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$75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

Written by admin on . Posted in ICBC Whiplash Cases, Uncategorized. 64 Comments on $75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

As previously discussed, a common pattern following a motor vehicle collision is the onset of pain in a pre-existing but otherwise asymptomatic degenerative condition.  Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In the recent case (Culos v. Chretien) the Plaintiff was involved in a 2006 pedestrian collision.  The Defendant motorist was found fully at fault.  The collision caused an aggravation of pre-existing low back pain and further caused chronic neck pain problems.  The latter problems were found to be due to pre-existing degeneration which became symptomatic as a result of the impact.  In assessing non-pecuniary damages at $75,000 Mr. Justice Rogers provided the following reasons:

[51] I find that the plaintiff accurately described his injuries and the symptoms he experienced after the accident. The fact that his left hip was sore when he went to see his physician several days after the accident and that his left thigh just above the knee was not bruised tell me that the defendant’s car hit him on his left hip, not his left thigh. I find that the impact gave the plaintiff a severe body-wide jolt. The impact caused the pre-existing but asymptomatic degenerative disease in his neck to become symptomatic. Absent the accident, the plaintiff may have lived out his entire life without any neck symptoms. The accident caused his neck to be painful, and the pain has persisted to this day. I accept Dr. Vallentyne’s opinion that the plaintiff’s neck symptoms are permanent.

[52] I find that the plaintiff’s memory of his pre-accident back function is faulty. The symptoms of pain that he felt in his lower back in the approximately one year before the accident must have been significant. I find that is so because the plaintiff is clearly not one to go running for medical treatment for minor or transitory complaints – the fact that he held off for five days after the accident before seeking medical help supports that proposition. For that reason, I accept Dr. Vallentyne’s opinion that even if the accident had not happened the plaintiff’s periodically symptomatic low back pain and his pre-existing degenerative disease in that region would have, as Dr. Vallentyne said, required him to “minimize heavy lifting/carrying as well as repetitive bending/twisting”. That said, I find that the accident accelerated and worsened the plaintiff’s low back symptoms; “accelerated” in the sense of causing the pain to be constant rather than periodic, and “worsened” in the sense that the low back pain prevented the plaintiff from participating in his usual activities to a much greater degree than before.

[53] I cannot accept Dr. Grypma’s opinion that the plaintiff’s present symptoms are not related to or caused by the accident. I find that the flaw in Dr. Grypma’s opinion is his dismissal without discussion of the indisputable temporal connection between the onset of the plaintiff’s neck and back symptoms immediately after the accident and his continuing symptoms throughout of pain in exactly those same regions. The link is, of course, the fact that those symptoms have persisted from then until now. The physicians agree that the accident did not accelerate the degeneration of the plaintiff’s neck and back – it follows that the plaintiff’s pains are not a result of increased degeneration. If the symptoms occurred after the accident, it is reasonable to conclude that they were caused by the accident, and the doctors agree on that as well. What Dr. Grypma does not explain is how it is that the plaintiff’s symptoms transitioned from pains caused by the accident to pains caused by his degenerative disease, and how it is that even without the accident, the plaintiff would nevertheless now be suffering from those symptoms. I find that there is a causal link between the accident, the onset of the plaintiff’s neck pain and the worsening of his low back symptoms, and the persistence of those symptoms through to the present day.

[54] Currently the plaintiff’s neck and back symptoms are present on a daily basis. They flare up when the plaintiff does anything strenuous. The symptoms aggravate, frustrate and tire the plaintiff out. They have reduced his enjoyment of recreational activities. The symptoms are a permanent feature of the plaintiff’s life. After discounting the plaintiff’s claim to account for the fact that absent the accident his lower back would have troubled the plaintiff periodically, I find that the proper award for non-pecuniary damages in this case is $75,000.

Welcome CFAX Listeners – Dog Bite Injury Law in BC

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 51 Comments on Welcome CFAX Listeners – Dog Bite Injury Law in BC


Earlier today I had the pleasure of being interviewed by CFAX Radio with respect to lawsuits for compensation as a result of Dog Bite injuries in British Columbia.
For those of you looking for more on this area of law you can click here to read a 2004 decision which provides the following useful overview of the legal principles of scienter and negligence which were discussed in today’s interview:

[] The common law doctrine of scienter differs from negligence in that if the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence.  The requirements for establishing scienter were described by the British Columbia Court of Appeal in Janota-Bzowska v. Lewis, [1997] B.C.J. No. 2053.  In that case the Court observed at para. 9 that the owner of a dog can be found liable for an attack in two ways:

First, the owner may be held liable under the doctrine of scienter and second, the owner may be held liable for negligence.  It is important to keep the two separate as they often become intertwined.  They are, however, not the same.

The Court went on at para. 20 to describe the doctrine of scienter in this way:

The law with respect to the doctrine of scienter is relatively clear.  The owner of a dog which bites another will not be liable simply for being the owner.  Liability will only attach under the doctrine if the three conditions set forth in the Neville decision have been satisfied.  In other words, the plaintiff (not the defendant) must establish:

i)   that the defendant was the owner of the dog;

ii)  that the dog had manifested a propensity to cause the type of harm occasioned; and

iii) that the owner knew of that propensity.

Some provinces now have legislation which modifies the common law of scienter but, since the repeal of the Animals Act in 1981, British Columbia does not and the common law applies untrammelled by statutory enactment.

[] At para. 23 of the judgment, the Court of Appeal described the requirements for negligence in the context of a dog attack in this way:

To succeed in an action based on negligence against Holtzman, the plaintiff must prove, on a balance of probabilities that:

(a)  Holtzman knew, or ought to have known, that Boomer was likely to create a risk of injury to third persons, including the plaintiff; and

(b)  Holtzman failed to take reasonable care to prevent such injury.  …

[] It can be seen that there are two important differences between liability based on scienter and liability based on negligence.  If the requirements of scienter are established, liability is absolute, and the plaintiff is not required to show breach of a standard of care.  On the other hand, to establish scienter, the plaintiff must show both that the dog manifested a propensity to cause the type of harm which occurred and also that the owner knew of that propensity.  It thus appears that for scienter, the mental element is based on a subjective test:  the plaintiff must establish that the defendant actually knew of the dog’s propensity to cause the relevant type of harm.  This is in contrast to liability based on negligence, where an objective test applies.  That is, for negligence it is sufficient if the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, and failed to take reasonable care to prevent the injuries.

$60,000 Non-Pecuniary Assessment for Chronic Back Soft Tissue Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last month by the BC Supreme Court, Kamloops Registry, assessing damages for a chronic soft tissue injury following a collision.
In the recent case (Cartwright v. Cartwright) the 15 year old plaintiff was injured as a passenger in a single vehicle collision.  The driver admitted liability.  The Plaintiff suffered a soft tissue injury to her back which resulted in chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Fisher provided the following reasons:
[20] There is no question that Ms. Cartwright suffered soft tissue injuries to her neck and back in the motor vehicle accident on June 17, 2007, which resulted in ongoing pain symptoms. She had pain immediately following the accident and has continued to have pain throughout her back since that time. The issue is the extent to which this ongoing pain has affected and will continue to affect her life…

[22] I found Ms. Cartwright to be a credible witness but a poor historian about the nature and intensity of her pain symptoms and how they affected her life and her work. I agree with the defendant that she provided little detail about her symptoms. At the time of the accident, she said that her neck and shoulders were “sore” and her back was “just stiff”. She said it was painful working in that she had to rely on others to do things like move tables and chairs and carry pallets of cutlery. Other than that, she described things as being “difficult” or “painful”, and said that she was not able to work because of “back pain.”  Surprisingly, she said nothing about the effect of her pregnancy on her back pain. She said that she can get headaches two to three times a week and migraines “at least a couple a month”, but said nothing about how intense they are or how they affect her. She said that she went to a counsellor “a few times for anxiety about the accident” and she still has anxiety “towards vehicles” without describing in any way the anxiety and how it affects her.

[23] This lack of any detail makes it difficult to assess the nature and severity of Ms. Cartwright’s ongoing pain. However, I am satisfied that her evidence, along with the medical evidence, establishes that she suffered strain to the muscles and ligaments of the thoracic and lumbar regions and strain to the muscles of the cervical region as a result of the accident. I accept Dr. Farren’s description of Ms. Cartwright’s back pain as “moderate in severity and chronic in nature”. There is no evidence about the severity and nature of her headaches or the nature and extent of the anxiety she experienced as a result of the accident.

[24] These injuries have caused her ongoing and chronic symptoms of myofascial back pain, some tension headaches and a modest exacerbation of a pre-existing tendency towards migraines. The chronic back pain will likely continue but there is a substantial possibility that it will diminish with proper rehabilitation that includes a regular exercise program…

[48] Ms. Cartwright has been moderately affected by her chronic back pain and will continue to be affected by it in the future, but there is a substantial possibility that the pain will diminish and be quite manageable with proper rehabilitation and regular exercise. Given the evidence and relevant factors in this case, it is my view that a fair award of non-pecuniary damages is $60,000.

$40,000 Non-Pecuniary Assessment for Patellofemoral Knee Pain

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

Adding to this site’s archived posts addressing damages for knee injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for Patellofemoral pain.
In the recent case (Peragine v. Serena) the plaintiff was involved in a 2009 intersection collision.  The Defendant left a stop sign and proceeded into the Plaintiff’s lane of travel resulting in the collision. Although the Defendant disputed fault she was found fully liable for the crash.
The plaintiff suffered a knee injury which required surgery.  She remained symptomatic at the time of trial and was expected to have symptoms for some time into the future.  In assessing non-pecuniary damages at $40,000 Mr. Justice Weatherill provided the following reasons:

[70] Dr. Kokan concluded that Michelle’s pain in her left knee was and is caused by the medial synovial plica (which was removed during the surgery), patellofemoral pain syndrome and pes anserinus bursitis.  It is his opinion that the motor vehicle collision on March 13, 2009 caused the onset of her left knee pain, which irritated the medial synovial plica.  He acknowledges that there is controversy in the literature and within his profession regarding the function of the synovial plica and its contribution to symptoms.  Some orthopedic surgeons, including Dr. Kokan, are of the view that it can make one susceptible to pain.  Others are of the opinion that the plica has minimal, if any, impact on pain.  Dr. Kokan concluded that Michelle’s plica, which was in a vulnerable position, being suddenly impacted caused direct trauma and caused her to experience the pain she had reported.  Moreover, the blunt impact of the accident also transmitted forces to other structures within her knee, including the patellofemoral joint.

[71] Dr. Kokan also acknowledged that patellofemoral pain syndrome could be caused by a person being inactive and then suddenly becoming active.

[72] In Dr. Kokan’s opinion, it is likely that Michelle could continue to experience her pain symptoms for between two to three years.  He expects that she will continue to experience difficulties with kneeling, walking, standing and negotiating stairs.  He recommends that Michelle limit her sports to non-impact activities such as swimming or cycling…

[75] I accept Dr. Kokan’s description of Michelle’s symptoms as described in his report.  I also accept his opinion that the pain in her left knee was caused by a blunt impact during the March 13, 2009 collision and that it is possible for the injury to the knee to have occurred during the accident but the pain associated with that injury not to have manifested itself for three weeks to a month…

[118] All of the injuries Michelle suffered to her forehead, shoulder, neck and back were minor and completely resolved within a few weeks.  None have reoccurred, although she does have a small, residual but indiscreet scar on her forehead.

[119] However there is no question that, since the collision, Michelle has experienced and is continuing to experience intense and ongoing pain in her left knee.  She is unable to climb or descend stairs or even walk or stand for prolonged periods of time without significant pain and having to sit and rest her knee.  She is unable to participate in sporting activities which she has grown up doing and which are her passion…

[130] The plaintiff is 21 years of age.  She continues to have trouble walking and standing without pain.  She is in pain every day.  Despite the pain, she is living a normal and enjoyable life.  The prognosis for a full recovery is good.

[131] After reviewing the foregoing cases and taking my findings of fact in this case into account, I find that that an award of $40,000 for non-pecuniary damages is appropriate.

Commercial Copy Rates Not Helpful When Addressing Reasonable Photocopy Disbursements

Written by admin on . Posted in Uncategorized.

A decision was recently publshed by the BC Supreme Court website addressing reasonable photocopy disbursements in an ICBC Claim.  Although it is a 2006 decision decided under the old rules, the Court’s comments remain relevant finding that commercial photocopy charges are not helpful when deciding a reasonable rate to charge for photocopy disbursements due to litigant privacy concerns.
In the recently published case (Kind v. Leung) Master Caldwell provided the following observation:

5] There is also information in here about photocopying through commercial endeavours.  There are privacy concerns related there and I take counsel’s point, but again the physical cost of copying in those facilities seems to run between five cents and 10 or 11 cents per page.

[6] Making allowance for in-house copying at a reasonable rate to meet the obligations of privacy and confidentiality, given the costs as I seem to have limited information here in the material relating to equipment, I am not able to indicate or to determine on the material provided by the plaintiff that their costs exceed 30 cents a page.  The rate set will be 30 cents per page.

You can click here to access more recent caselaw addressing photocopy disbursements.

Non-Pecuniary Assessments With Pre-Existing "Chronic" Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry providing some useful comments in an assessment of non-pecuniary damages for a Plaintiff with pre-existing, long-standing chronic pain and disability.
In the recent case (Morgan v. Scott) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault focusing the trial on an assessment of damages.  The Plaintiff had a host of pre-existing problems including chronic pain in his neck and low back.  He was also on a disability pension as a result of a chronic lung condition.
The collision caused soft tissue injuries which aggravated his pre-existing pain making his symptoms more “enduring in nature and markedly more severe“.    Mr. Justice Voith noted that this was a marked change in the Plaintiff’s pre-accident condition and assessed non-pecuniary damages at $100,000.  In doing so the Court provided the following reasons:

[35] The defendant argues that the Accident caused an “exacerbation” of these conditions. As a matter of definition this is true. There are instances, however, where a worsening in a condition gives rise to more than a change in degree. Instead, in real terms, it gives rise to a change in kind.

[36] I find that this is so for several of Mr. Morgan’s symptoms. I have said that his pain symptoms changed from being recurring in nature, with periodic “flareups” or, as Dr. Caillier described it, of an “on and off” nature, to being enduring in nature and markedly more severe. That reality has dramatically curtailed Mr. Morgan’s ability to follow his exercise regime. That regime, in turn, is vital to his respiratory health and to the management of his chronic pain. It was also one of the few physical activities that Mr. Morgan could participate in and it provided him with a sense of confidence. Further, it is clear to me that it also provided him with pleasure and with a sense of pride.

[37] There is no question that Mr. Morgan has become further de-conditioned since the Accident. He testified that his respiratory function has worsened. There was no admissible evidence before me that Mr. Morgan’s chances of being accepted onto a list of prospective transplant donees have diminished as a result of the Accident. Nevertheless I consider that I can, in my assessment of Mr. Morgan’s non-pecuniary losses, weigh the anxiety or stress that Mr. Morgan has expressed over his weakened state and its significance for his long term health.

[38] Still further, I find that Mr. Morgan has been transformed from a generally positive, outgoing, and confident person into one who is reclusive, who suffers from consistent depression of significant severity, and who is without energy. I also consider that it is noteworthy that notwithstanding the significant challenges of various kinds that Mr. Morgan has faced since childhood, he has always persevered and by virtue of his determination improved his state. Since the Accident, that is no longer true…

[48] Based on the findings I have made and on the considerations I have identified, I consider that an appropriate award for Mr. Morgan’s non-pecuniary losses is $100,000. This figure recognizes and accounts for the various positive and negative contingencies which exist as well as the various non-exhaustive factors that are identified in Stapely v. Hejslet, 2006 BCCA 34 at para. 46. I also emphasize that this award recognizes the difficulties that Mr. Morgan laboured under prior to the Accident and does not compensate him for such pre-existing difficulties.

Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 1 Comment on Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope of expert witness file disclosure requirements under Rule 11-6(8).  In short the court held documents created after the preparation of the expert opinion need not be disclosed.
In today’s case (First Majestic Silver Corp. v. Davila) the Plaintiff made a mid-trial application requesting “notes made by the Defendants’ experts during the course of the trial when the Plaintiffs experts were testifying“.  The Defendant opposed arguing the new rules of court did not require production of such records.   Mr. Justice Myers agreed and provided the following comments:

[8]      While the plaintiffs referred to Rule 11-6(8) at the outset of their argument, the main thrust of their submission was based on the common law prior to the new rules.  I will elaborate that after I summarise the defendants’ position.

[9]      The defendants argued that the Rule replaced the common law.  They submitted that the rule limits production to what was clearly stated in the rule, namely the “contents of the expert’s file relating to the preparation of the opinion” [emphasis added].  Since their experts had already delivered their reports and therefore formulated their opinions (beyond which they were not entitled to go when giving evidence) the notes made during trial could not relate to that.

[10]    In reply, the plaintiffs argued that the only thing the rule does is to push back the time at which the expert’s file must be disclosed.  Under the prior case law, this was when (and only if) the expert takes the stand, and then the whole file need be disclosed.  They argue that the rule requires the same disclosure to be made, but in advance.  Relying on Lax Kw’alaams, they submit that there is no distinction between the different capacities of an expert when generating the file materials.  Rather, the whole file relates to an expert’s credibility once he or she takes the stand and must be produced.

[11]    On the plain wording of the rule, I do not agree that it only modified the timing for the disclosure.  The words “relating to the preparation of the opinion” must be given some meaning.  In effect the rule settles the gray area dealt with in the decisions cited above.  I therefore decline to order the notes made during the course of the trial.

No Adverse Inference Where Witness in Question Called by Opposing Party

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived cases dealing with the ‘adverse inference‘ principle in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this principle when a Plaintiff failed to call a treating physician.
In last week’s case (Frech v. Lanlgey) the Plaintiff was injured in two collisions which caused soft tissue injuries which lingered to the time of trial.  Global damages of just over $35,000 were awarded.  In the course of the litigation the Plaintiff obtained a report from a treating physician.  The Plaintiff did not rely on the report at trial nor did the Plaintiff call the physician as a witness.  The defence did call the physician allowing the Plaintiff to have the benefit of cross-examination.  The defence argued that an adverse inference should be drawn in these circumstances.  Mr. Justice Truscott disagreed and provided the following reasons:

[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.

[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.

[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.

[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.

[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.

[247] Therefore I decline to draw any adverse inference.

Judicial Analysis Required for Each Item Sought In Future Care Claims

Written by admin on . Posted in Cost of Future Care Cases.


Reasons for judgement were released last week by the BC Court of Appeal discussing future care awards and the appropriate analysis that trial judges should undertake when considering such awards.
In last week’s case (Gignac v. ICBC) the Plaintiff was injured in a 2004 collision.  The Plaintiff’s injuries were expected to cause on-going difficulties.  At trial the Plaintiff sought $115,975 for future care needs.  This claim was awarded in full.  ICBC appealed arguing that the evidence did not support some of the claims made and that the trial judge did not apply the proper analysis.  The BC Court of Appeal agreed and reduced the award by almost $45,000.  In doing so the BC Court of Appeal provided the following reasons:

[29] The purpose of the award for costs of future care is to restore, as best as possible with a monetary award, the injured person to the position he would have been in had the accident not occurred.

[30] The award is “based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: (Milina  v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted inAberdeen v. Zanatta, 2008 BCCA 420 at para. 41.

[31] ICBC says that the trial judge did not examine each request and determine if there was an evidentiary link between the medical assessment and the care recommended by the occupational therapist and rehabilitation consultant. As Garson J.A. said in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39:

I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Aberdeen at paras. 43, 63.

[32] The failure of the trial judge to perform an analysis of each item sought by the plaintiff with respect to whether there was “some evidentiary link between the physician’s assessment of pain, disability and recommended treatment and the care recommended by a qualified health professional” was a legal error. The trial judge has since retired, and therefore it is not appropriate to refer the matter back to the trial court as the costs to the parties would be significant. Instead, this Court can make the assessment.

$100,000 Non-Pecuniary Assessment for C6-C7 Disc Herniation Requiring Surgery

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

Following a fairly unique collision involving a downed utility pole, reasons for judgement were published last week by the BC Supreme Court, Kamloops Registry, assessing damages for a C5-C6 disc injury requiring surgical intervention.

In last week’s case (Baxter v. Morrison) the Defendant tractor trailer operator struck overhead power lines with his vehicle causing the power pole attached to the wires to break into pieces falling on the plaintiff’s vehicle causing a severe neck injury.
Although fault was disputed Mr. Justice Ehrcke found the defendant fully liable for the incident.  The plaintiff’s neck injury required surgery which largely, but not entirely, improved his symptoms leaving the plaintiff with some permanent symptoms.  In assessing non-pecuniary damages at $100,000 the Court provided the following reasons:

[55] Here, the plaintiff, who was 47 at the time of the accident and who enjoyed an active lifestyle both at home and at work, suffered injuries to his neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain was caused by a disc herniation resulting from the accident. He performed an operation on his neck to remove the disc, and this relieved about 70% of the pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter has a “mild degree of permanent disability as a result of his ongoing neck pain.” This discomfort continues to affect Mr. Baxter both at home and at work.

[56] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Taking account of all of the factors mentioned in Stapley v. Hejslet, I would assess general damages in this case at $100,000.