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Welcome Supreme Advocacy Newsletter Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


To my pleasant surprise this blog was named “website of the week” in Eugene Meehan’s Supreme Advocacy newsletter.
For those of you visiting this site for the first time welcome!  I canvass Canadian personal injury legal developments here with a particular focus on British Columbia and claims involving the Insurance Corporation of BC (ICBC).
For my regular readers not familiar with Mr. Meehan’s newsletter it is worth checking out.   It provides ‘hot off the presses‘ coverage of decisions from the Supreme Court of Canada along with other useful material.  You can subscribe to his newsletter here.

$20,000 Non-Pecuniary Assessment for "Mild" Soft Tissue Injury

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

Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injury.
In the recent case (Densem v. Sidal) the Plaintiff was involved in two consecutive rear-end impacts with the Defendant.  The defendant was wholly responsible for the first impact although this caused no injury.  There was competing evidence about the particular facts which led to the subsequent collision and the Court ultimately found both parties were equally to blame for this impact.
The Plaintiff suffered from soft tissue injuries to his neck and shoulders as a result of the collision.  He also advanced a claim for a low back injury although the Court found that this was unrelated.  In assessing non-pecuniary damages for the soft tissue injuries at $20,000 Mr. Justice Betton raised some credibility concerns with respect to the Plaintiff and provided the following analysis:

[99] I conclude that the plaintiff suffered soft-tissue injuries to his neck and shoulders in the motor vehicle collision. I do not accept that there has been any low back injury from the motor vehicle collision. Indeed low back injury is not among the list of injuries set out by counsel in his argument.

[100] I conclude that the best evidence of the severity of the soft-tissue injuries that the plaintiff did receive is the plaintiff’s activity level. The plaintiff had returned to a high level of function, including competitive cycling and a rigorous training schedule which included high demand weight training. He had also returned to work, and the evidence suggests that he did so successfully. He was able to perform his employment, which involved long periods of sitting mixed with periodic demanding physical work. This was despite his ongoing back problems which are not a result of the accident.

[101] The credibility issues referenced prompt me to view the plaintiff’s evidence with some caution. It is my conclusion that the plaintiff is not a heroically stoic individual who fought through pain and physical limitations to be able to engage in the activities that he did. Rather, he was able to do so because he had in fact limited or minimal ongoing symptoms…

[109] In summary, the plaintiff did receive soft-tissue injuries to his neck and shoulder areas. He has had ongoing lower back pain that pre-dated the motor vehicle collision, and was not affected in any material way by the motor vehicle collision. He has had a number of subsequent events and injuries that required medical intervention and affected him for various periods of time. I accept the evidence and observations of Dr. Cameron in cross-exanimation that the effect of the motor vehicle collision injuries (that is the physical injuries) has been mild.

Soft Tissue Injury Damages Round Up – The Kelowna Road Edition

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


As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements.  Sometimes, however, the volume of decisions coupled with time constraints makes this difficult.  After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.
In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted.    He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back.  His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment.  In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:
[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

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In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island.  Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

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(UPDATE March 19, 2014 – the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle.  The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)      the plaintiff’s “original position” immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

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In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained soft tissue injuries to his neck and back.   The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial.  In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.

Limitation Periods Not Determinative When Adding Parties to Existing Litigation

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure, Uncategorized. 60 Comments on Limitation Periods Not Determinative When Adding Parties to Existing Litigation

One of the exceptions to the strict application of limitation periods relates to adding parties to existing litigation.  In these circumstances an expired limitation period is not, in and of itself, a barrier to add a party to a lawsuit in the BC Supreme Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Haworth v. Haworth) the Plaintiff was injured while riding as a passenger in a vehicle driven by her husband in 2007.  The vehicle lost control in icy conditions.  She sued him for damages.  In the course of the lawsuit ICBC plead the “inevitable accident” defence and eventually added the appropriate road maintenance company as a Third Party.  The Plaintiff then sought to add this party as a  Defendant.  The Road Maintenance company objected arguing, among other matters, that the limitation period to sue them has expired.  Master Keighley found this unpersuasive and granted the Plaintiff’s application.  In doing so the Court provided the following reasons:
[39] There is, as previously confirmed, a presumption of prejudice if a proposed defendant will be deprived of a limitation defence by his addition as a party. Also, as previously indicated, the relevant period during which prejudice is to be assessed is that which follows the expiration, in this case, of the three year period following the date upon which the cause of action arose. The plaintiff will certainly suffer prejudice if her application is dismissed. She will lose a possible claim against a party or parties with potential liability. This issue, Wilson J. indicates in Walsh v. Blair, Vancouver Registry, Action No. M015646, BCSC, said as follows:

[22]      There is prejudice to the plaintiff in that if the application is not allowed, she will lose a right to claim against a party with potential liability. As noted in Takenaka v. Stanley (2000), 91 B.C.L.R. (3d) 179 (S.C. Master), that will usually outweigh the loss of a potential limitation defence to a potential defendant. Generally, the courts are reluctant to deprive a plaintiff of his or her day in court, so that the trend in the cases appears to be that it will take more than theoretical prejudice to outweigh the loss of that potential claim.

[40] The plaintiff’s potential peril becomes more significant when one considers that, should the application be dismissed, and should the present defendant succeed on the issue of unavoidable accident, she will be left without remedy although blameless with respect to the circumstances of the accident.

[41] Neither Her Majesty the Queen or Argo Thompson allege, as is often the case in such applications, that they have been prejudiced by an inability to investigate the claims against them. HMTQ has, of course, been aware of the potential claim since May 12, 2011 when the application to add the Third Parties was brought. There was no evidence of any investigation conducted by HMTQ after that date to the present. While it seems likely the government representatives would have discussed the potential claim with representatives of Argo Thompson at an early date, there is no evidence of that and I can make no such assumption. With respect to itsinvestigation, Argo Thompson says as follows (and this appears in Affidavit No. 2 of Yvonne Van Vliet, a paralegal in the employ of Argo Thompson’s counsel):

14.       Attached as Exhibit “J” to this affidavit is a true copy of the timecard signed by plough operator Chris Jones on November 12, 2007. Mr. Jones’ timecard indicates that he commenced his shift at 5:00 p.m., on November 12, 2007 and worked until 4:25 a.m., on November 13, 2007. On his timecard he recorded applying 41 cubic meters of winter abrasive (activity 310B) to the Coquihalla Highway during his shift.

15.       On May 22, 2012 I was informed by Tom Bone, General Manager for Argo, during a teleconference, that Chris Jones has not been employed with Argo since 2008, nor has Argo been in contact with him since 2008. Furthermore, Mr. Bone informed me that Argo is not aware of Chris Jones’ current address or contact information.

[42] There is no indication that Mr. Jones cannot be found, what reasonable steps have been taken to locate him, or even whether his evidence, beyond that contained in the records, is required for the defence of these claims. With respect to records, there is no evidence to suggest that any are missing or have been destroyed.

[43] In the circumstances, I find that there is no prejudice to these proposed defendants in making the order sought, whereas the potential prejudice to the plaintiff, should she be deprived of potential claims, is overwhelming. An order will go in the terms of the application. Costs will be in the cause.

$80,000 Non-Pecuniary Assessment For Chronic Hip Soft Tissue Injury

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hip soft tissue injury.
In last week’s case (Pisani v. Pearce) the Plaintiff was involved in a ‘significant‘ head on collision.  Fault was admitted by the Defendant.   The crash resulted in a non-specific soft tissue injury to the Plaintiff’s hip.  The symptoms interfered with the Plaintiff’s physical lifestyle and were expected to linger indefinitely.  In assessing non-pecuniary damages at $80,000 Madam Justice Loo provided the following reasons:

[73] Ms. Pisani was injured in a significant head on collision. Her 2009 Mercedes C300 4Matic was written off. She sustained soft tissue injuries to her shoulder, neck, and back. She will likely suffer flare ups from time to time for the rest of her life. She now has problems with her hip that prevent her from enjoying activities she used to enjoy. There is no diagnosis for the problem with her hip, and there is little or no evidence that it will improve. Her relationship with her boyfriend and her friends has been adversely affected.

[74] Her social life and her extracurricular activities have been adversely affected. She has difficulty attending the mosque because sitting on the floor causes her pain. She cannot dance, play soccer, hike, ride her bicycle, or ski. Dancing has always played a big and important part of her life. Hopefully by carrying out Dr. Anton’s recommendations, she will improve her postural muscles and core stabilizers and may be able to resume most of her activities…

[87] In this case, Dr. Anton suggests that Ms. Pisani’s neck, shoulder, and lower back symptoms should hopefully improve with one on one training with a qualified kinesiologist. Dr. Anton also suggests that if Ms. Pisani fails to have a good response to the training, she may not be able to resume dancing. She will probably suffer flare ups of her injuries for the rest of her life. She is still only 23 years old. There is also no evidence that her hip problem will resolve.

[88] I conclude that a fair and reasonable award of non-pecuniary damages is $80,000.

In addition to the above, paragraphs 96-104 are worth reviewing for the Court’s discussion of damages for the Plaintiff’s delayed entry into the workforce as a result of her injuries.

More Disbursement Caselaw

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived caselaw addressing disbursements in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the reasonableness of a variety of disbursements in the prosecution of an ICBC Claim.
In last week’s case (Kezel v. Greenslade) the Plaintiff was involved in two collisions in July 2007.  She sued for damages and in the course of the lawsuit accepted an ICBC formal settlement offer for $46,000 plus costs and disbursements.  The parties agreed to reasonable costs but a variety of disbursements were challenged.   The judgement is worth reviewing for the Court’s discussion of the following disbursements:
1. Medico-legal reports from multiple experts
2.  A Functional Capacity Evaluation
3.  A Defence Medical Exam Cancellation Fee
4.  Outside Legal Fees
5.  Mediation Administration Fees
6.  Photocopy Charges
7.  Legal Alternative Courier Charges
8.  Office Supplies

Visual Aids Permitted In Trial Closing to "Assist the Jury"

Written by admin on . Posted in Jury Trials, Uncategorized. 70 Comments on Visual Aids Permitted In Trial Closing to "Assist the Jury"


Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of non-exhibit visual aids during closing submissions in a Jury trial.
In the recent case (Walker v. Doe) the Plaintiff sued for damages following a motorcycle collision.  During closing submissions the Plaintiff canvassed his claimed damages for wage loss and future care with the help of non-exhibit visual aids.  In finding such aids were appropriate Mr. Justice Voith provided the following reasons:
[19] Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.

[32] In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.

[33] The purport of the decisions in Bengert, Fimognairi and Basi, moreover, is that trial judges have a wide discretion to permit what aids to the jury they consider are helpful or appropriate.

[34] Support for this wider discretion is also found in Jones A. Olah, The Art and Science of Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes, unfortunately with no citation other than to another secondary source that I was unable to access:

The use of demonstrative aids that are not part of the trial record, such as blackboards, charts, models, and summaries, is in the trial judge’s discretion. If the evidence provides reasonable foundation for these summaries or charts, then their use should be permitted.

[35] In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.

I am advised this case is currently under appeal for unrelated reasons.  If the BC Court of Appeal addresses this topic I will provide an updated post.

Double Costs Awarded Following Liability Only Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Adding to this site’s archived posts of costs consequences following trials with formal settlement offers, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this topic following a ‘liability only’ trial.
In this week’s case (Cyr v. Blaine) the Plaintiff was involved in a 2009 collision.  The parties agreed that, subject to proving fault, the value of the claim was $60,000.  The parties could not agree on fault both arguing the other was to blame.  Prior to trial the Plaintiff delivered a formal settlement offer of $50,000.
At trial the Defendant was found fully at fault entitling the Plaintiff to the agreed damages of $60,000.  Mr. Justice Saunders found that it was appropriate to award the Plaintiff post offer double costs in these circumstances.  In doing so the Court provided the following reasons:

[13] The defendants say that it was reasonable for them to try the case on the basis of their theory that the plaintiff had a duty to look to her left as she passed by the front of the vehicle that had stopped for her in the intersection.  But even if the plaintiff had been under an obligation to anticipate that there might be another vehicle in the same lane as the stopped vehicle, attempting to pass that stopped vehicle on the left, the defendants had no evidence that, by the time she would have been able to see the defendants’ vehicle, she would have been able to bring her own vehicle to a stop in time to avoid the collision, given the defendants’ speed.

[14] The defendant Mr. Blaine passed a stopped vehicle, on its left, when he was in the same lane as that vehicle. As I found, it ought to have been apparent to Mr. Blaine from the opening in the divider separating eastbound and westbound traffic that he was passing through an intersection, and that cars travelling in his direction had stopped to let a vehicle or vehicles through the intersection. By the time the subject offer was delivered, it ought to have been apparent to the defendants that they would be found wholly or at least substantially liable for the accident.

[15] Given that damages had been agreed at $60,000, the plaintiff’s $50,000 offer represented a discount of roughly 17%, or, to put it another way, roughly a 50% chance of a finding of one-third contributory negligence on the plaintiff’s part.  It was an offer that reasonably ought to have been accepted upon delivery.

[16] The plaintiff, I find, is entitled to double costs of all steps taken after the offer was delivered.

MRI Recommended By Massage Therapist Not Recoverable in ICBC Claim

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry (Culos v. Chretien), rejecting compensation for the cost of an MRI recommended by a Massage Therapist.  In finding this was not an appropriate special damage in the circumstances (ie -without the request coming from a medical doctor) Mr. Justice Rogers provided the following comments:
[61] The plaintiff is not entitled to the cost of the MRI or the magnetic belt that he claims. The former is not recoverable because the massage therapist who recommended it to the plaintiff did not have the qualifications to either prescribe the scan or to interpret its result. The magnetic belt sounds like a bit of Old West quackery. No evidence at trial supplied a foundation for a finding that this belt was necessary to control or cure the plaintiff’s complaints.

$70,000 Non-Pecuniary Assessment for Chronic Headache Disorders

Written by admin on . Posted in ICBC Headache Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a chronic headache disorder caused as a result of a motor vehicle collision.
In this week’s case (Fennell v. Herbert) the Plaintiff was involved in a ‘quite violent’ collision in 1998 when she was 8 years old.  Liability was admitted focussing the trial on an assessment of damages.  The trial proceeded summarily as there were no issues as to the legitimacy of the plaintiff’s symptoms nor to their connection to the collision.  In assessing non-pecuniary damages at $70,000 the court summarized the following medical evidence and provided the following reasons:

[4] As a result of the motor vehicle accident, the plaintiff suffered soft tissue injuries to her neck and lower back and headaches started within days of the collision. The headaches and neck pain have continued ever since and it is the headaches that are the most debilitating and are now considered chronic.

[5] Dr. Robinson, who is a neurologist that specializes in pain disorders stated in his report that:

In all likelihood she will continue to have chronic headache and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize…

[7] Dr. Laidlow, a physical medicine and rehabilitation specialist, in a report dated April 28, 2010, noted that the plaintiff had neck pain, back pain, and two types of headaches. His opinion was that her neck and lower back pain was myofascial pain caused by musculoligamentous strain at the neck and lower back at the time of the accident. Dr. Laidlow recommended that she see a neurologist. Dr. Robinson’s report was dated August 9, 2011. He noted that as a result of the accident she probably sustained soft tissue injury to her neck and shoulders and developed chronic headaches relating to the neck injury:

I believe that she probably did develop chronic headaches relating to neck injury as a result of the January 30, 1998 motor vehicle accident. As a result of that accident, she has ongoing neck and shoulder discomfort present constantly. The pain is aggravated by physical activity whereupon there is an increase in her head pain.

I believe that it is possible that she did develop an increased predisposition to headache reflecting migraine in her early teenage years. However, I doubt that she would have developed a constant headache or as frequent severe episodes had the lingering effects motor vehicle accident not been present.

In essence, I believe that her current headache difficulties are primarily related to chronic pain involving her neck secondary to the motor vehicle accident of January 30, 1998, superimposed upon which is a predisposition to headaches. Although it is impossible to be definitive I believe that she probably would not have developed any substantial problems with headaches if the accident had not occurred.

In all likelihood she will continue to have chronic headaches and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize. I doubt that her headache disorder will worsen or that it will have a negative impact upon her post-secondary education or for that matter her career potential.

[8] Dr. Laidlow also stated:

I do feel that she should be able to go to school and do any work activities. I think she will also be able to do any recreational activities that she chooses…

[15] I accept the evidence of the plaintiff. I find that under the heading of general damages for loss of enjoyment of life, given her young age and the severity of pain and discomfort she has suffered, she is entitled to general damages in the amount of $70,000. Also included is a component for loss of housekeeping capacity.