BC INJURY LAW – Page 154 – The MacIsaac Group of Law Firms

$45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Written by admin on January 27, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 43 Comments on $45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.
In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month. Fault was admitted by the Defendants for both collisions. The crashes caused an overlapping indivisible injury and damages were assessed globally.
The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments. This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.
In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:

[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…

[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.

[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.

"Gold-Plated" Cost of Future Care Report Judicially Criticized

Written by admin on January 26, 2012. Posted in Cost of Future Care Cases, Uncategorized.

(Update June 18, 2013 – the below judicial scrutiny survived review by the BC Court of Appeal)
Following recent judicial criticism of overly robust requests for future care costs, reasons for judgement were released last week by the BC Supreme Court, criticizing a “gold-plated” expert report.
In last week’s case (Jarmson v. Jacobsen) the Plaintiff was involved in a motorcycle accident. Although he sustained serious injuries and was awarded significant damages at trial, his claimed damages for cost of future care was met with skepticism. In criticizing the expert evidence on this point Mr. Justice Meiklem gave the following reasons:

[115]The defendant’s closing submission listed 20 items recommended by Ms. Landy that the defendant argued were not medically supported by any evidence at trial. I agree with that submission. Many of those items would require very significant outlays, for example, a van with a lifting device to transport an anticipated power mobility device.

[116]Mr. Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality and objectivity and her reliance on facts and opinions not in evidence, and criticizing her for travelling to Dubai to interview witnesses already interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I would not go so far as to agree that Ms. Landy became an advocate specifically for the plaintiff in this case, but it is a fair comment that she seemed to advocate an expansion of the types of items and services claimable as future care costs under the law.

[117]Ms. Landy did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.

[118]Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.

[119]Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.

$40,000 Non-Pecuniary Damage Assessment For Chronic Grade 2 Whiplash

Written by admin on January 26, 2012. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing damages caused by a motor vehicle collision.
In last week’s case (Cameron v. Hsu) the Plaintiff was injured in a 2008 collision. The Plaintiff was rear-ended and pushed into the vehicle ahead of him. Fault for the crash was admitted by the Defendant focusing the trial on quantum of damages. The Plaintiff sustained a Grade 2 Whiplash Associated Disorder as a result of the collision. His symptoms continued at the time of trial some three years following the crash. In assessing non-pecuniary damages at $40,000 Madam Justice Hyslop provided the following reasons:

[85] I have concluded that Mr. Cameron did suffer neck and shoulder injuries as a result of the accident. As a result of these injuries he suffered headaches. Those appear to no longer occur or are infrequent.

[86] I also conclude that these injuries caused Mr. Cameron difficulties in certain seasons at which time Mr. Cameron sought physiotherapy to resolve the symptoms.

[87] I have also concluded and take into consideration in assessing Mr. Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow] several years before the 2007 accident. I also conclude that before this accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I also conclude that Mr. Cameron has resisted doing exercises designed to assist or improve the mobility and flexibility in his neck and in the area of his upper shoulder…

[99] Mr. Cameron, at the time of the trial, continued to suffer from tightness in the shoulder and neck beyond that of his pre-existing condition. Mr. Cameron did not lose time at work and he never thought he should do so or would do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical treatment only when there was something wrong. The evidence is that Mr. Cameron has difficulty with his neck and shoulder when doing office work and not when working on-site and in good weather.

[100] Mr. Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his physiotherapist, so it is difficult to determine the progress he would have made had he done so. Taking that into consideration, I award Mr. Cameron general damages in the amount $40,000.00 for pain and suffering and loss of enjoyment of life.

Clinical Experience and the "Novel Science" Objection to Expert Evidence

Written by admin on January 25, 2012. Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized. 54 Comments on Clinical Experience and the "Novel Science" Objection to Expert Evidence

One of the recognized objections to the introduction of expert opinion evidence in a personal injury trial relates to the opinion relying on novel or untested scientific theory. Reasons for judgement were released last week by the BC Court of Appeal addressing this objection and taking a practical view of the benefits of experts providing opinions based on their years of experience in a clinical setting.
In last week’s case (Cassells v. Ladolcetta) the Plaintiff was injured in a 2005 collision. He suffered from a pre-existing condition, namely psoriatic arthritis. The Plaintiff presented evidence that this condition was aggravated due to the trauma of the collision. This evidence was accepted at trial and damages were assessed accordingly.
The Defendant appealed arguing the medical opinion was based on novel science. The BC Court of Appeal disagreed finding the foundation for an expert opinion can be laid based on clinical experience. In dismissing the Appeal the Court provide the following reasons:

[13] The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now. Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid. They say that at most the theory is an unproven hypothesis. They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14] The judge said the criteria pertain to the admissibility of expert evidence. Admissibility requires the weighing of threshold reliability. No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community. Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.

[15] Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis. What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held. It was an opinion based on thirty years of her experience.

[16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider. Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident. I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.

City Not Vicariously Liable For Alleged Sexual Abuse by Police Officer

Written by admin on January 24, 2012. Posted in Sexual Assault Civil Cases, Uncategorized.

With more victims of historic childhood sexual abuse prepared to come forward and have their claims heard we have the benefit of more decisions being published by the BC Courts addressing the circumstances when an institution will be held vicariously liable for sexual abuse by their employees. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this area of law.
In last week’s case (R.G. v. Vancouver Police Board) the Plaintiff alleged to be the victim of historic sexual abuse at the hands of the Defendant police officer. (its worth noting the Court made no findings about whether the abuse actually took place).
In his childhood the Plaintiff “alternated between living with his parents….and living with Mr. Hughes“. They formed what was described as a father-son relationship. The Plaintiff alleged he was abused in the course of this relationship. The Defendant was a member of the Vancouver Police Department at the time.
The Plaintiff sued the personal defendant and also the City of Vancouver arguing they were vicariously liable for the abuse. Mr. Justice Burnyeat disagreed and dismissed this portion of the Plaintiff’s claim. In finding no employer vicarious liability should arise in these circumstances the Court provided the following reasons:

[27] The Plaintiff submits that society teaches children from an early age to trust police officers and that makes children and young people particularly vulnerable to the abuse of power by police officers. In the circumstances, the Plaintiff submits that the City “has sufficient control, either directly or indirectly through its constant presence on the Board, to be vicariously liable for Hughes’ wrongdoing”, and that the City “had sufficient power over him through his extracurricular activities – pistol shooting competitions and fishing derbies, during which his abuse of … [the plaintiff] continued that it should be held vicariously liable”.

[28] If I could conclude that Mr. Hughes was an employee of the City, I could not conclude that his wrongful acts were sufficiently related to conduct authorized by the City. I can find no “significant connection”. I can only find that there were incidental connections between the abuse that occurred and the location of the abuse. Many of the alleged abuses took place in VPD vehicles. However, the power that was exerted by Mr. Hughes was the power flowing from the “father-son” relationship which had grown and not any relationship between the Plaintiff and Mr. Hughes as a police officer. As well, the fact that Mr. Hughes was granted access to a VPD police vehicle did not afford any particular ability for Mr. Hughes to abuse his power.

[29] In rejecting the submission made on behalf of the Plaintiff, I cannot conclude that the wrongful acts of Mr. Hughes are sufficiently related to conduct authorized by the City to justify the imposition of vicarious liability. There is not a significant connection between any promotion by the City and by society in general to promulgate the message that children should be taught from an early age to trust police officials and the significant wrongs that are alleged to have occurred.

Personal Injury Lawsuits and Lawyer Lending

Written by admin on January 23, 2012. Posted in Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, discussing the propriety of lawyers lending money to clients in the context of a personal injury lawsuit.
In last week’s case (March v. Stanley T. Cope, Personal Law Corporation) the Client was injured in a 2007 motor vehicle collision. She retained a lawyer to represent her. In the course of the lawsuit, in addition to funding disbursements, the lawyer provided the client “two $5,000 advances” and charged interest on these loans at 18%.
The Client eventually discharged the lawyer and hired new counsel. The case then settled. A dispute arose as to how much the former lawyer was entitled to. The client argued the 18% rate of interest “should be reduced from the contractual rate to a much lower figure of 4 percent“. District Registrar Cameron ultimately allowed the rate of interest as charged but provided the following words of caution addressing lawyer/client loans:

[36] I do wish to make some observations respecting the two $5,000 advances. While I have accepted that Ms. March agreed to pay interest on these sums and was reminded of her agreement in the periodic billing she received from Mr. Cope, I am not persuaded that the contingency fee agreement contemplates such advances.

[37] It behooves a solicitor to clearly and carefully document any financial matters between himself and his or her client. If a client is to obtain an advance from a lawyer, he or she should receive a letter from the lawyer setting out the agreement, documenting all of the relevant terms and setting out the reasons for the advance. The client should also be given the opportunity and urged to obtain legal advice before concluding the agreement to borrow money from her lawyer.

[38] This should all be done to guard against the lawyer taking what would be an inappropriate personal interest in the litigation thereby putting at risk his or her obligation to provide the client with objective advice and undivided loyalty.

[39] In this case, I am satisfied that Ms. March did not suffer any detriment from the absence of clear documentation for these two loans but that may not always be the case. Accordingly, I will allow Mr. Cope the interest claimed on the two advances in keeping with his oral agreement with Ms. March.

Costs and "Transitional Proceedings" in the BC Supreme Court

Written by admin on January 20, 2012. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 24, Uncategorized.

One of the notable changes under the new BC Supreme Court Civil Rules was an increase in Tariff Costs. If a trial occurred under the former Rules of Court but the reasons for judgement are not delivered until after the new BC Supreme Court Civil Rules came into effect which Rules govern the costs award? Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this question.
In this week’s case (X v. Y) the Plaintiff was injured in a 2005 motorcycle collision. He worked as an undercover RCMP officer and as a result was given permission to have himself and witnesses referred to via initials in the reasons for judgement. His injuries included a burst fracture in his mid-spine. His claim for damages was successful at trial which took place under the former Rules of Court. The reasons for judgement, however, were not released until after the new Rules came into force.
The Defendant agreed the Plaintiff was entitled to costs but argued the lesser costs under the former Rules should apply. Madam Justice Dardi rejected this argument and awarded costs under the current Rules. In doing so the Court provided the following reasons:

[10] Under the New Rules a transitional proceeding means a proceeding that was started before July 1, 2010.

[11] Supreme Court Civil Rule 24-1(2) states as follows:

A transitional proceeding is deemed to be a proceeding started under these Supreme Court Civil Rules.

[12] Supreme Court Civil Rule 24-1(14) states that:

If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[13] Section 10 of Appendix B to the New Rules provides:

Without limiting section 9, Appendix B of the Supreme Court Rules, B.C. Reg. 221/90, as it read on June 30, 2010, applies to

(a) orders for costs made after December 31, 2006 and before July 1, 2010,

(b) settlements reached after December 31, 2006 and before July 1, 2010 under which payment of assessed costs is agreed to,

(c) costs payable on acceptance of an offer to settle made under Rule 37 or 37B, if that offer to settle was made after December 31, 2006 and before July 1, 2010, and

(d) all assessments related to those orders, settlements and costs.

[14] This proceeding is a transitional proceeding pursuant to Rule 24-1(2) and as such, the determination of costs is governed by Rule 14-1. Although the trial was commenced under the former Rules, the judgment in this matter was rendered on July 18, 2011. The defendants’ obligation to pay damages arose on that date. As there were no rights or obligations arising out of or relating to the trial that were to have effect before September 1, 2010, I cannot conclude that Rule 24-1(14) has any application to the determination of costs in this case.

[15] Furthermore, on a plain reading of Section 10 of Appendix B, Appendix B of the former Rules has no application to this case as there were no relevant offers or orders made prior to July 1, 2010.

[16] In the result I conclude that the New Rules govern the determination of costs in this proceeding.

$230,000 Non-Pecuniary Damage Assessment for Severe Traumatic Brain Injury

Written by admin on January 20, 2012. Posted in ICBC Brain Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on $230,000 Non-Pecuniary Damage Assessment for Severe Traumatic Brain Injury

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing fault and damages as a result of a 2008 motor vehicle collision.
In this week’s case (Jarmson v. Jacobsen) the Plaintiff was riding a motorcycle with his daughter when a vehicle operated by the Defendant turned into his path of travel. Although the Defendant denied fault the Court found his evidence “wholly unreliable” and found him fully responsible for the crash. The collision resulted in multiple injuries to the Plaintiff including a shoulder injury, a knee injury and a severe traumatic brain injury.
Global damages of over $1 million were assessed including non-pecuniary damages of $230,000. The consequences of the head trauma were expected to have significant effects on the Plaintiff’s long term functioning both vocationally and domestically. The full discussion surrounding this assessment is too lengthy to reproduce here but the following key findings were made with respect to the severity of injury were made by Mr. Justice Meiklem:

[54] Dr. Miller’s DSM IV diagnostic formulation included personality disorder due to traumatic brain injury and an adjustment disorder with mixed features of anxiety and depressed mood. Based on neurological indices of severity, Mr. Jarmson suffered a severe traumatic brain injury.

[55] A further indication of the severity of the injury to Mr. Jarmson’s brain is gleaned from the evidence of Dr. Gary Stimac, a diagnostic neuroradiologist, who testified and reviewed with the court many of the scanned CT and MRI images of Mr. Jarmson’s brain. These consisted of CT images taken at Kelowna General Hospital at intervals of about 9 hours, 40 hours, and 5½ days after the collision, and a complex set of MRI images obtained April 5, 2011. Dr. Stimac’s written report of August 15, 2011(p. 5-6) notes that:

The radiology examinations, in conjunction with emergency evaluations, establish that Mr. Jarmson sustained severe injury to the head. The immediate and subsequent CT scans show the left frontal impact and the coup-contrecoup contusions. The later MRI shows diffuse brain atrophy, evidence of white matter scarring, encephalomalacia, and hemosiderin deposits from the hemorrhagic contusions.

[56] Dr. Stimac explained that the atrophy he referred to is due to the absorption/removal of necrotic tissue…

[88] I find that the fair, reasonable, and appropriate award to compensate Mr. Jarmson for his non-pecuniary losses is $230,000.

Driver Faultless for Intersection Crash Despite Turning Left on Red

Written by admin on January 19, 2012. Posted in ICBC Liability (fault) Cases, Uncategorized.

A reality at busy intersections is that drivers, after committing to an intersection on a green light, sometimes need to wait until the light turns red to complete their turn. If a crash occurs in these circumstances a driver can (depending on the specific facts of course) be found faultess for the collision. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Yanakami v. Whittey) the Plaintiff was attempting a left hand turn. She committed to the intersection. After her light turned red vehicles in two of the three oncoming lanes came to a stop. At this time she proceeded to complete her turn. The Defendant, who was travelling in the third oncoming lane, ran the red light and a collision occurred.

Mr. Justice Fitch found the Defendant fully at fault for the crash. In doing so the Court provided the following reasons:

[62] Against the background of this discussion, I make the following factual findings:

1. the plaintiff began her left turn immediately after the light for east and westbound traffic changed to red;

2. two other vehicles traveling east had come to a stop at the intersection in the curb and centre-line lanes;

3. the plaintiff was cognizant of, and attentive to, the considerations one would expect to be in the mind of a reasonably prudent driver including the colour of the traffic light, the location and speed of oncoming traffic, the location of Mr. Whittey’s vehicle at various points in time, including when the light turned red, and the potential for there to be pedestrians walking to the south in her intended path of travel;

4. Mr. Whittey had ample time to stop before the intersection and do so in safety, just as two other eastbound vehicles had done, when the light changed to yellow;

5. the plaintiff concluded, and was entitled in fact and in law to conclude, that the defendant’s vehicle did not present a hazard, that he had plenty of time stop (as other vehicles had done) and that it was safe for her to proceed with her left turn;

6. the defendant was not being attentive to the factors a reasonably prudent driver would have been attentive to before the collision, including the presence of the plaintiff’s vehicle in the westbound left turn lane immediately in front of him or the fact that a car had already come to a stop ahead of him in the eastbound centre-line lane. This conclusion is supported by the defendant’s own admission that he was not looking at the left turn lane for westbound traffic as he approached the intersection because it was not important for him to do so;

7. Mr. Whittey entered the intersection after the light turned red;

8. the plaintiff could not possibly have taken evasive action at that point to avoid the collision.

[63] Applying these facts to the applicable law, I am satisfied that this accident was caused solely by the negligent driving of the defendant, Mr. Whittey.