Skip to main content

Court Rejects "Perplexing" Defence Doctor Evidence Minimizing Plaintiff Disability

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages following a rear-end collision.
In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for.  In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries.  In rejecting these opinions Madam Justice Warren provided the following critical comments:
[140]     In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.
In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:

[159]     Mr. Sirak is a middle aged man. He was 45 years old when the accident occurred and is now 55 years old. Prior to the accident, he was healthy, energetic and physically active. It is apparent from the lay witnesses, who testified on his behalf, that he was a cheerful, happy, outgoing person who enjoyed life and had many friends. His family was important to him and he enjoyed spending time with them. He enjoyed participating in a wide range of recreational activities. He worked long hours in a physically-demanding career, and had earned the respect of those in the construction industry in the Squamish and Whistler area.

[160]     For the past ten years, Mr. Sirak has suffered from severe, disabling, and progressively worsening pain and neurological symptoms. These symptoms have very significantly affected all aspects of his life. Even if he undergoes surgery, he is unlikely to experience any substantial improvement. His condition is most likely permanent. He faces many years of ongoing pain and compromised lifestyle. His personality has been affected. He has gained weight. His sleep has been affected. His appearance has changed. He has become sloppy and unkempt. He can no longer participate in most of the recreational activities he previously enjoyed. He cannot play with his grandchildren in the physical, rambunctious way that was his pre-accident nature. This, in particular, has caused emotional suffering. He has become quiet and socially withdrawn. He now spends most of his time alone.

[161]     It has become increasingly difficult for Mr. Sirak to continue to work as a painter or in any physical job. He has suffered financial consequences as a result, which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. First, he has had to force himself to continue to work on a part-time basis so that he is able to support himself and his son, but this has further compromised his health and exacerbated his pain. Second, he has had to live with the prospect that his injuries will eventually preclude him from working in any physical job. Given his limited formal education, and now limited functionality, his options for more sedentary work are few. It is apparent, from a consideration of the whole of his evidence, that this reality, together with his poor prognosis, has weighed heavily on him, and has had an adverse effect on his overall emotional well-being…

[167]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having considered the extent of Mr. Sirak’s injuries, and all of the cases presented by counsel, I am of the view that an award of $160,000 for non-pecuniary damages is appropriate in this case.

Passenger Found 40% At Fault For Riding in Over-Crowded, Speeding Vehicle

Written by admin on . Posted in Uncategorized.

Update October 26, 2016 – Today the BC Court of Appeal overturned the finding of contributory negligence but otherwise left intact the trial reasons rejecting much of the Plaintiff’s claim
____________________________
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, largely rejecting a personal injury claim from a Plaintiff who sustained modest injuries in a 2009 roll-over collision.
In today’s case (Wormald v. Chiarot) the Plaintiff was 15 year old passenger in the Defendant’s vehicle at the time of the collision.  The Defendant had a Novice licence and had 9 passengers in her vehicle ‘far exceeding its designed capacity’.  The vehicle’s passengers encouraged the driver to speed, who did so and ultimately lost control of the vehicle, rolling several times coming to a stop in a ditch.
The Plaintiff sued for damages arguing she suffered serious injuries and sought approximately $250,000 in damages.  The Plaintiff’s claim was largely rejected with the Court noting that the Plaintiff’s evidence was not entirely reliable.
The Court assessed damages for the Plaintiff’s scars, bruises, scrapes and cuts at $8,000 and then reduced these by 40% due to the Plaintiff’s contributory negligence.  In reaching this deduction Mr. Justice Funt provided the following reasons:

[52]         In assessing Ms. Wormald’s contributory negligence, the Court has considered that she knew that:

(a)       Ms. Chiarot had a novice licence;

(b)       Ms. Chiarot had been drinking, contrary to her novice licence;

(c)        Ms. Chiarot had more passengers in the vehicle than was allowed by her novice licence;

(d)       the vehicle had more occupants in it than it was designed to carry;

(e)       over the course of the night in question, she had several opportunities to remove herself from the situation but did not do so;

(f)         she sat in an area of the vehicle where she knew there were no seatbelts; and,

(g)       the other occupants planned to throw eggs at people from the moving vehicle (with the reasonable expectation that the vehicle might be chased).

[53]         With respect to Ms. Wormald’s failure to wear a seatbelt, the Court notes that she was not thrown from the vehicle. There was no evidence presented that her injuries would have been any different if she had been wearing a seatbelt. Accordingly, the Court will ignore this factor in assessing Ms. Wormald’s contributory negligence based on the rule in Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145 (BCCA).

[54]         The Court has also considered Ms. Chiarot’s involvement. She would have known everything Ms. Wormald knew regarding the situation and, moreover, as the driver of the vehicle, would have had control of the situation. Accordingly, Ms. Chiarot was at greater fault than Ms. Wormald. The Court finds Ms. Wormald to be 40% at fault.

$160,000 Non-Pecunairy Assessment for a "Complicated MTBI with Residual Symptoms"

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 49 Comments on $160,000 Non-Pecunairy Assessment for a "Complicated MTBI with Residual Symptoms"

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a “complicated MTBI with residual symptoms“.
In today’s case (Matromonaco v. Moraal) the Plaintiff pedestrian was standing on a sidewalk waiting to cross a street when the Defendant ran a red light, lost control of his vehicle, drove onto the sidewalk and struck the Plaintiff.  The Defendant was soley responsible for the crash.  The Plaintiff suffered a variety of soft tissue injuries that fully healed.  She also suffered a mild brain injury which caused continuing symptoms at the time of trial.  In assessing non-pecuniary damages at $160,000 Mr. Justice Harvey provided the following reasons:

[210]     The Plaintiff suffered a number of physical injuries which I characterize as soft tissue injuries. All healed uneventfully within a reasonably short period of time after suitable treatment by way of physiotherapy and exercise.

[211]     Her most significant injury by far is the MTBI.

[212]     I accept that this injury has caused the Plaintiff mild cognitive impairment in processing, which in turn has impacted memory, mood concentration and focus. The result, not surprisingly, is that the Plaintiff exhibits signs of depression and social isolation.

[213]     Counsel for the Plaintiff referred me to a number of authorities involving plaintiffs with injuries similar to Ms. Mastromonaco, suggesting an appropriate range for non-pecuniary damages is $150,000 to $200,000.

[214]     Specifically, I have been referred to and considered Curtis v. MacFarlane, 2014 BCSC 1138; Watkins v. Dormuth, 2014 BCSC 543 [Watkins]; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111;Harrington v. Sangha, 2011 BCSC 1035 [Harrington]; Sirna v. Smolinski, 2007 BCSC 967; and Dikey v. Samieian, 2008 BCSC 604 [Dikey].

[215]     No two cases are alike. At one end of the extreme is the decision in Dikey, where the plaintiff suffered profound cognitive deficit requiring that he have daily assistance with his living requirements for the rest of his life. He also suffered significant ongoing pain. Similar findings were made in Harrington.

[216]     In terms of similarities, the Plaintiff’s present condition, attributable to the aftereffects of the accident, are as follows: irritability, anxiety brought about by stress, poor memory, concentration, distractibility, fatigue and general low mood.

[217]     While not so severe as the 32-year-old plaintiff in Watkins, the case is similar, such that it provides a useful starting point for the analysis. In Watkins, Blok J. awarded general damages of $175,000.

[218]     Unlike the plaintiff in Watkins, the Plaintiff here is not experiencing ongoing headache, problems with balance or noise intolerance. I also take into account the difference in the plaintiff’s respective ages, as Ms. Watkins was 27 years old at the time of she was injured in a car accident. Accordingly, I assess the Plaintiff’s non-pecuniary loss at $160,000.

$64,000 Non-Pecuniary Assessment Following "Low Velocity" Collision

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

Adding to this site’s archived judgments dealing with ‘low velocity’ collisions, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In today’s case (Park v. Abd El Malak) the Plaintiff was involved in 2010 rear end collision caused by the Defendant.  The impact was not severe but did cause the Plaintiff injuries.  The Defendant argued it was a low velocity impact and therefore the Plaintiff’s injuries must be from other causes.  In rejecting this defense and awarding $64,000 in non-pecuniary damages for the Plaintiff’s injuries Mr. Justice Davies provided the following reasons:

[73]         Counsel for the defendant has submitted that all aspects of Mr. Park’s ongoing back problems are related to his pre-existing disc problems that would have occurred in any event. He also submits that the low velocity of the collision supports that finding.

[74]         I do not agree.

[75]         The defendant’s submission ignores the overwhelming cumulative effect of the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that Mr. Park’s injuries were caused by the collision and that his pre-existing back conditions were asymptomatic at the time of the collision and were rendered symptomatic by the collision…

[95]         I reach that conclusion with specific reference to the following evidence which I accept:

1)    Dr. Kim’s prognosis that despite all medical measures undertaken, Mr. Park’s symptoms persist and have now persisted for more than five years and will continue to with perhaps some (but gradual) improvement.

2)    Dr. Heran’s prognosis and recommendations as recorded in his opinion of June 26, 2014, that:

The recommendations that Dr. Craig makes for management based on the fact that he does not believe that Mr. Park has reached maximal medical improvement in his primary medical legal report are somewhat conflictual as clearly Mr. Park has developed L4 radiculopathy into his right leg likely before and definitely after the assessment with Dr. Craig and this confounds any abilities to recover overall. The myofascial components of his pain definitely have improved. The optimistic approach to him being able to do all of his usual activities back in a setting where only intermittent exacerbations would be incurred is therefore not supported by the presence of the L4 radiculopathy either. Dr. Craig does appropriately note that there is potential for slightly increased risk of accelerated degenerative changes in his neck and back due to the injuries from this accident. This is more importantly for the lumbar spine where he already has prominent degenerative changes already resulting in narrowing of the space where the nerves pass through in a setting where he has already been symptomatic in such distribution.

In my opinion Mr. Park is now well over two to three years out from the motor vehicle accident which is the time one would expect him to be plateaued from his myofascial injuries. Your records support that he has reached a point where he has intermittent neck pain, albeit not a major concern by the time he saw me, as well as persistent low back pain, albeit much improved than when it first started following the motor vehicle accident. What I don’t know is whether the L4 radiculopathy i.e. the radiation into his right leg, will improve with time. This is possible, however, not probable, given the imaging abnormalities. Subsequent MRI scan has not yet been performed. A comparative MRI scan which I have already ordered, requesting this to be performed around December 2014, will be valuable for further delineation of true causation for the right sided L4 radiculopathy as it is likely to be from height loss, disc settling and osteophytes as opposed to a disc herniation, with the former not getting better with time. If it were to persist, then a recommendation for intraspinous device for decompression of the nerve root indirectly is what I would propose. I would not recommend an aggressive surgery with instrumentation or aggressive open surgery with laminectomy for decompression. For this reason I would like to see Mr. Park following his MRI scan of around December 2014.

At this point in time I feel that Mr. Park is limited from all moderate to heavier activities yet is able to participate in all of his usual daily activities of light to moderate nature. Assistance would be required for heavier lifting, repetitive activities requiring bending and twisting maneuvers. His recreational activities have also been affected and this is well outlined.

3)    Dr. Craig’s prognosis to which I earlier referred and quoted at para. 57 of these reasons.

4)    Mr. Park’s evidence which I accept, that he is now able to be less physically active and unable to enjoy outdoor activities that he used to enjoy, is burdened by headaches when trying to read historical treatises which he used to very much enjoy, and finds that he is more tired from the standing his work requires and also less able to do the heavier lifting that he previously did.

[96]         I do, however, find that Mr. Park’s pain and suffering and loss of enjoyment of life are less than that suffered by the plaintiffs in those cases in which the plaintiffs were awarded general damages of $100,000.

[97]         Although Mr. Park has suffered pain that is chronic, it does however, wax and wane. He is also still able to enjoy travel to Asia although of a more sedentary nature than before the collision. He is still also able to make the long drive from Valemount to Vancouver although with more frequent stops and discomfort. The sparse evidence of the need for future surgical or other invasive medical intervention is also insufficient to establish entitlement to compensation for such eventualities.

[98]         In all of the circumstances I find that an award of $80,000 would appropriately compensate Mr. Park for his past, present, and future pain and suffering and loss of enjoyment of life.

[99]         By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that has been caused by the defendant’s negligence, I award Mr. Park $64,000 to compensate him for his non-pecuniary losses.

Complaints Made to Police Prior to Charges Can Be Defamatory

Written by admin on . Posted in Uncategorized. 59 Comments on Complaints Made to Police Prior to Charges Can Be Defamatory

Reasons for judgement were released today by the BC Court of Appeal finding that complaints made to the police prior to the commencement of judicial proceedings are subject to qualified, not absolute, privilege and therefore can be used as the foundation of a defamation action.
In today’s case (Caron v. A.) the Plaintiff alleged that the Defendant (appellant) “went to the RCMP where [the appellant] falsely accused (the Plaintiff) of rape“.
The Plaintiff was not charged.  The Plaintiff then sued the Defendant for defamation.  The Defendant sought to dismiss the claim arguing that statements made to police are subject to absolute privilege and cannot be used in a defamation lawsuit.  The BC Court of Appeal disagreed finding that such statements made prior to the commencement of judicial proceedings were only protected by qualified privilege and, as such, if the dominant motive for publishing the statement is actual or express malice the statements could be used in a defamation lawsuit.  In reaching this decision the BC Court of Appeal provided the following reasons:

[15]         Qualified privilege applies when there is a “duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it”: Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257 at 296 (C.A). The legal effect of the defence of qualified privilege is to “rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. . . . However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 144. In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose.

[16]         Absolute privilege, on the other hand, provides a complete defence in cases of alleged defamatory publications, even if the defendant published the statement with actual malice. Traditionally, absolute privilege was granted to any “communications which take place during, incidental to, and the processing and furtherance of, judicial or quasi-judicial proceedings”: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 at para. 112, citing Raymond E. Brown, The Law of Defamation in Canada, (Toronto: Carswell, 1999) at para. 12.4(1)…

[37]         In summary, the law in Canada, at least at the trial level, appears to be quite consistent that only a qualified, and not an absolute, privilege applies to initial complaints made to the police before the commencement of judicial proceedings. Trial level decisions in Nova Scotia, Ontario, and British Columbia, while not binding on this Court, have all reiterated this principle.

[38]         The appellant can therefore only succeed on the issue of absolute privilege if this Court were to expand the defence so as to include complaints to the police. This is a step further than any jurisdiction in Canada has, as of yet, gone. The appellant argues that such an expansion is justified on the basis of public policy…

[52]         In my opinion, the appellant is asking this Court to expand the defence of absolute privilege beyond its current borders in Canadian law. There is some precedent for such an expansion in English and U.S. law. The onus for justifying such an expansion is on the appellant, and the test the appellant must meet is as described by Cromwell J.A. in Elliott: The expansion must be found to be necessary in order to protect the proper administration of justice.

[53]         In my opinion, it would not be appropriate for this Court to make such a determination at this time, without the benefit of an evidentiary record.

[54]         Statements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law. In order to expand the defence of absolute privilege, the appellant must show that such an expansion is necessary in order to protect the administration of justice. The appellant cannot meet that onus in the current appeal, as there is no evidentiary record with which to support her argument or suggest that an expansion to absolute privilege, rather than an application of qualified privilege, is necessary in order to protect the proper administration of justice:  Northwest Organics v. Maguire, 2014 BCCA 454.

[55]         I would dismiss the appeal on this issue.

 

$90,000 For Lingering Soft Tissue Injuries Leading to Chronic Pain Disorder

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

Adding to this site’s archived cases addressing non-pecuniary damages for chronic pain, reasons for judgement were released today dealing with such a condition following a motor vehicle collision.
In today’s case (Roth v. Hes) the Plaintiff was involved in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained soft tissue injuries which led to a chronic pain condition.  In assessing non-pecuniary damages at $90,000 Mr. Justice Bowden provided the following reasons:

[82]         The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred.

[83]         The plaintiff’s lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband’s hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff’s condition will improve and she will gradually return to some of her hobbies around her property.

[84]         I do not accept the plaintiff’s argument that the garden and animals cared for by her and her husband were more than a hobby. It matters not that the garden and animals provided some food for them. The use of their property by the plaintiff and her husband was simply a hobby and I so find.

[85]         Before the accident the plaintiff enjoyed a number of outdoor activities. Since the accident she has not been able to participate in physically demanding activities like motorcycle riding, archery and hiking. There is the prospect that she may find less physically demanding but enjoyable hobbies.

[86]         The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident.

[87]         Both parties provided me with a number of cases dealing with similar facts that supported the amount of damages that they consider to be appropriate. In the end however, each case must be decided on its own facts.

[88]         Considering the factors enumerated in Stapley, I find $90,000 to be an appropriate award of non-pecuniary damages.

Defence Doctor's "Bald Proposition" Minimizing Collision Related Injuries Rejected

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting defense expert evidence minimizing the connection of chronic pain issues to a motor vehicle collision.
In today’s case (Worobetz v. Fooks) the Plaintiff was injured in a 2010 collision and continued to experience symptoms at the time of trial.  The defendant admitted fault but denied the extent of the Plaintiff’s injuries.  In support of his case the Defendant retained a physician who gave evidence that the Plaintiff’s lingering symptoms were likely related to deconditioning and being overweight. In rejecting this evidence Mr. Justice Joyce provided the following critical comments:

[91]         Dr. Grypma’s opinion appears to be based substantially on two things: first, the lack of evidence of any structural injury; and second, her lack of conditioning and mild obesity. Dr. Grypma suggests that if Ms. Worobetz had suffered an injury other than a mild soft tissue injury, she would have experienced immediate pain of such intensity that she would have sought out immediate attention at an emergency room. I am not persuaded, however, that a person need sustain a serious structural injury in order to develop serious and chronic pain following a trauma such as an Accident. There are simply too many cases where persons have been found to have developed chronic back pain following a motor vehicle accident in the absence of objective evidence of structural damage to accept Dr. Grypma’s bald proposition.

[92]         Dr. Grypma’s opinion that Ms. Worobetz suffered only a mild injury that would have healed completely within a few months is contradicted by the evidence of Ms. Worobetz concerning her symptoms and how they affected her functioning, which is supported by the evidence of a number of other specialists who have treated Ms. Worobetz and followed her progress over a long period of time.

[93]         In my opinion, it is a relevant factor that Ms. Worobetz developed her pain complaints very soon after the Accident and that they progressed, with little change, until the present time. I accept that a mere temporal connection between an accident and the development of pain is not determinative by itself that the Accident caused the pain, but it is, nonetheless, a relevant factor. I also accept that the court must be cautious in relying on the subjective complaints of a patient, where there is no other objective evidence to support those complaints.

[94]         However, in this case, there is more evidence than simply subjective complaints and a temporal connection between those complaints and the Accident. I accept that Ms. Worobetz’s symptoms of pain are real and honestly felt. The manner in which they have impacted her functioning is supported by evidence of her husband, mother, co-worker and the woman for whom Ms. Worobetz acts as a support teacher. There is a strong body of expert opinion evidence in this case from specialists in a number of fields to support a finding that Ms. Worobetz’s ongoing pain was caused by the Accident. Those specialists have spent a great deal of time examining Ms. Worobetz, investigating her complaints and providing treatment. In my respectful view, their evidence is to be preferred over that of Dr. Grypma, who conducted a single, rather brief examination and a review of her medical records.

[95]         Dr. MacInnes, in particular, puts forward an explanation as to how Ms. Worobetz could have developed the pain at various sites in her body as a result of a rather modest soft tissue injury that one would ordinarily think would resolve quite quickly: central sensitization. Dr. Grypma admits that he is not qualified to comment on that topic, so he is not able to agree or disagree that it is a reasonable explanation for Ms. Worobetz’s continuing symptoms.

[96]         In summary, I find that but for the Accident, Ms. Worobetz would not be suffering the ongoing symptoms that she feels and her daily activities of life and ability to work would not be affected the way they are. She is less able to enjoy the social and recreational pursuits that she used to enjoy. She is less able to carry out the functions of a mother and wife, compared to her life before the Accident. She no longer has the same ability to work at her chosen career as a teacher because of the Accident.

Formal Offer Bested by $920 Fails To Trigger Double Costs

Written by admin on . Posted in Uncategorized. 42 Comments on Formal Offer Bested by $920 Fails To Trigger Double Costs

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing if double costs should be awarded where a formal settlement offer was bested by a modest basis.
In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was injured in a 2011 collision.  Prior to trial the Plaintiff provided a formal settlement offer of $44,000.  At trial this amount was exceeded by $920.  In declining to award post offer double costs Mr. Justice Bernard provided the following reasons:

[72]         I am not satisfied that the plaintiff’s formal offer was one that the defendant ought reasonably to have accepted. The offer was not broken down into its constituent elements and it was, therefore, difficult to evaluate. The plaintiff’s claim was under five heads of damage; therefore, a breakdown would have greatly assisted the defendant in evaluating the offer. Also, as in Barnes, the defendant had a legitimate defence to the plaintiff’s claim; indeed, the plaintiff sought $45,656 for loss of future earning capacity at trial and was ultimately awarded nothing under this head of damage.

[73]         As to whether the plaintiff’s formal offer provided the defendant with a genuine incentive to settle or not, the offer was for $44,000 and the plaintiff ultimately sought $120,596 at trial. The latter amount had not been set out in the pleadings and was not quantified until the start of the trial. There was, therefore, an insufficient basis for the defendant to evaluate whether the $44,000 offer was a genuine compromise or not.

[74]         The ultimate award was $44,920. Rule 9-1(6)(b) permits the court to compare the offer to settle with the final judgment. Here, the award was greater than the offer by only $920, or approximately 2%. This marginal difference suggests that little weight should be given to this factor.

[75]         As already observed, the defendant had legitimate defences to the claim and the damages for non-pecuniary damages were significantly reduced by new information that was elicited from the plaintiff’s expert witness in his trial testimony. The plaintiff also recovered nothing for his claim of lost earning capacity. It is noteworthy that there was competing expert evidence that made quantifying damages difficult. I am satisfied that in view of these matters an award of double costs would unduly punish the defendant for mounting a meritorious defence.

Non Pecuniary Damages Assessed in Mild and Moderate Brain Injury Claims

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for two separate traumatic brain injury claims.
In this week’s case (Afonina v. Jansson) the Defendant lost control of his vehicle and was involved in a single vehicle collision.  Two of his passengers suffered traumatic brain injuries, one mild and one moderate, which resulted in long term complications.
In assessing non-pecuniary damages of $195,000 for one Plaintiff’s permanent mild traumatic brain injury Mr. Justice Groves provided the following reasons:
[65]         Alla suffered broken ribs, a pneumothorax, and a number of soft tissue and similar related type injuries as a result of the accident.  She was hospitalized for a short period of time and it took a number of months to recover from the significant soft tissue injuries.  Dr. Travlos’ report reported that her emotional health continues fluctuate and this impacts her overall functioning.  Most notably, she suffered a mild traumatic brain injury which, as per Dr. Travlos’ report, will affect her for the rest of her life. ..

[70]         Having reviewed the authorities provided by counsel for the plaintiff, I find them to be within the range of appropriate orders.  The numerous cases cited suggest a range of general damages in the amount of $200,000-$225,000.  A number of the plaintiffs are within eight to ten years of Alla’s age; however, the bulk of them are people who are completely non-employable, and I find that Alla has some modest residual work ability. 

[71]         In regards to those cases provided, I find Burdett v. Eidse, 2011 BCCA 191 and Young v. Anderson, 2008 BCSC 1306 most persuasive.  In Burdett, the Court of Appeal upholds a non-pecuniary award of $200,000 where a 58 year old, formerly high functioning contractor suffered severe cognitive impairments including an inability to focus, sleep or multitask as a result of the mild traumatic brain injury caused by his motor vehicle accident caused mild traumatic brain injury.  In Young, the court awards $200,000 where a 51 year old experienced a constellation of symptoms including a mild traumatic brain injury which rendered him unable to continue in his chosen profession.

[72]         In addition to the pain and suffering from the broken ribs and soft tissue injuries, most of which had resolved within six months of the accident, I note that there are a number of significant long term damages which Alla will suffer as a result of the accident.  Her mild traumatic brain injury is significantly disabling.  She was, as noted, a trained engineer with university training in the area of finances and accounting.  She now finds herself a somewhat confused and disoriented woman, someone with an inability to multi-task to any great degree.  She has to put mechanisms in place to remind herself about her responsibilities.  Although she still has good judgment, she lacks an ability to focus and to organize.  These are matters which will plague her for the rest of her life and will make the task of working and the task of providing for one’s basic physical needs, somewhat of a challenge.  Although there is only modest physical manifestations of her injuries at this stage, the fact that her brain is not functioning as it used to is considerably disabling. 

[73]         In all of the circumstances having reviewed the case authorities provided, I fix non-pecuniary loss at $195,000. 

In assessing non-pecuniary damages at $300,000 for the second plaintiff who sustained a permanent moderate brain injury the Court provided the following reasons:

[149]     Rather, I find that much of the difficulty Alissa finds herself in is as a direct result of the accident.  At that time, she was rendered unconscious and suffered seizures.  Alissa has sustained irreversible and permanent damage as a result of the moderate traumatic brain injury she suffered in the accident.  She was young at the time of the accident and her life has been irrevocable altered in a negative way.  She will not recover from the difficulties she currently has.  They will plague her for her entire life.  They are, to a great degree, vast and all encompassing.  They affect everything she does.  Absent the injuries, I have concluded that Alissa would have successfully completed some post-secondary education in her chosen field and by 2014 would have been in the work force in a full-time capacity.  Although I do note that she does have some limited capacity to earn a modest amount of income, her former goals and chosen field of work are no longer open to her. 

[150]     In all these circumstances, the appropriate award for non-pecuniary damages is an award close to the rough upper limit.  I have concluded that $300,000 is an appropriate assessment for non-pecuniary damages. 

Parents Held Responsible For Child's Destruction of School Property

Written by admin on . Posted in Uncategorized. 49 Comments on Parents Held Responsible For Child's Destruction of School Property

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding parents liable for damages caused to school property by their child.
In today’s case (Nanaimo-Ladysmith School District No.68 v. Dean) the Defendant played a prank at school by attempting to attach a lock to a sprinkler head.  While doing so “the red filament inside the sprinkler head was disturbed and, as sprinkler heads are intended to operate, it immediately began spraying water.”  This caused over $48,000 in damage to school property.
The Plaintiff was found negligent and he and his parents were ordered to pay back the money based on the operation of s. 10 of the School Act which reads as follows:
“If property of a board or a francophone education authority is destroyed, damaged, lost or converted by the intentional or negligent act of a student or a francophone student, that student and that student’s parents are jointly and severally liable to the board or francophone education authority in respect of the act of that student.”
Madam Justice Fitzpatrick noted this is a harsh result for the parents who had nothing to do with the damage but the legislative requriements are clear.  In reaching this decision the Court provided the following reasons:
[36]         What s. 10 seeks to accomplish is to impose statutory liability for the intentional actions of a student that cause damage to the school, which is a liability imposed beyond whatever liability there might be at common law. The section accomplishes a shifting of risk from the school to the student and that student’s parents arising from the actions of the student. I do not consider that a plain reading of s. 10 results in any other interpretation or a “reading in” of the meaning of “intentional act”, as the Deans assert…
[38]         In my view, there is no ambiguity in s. 10. It simply refers to an “intentional … act”. Accordingly, I conclude that the legislative intention, however draconian it may be, is that the student need not have intended to cause damage by his or her act. The parties agree that, if this interpretation prevails, the parents are liable by a plain reading of s. 10…

[93]         In my view, the School District has proven its case in terms of the applicability of s. 10 of the School Act to the circumstances here.

[94]         I am sure that this is a very unfortunate result for the Dean family and perhaps it will be for other families in the future. This was clearly the result of a young boy misbehaving and thinking that the only grief to come of it would be to Ben and perhaps the janitor in removing the padlock. Obviously, more dire consequences followed. However, if there is to be any change to this provision in the School Act, that is a matter for the legislature, not the courts.

[95]         The action is allowed and judgment is granted against all defendants in the amount of $48,630.47, plus court order interest and costs to be assessed.