but Mr. Justice Kent declined noting the Pinch ruling was “highly debatable“.
In last week’s case (Kallstrom v. Yip) the Plaintiff was involved in a total of 6 collisions which gave rise to indivisible injuries of chronic pain and depression.  While dealing with the consequences of her injuries the Plaintiff also made a claim with WorksafeBC and received some compensation.  The Defendants argued that damages must be reduced to the extent of the workplace incident’s contribution to the Plaintiff’s condition.  Mr. Justice Kent disagreed and noted as follows:

[371]     I do not agree that any reduction in damages is required.  There are several reasons for this.

[372]     First, this is not a defence that has been formally pleaded in any of the actions.  The facts relating to, and the legal basis for, such a technical and unique defence are required to be pleaded and this has not been done.

[373]     In any event, Pinch neither applies to nor governs the present claim.  It was the subject matter of an appeal and cross-appeal, but the case was settled and thus no definitive ruling on this interesting (and highly debatable) point of law has yet been made by the Court of Appeal.  It must be noted that other decisions of this Court have treated a subsequent workplace accident aggravating a pre-existing injury as a situation of indivisible injury for which the defendant in the first accident remains 100% liable:  see e.g., Kaleta v. MacDougall, 2011 BCSC 1259.

[374]     Further, I do not agree that the employer’s conduct is properly labelled as tortious in this case.  It is not necessarily a tort for an employer to be difficult and demanding.  Similarly, the distraught actions of a mother witnessing a near-death incident involving her child may also not amount to an actionable tort, particularly where the result is mental distress without accompanying physical injury. Pinch involved negligence on the part of the Workers Compensation Act-immunized worker.  Further, Kaleta involved an on-the-job injury while lifting heavy product, i.e. no third-party negligence.

[375]     In the result, I hold that the “WCB defence” does not apply and no reduction in damages is required on that account.

Peeping Tom Ordered to Pay $93,850 For Recording Step-Daughter

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Reasons for judgement were released today by the BC Supreme Court, Duncan Registry, ordering a peeping tom Defendant to pay $93,850 in damages for recording his step-daughter while she was showering and otherwise undressed.
In today’s case (TKL v. TMP) the Court was presented with the following statement of facts –
[16]         On four occasions in the first half of 2011, the defendant surreptitiously video-recorded the plaintiff while she was in the shower and for a period of time shortly after she left the shower. The plaintiff was 20-years-old the first time this happened; on the latter three occasions she was 21. In July 2011, the plaintiff came across the videos on the defendant’s camera. The matter was reported to the RCMP.
[17]         The agreed statement of facts referenced earlier includes a recitation of what was depicted on the video recordings. The following summary of the four recordings is drawn from the agreed statement of facts:
13 January 2011
The plaintiff is seen exiting the bathroom door and entering into her bedroom. She is wearing a towel wrapped around her body and has a towel wrapped around her head. She closes her bedroom door and walks around in her bedroom. She gathers her clothes and takes off her towels. Her entire body, including her buttocks, genital area and breasts are captured on the video clip and in the reflection of mirrors that are against her bedroom wall. She is seen bending over to pull up her underwear.
8 May 2011
The plaintiff is seen entering into the stand-up shower with a clear glass door. She is completely naked and the video-recording captures images of her vagina, breasts and buttocks. It also shows her masturbating in the shower for a couple of minutes. She is next seen shaving and trimming her pubic hair, and shaving her armpits and legs. She then goes back to masturbating and eventually sits on the shower stall floor. She exits the shower stall and dries off.
22 May 2011
The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. He adjusts the angle and zooms in at various times, capturing images of the plaintiff’s vagina, buttocks and breasts. He zooms in on her nipples, zooms out and then re-zooms on her face. She masturbates. After a few minutes of masturbating she washes and conditions her hair, with her arms extended over her shoulders. She is seen getting out of the shower, and images of her breasts, buttocks and vagina are clearly captured.
12 June 2011
The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. The plaintiff can be seen in the shower completely naked. She is captured exiting the shower and her breasts and vagina are within view.
In finding these actions breached BC’s Privacy Act and assessing non-pecuniary damages at $85,000 Mr. Justice Thompson provided the following reasons:
20]         By spying on and video-recording the plaintiff as described above, the defendant committed disturbing violations of the plaintiff’s personal privacy. Subsection 1(1) of the Privacy Act provides that it is a tort for a person, wilfully and without a claim of right, to violate the privacy of another. Little analysis is necessary on the facts of this case to reach the conclusion that the defendant has committed this statutory tort. The defendant acted wilfully. The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed, and changing her clothes in her bedroom with the door closed. The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy. The defendant’s liability for the statutory tort is beyond question…
[52]         My sense is that the plaintiff in the case at bar has suffered a greater degree of pain, disability, emotional suffering, impairment of family and social relationships, and loss of lifestyle than the plaintiffs in the Malcolm and L.A.M. cases. I conclude that the quantum of compensatory damages awarded in those cases would be wholly inadequate compensation in the case at bar. I award $85,000 for general damages, of which $25,000 is allotted to take account of the aggravated features of the case — I agree with the plaintiff that the damages ought to be significantly increased in response to the defendant’s thoroughly undignified and humiliating actions.
 

Defamatory Facebook Post Leads to $65,000 Damage Award

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay $65,000 in damages following a defamatory Facebook post.
In today’s case (Pritchard v. Van Nes) were neighbors who had “tensions” between them.   The Defendant published some troubling posts on Facebook that “in their natural meaning and by innuendo, bore the meaning that the plaintiff was a paedophile“.   The court found that these suggestions “were completely false and unjustified“.
The Plaintiff successfully sued the Defendant for defamation.  In awarding $50,000 in general damages and a further $15,000 in punitive damages Mr. Justice Saunders provided the following reasons:

[122]     The seriousness of Ms. Van Nes’ defamatory Facebook post, her replies, and the comments of her “friends” cannot be overstated. An accusation of paedophilic behaviour must be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity. The identity of Mr. Pritchard is especially relevant in this case. Through his engagement in extra-curricular activities he occupies a position of trust as a music teacher for children. Through hard work and dedication to his students, he had earned the community’s respect and admiration, as clearly established on the evidence. I find that he now faces the challenge of repairing the damage Ms. Van Nes has caused, if that is even possible at this point.

[123]     The vehicle through which Ms. Van Nes chose to publicize her defamatory accusations provided the court with further evidence of the damage to his reputation; that there were individual replies from 37 of Ms. Van Nes’ Facebook “friends” within less than 24 hours clearly documents the quick degradation of Mr. Pritchard’s estimation in the eyes of others..

[131]     I do not find that the claim of malice has been made out. Taken in its entirety, the evidence of the defendant’s actions – her self-centred, unneighbourly conduct; her failure to respond reasonably to the plaintiff’s various complaints, particularly regarding her dog; and her thoughtless Facebook posts – point just as much to narcissism as to animosity. Her belief that the decorative mirror hung on the exterior of the plaintiff’s house was some sort of surveillance device was simply ridiculous, speaking, to be blunt, more of stupidity than malice.

[132]     The defendant, as I see it, appears to have thoughtlessly taken to a social medium to give vent to her feelings, making reckless statements without any regard to the consequences. She certainly ought to have anticipated the potential impact of her remarks; whether she actually did so has not been proven.

[133]     The defendant’s subsequent actions bear none of the indicia of malice discussed at para. 191 of Hill: she removed the posts relatively quickly, probably when the gravity of the situation became apparent to her through the police presence at the plaintiff’s home; she did not seek to publicize the proceedings, giving rise to further dissemination of the defamation; she did not file a defence.

[134]     Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135]     I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, a punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publically denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.

[136]     I award the plaintiff additional punitive damages of $15,000.

$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011.  Fault was admitted on behalf of the rear driver.  The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police.  The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.
In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:
 

[119]     The plaintiff is 39 years old. 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.  This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

[132]     After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.