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Out of Province Insurers Have No Subrogation Rights Over Part 7 Benefits Paid

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, shutting down an attempt by the Progressive Max Insurance Company from exercising subrogation rights with respect to Part 7 benefits paid.
In today’s case (Middleton v. Heerlin) the Plaintiffs were US residents involved in a motorcycle collision in BC.  They were insured with Progressive and received over $100,000 in medical/rehab and other benefits from Progressive by virtue of Progressive filing a Power of Attorney Undertaking promising to provide their insured with minimum coverage required under BC law for BC crashes.
In the Plaintiffs lawsuit against the alleged at fault motorist Progressive sought to get their money back arguing they had rights of subrogation.  The Court shut this argument down noting similar arguments were dismissed by the BC Court of Appeal in 2000 and that recent statutory changes do not change this result.  In dismissing Progressive’s argument Mr. Justice Johnston noted as follows –

[11]         When Matilda was decided, the relevant portions of s. 25 of the Insurance (Motor Vehicle) Act provided as follows:

25.       (1)        In this section and in section 26, “benefits” means a payment that is or may be made in respect of bodily injury or death under a plan established under this Act, other than a payment pursuant to a contract of third party liability insurance or an obligation under a plan of third party liability insurance, and includes accident insurance benefits similar to those described in Part 6 of the Insurance Act that are provided under a contract or plan of automobile insurance wherever issued or in effect.

            (2)        A person who has a claim for damages and who receives or is entitled to receive benefits respecting the claim, is deemed to have released the claim to the extent of the benefits.

[12]         The court noted at para. 7:

As the chambers judge noted, in the absence of any express statutory right of subrogation the insurer’s right of subrogation is a derivative right only, which must be advanced in the name of the insured. The insurer is placed in no better position than that of the insured. The revised form of question 1 could be answered “no” simply on the ground that Progressive has no status as a subrogated insurer to advance any claim against the defendants in its own name.

The revised question, to which the above answer was given, was stated in this way at para. 2:

Does Progressive (the third party) have an enforceable right under the contract or the common-law to recover from the defendants all or part of the funds, being $17,800.00 U.S. paid by Progressive to the plaintiff?

[13]         It would seem, therefore, that unless the plaintiffs can point to an express statutory right of subrogation, the answer in these cases must be governed by the result in Matilda set out above.

[14]         In spite of the finding in para. 7, the court in Matilda went on to deal with what it said was a broader issue argued by the parties – provincial legislative competence over extra-provincial insurance contracts, which it framed in this way at para. 8:

The issue is whether the provisions of the Insurance (Motor Vehicle) Act purport to modify the terms of extra-provincial policies and thereby exceed the reach of provincial jurisdiction. In my view, they do not. The focus of s. 25(1) and (2) is on the tort action by Progressive’s insureds against ICBC’s insureds. The torts are the motor vehicle accidents that occurred within British Columbia and clearly are within provincial jurisdiction. The subsections simply provide that accident benefits cannot be claimed in the B.C. tort actions irrespective of where the policy paying the benefits was made. That does not purport to modify the terms of the extra-provincial policies. It merely limits the damages recoverable in tort whether by the insured beneficially or Progressive as subrogated claiming in the name of its insureds. In my opinion, the subsections address an incident of provincial jurisdiction over torts within the province and do not attempt to legislate terms of extra-provincial contracts. [Underlining added.]

[15]         Although there is no argument in these applications that the current version of the statute purports to modify extra-provincial contracts, the underlined portions above would appear to offer no comfort to Progressive, as there is no material difference in wording between the section before the court in Matilda and s. 83(1) and (2) invoked by the defendants in these cases…

[21]         I conclude that Matilda governs the interpretation of s. 83, is not affected by the change in wording from s. 26 to s. 84, and is a full answer to these applications.

[22]         Both applications are dismissed with costs to the defendants.

"Careless" If Not "Deceptive" Expert Opinion Judicially Criticized

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Adding to this site’s archived cases criticizing expert advocacy in the guise of opinion, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, criticizing such an opinion.
In today’s case (Hendry v. Ellis) the Plaintiff was injured in a collision and sued for damages.  THe Defendant hired a doctor who minimized the connection between the Plaintiff’s complaints and the collision.  At trial, through cross examination, the doctor made various admissions beyond the borders of the opinion contained in the report.  In criticizing the physician’s opinion as “careless” if not outright “deceptive” Mr. Justice Jenkins provided the following reasons:

[26]         Expert evidence tendered at trial was that the duration of soft tissue pain is considered to be 12 to 16 weeks and if pain is experienced after that time, it is due to some other mechanism. As Ms. Hendry had no back pain prior to the accident, it is clear that some other mechanism from the accident is the cause or contributing to her current pain.

[27]         I will not review in detail the medical evidence which is lengthy. However, I can safely say that I accept the opinion of Dr. Sawhney, the plaintiff’s doctor, and do not find the evidence of the defence expert, Dr. Bishop, to be particularly helpful. I have no doubt about Dr. Bishop’s qualifications, however, there were significant inconsistencies in his evidence provided in an earlier case, the transcript of which was tendered at trial. At trial he agreed the absence of an objective basis for pain does not invalidate pain but he did not say so in his report.

[28]         At trial, Dr. Bishop admitted that the plaintiff continues to suffer pain and if the motor vehicle accident did not occur, she would not have experienced the soft tissue injury caused by the motor vehicle accident that initiated acute pain, and he also stated that pain triggers a psychiatric reaction that can lead to chronic pain which is what Ms. Hendry is experiencing. However, once again he did not say so in his report. Dr. Bishop also admitted most chronic pain patients at three years after the accident will likely not make considerable progress or at least he agreed that the chances of significant progress are low.

[29]         I will just refer as well to the notes just to save time in the written submissions of the plaintiff in paras. 48 through 53 which I accept those references in the written submissions of the plaintiff regarding the evidence of Dr. Bishop. These submissions were:

48.       He [i.e. Dr. Bishop] admitted Ms. Hendry had no prior history of low back pain.

49.       He admitted that numerous medical studies have been published, put that put that 3-15% of people continue to have pain after a soft tissue injury and that by definition, Ms. Hendry is in that percentage of people.

50.       In a previous case he had admitted that there is a leading medical theory that explains why people have pain after 12-16 weeks: central nervous system hypersensitivity theory, but in the case at bar he denied it was a leading theory, even though he accepted it.

51.       He admitted that he did not advise the court in either of his report that 3-15% of people continue to have pain after a soft tissue injury even though he knew he was writing his second report specifically for the purpose of an imminent trial.

52.       It is respectfully submitted that Dr. Bishop did not meet the requirement of an expert in their duty to assist the court and to candidly disclose alternate theories that could account for the plaintiff’s pain. At best, it was careless, at worst, it was deceptive by omission.

53.       He finally admitted that MVA injuries were the only reason that started the plaintiff down the path of chronic pain. When asked if the car accident initiated the process, he finally admitted that yes it had. He said that he did not put this in his report because “I’m bound by the questions I was asked”. With respect, this is an irresponsible attitude for an expert to hold.

[30]         Dr. Bishop also stated many times he does not know the objective cause of her pain as no bone scans have been performed and she has not seen a psychiatrist for testing. I find that the cause of the pain has been the soft tissue injuries and other injuries, some of which may not now be identified as per Dr. Bishop and that her pain is chronic in nature and most likely to continue.

Speculation of Further Lawsuit Not Enough To Trigger Adjournment

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether an adjournment should be granted in the face of a recent collision.
In today’s case (Wall v. Kexiong) the Plaintiff was involved in three collisions and sued for damages with the claims being scheduled for trial at the same time.  The Plaintiff was then involved in a fourth collision where liability was apparently in dispute.  The Plaintiff did not start a lawsuit but the Defendant argued the scheduled trials should be adjourned in the event the Plaintiff commenced a further action.  In declining to adjourn the trials based on this speculative development Master Muir provided the following reasons:

[5]             The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:

[15] The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.

[6]             I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.

[7]             The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.

[8]             The plaintiff advances significant prejudice if there is a delay in this matter. Hence, counsel says that if there is an adjournment, she should have a significant advance in the amount of approximately $80,000 to allow her to deal with the financial impact that these matters have had on her, and points out that the first accident occurred in May of 2010, five years ago.

[9]             In all of the circumstances, as I said, although I would generally in circumstances of indivisible injury grant the order sought by the defendant, given the prejudice to the plaintiff and in the circumstances that the fourth action has not been commenced, I find that it would be inappropriate to grant the order sought, and I decline to do so.

Court Reduces Injury Victim's Compensation for Standing up to Criminal

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with a troubling finding of contributory negligence.  The Court assessed a Plaintiff partly liable for injuries sustained while being criminally assaulted by a Defendant for simply standing up to his assailant.
In today’s case (MacKay v. Jhulley) the Plaintiff was assaulted by the Defendant who struck him in the head with a one metre long metal pole.  The Plaintiff suffered permanent injuries which “severely  impaired” him .  The Defendant was criminally convicted of uttering threats and committing an assault with a weapon.
The Plaintiff sued for damages which were assessed at just under $350,ooo but these were then reduced by 15% for contributory negligence.  The negligence in question? Stepping outside of his home to confront his attacker.
Mr. Justice Kent provided the following  reasons in reaching this conclusion –

[23]         In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this is a case where the law requires the findings of the Provincial Court in respect of the criminal charges to have been conclusively established against Mr. Jhulley in the present civil proceeding. Those findings include that:

·                 Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay over the phone before driving over to the latter’s house;

·                 Mr. Jhulley was the aggressor throughout;

·                 Mr. Jhulley presented himself at the house with a metal pole in his hands and swung at Mr. MacKay several times through the front window before proceeding to the back of the home;

·                 Mr. Jhulley approached Mr. MacKay and struck him once on the head with a metal pole causing a wound;

·                 Mr. MacKay defended himself by striking the accused in the right eye area with his fist;

·                 Mr. Jhulley was not acting in self-defence;

·                 Mr. MacKay was never the aggressor, and did not have an object in his hands when he approached Mr. Jhulley, rather he was simply defending himself throughout; and

·                 Mr. MacKay did not carry out any sort of unprovoked assault.

[24]         These findings are completely dispositive of the liability issues in this case, including Mr. Jhulley’s counterclaim for damages for personal injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of assault and battery, and Mr. Jhulley’s counterclaim for personal injuries sustained in the altercation is dismissed.

[25]         I would add that even if I were not bound by the findings in the criminal proceeding, I would nonetheless have made essentially the same findings on the evidence in this case. Mr. Jhulley is an unreliable and incredible witness who gave false testimony on numerous points. At his criminal trial, he admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence, but in the present trial he testified that he never laid hands on the pole at any time but rather struck Mr. MacKay with a wooden two-by-four. The evidence of the assault at the window, damaging both the curtain and the sill, is overwhelming and Mr. Jhulley’s denial that any such incident occurred is completely false. Similarly, his testimony that Mr. MacKay took a break from assaulting him to recharge himself with a snort of heroin is a complete fabrication and one so ludicrous that it beggars belief.

[26]         There is simply no doubt that Mr. Jhulley, fuelled by a drunken rage, drove over to Mr. MacKay’s house armed with a metal pole and intent on inflicting grievous bodily harm. It is outrageous conduct for which he must be held fully responsible not only in criminal court but in these civil proceedings as well.

[27]         Having said that, the issue of contributory fault on Mr. MacKay’s part was irrelevant in the criminal trial and it is therefore open to this Court to hear evidence and make findings on that particular issue.

….

[30]         There is, however, one basis upon which contributory fault can be attributed to Mr. MacKay. The evidence establishes that Mr. MacKay was inside the house with his family when Mr. Jhulley first presented himself and swung the metal bar at the windowsill. There was no reason for Mr. MacKay to go outside and confront Mr. Jhulley in such circumstances. Indeed, common sense dictated that the safest thing to do would be to stay in the house and call the police rather than proceeding outside to confront an enraged and intoxicated Mr. Jhulley who was armed with a metal pole and seemingly intent on doing serious harm to Mr. MacKay.

[31]         By leaving the safety of his house and presenting himself unarmed in front of Mr. Jhulley, Mr. MacKay recklessly endangered himself. Had he stayed inside, the risk of serious injury would not likely have materialized and this case would likely have gone no further than the criminal proceedings. Mr. MacKay’s disregard for his own physical safety was clearly a contributing cause of the injuries he ultimately sustained.

[32]         In my view, however, the vast majority of fault for this incident and for the injuries sustained by Mr. MacKay lies with Mr. Jhulley. He formed the intent to inflict injury and carried out that intent in a vicious manner. Mr. MacKay, on the other hand, while perhaps acting foolishly in the circumstances, thought he was in some fashion protecting his family by confronting Mr. Jhulley. His conduct is far less blameworthy.

[33]         In the result, I allocate fault for Mr. MacKay’s injuries 85% to Mr. Jhulley and 15% to Mr. MacKay himself.

Court Finds ICBC Under No Legal Duty To Inform an Insured of Hit and Run Claim Obligations

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.
In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision.  After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene.  The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.
At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist.  The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC.  Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists.  The Court provided the following reasons:

[119]     The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:

[45]      As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

[125]     Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.

Expert Opining on All Plaintiff Injuries Disentitles Second Defence Medical Exam

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, denying a second defence medical exam in circumstances when their first examiner opined on all the Plaintiff’s alleged injuries.
In today’s case (Monohan v. Yang) the Plaintiff was examined by a neurologist of the Defendant’s choosing.  The Defendant sought a second exam with an orthopedic surgeon arguing the Plaintiff was alleging “two distinct categories of injuries, those being neurological and musculoskeletal injuries which require both a neurological and orthopedic assessment.”.
The application was dismissed on the basis that the Defendant’s first chosen examiner opined on all these issues thus making a second exam unnecessary.  In dismissing the defence application Mr. Justice Tindale provided the following reasons:

[21]        In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

[10]      Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives . . .

[11]      Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” . . . 

[12]      Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report . . .

[13]      A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination . . .

[14]      There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff  . . .

[15]      The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary . . .

[16]      Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances . . .

[22]        In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries.  The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

[23]        While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries. 

[24]        Dr. Moll did raise the new issue of a psychological injury.  However, an orthopedic surgeon cannot address that issue.

[25]        For all of the above‑noted reasons, the defence application is dismissed.

Self Represented Litigant Hit With $19,000 Costs Award After Injury Claims Fall Short

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Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, largely rejecting personal injury claims following two relatively modest collisions.
In today’s case (Ducharme v. Bradler) the Plaintiff was involved in two collisions in 2010.  The Defendants admitted fault. Prior to trial ICBC tabled two formal settlement offers, the first for $21,000 and the second for $40,000.   The Plaintiff rejected these and proceeded to trial.
At trial the Court raised concerns about the Plaintiff’s reliability and largely rejected her claims awarding global damages of $1,500 for both collisions.  After learning of the formal offers the Court went on to award $19,000 in costs against the plaintiff.  In reaching this decision Madam Justice Fitzpatrick provided the following reasons:

[45]        THE COURT: In the ordinary course, Ms. Ducharme would have been awarded her costs in both actions. In accordance with Rule 15-1(15)(b), the costs of this two day trial would be $9,500 plus disbursements. However, defence counsel has referred me to previously delivered offers to settle, which I have the discretion to consider: see Rule 15-1(16).

[46]         These actions were commenced in December 2011 and July 2012. Mr. Spinks has outlined the settlement offers that have been extant for some time. In January 2012, there was an offer in the amount of $21,000; and, in April 2014, there was an offer in the amount of $40,000. Clearly, those offers substantially exceed the result in this trial and, in my view, should reasonably have been accepted by Ms. Ducharme, particularly when it became apparent that she could not or would not marshal the medical evidence she needed in proving her claims. No submissions were made on the relative financial circumstances of the parties.

[47]        I accept the position of the defence in respect of the award of costs. In the circumstances, I am satisfied that a double costs award is appropriate: Gichuru v. Pallai, 2013 BCCA 60. Accordingly, costs are awarded in favour of the defendants in the sum of $19,000 plus reasonable disbursements.

A Jury "Does Not and Can Not Have a Role in Determining Costs"

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Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, confirming a post trial ‘costs swing’ should not be avoided because the net payment will be less than a jury intended.
In today’s case (Grieve v. Bennett) the Plaintiff was injured in two motor vehicle collisions.  Prior to trial ICBC made a formal settlement offer of $196,300.  The Plaintiff declined this offer and proceeded to trial seeking over $1 million in damages.  The jury verdict came in at $140,300.
In arguing that the Defendant should not be awarded post offer costs the Plaintiff noted that the costs swing would be some $80,000 and this would “thwart” the intentions of the jury.  In rejecting this submission Mr. Justice Steeves noted as follows:

[59]        The plaintiff submits that awarding costs to the defendants from the date of their offer (January 16, 2015) would thwart the clear intention of the jury because it would reduce the amount available to the plaintiff by about $80,000. This figure includes the costs of the defendants (estimated by counsel for the plaintiff to be $54,000). It also includes the costs of the plaintiff because the effect of awarding the defendants costs would “deprive the plaintiff of his costs.”

[60]        In my view the answer to this submission is that the jury does not and cannot have a role in determining costs. Their role is to assess damages not costs. It follows that I do not agree with the plaintiff on this issue.

"Candid" Expert Witness Impresses BC Supreme Court

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I have spent much time on this blog highlighting expert witnesses who have been criticized by trial judges.  On this note it is refreshing to see when an expert witness is complimented by the Court for being candid in their role.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, doing this.
In today’s case (Gill v. Bhuller) the Plaintiff was involved in a 2010 collision caused by the Defendant.  She was ok at the scene and did not experience any symptoms until the following day.  She ultimately developed chronic soft tissue injuries.  The Court assessed non-pecuniary damages at $75000.
In the course of the litigation the Defendant had the Plaintiff examined by a physician that agreed she had ongoing symptoms from the collision which were expected to be chronic.  In complimenting the physician’s candid testimony Mr. Justice Macintosh provided the following reasons:
[25]         I was impressed by the testimony of Dr. Calvert called by the defence, because he was notably candid in his assessment of Ms. Gill, in keeping with the ethical responsibilities of an expert witness.  He accepted that she suffers ongoing pain.  He formed no impression that she malingers and he believed that she is genuine in searching for the cause of her problems.  He accepts that it is unlikely Ms. Gill’s symptoms will go away, and he can only speculate that she may see improvement.

$75,000 Non-Pecuniary Assessment For Trochanteric Bursitis and Plateaued STI's.

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and bursitis.
In today’s case (Diep v. Cunha) the Plaintiff was a pedestrian struck by a vehicle in 2010.  The motorist was found fully at fault.  The Plaintiff suffered soft tissue injuries which were plateaued by the time of trial along with a chronic hip injury which te court attributed to bursitis.  In assessing non-pecuniary damages at $75,000 Mr. Justice Verhoeven provided the following reasons:

[54]         I accept that the plaintiff suffered what can be described as soft tissue type injuries to her low back, left hip and thigh, and left knee in the accident.  These injuries have shown slow but substantial improvement over the course of more than four years since the accident.  It is possible that the injuries have plateaued as suggested by Dr. Fuller and to a lesser degree by Dr. Hershler. However her G.P., Dr. Kam, only states that her aches and pains and limitations will persist for an extended time.  In my view it is clear that the plaintiff’s condition can continue to improve, especially if she engages in the kinds of treatments suggested by Dr. Horlick. 

[55]         With respect to her low back pain, I prefer the opinion of Dr. Horlick to that of Dr. Fuller.  Dr. Fuller diagnosed sacroiliac rotation and malalignment. In his view while manual therapy could assist with the alignment problem, it might do more harm than good.  On the basis of his diagnosis he thought that remedial exercise would not likely help.  However, as he conceded, Dr. Fuller was quite unsure of the plaintiff’s diagnosis.  I am not persuaded that he is correct that her low back problem is other than soft tissue in nature. On that basis, the exercise therapy recommendations of Dr. Horlick are preferable, and in my view are supported by the other opinions and the course of her treatment and recovery so far. That is, physiotherapy and rehabilitation have been of benefit in the past.

[56]         I also prefer Dr. Horlick’s diagnosis of trochanteric bursitis as being the main problem with her left hip. ..

[77]         These authorities are helpful in that they serve neatly to bracket the appropriate award in this case.  Considering all the circumstances in this case, in my view $75,000 is a fair and reasonable award of non-pecuniary damages. This award includes $10,000 for her loss of housekeeping capacity, which I find should be recognized as an aspect of her non-pecuniary loss in the circumstances of this case.