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$25,000 Non-Pecuniary Damages For Largely Recovered Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on $25,000 Non-Pecuniary Damages For Largely Recovered Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme, Vancouver Registry, assessing damages for largely recovered soft tissue injuries.
In last week’s case (Hussain v. Cho) the Plaintiff was injured in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  The collision caused soft tissue injuries to the Plaintiff’s neck and upper back muscles (specifically the left erector spinae and thoracic paraspinal muscles).

These injuries kept the Plaintiff off work for 6 weeks.  The injuries largely recovered in the first year following the crash but continued to cause some minimal albeit improving symptoms at the time of trial.  In assessing non-pecuniary damages at $25,000 Mr. Justice Jenkins provided the following reasons:
[21] Based on the above and all of the evidence, I find Ms. Hussain’s injuries arising from the motor vehicle accident of August 24, 2008 consisted of soft tissue injuries to the left erector spinae and thoracic paraspinals evidenced by pain in her mid and lower back, shoulder and neck and as well as headaches. Although Dr. Menzies did state that Ms. Hussain was “probably substantially recovered” from the injuries caused by that motor vehicle accident within one year, she did continue to suffer some pain and headaches for more than a year after the accident. Also, Ms. Hussain’s injuries from the February 2011 “slip and fall” were a “little” worse due to the injuries suffered August 24, 2008…
[26] Considering all of the above findings and authorities, I find the plaintiff to be entitled to a total of $25,000 in non-pecuniary damages which includes $5,000 for diminishment of homemaking capacity. Homemaking was a very significant activity for Ms. Hussain before the accident and it is clear that she struggled at that activity for some time thereafter.

ICBC Litigation Privilege Claim Fails Due to "Investigative Stage" Finding

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Further to my previous article on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the circumstances when a defence litigation privilege claim will fail due to records being created during ICBC’s “investigative stage” following a collision.
In last week’s case (Bako v. Gray) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Defendant listed several documents as privileged.  These included an ICBC adjuster’s notes and further the notes of an independent adjuster hired by ICBC.  The Plaintiff brought an application to produce these records.  The Defendant refused arguing these records were subject to litigation privilege and that they were created for the dominant purpose of preparing for litigation.
Master Caldwell rejected this argument finding the records were more likely created during ICBC’s investigative stage.  In ordering production of the records the Court provided the following reasons:
[5] In Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614 (C.A.) the Court of Appeal approved the reasoning and findings of Master Grist (as he then was) that there is an investigative stage and a litigation stage, that it was proper for the Master to determine when litigation became a reasonable prospect and further to determine when in the overall process the dominant purpose for the creation of documents became the preparation for or pursuit of litigation. The court further confirmed that in making that determination the Master was not bound or obliged to accept the adjusters’ opinions on those central issues to be decided…

[21] In his initial entry note in the defendant’s file on November 21, Mr. Matheson includes the following entries:

–

DICTATED MY NFA, AND A LETTER TO I/A DON UNRAU, WHOM I HAVE ASKED TO BE MY “LIASON” (sic) WITH ZOLTAN, SO LONG AS HE REMAINS UNREPRESENTED;

–

IN ANY EVENT, THE PLAN IS VERY SIMPLE. MONITOR ZOLTAN’S PROGRESS & OBTAIN UPDATED CLINICALS & REPORTED (sic) PERIODICALLY…AND HOPEFULLY, SETTLE HIM UNREPRESENTED SOMETIME BEFORE THE 2 YEAR LIMITATIONS PRESCRIBES. LOOKS LIKE ZOLTAN IS ASKING HIS GP TO REFER HIM TO DR. ROBINSON (RE: HIS HA’S)…I’LL BOOK A PRECAUTIONARY IME WITH DR. MICHAEL JONES, “JUST IN CASE”

–

I DON’T HAVE ANY CONCERNS RE:  CREDIBILITY, BASED ON WHAT I HAVE SEEN TO DATE.

[22] On November 25, 2008 Mr. Matheson made further notes to the file, including:

–

SO LONG AS MR BAKO REMAINS UNREPRESENTED, AND CONTINUES TO WORK, THE RISK EXPOSURE OF THIS FILE IS MODERATE.

–

I AM GOING TO RETAINED DON UNRAU, INDEPENDENT ADJUSTER, TO ACT AS MY LIAISON WITH THE PLAINTIFF.

–

I WILL SET UP A PRECAUTIONARY IME WITH DR MICHAEL JONES (NEUROLOGIST)

[23] These entries clearly indicate that as of late November 2008, Mr. Matheson’s focus was on information gathering and settlement, with both being done quickly and before Mr. Bako retained counsel; when litigation type issues did arise they were referred to as “precautionary” or “just in case”, neither of which is at all consistent with his sworn assertion that he “believed this matter would result in litigation” when he first received the file.

[24] Based on my review of the materials, it is of little import whether Ms. McIntosh or Mr. Matheson had charge of the files between November 10, 2008 and March 16, 2009, or for that matter, September 22, 2009 when the Writ was filed and sent for delivery to ICBC. Nothing in the materials supports Mr. Matheson’s assertion that he had a reasonable basis to determine and that he did determine that there was a reasonable prospect of litigation in this case.

[25] Save and except for references to reserves, the CWMS notes are ordered to be produced in unredacted form up to and including September 22, 2009.

[26] All references to the independent adjuster in November of 2008, centered on him simply being a “liaison” between Mr. Matheson and Mr. Bako, at least for so long as Mr. Bako remained unrepresented; the report is dated shortly after Mr. Bako did retain counsel. Again, I see no support for any conclusion other than that his involvement was related directly to Mr. Matheson’s stated intention to settle the file before Mr. Bako retained counsel. The report is ordered produced.

The Diminished Earning Capacity Checklist

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 46 Comments on The Diminished Earning Capacity Checklist


It is always a welcome development when a complex area of the law is judicially drilled down to point form.  Last month Mr. Justice Savage of the BC Supreme Court did so with resepect to the law of ‘diminished earning capacity‘.  In last month’s case (Parker v. Lemmon) the Court provided the following useful breakdown:

[42] The approach to such claims is well set out in the decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras. 25-32, which I summarize as follows:

(1) A plaintiff must first prove there is a real and substantial possibility of a future event leading to an income loss before the Court will embark on an assessment of the loss;

(2) A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation;

(3) A plaintiff may be able to prove that there is a substantial possibility of a future income loss despite having returned to his or her employment;

(4) An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss;

(5) It is not the loss of earnings but rather the loss of earning capacity for which compensation must be made;

(6) If the plaintiff discharges the burden of proof, then there must be quantification of that loss;

(7) Two available methods of quantifying the loss are (a) an earnings approach or (b) a capital asset approach;

(8) An earnings approach will be more useful when the loss is more easily measurable;

(9) The capital asset approach will be more useful when the loss is not easily measurable.

$60,000 Non-Pecuniary Assessment for Medial Meniscal Tear and TMJ Injury

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


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic knee and jaw injury sustained in a motor vehicle collision.
In this yesterday’s case (Daitol v. Chan) the Plaintiff was involved in a “serious” collision when the defendant dozed off and crashed into the Plaintiff’s vehicle.  Fault was admitted by the Defendant at the start of trial.
The Plaintiff suffered various injuries, the most serious of which was a meniscal tear in her left knee.  The Plaintiff’s family doctor summarized the following collision related injuries which the Court accepted:

[35] It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol during the motor vehicle accident were:

· New-onset neck-, mid-and-upper back, lower back, right shoulder and right hip area pain: soft tissue (muscular and connective tissue).  Pain in this area is largely resolved with some intermittent neck and back pain.

· Bilateral TMJ (jaw) pain, right side more than left.

· Pre-patellar bursitis of the left knee due to direct trauma to the knee.  This explained the initial swelling of the left knee patellar area, which resolved after a few months.

· Left knee PFS (patellofemoral syndrome) which is a condition of direct damage to the kneecap cartilage, causing pain with squatting, deep knee bending and climbing stairs.

· Left knee medial meniscus tear. This is consistent with the mechanism of injury of the MVA (direct knee impact), supported by direct pain upon palpation of the joint line, the MRI findings and the longstanding duration of symptoms.  This is still symptomatic today.

In assessing non-pecuniary damages at $60,000 Madam Justice Griffin provided the following reasons:

[53] In considering all of the medical evidence, and Ms. Daitol’s testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol is likely to have long-term continuing TMJ problems and left knee pain problems, as well as some right knee problems well into the future, and that these injuries were caused by the accident. ..

[67] I find as a fact that Ms. Daitol’s greatest discomfort in the years since the accident, and likely in the future, and greatest interference with her enjoyment of life, is due and will continue to be due to the pain in her left knee.  She continuously is required to use a left knee brace.  For a lengthy period of time, she was on crutches.  She limits her physical movements and hence her recreational activities due to the limits of her left knee as she does not want to set herself back…

[69] I find that she has suffered severe restrictions in walking and will continue to do so in the future and likely for the rest of her life.  I conclude that there is no readily apparent alternative exercise for Ms. Daitol at this stage of her life, other than walking.  As a 36 year old woman, the permanent impairment of her ability to walk any measurable distance or for any measureable period of time, without suffering extreme pain, is a significant loss.  While she still will have plenty of enjoyment in life, she will frequently suffer pain, both in her recreational pursuits and at work when she is required to move around to retrieve files or do other light tasks. ..

[74] In this case, I find it very significant that the one physical activity Ms. Daitol used to enjoy, walking, has essentially been lost to her.  While she can still walk somewhat, it is clear that she is no longer going to enjoy it, it is going to very limited in duration, and she is always going to fear and suffer the aftermath of increased pain.  Walking is essential to most of daily life, and is not a luxury that if lost, will not be missed.  For someone who has never had a natural inclination to pursue a range of physical activities, this is an even more significant loss as she is unlikely to have the natural athletic ability that will allow her to generate some other replacement activity.  While I find that the range suggested by the plaintiff may be high in these circumstances, I find the range suggested by the defendant to be far too low.

[75] I find that an appropriate award for general damages in the circumstances of this case, taking into account the left knee damage, the fact that it is causing some problems with the right knee, and the ongoing TMJ complaints, all caused by the accident, is $60,000.

Timing of Plaintiff Testimony in a Personal Injury Lawsuit

Written by admin on . Posted in Civil Procedure, Uncategorized.


While BC has no formal requirement addressing when (or even if) a Plaintiff needs to take the stand in the prosecution of a personal injury claim, the prevailing practice is for the Plaintiff to testify first.  Deviating from this practice comes with a downside as explained in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Yeung v. Dowbiggin) the Plaintiff was involved in four separate motor vehicle collisions.  The Plaintiff’s trial lasted over two weeks.  She was one of the last witnesses to testify.  Madam Justice Humphries highlighted the following practical difficulty which arose due to this decision:
[27] Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses.  I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses.  I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

$50,000 Non-Pecuniary Damages For Chronic Shoulder Soft Tissue Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized. 47 Comments on $50,000 Non-Pecuniary Damages For Chronic Shoulder Soft Tissue Injury

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry assessing damages for a chronic shoulder soft tissue injury.
In last week’s case (Araki v. Guitard) the Plaintiff was injured in a 2007 collision.  She was 17 at the time.  The vehicle in which she was riding as a passenger was T-Boned by the Defendant’s vehicle.  Fault was admitted.
The Plaintiff suffered various soft tissue injuries.  Many of these went on to recover, unfortunately her shoulder was injured and continued to pose problems at the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Williams made the following findings:

[7] Based on all of the evidence, I am satisfied that it has been proven that the plaintiff sustained physical injuries in the collision. Those included injuries to the right side of her neck, the right side of her upper and mid back, and to her right shoulder. As well, she experienced occasional headaches.

[8] The headache condition resolved within a short time, a matter of months at the most.

[9] The back and neck discomfort have substantially resolved although it is not exactly clear when. I am satisfied that state had been attained within three years of the accident. The discomfort from those particular areas was not especially significant; it would be fairly described as modest. If there are occasional discomforts in those areas now, I find they are associated to the shoulder pain.

[10] The plaintiff’s right shoulder has continued to be painful. The pain and discomfort has significantly lessened since the early stages following the accident, but remains an issue nevertheless. The pain is not constant but intermittent. It is affected by her activities; for example, when she is reaching overhead or when her shoulder is subject to load in a certain way, discomfort will result. Also, on occasion she experiences discomfort as a consequence of taking certain postures; that is, it is a matter of how she is sitting or lying.

[11] The matter of the shoulder injury has been extensively investigated. The conclusion which emerges is that there is no detectable damage to her shoulder structure. The pain is muscular or musculoligamentous in nature. There is no reason to believe that surgical intervention would be warranted. Given its persistence, it is unknown whether it can be expected to resolve. Certainly the prognosis for a complete recovery is guarded: the shoulder pain may not resolve…

[32] In all the circumstances, I am influenced by the fact that the effect of this injury does cause the plaintiff discomfort of a discernible sort and that occurs not infrequently, both at work and while doing other things.

[33] I am of the view that an appropriate award under this head is $50,000.

Private MRI Cost Disallowed in Personal Injury Claim

Written by admin on . Posted in Uncategorized.


Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, disallowing the cost of a private MRI as a special damage in a personal injury claim.
In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  In the course of the Plaintiff’s lawsuit the Plaintiff obtained three private MRI’s.  The Plaintiff advanced the costs of these MRI’s as special damages at trial.  In declining to compensate the Plaintiff for these expenses Mr. Justice Truscott provided the following brief reasons:
[192] I decline to award anything for the three MRIs because the plaintiff decided to do these on his own, when Dr. Hobson told him that they were not medically indicated. In the circumstances there is no evidentiary basis for such an award.
It is worth pointing out that the costs associated with Private MRI’s can be recovered in a personal injury claims if a medical practitioner gives evidence that the expense is reasonably incurred for a valid medical purpose related to the claim.

$42,500 Non-Pecuniary Damages for Aggravation of SI Joint Injury

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

Adding to this site’s archives for non-pecuniary damages for sacroiliac joint injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an injury with pre-existing contribution.
In last week’s case (Fuchser v. Wilson) the Plaintiff was involved in a 2008 collision.  Fault was admitted.   The Plaintiff suffered from various pre-existing injuries including sacroiliac joint pain.  The collision aggravated the Plaintiff’s pre-existing injuries and also caused some new injuries.  The injuries made meaningful recovery in the first year following the collision but continued to bother her at the time of trial.  Madam Justice Russell valued the the Plaintiff’s non-pecuniary damages at $50,000 then reduced this award by 15% to reflect the Plaintiff’s pre-existing condition.  In arriving at this figure the Court provided the following reasons:

[129]   Ms. Fuchser’s medical records show continuing issues with her sacroiliac joint and upper and lower back over several years. In fact, if Dr. Hershler had indeed reviewed the plaintiff’s medical records, he would have found that she had suffered from both upper and lower back pain and on-going pain in her right sacroiliac joint and right upper back as recently as three days before the accident. She reported these issues on a visit to her osteopath on December 4, 2008.

[130]   It is simply not accurate to say that Ms. Fuchser’s symptoms essentially began following the accident. It may be accurate to say that they became worse, based on her reports, but certainly she had suffered from the same or similar symptoms on and off over several years…

[169]   It is my view that the plaintiff in this case suffered from pre-existing conditions, namely scoliosis, pelvic malalignment and sacroiliac joint pain, all associated, which were active and unpredictable. In addition, she suffered right sided pain in her upper back, which was part of her overall condition, but was exacerbated by stress.

[170]   The accident of December 7, 2008 caused an exacerbation of her conditions and she suffered from increased pain which in turn affected the ways in which the pre-existing conditions manifested themselves. She again suffered sleeplessness as she had when her sacroiliac pain had been acute in the past. Her right upper back became stiff and painful, similar to how she had reacted to stress and lower back pain in the past. The headaches were a new manifestation, but no doubt related to the cervical strain she suffered in the accident.

[171]   There can be no doubt that she lived with increased pain over a period of about a year before she began to show improvement…

[173]   I find that there was a measurable risk that the degenerative changes would have become symptomatic without the accident. Dr. Klein agreed that the earlier low back problems she had had came on without any precipitating cause and that the scoliosis and disc protrusion could have explained those problems. He also agreed that tightness in the muscles (as in her right upper back) can be caused by stress…

[193]   I have carefully considered the cases on damages set out in both the plaintiff’s and the defendants’ brief of authorities. I award $50,000 in non-pecuniary damages to be subject to deduction for the pre-existing condition.

It is Common Sense that "Constant and Continuous Pain Takes its Toll"

Written by admin on . Posted in ICBC Fibromyalgia Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Court of Appeal making it clear that it is a matter of common sense that chronic pain can, over time, have a detrimental effect on a person’s ability to work.
In today’s case (Morlan v. Barrett) the Plaintiff was injured in a motor vehicle collision.  She was ultimately diagnosed with fibromyalgia.  At trial the Court awarded significant damages for diminished earning capacity despite the Plaintiff having no past loss of income.
The Defendant appealed arguing that the Judge erred in awarding these damages because the judge relied on “common experience that a person with a stable but persistent energy-draining condition will find it more difficult to continue working as he or she grows older“.  The Defendant argued that this was speculative and there was no evidence to suggest this is so.
While some of the Plaintiff’s damages were ultimately reduced, the BC Court of Appeal was quick to dismiss the above argument finding it was simply a matter of common sense that chronic pain takes its toll.  In doing so the Court provided the following reasons:
[41] Accepting that, to use the expression used at trial and at the hearing of this appeal, Ms. Morlan’s condition had “plateaued”, the fact remains that she would forever suffer from debilitating chronic pain along with headaches, symptoms that could be reduced, but not eliminated, by medication.  In other words, throughout each and every day of her life, Ms. Morlan would have to cope with some level of discomfort.  In my view, it was open to the trial judge to find—essentially as a matter of common sense—that constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person’s ability to work, regardless of what accommodations an employer is prepared to make.

$70,000 Non-Pecuniary Damages Awarded to "Stoic" Plaintiff

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


Plaintiffs should not be punished with reduced damages in a personal injury claim simply because they are stoic in dealing with their injuries.  Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, discussing this in the context of a chronic soft tissue injury claim.
In yesterday’s case (Courtney v. Huthinson) the Plaintiff was involved in a 2008 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff, a 48 year old logger, suffered a chronic soft tissue injury to his neck which produced symptoms of pain and headaches.  The symptoms continued on to the time of trial and were not expected to further recover.
Despite the chronic nature of the Plaintiff’s injuries he carried on with a stoic attitude minimizing his complaints.  In assessing non-pecuniary damages at $70,000 Madam Justice Power made the following findings with respect the Plaintiff’s injuries and his stoicism:

[16] Dr. MacKean’s opinion was that Mr. Courtney had suffered a Grade two whiplash associated disorder to the cervical spine and upper back with persistent daily neck pain greater on the right than left side, and headaches. She is of the opinion that the ongoing persistent neck pain and headaches is due to injuries sustained in the accident.

[17] Of significance Dr. MacKean noted that:

He has most likely reached the point of maximal medical improvement. It has been almost 3 years following the date of motor vehicle accident and he has not seen significant improvement over the past two years with regards to improvement in his neck pain symptoms.

[18] Dr. MacKean in her report and in her evidence noted that the disc degeneration seen in the MRI was less likely the cause of the ongoing pain he was experiencing since it was asymptomatic prior to the accident…

[23] Mr. Courtney came across in his evidence as a quiet man who was committed to his personal health and fitness and who was conscientious and proactive about pursuing his treatment options. He did not appear to exaggerate or overstate his evidence. When he made errors in his evidence for example with respect to his work history, he acknowledged them and any errors appear to be reasonable based on the passage of time, and Mr. Courtney’s knowledge. He is clearly a hardworking man who has worked through pain caused by the accident in order to provide for his family. The ongoing pain is primarily neck pain which is aggravated by activities which require neck extension and occasional headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney. Based on the evidence I would characterize Mr. Courtney as a stoic individual…

[44] I have already found Mr. Courtney to be a stoic individual who does not complain and indeed his return to work post-collision is consistent with the behaviour of a hardworking, stoic individual. As noted, he should not be penalized as a result of his stoicism.

[45] In all of the circumstances, I conclude that an appropriate sum under this head is $70,000.