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$75,000 Non-Pecuniary Assessment For Thoracic Outlet Syndrome with Poor Prognosis

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Adding to this site’s archives of BC Supreme Court damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last month addressing such an injury.
In last month’s case (Jawanda v. Samra) the Plaintiff was injured in a 2006 collision.  She was 29 years old at the time and 35 by the of her trial.  She suffered from Thoracic Outlet Syndrome as a result of the collision with accompanying chronic pain.  The Plaintiff, although able to hold down employment despite her injury, remained symptomatic and the injuries were expected to be permanent.  The Court accepted the following medical evidence addressing prognosis:
 With respect to her thoracic outlet syndrome, it is now a permanent injury to the scalene muscles in an already compromised thoracic outlet due to her congenital cervical ribs. It is my opinion that Ms. Jawanda’s symptoms are unlikely to change or improve but it is my opinion that the symptoms of numbness and tingling and paresthesias would get worse if she was forced to overdo it or continue to do heavy activities which exacerbated her symptoms. This would lead to more chronic muscle and nerve injury and more prolonged pain.
In assessing non-pecuniary danages at $75,000 Mr. Justice MacKenzie provided the following reasons:
[143]     Balancing all of the evidence I have accepted, I find Ms. Jawanda suffers from mild to moderate chronic pain and thoracic outlet syndrome. Coupled with the authorities referred to by counsel, I am satisfied a fair and appropriate award for non-pecuniary damages is $75,000.

Employer Paid Sick Leave Benefits Non-Deductible in ICBC Uninsured Motorist Claim

Written by admin on . Posted in Uncategorized.

(Update December 3, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal)
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Last year the BC Supreme Court found that employer paid wage replacement benefits are non-deductible in ICBC hit and run claims.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this issue in the context of an uninsured ICBC Claim.
In this week’s case (Jordan v. Lowe) the Plaintiff was injured by an uninsured motorist.  He successfully sued for damages.  When seeking to collect damages from ICBC pursuant to section 20 of the Insurance (Vehicle) Act ICBC argued they could deduct from the judgement the amount of sick leave benefits the Plaintiff collected from his employer.  Mr. Justice Willcock dismissed this argument finding these benefits did not have an element of insurance to them thereby not making them deductible   The Court provided the following reasons:
[20]         ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition.  I agree that must necessarily be so.  ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance.  With respect to the able submissions of counsel, I cannot agree.
[21]         When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez.  The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”.  While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”.
[22]         There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section.  The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible.  It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it.
[23]         For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance.  They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 103 of the Regulation.  ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.

Low Velocity Impact Defence – Not Based on Science, Not Even "Common Sense"

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

Adding to this site’s archived posts addressing Low Velocity Impacts, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, rejecting this defence.
In last week’s case (Christoffersen v. Howarth) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a soft tissue injury which was still symptomatic at the time of trial but there was an “excellent prognosis” for full recovery.  The Court assessed non-pecuniary damages at $35,000 but prior to doing so Mr. Justice Weatherill provided the following comments criticizing the LVI Defence:
[54]         The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision.  Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury…
[58]         In order to accept the defendant’s argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision.  I am not prepared to do so.  I found each to be credible, honest and forthright.  Their evidence was uncontroverted by the defendant.  At most, the plaintiff’s evidence was shown on cross examination to have been exaggerated in a few minor respects.
[59]         The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan.  No evidence was led by the defendant regarding the amount of force that the plaintiff’s body was subjected to during the collision or how the shock absorbers built into the vehicles’ bumpers affected the damage that otherwise would have been sustained.  In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.
[60]         I accept that the collision was relatively minor.  However, even a low impact collision can cause injury: Lubick v. Mei, 2008 BCSC 555 at paras. 5-6.  Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff’s vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal. 
[61]         Causation has been established by the plaintiff.

Treating Physician Opinion Discounted for Advocacy

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized.

In a demonstration that  judicial criticism of expert witness ‘advocacy’ is not reserved for so-called “independent” experts, reasons for judgement were released this week addressing the evidence of a treating physician who crossed the line into patient advocacy.
In this week’s case (Brown v. Raffan) the Plaintiff was injured in a motor vehicle collision and sought damages of over $200,000.  The Plaintiff provided evidence and also relied on the medical opinion of her physician.  The Court rejected much of the claimed damages finding that the Plaintiff was “not reliable” as a witness.  The Court went further and criticized her treating doctor finding that the opinions shared with the Court crossed the line into advocacy.  In rejecting much of the presented medical evidence Mr. Justice Verhoevan provided the following comments:
[66]         The plaintiff has continued to be treated by Dr. Campbell, who has seen her more than 70 times since the accident. Unfortunately, in general, I do not consider the evidence of Dr. Campbell to be reliable. There are several reasons for this.
[67]         Firstly, in my view, Dr. Campbell’s sympathy for his patient and her claims has resulted in him becoming an advocate for the plaintiff.
[68]         On reading his report and hearing his evidence, the theme that emerges is one of solidarity by Dr. Campbell with Ms. Brown’s complaints about lack of support from ICBC, and her plight as a blameless victim.
[69]         At numerous instances in the report, Dr. Campbell relates Ms. Brown’s complaints that ICBC failed to refuse to provide for interim wage loss payments, or cost of treatment such as physiotherapy, psychological counselling, or reimbursement for her broken dental plate. Although reciting the plaintiff’s complaints in relation to ICBC might conceivably be relevant background information, it is clear on the report and on Dr. Campbell’s testimony as a whole that he shares his patient’s views that she is a blameless victim of injustice who has been badly treated by ICBC, and, further, that she deserves compensation.
[70]         In the summary and opinion portions of his report, Dr. Campbell mentions several times that Ms. Brown was “blameless” or “blameless victim” in the motor vehicle accident. Such comments have no proper place in an expert’s report, and indicate a conflict with the duty of an expert to assist the court and refrain from being an advocate for a party as set out in Rule 11-2 of the Supreme Court Civil Rules.
[71]         Dr. Campbell also mentions several times that the plaintiff has been given no support or treatment by ICBC. These inappropriate comments are thoroughly enmeshed in his report. I think it best to simply set out some extracts of the report in this respect, in which I have emphasized the offending material….
[86]         In summary I conclude that, in general, I cannot rely upon the medical report and opinion of Dr. Campbell.

$130,000 Non-Pecuniary Assessment for Bimalleolar Ankle Fracture With Chronic Limitations

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a serious ankle injury leading to permanent partial disability.
In this week’s case (Hubbs v. Escueta) the Plaintiff was injured in a motorcycle accident when he was struck by the Defendant.  Although liability was contested the Court found the Defendant’s evidence was “not credible” and he was found fully at fault for the collision.
The Plaintiff suffered a complex bimalleolar ankle fracture which was treated surgically.

(Image via Wikimedia)
The hardware was eventually removed but the Plaintiff’s symptoms continued.  He was expected to have permanent restrictions with his ankle and was exposed to risk of early degenerative changes leading to further deterioration   The Plaintiff worked as an electrician and his ability to do so was significantly compromised by this injury.  In assessing non-pecuniary damages at $130,000 Madam Justice Ross provided the following reasons:
[135]     This case highlights the importance of the individual circumstances. The injury suffered by Mr. Hubbs is serious. While the consequences for someone of more sedentary occupation and lifestyle might not have been so significant, for Mr. Hubbs the injury has proven to be life changing. He is a relatively young man who now faces a lifetime of limitation and disability. Mr. Hubbs’ livelihood requires strength, agility and balance, all of which have been impaired by the injury. The injury has impaired his ability to earn his living. He has worked through the pain, but at a terrible cost to his family life. He is no longer able to enjoy the active lifestyle he loved. His mood is depressed and he has little energy for anything except the struggle to put in a day at work. His relations with his wife and children have been damaged. It appears that he has reached a plateau in his recovery and faces a future of increased deterioration and vulnerability to injury.
[136]     In my view, the cases cited by plaintiff’s counsel are more representative of the circumstances in the present case. I award $130,000 for non-pecuniary loss.

Social Host Lawsuit Survives Summary Dismissal Application

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


As previously discussed, the circumstances of when a social host (ie – the host of a private party at a residence) can be held liable for injuries caused when an intoxicated guest leaves and causes injury to others is an open one.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, further addressing this area of the law.
In today’s case (Lutter v. Smithson) the plaintiff was injured when a vehicle in which he was a passenger was struck by the defendant Smithson.  Prior to the collision Smithson, who was 18 at the time, attended a “Bring Your Own Booze” party and became “very drunk“.  The party was hosted by the Defendants Mazus to celebrate their daughter’s 19th Birthday   The Mazus brought a summary dismissal application arguing that they cannot be held liable in these circumstances.  Mr. Justice Macaualy dismissed the application finding this “novel question of liability” should be decided via full trial.  In doing so the Court provided the following reasons:
[15]         As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant’s property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In Sidhu v. Hiebert, 2011 BCSC 1364, the summary judgment application judge reached a similar conclusion…
[21]         Childs is a very important decision relating to social host liability. In determining the sufficiency of the affidavit material here and whether it is just to decide the issues on summary judgment, a review of the principles that emerge from the case assists.
[22]         In Childs, the defendant homeowners hosted a party, during the course of which they served a small quantity of alcohol to adult guests. For the most part, the event was “BYOB”. The defendants knew that one of the guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux responded affirmatively and drove away. The accident ensued.
[23]         Childs was the first time the Supreme Court considered whether social, as opposed to commercial, hosts who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests (para. 8).
[24]         The court did not accept that the existence of a duty on the part of commercial hosts could be extended, by analogy, to the hosts of a private party (para. 23). Accordingly, the court went on to apply the first stage of the Anns test (Anns v. Merton London Borough Council, [1978] A.C. 728), and concluded, for two reasons, that the necessary proximity had not been established (para. 26):
First, the injury to Ms. Childs was not reasonably foreseeable on the facts found by the trial judge. Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. [Emphasis added.]
[25]         Of potential significance here, the trial judge in Childs never found that the hosts knew, or ought to have known, that the guest who was about to drive was too drunk to do so. For that reason, foreseeability, and accordingly proximity, were not established. Although there was evidence that Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his intoxication was absent (para. 28).
[26]         At first blush, Mrs. Mazu’s admission that she knew Smithson was drunk before he left the party appears to fill the foreseeability gap that the Supreme Court first identified in Childs. That appears to strengthen the application respondents’ contention that foreseeability may be established here.
[27]         As to the second point made in Childs respecting the lack of a positive duty to act, the hosts and guests were all adults. The court identified the lack of paternal relationship between host and guest, coupled with the autonomy of the guest, as factors that militated against imposing a positive duty to act on the hosts (see paras. 42–45).
[28]         In the present case, the application respondents point out that s. 33(1)(c) of the LCLA forbids a host permitting a minor to consume liquor “in or at a place under his or her control.” At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty. The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority.
[29]         To adopt some of the language in Childs, found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in Sidhu, that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.
[30]         There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a summary trial. I dismiss the application.

"It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

Written by admin on . Posted in ICBC PTSD Cases, ICBC Wage Loss, Uncategorized. 53 Comments on "It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing mitigation of damages in a personal injury claim seeking compensation for reduced pension benefits.
In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff.  The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work.  The Plaintiff retired in 2012 and sought damages for a reduced pension arguing that had he not been psychologically injured by the collision he would have worked more hours thereby having greater pensionable earnings.
The Defendant argued that since, at the time of the Plaintiff’s retirement at age 55, he was able to work full time and had no residual difficulty from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension.  Mr. Justice Abrioux rejected this argument providing the following reasons:
[34]         In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.
[35]         The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.
[36]         In my view, planning for retirement is a very important stage in a person’s life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‘s failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.

Court Finds ICBC Settlement "Not a Family Asset" in Divorce Proceedings

Written by admin on . Posted in Uncategorized. 47 Comments on Court Finds ICBC Settlement "Not a Family Asset" in Divorce Proceedings


While there is no ‘one size fits all‘ answer to the question of whether a personal injury settlement is a family asset in divorce proceedings, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting circumstances where it is not.
In this week’s case (Shen v. Tong) the parties ‘lived in a marriage-like relationship‘ since 2004 and were married in 2008.  In 2004 the Respondent was injured in a collision and she subsequently settled her ICBC claim in 2006.  The funds were invested and still available at the time of the Divorce and the Claimant sought an order declaring this money as a family asset.  Madam Justice Stromberg-Stein refused and provided the following reasons:
[40]         Ms. Tong’s position is her ICBC settlement is not a family asset.  It was largely for general damages and of the $13,564 for past wage, about half this time was before their relationship started.  Ms. Tong invested the settlement proceeds and never used them for a family purpose.  She maintained she wanted to save the award for her recovery but she did not have to use it for that purpose as she had Mr. Shen’s benefits.  She sent the invested proceeds, now $60,000, to her parents in China in January 2012.
[41]         The ICBC settlement is not a family asset.  Ms. Tong does not have to account for what amounts to a negligible wage loss claim.

$115,000 nonpecuniary assessment for fractured femur and chronic pain disorder

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement released recently by the BC Supreme Court, Vancouver Registry, assessing damages for various injuries sustained in a motorcycle accident.
In the recent case (Taylor v. Depew) the plaintiff was riding a motorbike which was involved in a head-on collision with a dune buggy on a narrow road near Campbell River BC.  Fault was disputed with the court ultimately finding that both motorists were to blame.  Liability was split with the plaintiff shouldering 30% of the fault and the defendant 70%.
The plaintiff suffered various injuries the most serious of which was a fractured femur.  This resulted in ligamentous laxity in his knee.   In addition to this the plaintiff suffered disc herniation’s in his low back and ultimately went on to develop chronic pain syndrome.
In assessing nonpecuniary damages at hundred and $115,000 Madam Justice Fenlon provided the following reasons for judgement:
57]         After the accident, Mr. Taylor’s life changed dramatically. In the days immediately following the accident, he underwent surgery to install a rod and pins to stabilize his femur; he remained in hospital for one week. Two further surgeries on his left leg were required: in October 2001 to remove the proximal locking screw; and in March 2003 to remove the remaining hardware in his leg. The recovery from all three surgeries was long and painful, lasting a number of weeks.
[58]          Mr. Taylor required assistance with day-to-day tasks such as cooking, cleaning and bathing during these recovery periods. After the first surgery he had the help of a homecare nurse, and then his friends Sarah Zimmer and Jamie Gonzalez assisted him. The two women helped him again after the second and third surgeries. The surgeries have left Mr. Taylor with marked permanent scarring on his left hip and knee.
[59]         Before the accident, Mr. Taylor had enrolled in an environmental engineering degree program to commence in September 2001. He tried to carry on with his plan to return to school but the pain killers he was taking made it difficult for him to concentrate and his general physical condition and inability to drive made it hard to attend classes. Depression set in and ultimately Mr. Taylor abandoned the environmental engineering program.
[60]         Mr. Taylor has had difficulty dealing with the changes to his life caused by the accident. For a few months he turned to street drugs and alcohol. He became depressed and uses anti-depressants like Effexor to help relieve the symptoms of depression.
[61]         Although Mr. Taylor has seen some improvement in the state of his injuries over time, he still experiences pain on a daily basis. When he sits, stands, or walks for long periods he suffers from pain and numbness in his left leg…
[72]         Awards of damages in other cases provide a guideline only. I must apply the factors listed in Stapley to Mr. Taylor’s particular case. I conclude that an award of $115,000 is an appropriate sum for non-pecuniary damages…

Fibromyalgia and PTSD Claims Rejected, $40,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

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

Adding to this site’s BC soft tissue injury caselaw database, reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, assessing damages for a lingering Grade II soft tissue injury.
In the recent case (Nokleby v. Fiddick) the Plaintiff was involved in a 2007 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered from soft tissue injuries to his neck and shoulder and these continued to be symptomatic at the time of trial and were expected to linger into the future.  The Plaintiff also advanced allegations that the collision caused fibromyalgia and PTSD although this evidence was not accepted.  In assessing non-pecuniary damages for the lingering soft tissue injuries at $40,000 Madam Justice Hyslop provided the following reasons:
[83]        I find that the plaintiff, as a result of the accident, injured his neck which caused headaches and injured his left shoulder. I find that as a result of the shoulder injury the plaintiff can continue with his employment activities and all his activities and responsibilities both at home and on the farm. I find that in performing some of his farm activities he may experience some discomfort…
[85]        I find also the plaintiff’s shoulder injury interferes with him being able to split wood to heat his house. The plaintiff claims that as a result of his injuries, in particular his shoulder causes him to fall more. However, Dr. Laidlow found no medical explanation for this…
[90]        I award the plaintiff $40,000.00 in non-pecuniary damages. In doing so, I take into consideration the difficulties the plaintiff suffered in pursuing his farming activities.