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A Sensible Take on Gaps in Clinical Records

Written by admin on . Posted in Uncategorized.

In the ICBC Claim process the number of medical visits following a collision are often scrutinized.  If there is a substantial gap in treatment an argument can be made that the symptoms are recovered and compensation should be limited accordingly.  Reasons for judgement were released recently by the BC Supreme Court, Nanaimo Registry, dealing with such an argument.
In the recent case (Noon v. Lawlor) the Plaintiff suffered from a chronic whiplash injury following a 2009 collision.  ICBC argued that a “large time gap in which the Plaintiff did not seek any medical treatment” was consistent with injury recovery.  Mr. Justice Halfyard rejected this absolute position and provided the following sensible analysis:
[194] A plaintiff’s failure to seek medical attention for relatively long periods of time cannot, by itself, justify the inference that the plaintiff was not experiencing the symptoms which he or she describes at trial. This is particularly so where exercise is the only “treatment” being advised by the plaintiff’s doctor. However, the circumstances in a particular case may warrant the inference that any pain symptoms that were experienced by the plaintiff during these time gaps were not continuous or frequent or alternatively, if they were, then such symptoms of pain were at a low level of intensity, perhaps not much more than discomfort. If one or other of these inferences is drawn, and if that inference is inconsistent with the plaintiff’s description of his or her symptoms at trial, then such inconsistency may adversely affect the plaintiff’s credibility.
For more judicial commentary on injury claims and frequency of medical appointments you can click here to access my archived posts.

Welcome Australian Broadcasting Corporation Listeners

Written by admin on . Posted in BC Injury Claims Media Archives, Sexual Assault Civil Cases, Uncategorized.


The Australian Broadcast Corporation has recently been reporting on their Nation’s inquiry into historic sexual abuse involving religious organizations.
In the context of this story I had the pleasure to participate in a recent interview with ABC’s Anita Barraud discussing the circumstances when Canadian Courts will allow a damage claim to succeed not just against the perpetrator of the abuse but also against the organization itself under the doctrine of ‘vicarious liability‘.  An audio clip of my interview can be found here which aired in Australia earlier today:
bst_20120424_0848.mp3
For those of you visiting this site looking for more information regarding Canada’s application of vicarious liability in the context of civil damage claims for sexual abuse you can click here to access my archived post addressing this topic.

$40,000 Non-Pecuniary Assessment for "Stabalized and Static" Soft Tissue Injuries

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


A not uncommon pattern for many people who experience soft tissue injuries following a motor vehicle collision is an acute phase of injury followed by a gradual period of improvement where the injuries, while largely recovered, do flare with heavier activity.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, assessing damages for such an injury.
In last week’s case (Stein v. Kline) the Plaintiff was involved in a 2008 rear-end collision.  ICBC admitted fault on behalf of the rear driver.   The collision resulted in little vehicle damage but the Plaintiff nonetheless sustained injuries.   After a short period of disability the Plaintiff was able to resume work and over a period of several months was able to resume recreational activities.  Despite this his injuries remained vulnerable to aggravation with physical activity.  In assessing non-pecuniary damages Mr. Justice Bracken provided the following reasons:

[31] The only medical evidence is contained in the report of Dr. Smith.  His report of July 28, 2011 states:

In summary, it is my opinion that Mr. Stein suffered injuries as a result of the motor vehicle accident of June 19, 2008.  It is my opinion that he suffered a musculoligamentous strain of the neck, scapular area and low back.  The strain of the scapular area and low back were mainly on the right hand side.  After the accident he was not fit to work until July 30, 2008 and he was then on light duty for the next several weeks.  Mr. Stein was treated with physiotherapy.  He was treated with anti-inflammatory drugs and occasionally a muscle relaxant.  He was shown a stretching program for his neck and lower back and has been able to control his symptoms with these stretching exercises since stopping physiotherapy in late 2008.  Mr. Stein still gets flares of scapular area pain and low back pain if he is overly active.  He is able to participate in his work on a regular basis and does virtually all the work he did before although he tries to avoid heavy lifting.  He is fit to participate in hockey, golf and other sports although he does these less frequently than in the past.  Any overuse causes him to have some flare up of pain in the scapular area or the lower back which usually settles within a few days.  He has intermittent spasm in the neck and lower back on examinations depending on his activities in the previous few days.

It is my opinion that Mr. Ron Stein’s injuries are soft tissue in nature.  His injuries have stabilized and have been quite static for the past year with only occasional flare-ups related to overuse.  He may require some intermittent physiotherapy or massage therapy in the future if he has increased pain or spasm but generally he is managing this well with a home exercise program.  It is now more than three years since the initial injury and it is my opinion that Mr. Ronald Stein is likely to have some ongoing muscle tenderness and occasional flare-ups as he has been doing for the last several months.  His injuries are not in any bone or joint and he is not going to be subject to an increased risk of osteoarthritis.

[32] In these circumstances, it is my view that the cases of Reyes v. Pascual and Schulmeister v. Furmanak are the most comparable.  The cases referred to by the plaintiff are in my view cases where the injuries were more serious.

[33] Based on the evidence presented and a review of the applicable case law, I find an appropriate award for non-pecuniary damages in this case is $40,000.  This award is perhaps somewhat generous given the evidence, but it reflects the fact that the plaintiff is still experiencing some pain more than three years post-accident.  While he is able to continue with these activities, he has occasional limitations that are attributable to his injuries from the accident and he still experiences some activity-induced pain.

Its Important to Know The Low End of the Range

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


When valuing a case for non-pecuniary damages its easy to cherry pick a few cases with similar facts and focus on the high end of potential damage awards.  While it is useful to be familiar with such authorities it is equally important to know the low end of potential damages as injuries are sometimes valued accordingly.  Knowing both ends of the risk spectrum helps make a more informed decision when valuing an injury claim.
With this in mind, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages on a very modest basis following a motor vehicle collision.
In last week’s case (Lee v. Dueck) the Plaintiff was involved in a 2009 so-called ‘low velocity impact’.  The Plaintiff was injured and some of her injuries lingered to the time of trial.  Madam Justice Gray found that the Plaintiff was “a straighforward witness who did not exaggerate“.  Despite this positive finding the Court concluded that the injuries were minor and that their consequences were not particularly significant.  In assessing non-pecuniary damages at $5,000 Madam Justice Gray provided the following reasons:

[35] In summary, Ms. Lee suffered minor soft tissue injuries in the accident. It was a relatively low velocity accident, but in Dr. Le Nobel’s opinion, Ms. Lee was at increased risk for more severe musculoskeletal consequences from physical trauma because she had increased ligamentous laxity in her joints. I accept that she suffered the injuries she has described. While she did not know whether her continuing problems were the result of the accident, I accept Dr. Le Nobel’s opinion that the injuries were likely caused by the accident.

[36] Ms. Lee suffered pain in her left ankle which resolved after about 10 days. She suffered pain in her right wrist which gradually improved and was gone by about seven months after the accident, except for flares of pain. The injuries caused her to substantially modify her cooking and housework for less than a month after the accident. She was a homemaker and her substantial modification to her work in the home was similar to a person who would take a couple of weeks entirely off work, and then gradually increase work.

[37] Since the accident, Ms. Lee has modified her activities to avoid heavy lifting and repeated twisting. Ms. Lee was essentially pain-free for about a year from the summer of 2010 to the summer of 2011, and after that she has suffered minor, brief flare?ups of pain with heavy lifting or frequent use of her wrist. She does not have pain or limitation of function on a daily basis. She is at risk for future flares of pain…

[51] In this case, Ms. Lee was 37 at the time of the injuries. The ankle resolved after about 10 days, and the wrist substantially resolved after about seven months. Ms. Lee has been left with chronic intermittent short?lived pain, which is triggered by heavy lifting and repeated twisting, but which she is able to avoid by modifying her activities to avoid those actions. This has not significantly affected her ability to work as a homemaker or in work or other activities that she is likely to pursue.

[52] In all the circumstances, a fair award for Ms. Lee’s non?pecuniary damages is $5,000.

$60,000 Non-Pecuniary Damage Assessment For Right Knee Cartilage Injury

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and back injury sustained in a collision.
In this week’s case (Buttar v. Brennan) the Plaintiff was injured in a 2008 collision.  He was employed as a framer.  He suffered from pre-existing back pain.  This condition was aggravated by the collision.  The Plaintiff also suffered a cartilage injury to his right knee causing patello femoral symptoms (knee pain).
These injuries, while not totally disabling, were expected to be ongoing and to compromise the Plaintiff in his vocation.  In assessing non-pecuniary damages at $60,000 Mr. Justice Abrioux provided the following reasons:
[34] I have found that the plaintiff was a hard-working individual.  I have also concluded he has made a greater recovery from his injuries than he may believe or say to be the case.  He is left, however, with an ongoing low back condition which affects his life from a functional perspective to a greater degree than was the case prior to the Accident.  He also has a minor yet permanent ongoing injury to his right knee which was entirely caused by the Accident…
[37] Taking into account the plaintiff’s original position and the measurable risk which I have found the plaintiff’s pre-Accident condition would have had on his life in any event, I award non-pecuniary damages of $60,000.

So Here's the Scam…A Warning for Personal Injury Lawyers

Written by admin on . Posted in Uncategorized. 54 Comments on So Here's the Scam…A Warning for Personal Injury Lawyers


There is a scam making the rounds targeting personal injury lawyers that my colleagues should be aware of.  Here’s how it works:
1.  A potential client contacts you, tells you he/she was injured in a collision in your jurisdiction.
2.  The tort-feasor was uninsured.  They negotiated a settlement directly.
3.  The injuries are severe.  A medico-legal report is provided to corroborate this.
4.  The tort-feasor is now not paying.  The client needs to retain you to collect.
5.  After you agree to act the tort-feasor agrees to honour the settlement.
6.  The tort-feasor sends you a cheque which you deposit.
7.  The cheque looks legitimate and your bank tells you it is.
8.  The client is pleased.  He/She asks for their share after deducting your reasonable fee.
9.  You pay out, less your fee, oh so pleased with your lawyering skills…
10.  The cheque does not clear leaving you holding the bag.
11.  Worse yet, the retainer happened over the Internet.  You did not follow the ‘know your client rule‘.  Your BC lawyer’s insurance also leaves you holding the bag
Remember, there’s no free lunch.  If it looks too good to be true it probably is.
The Law Society of BC has ample resources to assist and should be contacted when you suspect a scam is in the works.

It is Unnecessary To "Label" Injuries In Pursuit of Proper Compensation

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized.


When assessing damages in a tort claim, the labels attached to injuries are far less important than the actual consequences of the injuries.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this in the context of a chronic pain case.
In this week’s case (Cantin v. Petersen) the Plaintiff was involved in an intersection collision in 2004.  Fault was admitted by the offending motorist.  The crash caused injuries resulting in chronic pain which persisted to the time of trial and was expected to continue indefinitely.  The medical labels attached to the injuries varied from ‘fibromyalgia‘ to ‘chronic pain syndrome‘.  The Plaintiff argued that “it is unnecessary to label the injuries” in the pursuit of lawful compensation.
Madam Justice Bruce accepted that, whatever the label, the Plaintiff’s symptoms were related to the collision and awarded the Plaintiff $150,000 in non-pecuniary damages.  In doing so the Court made the following findings:
[12] While there is generally a consensus among the medical experts regarding the initial diagnosis of Ms. Cantin’s injuries stemming from the accident, there is a considerable division of opinion as to the causes of her current complaints and symptoms. None of the physicians who examined Ms. Cantin and provided expert medical opinions doubted the veracity of her complaints of pain. The dispute among the experts lies in the cause of her current symptoms. While Ms. Petersen argues Ms. Cantin’s physicians have become advocates for her claim rather than independent experts, it is significant that none of the experts had any doubt that Ms. Cantin was suffering real and substantial pain symptoms. In addition, I cannot agree that Ms. Cantin’s physicians were advocates for her claim. They were passionate about their work in the field of chronic pain, and disagreed with the opinions of the defence experts concerning the cause of Ms. Cantin’s continuing symptoms. In my view, this does not render their opinions less reliable or less credible…

[22] There is no question that Ms. Cantin continues to suffer pain in her upper back, shoulders and neck. None of the medical experts believed she was fabricating her complaints or was malingering. There is no evidence of an intervening event that would break the chain of causation between the aggravation of Ms. Cantin’s chronic pain and the collision. The possibility that Ms. Cantin would have experienced the same symptoms in any event is a factor taken into account in determining damages; it is not relevant to causation. Thus I find that Ms. Petersen is liable for the continuing injury to Ms. Cantin’s upper back, shoulders and neck. A comparison of her condition before and after the accident will determine the quantum of damages and the extent of Ms. Petersen’s responsibility for Ms. Cantin’s present condition.

[23] Similarly, I find Ms. Petersen liable for Ms. Cantin’s continuing headache pain as these are causally connected to her chronic pain syndrome in her upper and lower body. The extent of Ms. Petersen’s responsibility will be determined by a comparison of Ms. Cantin’s past experience with headaches and her current experience…

[45] The soft tissue injuries occasioned by the accident have led to the development of serious, chronic pain in Ms. Cantin’s upper and lower spine, hips, and legs. Despite many types of therapy, she has continued to experience serious pain and a drastic reduction in her functional mobility for almost eight years since the accident. Ms. Cantin has lost the ability to work in a competitive labour market; she has no social life outside her home and her relationship with family members has deteriorated substantially as a result of her constant pain and mental distress. She is unable to achieve restful sleep; has suffered a cognitive decline in memory; and has become a social recluse. Her prognosis for any level of recovery is extremely guarded.

[46] While I believe the quantum of damages suggested by Ms. Cantin, adjusted for inflation, is more reflective of her loss than the range posited by Ms. Petersen, a lower amount is appropriate given the risks inherent in her pre-existing condition. Therefore, I award $150,000 in general damages for pain and suffering.

$100,000 Non-Pecuniary Damage Assessment For Bilateral Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Dental Injury Cases, ICBC Thoracic Outlet Syndrome Cases, Uncategorized.


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for bilateral thoracic outlet syndrome and other chronic soft tissue injuries.
In yesterday’s case (Olson v. Ironside) the Plaintiff was involved in a ‘signigicant collision’ in 2008.  ICBC admitted fault on behalf of the Defendant. The Court heard competing evidence with respect to the extent of the Plaintiff’s injuries and ultimately sided with the Plaintiff’s experts noting ICBC’s expert failed “to consider significant material facts“.
The 19 year old Plaintiff suffered multiple injuries, the most serious of which was bilateral thoracic outlet syndrome.  These were expected to cause a permanent partial disability limiting the Plaintiff for the balance of her working years.  In assessing non-pecuniary damages at $100,000 Mr. Justice Josephson provided the following reasons for judgement:

[60] The plaintiff has proved that, but for the accident, she would have continued her healthy, active and outgoing life style. I accept the plaintiff’s submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission; and

9.       permanent right temporomandibular joint dysfunction.

[61] The accident had a dramatic effect on all aspects of this young plaintiff’s life because of the symptoms listed in the previous paragraph. She has learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62] Of the several case authorities cited by the plaintiff to assist the Court in determining non-pecuniary damages in the case at bar, the most helpful are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010 BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335;Prince-Wright v. Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211.  The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63] After reviewing the authorities cited to me and considering the impact of the proven injuries on the plaintiff’s daily life, I award the plaintiff $100,000 for non-pecuniary damages, which I consider to be a mid-range award for the circumstances of this case.

"Persistence in Bringing Vexatious Litigation Has Significant Consequences"

Written by admin on . Posted in Tort Reform.

One myth I like to dispel is the idea that there are too many frivilous lawsuits in Court or that the system is not equipped to deal with such claims when they do arise.
Special interest groups push stories of ‘lawsuit abuse’ arguing that change is necessary.  The truth, however, is that frivolous lawsuits can and do get weeded out of Court.  As previously discussed, BC Courts have very effective tools for eliminating bad lawsuits the most powerful of which is a “vexatious litigant” order.
In short a vexatious litigant order can strip a person of their right to sue without first getting judicial approval.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making such an order. The reasons are here and are worth reviewing in full to gain insight into the consequences of such an order and the circumstances when one could be made.