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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.

An Underfunded Judiciary Costs You a Great Deal

Written by admin on . Posted in Uncategorized. 50 Comments on An Underfunded Judiciary Costs You a Great Deal

The Supreme Court of British Columbia’s Annual Report was released last week.  Consistent with recent comments,  Chief Justice Bauman noted that system underfunding continues to be a problem highlighting that “Financial constraints have reduced the number of court clerks, registry staff and sheriffs available to operate the justice system.  This affects the level of service that the public requires and has led to delays in processing court orders, scheduling hearings and conducting hearings“.
So why does any of this matter?  The short answer is that system underfunding imposes a high cost on those that need access to justice.  If you have a civil legal matter that needs resolving, be it a contract dispute, a personal injury claim, or a family law matter, that person could be you.
At the conclusion of the annual report some raw statistics are laid out.  Focusing on the Court Registry I most often access (Victoria) the data shows that in 2011 86 trials were heard.  A further 7 trials were ‘bumped’ (meaning adjounred because the system could not accomodate the hearings).
In the most basic terms this means 8% of people who tried to have their day in court in the Victoria BC Supreme Court Registry in 2011 had their cases ‘bumped’.  Justice Delayed is Justice Denied.  These delays come with real costs, both financial and emotional, for the litigants involved.  Those affected must shoulder the costs of preparing for trial not once but twice.   This is an unfair burden for individual litigants to bear.  Surely we as a Province can do better than this.
Not limiting judicial criticism to the annual report, The Chief Justices of BC’s Courts have also provided an interview to CBC’s Ian Hanomansing addressing, amongst other topics, the costs of justice system and legal aid underfunding.  The below video is worth reviewing in full for their comments:

$50,000 Non-Pecuniary Assessment for "Myofascial Pain Syndrome"; Rule 15 Soft Cap Exceeded

Written by admin on . Posted in BCSC Civil Rule 15, ICBC Soft Tissue Injury Cases, Uncategorized.

Adding to this site’s expanding database for BC soft-tissue injury assessments, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries with a poor prognosis.
In last week’s case (Bissonnette v. Horn) the Plaintiff was involved in a 2007 collision.  Fault was admitted focusing the trial on damages.  The Court found that the Plaintiff suffered various soft tissue injuries involving her beck, back hip and leg.  The injuries continued to cause difficulties to the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $50,000 Madam Justice Gray provided the following reasons:

[74] I accept the evidence of Dr. Frankel that Ms. Horn continues to suffer with left hip, neck, left leg, and lower back pain, disturbed sleep patterns, headaches, anxiety, and weight gain as a result of her motor vehicle related injuries. I also accept his opinion that, as these symptoms have continued for over four years since the accident, her prognosis for full recovery is guarded. Dr. Chu testified that the prognosis was fairly good for Ms. Horn’s widespread myofascial pain syndrome and that it usually responds to active exercise and treating sleep or mood disturbances. I accept this evidence as well….

[76] Ms. Horn’s continuing pain has diminished since the accident, but remains significant enough to affect her work, recreation, and sleep. She suffered other symptoms closer to the accident, including severe headaches, a broken tooth, and a finger injury.

Global damages of just over $100,000 were awarded demonstrating the soft cap in action set out for fast track trials in Rule 15.  This is not the first time this has happened since the new rules came into force and also confirms the disjunctive nature of Rule 15 allowing for the prosecution of claims over the $100,000 damage cap.

Court Refuses To Sever Liability From Quantum Where Damages Disputed

Written by admin on . Posted in BCSC Civil Rule 12, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.
Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:
[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?
The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

$250,000 Non-Pecuniary Assessment for "Open Book" Pelvic Fracture

Written by admin on . Posted in ICBC Pelvis Injury Cases, Uncategorized. 60 Comments on $250,000 Non-Pecuniary Assessment for "Open Book" Pelvic Fracture

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in 4 motor vehicle collisions.
In last week’s case (Scoates v. Dermott) the Plaintiff was involved in multiple collisions.  He was found faultless for all of them.  The collisions resulted in numerous injuries the most serious of which was an ‘open book‘ pelvic fracture.  The consequences of his injuries disabled him from his own occupation as an ambulance attendant and largely disabled him from any other occupation.  In assessing non-pecuniary damages at $250,000 Mr. Justice Smith provided the following reasons:

[171] In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal set out a non-exhaustive list of factors to be considered including: the age of the plaintiff; the nature of the injury; the severity and duration of pain; the degree of disability; the impairment of family, marital, and social relationships; and loss of lifestyle.

[172] Reference to any and all of those factors in this case reveals a profound impact. The initial injuries and their immediate aftermath were horrific.  Although the plaintiff’s recovery was remarkable in some respects, his ongoing pain and disability, combined with the psychological difficulty and frustration of adjusting to that pain and disability, are likely to have severe adverse effects for the rest of his life.  Those effects will be felt in all his daily activities and in his family and social life.

[173] An additional factor in this case is the extent to which the plaintiff is affected by the loss of his pre-injury career.  The loss of income is, of course, separately compensated, but the plaintiff so enjoyed his job, and defined himself so much in reference to that job, that his inability to return to work as a paramedic magnifies his loss of enjoyment of life.

[174] I have considered the cases of Grewal v. Brar, 2004 BCSC 1157, Izony v. Weidlich, 2006 BCSC 1315, Lines v. Gordon, 2006 BCSC 1929,  Dikey v. Samieian, 2008 BCSC 604, andZawadzki v. Calimoso, 2010 BCSC 1952. Considering the awards made in those cases, comparing the injuries in those cases to those in this case, and most important, considering the individual circumstances of the this plaintiff and the impact of his injuries on his life, I find  an appropriate award of non-pecuniary damages to be $250,000.

[175] In awarding non pecuniary damages of $250,000, I have not overlooked the submission of defence counsel that cases awarding non-pecuniary damages below the upper limit but in excess of $200,000 frequently involve a finding of ongoing effects from organic brain injury.  Although I have found the plaintiff’s cognitive, emotional and personality difficulties may result from the complex interaction of chronic pain and depression, rather than organic brain injury, the intractable nature of those problems makes the distinction largely irrelevant.

More On Withdrawing Admissions of Liability

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Liability (fault) Cases, Uncategorized. 47 Comments on More On Withdrawing Admissions of Liability


As previously discussed, Rule 7-7(5) canvasses the BC Supreme Court’s authority to allow a party to a lawsuit to withdraw a formal admission made the course of litigation.
A common admission canvassed under this rule deals with fault following a crash.  Occasionally ICBC admits fault on behalf of a Defendant and for various reasons wishes to withdraw such an admission as the lawsuit progresses.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Goundar v. Nguyen) the Plaintiff was involved in a 2008 collision.  ICBC initially denied fault on behalf of the Defendant.  In the course of the lawsuit the Defendant’s lawyer ‘inadvertantly’ agreed to admit liability on behalf of the Defendant and an amended Response was filed.
The Defendant brought an application to withdraw its admission.  In allowing this the Court found that the admission was made inadvertently and provided the following reasons:

[35] Rule 7-7(5) provides:

A party is not entitled to withdraw…

(c) an admission made in a pleading…

except by consent or with leave of the court.

[36] The cases to which I was referred dealing with withdrawal of admissions treat admissions made by inadvertence with caution.  Many of the cases deal with deemed admissions through failure to respond to a Notice to Admit.  However, the considerations remain the same.  The court will consider if the admission was made inadvertently, if it is in the interests of justice to allow the issue to be resolved by a trial, and if there will be no prejudice to the party which cannot be compensated by costs.  If satisfied of those factors, leave to withdraw such an admission will generally be granted. (Abacus Cities Ltd. v. Port Moody [1980] B.C.J. No. 1749 and cases cited therein).

[37] The balancing of the interests of justice requires the applicant to show that there is a triable issue in respect of the admission.  The chambers judge must not make a final determination, but will simply determine if there is an issue worthy of being tried.  Prejudice resulting only from the benefit of relying on the admission occasioned by the inadvertence is not of significance (Can-Am, supra)…

[42] I am satisfied there is a triable issue on liability, based on the information put before me as to Goundar’s allegations, potential evidence from Maharajh, and Nguyen’s ticket on the one hand, and Nguyen’s and Stewart’s evidence on the other.  As well, Nguyen has her own action which is still outstanding.  There is a conflict in the evidence about the collision, which should be resolved by a trial.

[43] Although the plaintiff says the relevant admission was made deliberately and with no new facts available, that is not borne out by the affidavit material.  The lawyer has set out clearly how she came to make this admission in the face of her own assessment of the case and contrary instructions.  She admits she did not remember her instructions had changed and she did not conduct a review of the file before following a prompt from her paralegal to follow up on ICBC’s original letter.  The initial suggestion by ICBC to canvass plaintiff’s counsel regarding the proposal was made without the benefit of Mr. Stewart’s evidence, and the relevant instructions not to admit liability were in place at the time the lawyer amended the Response to admit liability.  I am satisfied that the defendant has demonstrated that the admission was made inadvertently.

[44] As for the balancing of prejudice, nothing irrevocable has been done that cannot be compensated for in costs.  The interests of justice require that this unfortunate situation be set back on track rather than allow the Goundar action to proceed on an untested and possibly erroneous foundation which has come about as a result of a mistake.

[45] If the admission of liability is left in place, the possibility of future remedies exists through an action by ICBC against the lawyer, and also possibly by Nguyen against ICBC for failure to defend her in this action.  However, that is not a satisfactory approach.  Goundar’s action would still be predicated upon a mistaken admission, and the interests of justice are not served by failing to rectify a mistake in circumstances where any prejudice can be compensated for in costs.

[46] The delay in bringing the application, once the lawyer became aware of her mistake, is not inordinate.  The trial date is four months away, which allows time for additional discovery.  While the deadline for expert reports is approaching, any prejudice arising from that factor can be compensated for in costs, as set out below.

[47] Goundar says this case is taken outside the usual bounds of withdrawals of admissions by the bargain she struck – discontinuing the action against Stewart in exchange for an admission of liability on behalf of Nguyen.  The defendants must be held to their bargain.  However, the Court of Appeal held in Drake (Guardian ad litem of) v. Clark (1996) 31 B.C.L.R. (3d) 289 that it is no longer necessary for the doctrine of promissory estoppel to be invoked in applications to withdraw admissions.  Withdrawal may be made if it is in the interest of justice.  As well, in this case, unlike Phil Whittaker Logging Ltd., supra, and the other cases referred to by the plaintiff, the admission was made inadvertently.

$80,000 Non-Pecuniary Damage Assessment For Aggravation of Pre-Existing Back Pain; Indivisible Injuries Discussed

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 last week assessing damages for a permanent aggravation of pre-existing back and neck injuries as a result of a collision.
In last week’s case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2009 collision.  His vehicle was struck by an RCMP cruiser that ran a red light.  The Defendant motorist claimed the crash happened due to faulty brakes but the Court rejected this suggestion and found the officer fully at fault.
The Plaintiff suffered from various pre-existing injuries including chronic back pain.  Despite this he was able to work.  Following the 2009 collision his injuries were aggravated and disabled the Plaintiff from his occupation as a truck driver.  The Plaintiff’s disability was expected to continue.   In assessing non-pecuniary damages at $80,000 Madam Justice Gropper made the following findings:

[91] The evidence supports, and I have found, that Mr. Del Giglio suffered a re-aggravation of his neck and lower back pain in the January 2009 accident. He has reached a plateau in his recovery. He has not returned to his baseline level of activity which he enjoyed before the accident. He has not returned to his pre-accident level of pain. Though initially optimistic, Mr. Del Giglio’s physicians are all of the view that his prognosis is “guarded at best.”

[92] Mr. Del Giglio has suffered pain and loss of enjoyment of his life. The injuries have had a serve impact. I accept that Mr. Del Giglio’s pain has been distressful and have affected his emotional state. Despite Dr. Monk’s not having diagnosed depression, Dr. Purtzki did find such symptoms, which are anticipatable, given the reduction in the activities, including the ability to work, which Mr. Del Giglio has experienced.

[93] On the other hand, Mr. Del Giglio has been able to maintain his musical career, a vocation that he clearly thrives upon. That is a factor which I will take into account.

[94] A further factor is that Mr. Del Giglio is aging and some deterioration in his cervical spine is, in Dr. McKenzie’s words, “not uncommon.”  I accept that he would have had some increased pain at some point, but the accident accelerated the onset…

[97] Having reviewed the cases provided, I conclude a fair and reasonable award for non-pecuniary damages is $80,000.

In addition to the above this case is worth reviewing for the Court’s discussion of indivisible injuries at paragraphs 73-86 of the reasons for judgement and the arguments of defence regarding the effects of a release for a previous collision contributing to an indivisible injury.