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$55,000 Non Pecuniary Damages for Chronic Soft Tissue Injuries

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

Reasons for Judgement were released today by the BC Supreme Court, Vernon Registry, (Donnelly v. Durham) awarding a Plaintiff just over $67,000 in total damages as a result of a BC Car Crash.
The Plaintiff’s collision occurred in 2005 and was a significant rear end impact that resulted in $10,000 of damage to her vehicle.  The issue of fault was admitted by ICBC’s lawyer leaving the court to deal with the issue of quantum of damages.
The Court found that the 52 year old plaintiff was “healthy and active with no history of musculoskeletal injuries” before the crash.  Mr. Justice Cole found that the Plaintiff suffered various injuries as a result of the crash which continued to limit her by the time of trial.    The Court accepted the evidence of Dr. Apel, a specialist in physical medicine.  Mr. Justice Cole summarized her evidence as follows:

[23] Dr. Apel, a specialist in physical medicine and rehabilitation, in a report dated February 8, 2008, diagnosed the plaintiff with mechanical lower back pain, pain in the buttocks, mechanical pain of the thoracic back, pain in the back of the thigh and in the area of the inside of the knee.

[24] In regards to the plaintiff not recalling hitting her knee in the accident, Dr. Apel explained that the knee is connected to the hip and buttock by way of the IT band and the tension in the plaintiff’s hip and lower back could cause malalignment of the thigh which can then cause pain to the inside of the right knee.

[25] Dr. Apel was of the view that the plaintiff’s injuries and symptoms are due to the collision and considering the negative prognostic factors, her age, chronicity of symptoms, and lack of improvement to date, that the prognosis for complete symptom resolution is guarded.

In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Cole stated as follows:

[33] I am satisfied that the plaintiff was a credible witness, that she had no pre-existing injuries that were ongoing at the time of the motor vehicle accident. I also accept her evidence with respect to her current symptoms, and more particularly with respect to her right knee and I am satisfied that her right knee was injured in the motor vehicle accident and therefore, but for the defendant’s negligence, her injuries would not have occurred.

[34] As a result of the motor vehicle accident, the plaintiff sustained soft tissue injuries to her neck, back, right hip and right knee with radiating pain into her foot. She has also suffered from persistent painful headaches. Her symptoms, besides the radiating pain, have plateaued and her prognosis for any further recovery is guarded.

[35] I am satisfied that the plaintiff is a stoic individual who has done her best to work through her pain and that due to the length of time that she has had difficulties with her back and headaches, a long term prognosis is guarded…

[38] I find that the appropriate award for non-pecuniary damages is $55,000. This includes compensation for the plaintiff’s loss of future housekeeping capacity, which I found to be significant. Entertaining, cooking and keeping a clean house were some of the plaintiff’s priorities and activities that she derived a great deal of pleasure from.

Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 36 Comments on Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials


One role lawyers have in Injury Litigation is to persuasively advance their clients case and this extends to opening statements and closing arguments at trial.  Sometimes, however, lawyers become caught up in the moment and cross the line in their remarks to a jury and this can lead to a mistrial.  Reasons for judgement were released today by the BC Court of Appeal reviewing this area of the law.
In today’s case (Knauf v. Chao) the Plaintiff was involved in two Motor Vehicle Collisions in 2002.  The Plaintiff was injured in both crashes.  The Plaintiff’s claim proceeded to trial and the Jury awarded just over $500,000 in total compensation for her injuries including an award of $235,000 for non-pecuniary damages.
The Defendants appealed the judgement arguing in part that the trial was unfair because the Plaintiff’s lawyer made improper statements in his opening and closing submissions to the Jury.  The BC Court of Appeal agreed with this submission and found that the Jury’s award for non-pecuniary damages was excessive.  The Court reduced the jury’s award by $100,000.  In doing so the court made some useful comments with respect to the Plaintiff’s lawyers submissions which are worth reviewing.
During the trial the Plaintiff called an expert witness who conducted a functional capacity assessment of the Plaintiff’s abilities.  In doing so the expert used some validity tests which are used to measure the consistency of effort applied by the Plaintiff.  When the expert gave evidence the results of the validity testing was discussed.  In short the validity testing showed consistent effort throughout the assessment.  In closing arguments, the Plaintiff’s lawyer commented on this evidence and stated as follows ” She was consistent throughout.  What she said and what the test result showed were the same.  She wasn’t exaggerating; she wasn’t saying she was in pain when the test results showed differently.  She was consistent. And that’s what those tests were designed to do to show if what she told Mr. Pakulak, if what she told her doctor, what she told you was real and legitimate.”
The Court of Appeal took no issue with the validity testing but held that the Lawyers comments were improper.  Mr. Justice Tysoe held as follows: “In my opinion, there is nothing objectionable about validity testing per se.  It goes to the reliability of the opinion expressed by the expert and the weight to be given to it by the trier of fact.  That is a proper purpose…However, the remark made by the plaintiff’s counsel in his closing address to the jury was clearly improper (this was conceded on appeal by counsel for the plaintiff, who was not counsel at trial).  The plaintiff’s counsel effectively told the jury that they could use Mr. Pakulak’s evidence for the improper purpose of oath-helping.  This was not corrected by an instruction in the charge to the jury.”
The Court then went on to highlight some further statements made by the Plaintiff’s lawyer and reproduced the following exerpts at paragraphs 39-40:

[39] The opening statement made by the plaintiff’s counsel to the jury included the following (with the comments the defendants say are objectionable emphasized by me):

The statements of defence that were filed on behalf of the defendants say they are not responsible, and this confused and upset Ms. Knauf. … Responsibility was still denied, that is until last Friday, six years after these accidents, when the defendants’ lawyer told us that they now admit responsibility; …

Ms. Knauf comes to court to ask you to fix the harm that was done to her on those two days in 2002.

Ms. Knauf lost her ability to make good money as a waitress and save to buy a home back when prices were still reasonable.  These accidents were six years ago and Ms. Knauf had already saved — and by coincidence the figure is $6,000.  She’d already saved that from the time a year before the accident when she started working as a waitress….

Ms. Knauf has not collected any disability benefits or sick benefits or social assistance because of her injuries.  She’s a worker. She’s struggling in an expensive city and wants to work not less but more.

[40] His closing address included the following (with the similar added emphasis):

It took six years for the defendants to acknowledge their responsibility for these accidents. We are now here, not for sympathy, but to collect the debt that is owed to Ms. Knauf and the rules require that that debt be paid.

Ms. Knauf does not stay at home and whine.  She has not collected disability benefits; she has not collected welfare; she’s not collected employment insurance or any benefits because of her injuries.

Now, Ms. Knauf has had to deal with other problems, big, difficult problems:  the death of her mother; an unrelated knee problem; her marriage. Don’t be sidetracked by those issues.

I said that we’re here to collect a debt, a debt that is owed to Ms. Knauf by the defendants.  That debt is compensation for the harm and the losses that they caused her. …You’re not to consider any outside reasons.  The rules don’t allow that.  You’re only to consider the losses and the harms that were suffered by Ms. Knauf, nothing else. If any of you consider any outside reasons, you’re breaking the rules and everyone here has to follow the rules.

You’re going to be asked about special damages.  That’s the money that Ms. Knauf spent on treatment.  That’s Exhibit 1.  It’s just under $6,000 and those amounts were not challenged.  And it’s a coincidence, perhaps a sad coincidence, that the money Ms. Knauf has spent on her own treatment these last six years is about equal to what she had saved up hoping to buy her own home at the time of these accidents.

The Court of Appeal concluded that these comments were improper and provided the following guiding comments:

Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

[43] The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong.

The Court went on to reduce the Jury’s award of non-pecuniary damages by $100,000 but pointed out that if the Defence lawyers objected during trial a mistrial may have been an appropriate remedy.

As trial lawyers know it is a fine line distinguishing between what comments are persuasive and which cross the line to improper.  Cases such as this will continue to add clarity and help trial lawyers navigate the minefield of Jury Trials.

Legal Principles For Left Turning Motorists at T-Intersections Discussed by BC Supreme Court

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 61 Comments on Legal Principles For Left Turning Motorists at T-Intersections Discussed by BC Supreme Court


Last week reasons for judgment were released in a case discussing applicable legal principles when motorists are involved in left hand turn collisions.
In last week’s case (Burgess v. Fisher) the litigants were involved in a 2 vehicle collision in Vernon, BC.  The Crash occurred when the Defendant vehicle left a stop sign and attempted to make a left hand turn at a through roadway.  To complete the turn the Defendant had to first clear two westbound lanes.  The curb westbound lane approaching the Defendant vehicle was full of cars and limited the defendants view of vehicles in the inner westbound lane.  The Plaintiff vehicle was travelling in this inner westbound lane.  As the Defendant vehicle entered the inner westbound lane the collision occurred.  There was evidence that the Plaintiff vehicle in the westbound lane was speeding, although not significantly, at the time of the collision.
Both motorists said the other was to blame.  Mr. Justice Barrow, before addressing the issue of fault, succinctly discussed the governing legal principles for these types of cases.  He summarized the law as follows:

[17] Section 175(1) of the Motor Vehicle Act provides that the driver stopped at a stop sign must, before entering an intersection, yield to through or crossing traffic that has either entered the intersection on the through road or “is approaching so closely on it that it constitutes an immediate hazard”. Similar language is found in s. 174 which governs left turns at intersections. It provides that left turning vehicles must yield the right of way to approaching traffic that is “in the intersection or so close as to constitute an immediate hazard”.

[18] In Rae v. Thorpe, [1963] 43 W.W.R. 405 (B.C.C.A.), Tysoe J.A. considered the meaning of “immediate hazard” in the context of s. 164 (the predecessor of the current s. 174). Although he did not attempt to exhaustively define the phrase, he wrote at para. 18 that:

…if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” within the meaning of sec. 164.

The point at which the determination of whether the through travelling motor vehicle is an immediate hazard is the moment before the serviant vehicle begins to encroach on the through vehicle’s lane of travel (Rae at para. 25).

[19] Ballance J. adopted both of the foregoing propositions in Hynna in the context of s. 175 of the Motor Vehicle Act. In addition, she distilled two further principles applicable to the analysis required by s. 175 from Keen v. Stene, [1964] 44 D.L.R. (2d) 350 (B.C.C.A.). In that case, Davey J.A. wrote at para. 46 that:

…A driver waiting at a stop sign ought not to enter a through street unless it is clear that oncoming traffic does not constitute an immediate hazard. Excessive refinement of what traffic is an immediate hazard will defeat the purpose of the right?of?way regulations contained in s. 165 [ now s. 175], and make them an inadequate and confusing method of regulating traffic at intersections on through streets.

Sheppard J.A., in a separate concurring judgment, made the point that the hazard to which the section is directed extends to the threat of collision as opposed to simply a collision itself.

[20] One final general principle applicable to the analysis comes from the frequently quoted observation of Cartwright J. in Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.). There, at p. 461, he wrote:

…when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right?of?way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right?of?way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[21] Whether a through travelling vehicle constitutes an immediate hazard to a crossing or left turning vehicle is a function of at least two things: how far away the through travelling vehicle is from the intersection and how fast it is travelling. Both of these are matters that the servient driver must estimate before entering the intersection. In making those estimates, the servient driver is entitled to assume, in the absence of evidence suggesting otherwise, that crossing or approaching vehicles will observe and obey the rules of the road.

The Court went on to hold that the left turning vehicle was entirely at fault for the crash despite the evidence that the Plaintiff vehicle was speeding.  In coming to this decision Mr. Justice Barrow held as follows:

[32] The law obliged Mr. Karol to either remain at the stop sign or at least not to proceed into the westbound lane of through traffic on 43rd Avenue unless he could determine that approaching in that lane did not pose an immediate hazard. In order to make that determination, he had to be able to see far enough down the westbound lane to determine whether approaching traffic travelling at or near the speed limit would pose an immediate hazard. The hazard, it is to be recalled, is not just a collision but the immanent prospect of one…

[38] Returning to the matter at hand, as noted, Mr. Karol had a limited view of on?coming dominant traffic. Both he and Ms. Faucher testified that the Fisher vehicle was 10 or 15 feet away when they first saw it. I accept that their attention was focused on the through westbound lane of traffic. Neither formed an opinion as to its speed based on observations made prior to the impact. Further, Mr. Karol did nothing to avoid the accident, not because he was not paying attention or failed to appreciate the collision before it happened but because he had no time. His obligation was to assume that through traffic would be proceeding at least at the speed limit. Even if he could see more than 10 or 15 feet into that lane when he proceeded to encroach on it, I am satisfied that he could not see much further than that. He could not see far enough to assess whether he would pose an immediate hazard to traffic travelling at or near the speed limit. He was, therefore, negligent.

[39] The next issue is whether Ms. Fisher was also negligent. Mr. Karol has the onus of establishing that on a balance of probabilities. The question turns not on whether, had she been driving the speed limit, the accident would not have happened because she would not have been there, but rather on whether a reasonable driver, that is, one driving the speed limit, would have had a sufficient opportunity to observe the encroaching vehicle and taken the necessary evasive action.

[40] I am not satisfied that Mr. Karol has established negligence on the part of Ms. Fisher. I accept that she was speeding but not markedly or excessively so. More to the point, I am satisfied that she was so close to the intersection when Mr. Karol encroached on her lane of travel that, even had she been travelling at or near the speed limit, the opportunity she would have had to take evasive action was not such that, with exercise of reasonable skill, the collision would have been avoided.

More on Rule 37B and the Timing of Formal Settlement Offers, "All Inclusive" Offers Discussed

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 80 Comments on More on Rule 37B and the Timing of Formal Settlement Offers, "All Inclusive" Offers Discussed


One pattern that is becoming well developed under Rule 37B (the Rule dealing with Formal Settlement Offers in BC Supreme Court Lawsuits) is that of timing.  Caselaw seems to require that formal offers need to be available for acceptance for a reasonable period of time before triggering cost consequences under Rule 37B.  Reasons for judgement were released this week demonstrating this.
In this week’s case (Dodge v. Shaw Cablesystems [SBC) Ltd.) the Plaintiff sued for damages as a result of a slip and fall.  As a result of the fall the Plaintiff injured her knee.  Before trial the Defendant made a formal offer for $50,000 on an “all-in” basis (meaning inclusive of all damages, costs and disbursements).  This offer was made two working days before the start of trial.
After trial, the Jury decided that the Plaintiff and the Defendant were equally at fault for the fall an awarded a net sum of $20,000 for her injuries.  The Defendant then brought a motion for costs under Rule 37B.  Mr. Justice Masuhara refused to award the Defendant any costs because the offer was not left open for consideration for a reasonable period of time.  In coming to this conclusion Mr. Justice Masuhara stated as follows with respect to timing of formal offers under Rule 37B:

I conclude that the defendant’s offer was in effect from Wednesday, January 7, 2009 to Friday, January 9, 2009.

[14] A party requires a reasonable time within which to consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected:Coquitlam (City) v. Crawford, 2008 BCSC 1507. There is case law on Rule 37B that suggests that a reasonable amount of time to consider an offer is seven days. In Arnold, Butler J. cited Bailey when he stated at para. 22 that “[a] reasonable period of time to consider an offer to settle is seven days”. In Towson v. Bergman, 2009 BCSC 978 at para. 70, Gray J. stated that the seven day period “has been applied in the case law.” I do not, however, read these cases as laying down a rule of general application. In Wright v. Hohenacker, 2009 BCSC 996, for example, Fisher J. did not consider a “seven day rule” when determining whether an offer should have been reasonably accepted, stating that, in the circumstances of that case, the fact that the offer was made only four days before trial was not particularly significant. Suffice it to say that every case must be judged on its own facts. Imposition of an inflexible rule as to what is considered a reasonable amount of time risks returning to the rigid consequences of the old Rule 37 and fettering the wide discretion intended under Rule 37B.

[15] In this case, the plaintiff was only given two days to consider accepting the offer before it expired. Apart from pointing out that the offer was made after mediation and after delivery of the defendant’s expert reports, neither party has led any evidence surrounding the circumstances at the time the offer was made. It is known, however, that the plaintiff was a resident of Ontario at the time, whereas her counsel was resident in Abbotsford. While this alone is not determinative (the plaintiff has not led any evidence of her whereabouts at the time of the offer), when an offer to settle is received, counsel and client are required to make a careful appraisal of the merits, taking into account complex and subjective factors in appraising the eventual outcome of a trial, in this case, a jury trial. Complexity is increased where the plaintiff is asked to evaluate an “all-in” offer where, by the very nature of the offer, the actual amount offered in discharge of the action is not immediately apparent.

[16] Taking into account that analysing the “all-in offer” would have required breaking out the appropriate cost consequences, and that plaintiff and counsel undoubtedly had many other things that required their attention, two days was an unreasonable amount of time in which to properly analyze the offer. Even if the offer did beat the result, counsel for the plaintiff did not have enough time to reach this conclusion within the deadline set by the defendant…

[18] Since I have decided that it was unreasonable for the defendant to expect that the plaintiff would accept the offer within two days, the policy underlying Rule 37B, which is to encourage the settlement of disputes by rewarding the party who makes a reasonable offer and penalizing the party who declines to accept such an offer, is not engaged. Accordingly, as permitted by Rule 37B(4), I decline to consider the defendant’s offer to settle in exercising my discretion relating to costs.

Another interesting point in this decision was the Court’s discussion of “all-inclusive” offers under Rule 37B.  Under the now repealed Rule 37 such offers were not allowed and could not trigger costs consequences.  Mr. Justice Masuhara ruled that such a strict prohibition is not warranted under Rule 37B but parties should make such “all-in” offers at their own peril, Specifically the Court stated as follows:

24] Since the introduction of Rule 37B, there is no longer a complete code to dictate the cost consequences of an offer to settle. Rule 37B contemplates a summary procedure to determine costs. It offers broad discretion to the trial judge to determine cost consequences of a failure to settle. While the defendant is no longer automatically entitled to costs from the date of the offer if the offer is more favourable than the judgment, Rule 37B(5)(d) still states that the court may in such a case “award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.” While I accept that the consequences of an uncertainty in the calculation of costs up to the date of the offer to settle are no longer as stringent, as under the old Rules, the court is still faced with difficulty in summarily determining the relationship between the offer and the costs in an “all-in” offer. Consequently, the potential for injustice still exists. Thus, under Rule 37B, it does not appear to me that the rationale for the rule in Helm is no longer of assistance. In my view the language of Rule 37B is broad and assumes that the trial judge in every case is in the best position to determine whether an “all-in” offer can be considered. Provided that the proper form of an offer to settle is adhered to, the court has under Rule 37B the discretion to take into account that offer to settle. Nonetheless, defendants who make an “all-in” offer do so at their own peril.

In my continued efforts to get prepared for the New BC Supreme Court Civil Rules I am cross referencing Civil Procedure cases that I discuss on this blog with the New Rules.  To this end  it is worth pointing out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

$95,000 Non-Pecuniary Damages for Chronic Pain and PTSD – Dr. Sovio Scrutinized

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 42 Comments on $95,000 Non-Pecuniary Damages for Chronic Pain and PTSD – Dr. Sovio Scrutinized

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $300,000 in total damages as a result of injuries and loss sustained in 2 BC Car Crashes.
In today’s case (Roberts v. Scribner) the Plaintiff was involved in two collisions, the first in 2005, the second in 2006.  She was not at fault for either crash.  The trial focused solely on the issue of the value of the Plaintiff’s ICBC Injury Claims.
The Plaintiff’s injuries affected her neck, mid back, low back, left shoulder collar bone and caused headaches.  She also suffered from depression and PTSD.
In assessing non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Bruce made the following findings about the Plaintiff’s injuries:

[173] I am satisfied that the soft tissues injuries Ms. Roberts suffered to her back, and to a lesser extent, her neck, have caused her substantial pain and disability since November 2005 when the first accident occurred. After the second accident she further aggravated her physical injuries, which developed into a chronic pain condition. In addition, Ms. Roberts’ psychological illnesses have aggravated her physical pain and suffering and have clearly contributed to the cycle of continuing pain. I note parenthetically that there is no dispute that Ms. Roberts’ PTSD symptoms and depression stem from the trauma of the accidents. Even the defence specialist, Dr. Smith, was of this view. At p. 5 of his report Dr. Smith says:

The most common sequel of motor vehicle accidents, particularly rear-end-type accidents, is the development of soft tissue injuries. If the soft tissue injury pain goes on for a number of months, individuals develop poor sleep and then are at risk for depression. I believe this is exactly what has happened with Ms. Roberts as a result of the two accidents.

[174] All of the specialists who examined Ms. Roberts have guarded prognosis for her complete recovery from the soft tissue injuries given the length of time they have persisted despite her tremendous efforts to rehabilitate herself. While Dr. Shah opined that some improvement could be expected in the future, he was unable to say at what point this might occur and to what extent Ms. Roberts’ condition would improve. Certainly there is some hope that different therapies may assist Ms. Roberts; however, her physical condition has plateaued since mid 2006 and she has not improved substantially since that time…

[177] The injuries caused by the accidents have also adversely affected Ms. Roberts’ ability to enjoy the recreational activities she loved to do before the collisions. She has attempted to return to snowboarding, but has not been able to tolerate more than one or two hours before the pain makes her stop for the day. Ms. Roberts has given up competitive horseback riding and the other sports she enjoyed before the accidents. Hiking and camping are also activities that she now finds too difficult to do because of the back pain she experiences when walking on an incline and sleeping on the ground. The physical and psychological injuries have also affected her social life; she is not able to sit for long periods at friends’ homes or in a movie theatre and thus spends most of her time at home seeking out a comfortable position. Her sleeplessness has affected her relationship with Mr. Harvey. They now have to sleep in separate rooms.

[178] Ms. Roberts has also undergone a complete personality change due to the injuries caused by the accident. The collateral witnesses testified about how fun- loving and comical Ms. Roberts was before the accidents and how depressed, sad and serious she has become since these events occurred. She does not enjoy life anymore and appears to function physically like a far older woman, moving slowly and stiffly and constantly attempting to find a comfortable position.

[179] Mr. Pakulak tested Ms. Roberts’ functional capacity overall, and in respect of several different movements that may be required for work, household chores, and recreational activities. There is no doubt that Ms. Roberts in many respects is functioning at a high level. However, it is also apparent that she has a reduced capacity in several functions, some of which are critical in her line of work. While the fact that she is unable to lift over 30 lbs does not render her disabled from performing the work of a graphic designer, Ms. Roberts’ reduced capacity for sitting and other movements related to working at a computer desk adversely affect her ability to carry out these duties efficiently and over an extended period. It is also important to consider that while Ms. Roberts may appear to be able bodied compared to many people, it is the changes in her life that are relevant to an assessment of damages. Before the accidents, Ms. Roberts was a youthful, extremely fit and active woman who had no difficulty whatsoever managing a full-time job, a busy social life, and an active recreational and exercise program. The functional limitations that now govern Ms. Roberts’ activities clearly represent a substantial change for her. Thus the impact on her ability to enjoy life cannot be underestimated. Moreover, in light of the guarded medical prognosis for her complete recovery, it is likely that these functional restrictions may, to some extent, continue to govern her life for the foreseeable future….

[181] Turning to the issue of quantum, it is well established that each case must be decided on its own facts. The authorities cited by the parties are useful as a guide in regard  to quantum; however, each particular case has unique factors that must be considered when awarding damages for pain and suffering and loss of enjoyment of life. In this regard, I found the authorities cited by Ms. Roberts, and in particular, the circumstances in Gosal, more closely mirror the facts in this case than the authorities cited by the defendants. Given my conclusions regarding the nature of Ms. Roberts’ injuries, the impact these injuries have had on her life, the length of time she has continued to suffer, and the guarded prognosis for her complete recovery, I find an award of $95,000 is appropriate in the circumstances.

An interesting side note to this judgement was the Court’s critical commentary of Dr. Sovio.  ICBC hired this doctor to conduct an ‘independent medical examination‘ of the Plaintiff.  As I’ve previously pointed out there are a handful of doctors who do a lot of these independent examinations for ICBC and it is not unusual for some of the reports generated by some of these physicians to contradict the opinions of treating doctors.  That indeed was the case in today’s judgement and Madam Justice Bruce pointed this out and gave ‘little weight‘ to Dr. Sovio’s opinions.  The Court made the following critical comments:

[131] Bearing in mind the anomaly of Dr. Sovio’s report, his lack of independent recollection of the interview, and the failure to cross examine Ms. Roberts on what is recorded in his report, I find little weight can be placed on his recorded history of her complaints and symptoms. It is also important to note that Dr. Sovio did not record Ms. Roberts’ exact words. Thus there may be errors of interpretation in his assessment of her pain levels, as well as her history of past and current symptoms…

While Dr. Sovio has come to a conclusion that Ms. Roberts is no longer suffering from her soft tissue injuries, I find his opinion is clearly inconsistent with the considered opinions of a variety of different specialists. As such, I find little weight should be placed on his assessment.

Motorist At Fault for Failing to Use Emergency Brake When Exiting Vehicle

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

Reasons for Judgement were released today by the BC Supreme Court, Fort St. John Registry, dealing with an interesting set of facts.
In today’s case (Shular v. Seneca Enterprises Ltd.) the Defendants owned/operated a motor home that stalled. The Plaintiff came across this stalled vehicle and tried to assist the Defendants.  The Plaintiff helped move the motor home across the road then got under it trying to repair it when it rolled back over him and caused serious injury to his hip and leg.
The Defendants were found 75% responsible for the Plaintiff’s damages for failing to engage the emergency brake before allowing the Plaintiff under it and the Plaintiff was found 25% at fault for failing to verify if the vehicle was safe before trying to repair it.
In coming to this finding Madam Justice Kloegman made the following findings and analysis:
I find from all the evidence, on a balance of probabilities, that (the Defendant) likely knew, or ought to have known, that the plaintiff had gone under the motor home to try and change the gears of the motor home manually…

[9] I find that the defendants owed a duty of care to the plaintiff to ensure that the motor home was safely secured while he was under it.  The reasonable standard of care in such a situation is set out in the Occupational Health and Safety Regulation, B.C. Reg. 296/97, of the Worker’s Compensation Act, R.S.B.C. 1996, c. 492, and the Seneca Enterprises Ltd. protocol as described by Wahl.

[10] Section 17.2.2(2)(b) of the Occupational Health and Safety Regulation of the Worker’s Compensation Act states that the following procedure must be in place if a vehicle is used to transport workers:

The parking brake must be engaged when the vehicle is left unattended and the wheels locked or chocked if the circumstances require.

[11] Wahl testified that it was standard protocol for them to lock and secure the vehicle if they were not in it.  He said the front of the motor home was on a slight incline so it was common sense to put rocks under the wheels to keep the motor home from moving backwards.

[12] The evidence shows that this standard of care was clearly breached by the defendants.  Bond openly admitted that he did not engage the emergency brake when he locked up the motor home, and took no steps to secure it from movement.  Wahl admitted he was not sure whether they had put rocks under the tires; he thought that they had done so, but that they had not done a very good job of it.

[13] Given the defendants lack of care in the circumstances, they must be found liable to the plaintiff for the accident.  In my opinion, it matters not whether the defendants felt intimidated by the plaintiff and his group. ..

[14] From the defendants’ conduct it is reasonable to infer that the plaintiff had the agreement and the consent of the defendants to push the motor home into a safer location and to attempt to repair it.  The defendants cannot now say that because they did not initially ask the plaintiff for assistance, that they were not responsible for what ensued.  I find that the motor home was in the care and control of the defendants throughout this time period, and that they never lost custody of it to the plaintiff or his group.

[15] The defendants submit as an alternative plea that the plaintiff was contributorily negligent, and I tend to agree.  The plaintiff described what was quite a risky procedure of moving the transmission manually into drive so the motor home could be mobilized.  He admitted in cross examination he didn’t know what gear the transmission was in, and that he “assumed” the emergency brake was on and “assumed” the motor home was in neutral.  He made no independent check to see if his assumptions were correct and I find that he did not take sufficient care for his own safety in the circumstances.  I accept his explanation that he thought Bond was attending to the brake, but he should have made sure of this before moving the gears.

[16] Given all the circumstances, and the respective degrees of fault, I find that the plaintiff should be held twenty-five percent liable for his injuries and that the defendants should be held seventy-five percent liable for the plaintiff’s injuries.

BC Court of Appeal On The Deductibility of Part 7 Benefits in Tort Actions

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Further to my post yesterday on the Deductibility of Part 7 Benefits in BC Tort Actions the BC Court of Appeal made some interesting comments with respect to these in reasons for judgement released today.
In today’s case (Boota v. Dhaliwal) the Plaintiff was awarded just over $170,000 in total damages by a jury as a result of a 2003 Car Crash.  The trial judge reduced part of the Jury Award by $1,000 as an assessment of the benefits that the Plaintiff was entitled to receive from ICBC under his policy of insurance.  The Defendants, who were insured with ICBC, appealed this portion of the judgement arguing that a far greater amount should have been deducted from the jury award.
The Court of Appeal Dismissed this appeal and in doing so made the following useful comments:

[72] I turn to consider the question of whether the trial judge in this case erred in estimating the s. 25 deduction either by incorporating a matching approach or by considering the likelihood of ICBC paying benefits.

[73] As noted already, the jury awarded the appellant $28,205 for the cost of future care.  The jury was not asked to specify the items of future care which it awarded, though there seems to be no reason where the claim is advanced as a pecuniary one that the jury could not be required to particularize this part of the award.  The trial judge deducted $1,000.  Because it is possible the appellant may in the future apply for, and receive, payment under Part 7, there exists the risk that he will be doubly compensated.  However, the trial judge held that he was unlikely to be paid and therefore assessed a nominal deduction.  ..

The respondents argued at trial that the appellant was not entitled to the $218,893 – $377,273 he claimed as future cost of care.  The defence largely succeeded in that argument.  I infer the jury found either that the bulk of the future expenses claimed were unnecessary, or if they were necessary, the condition for which they were necessary was not caused by the motor vehicle accident.  The respondents cannot now succeed in arguing that the appellant’s entire claim  for future cost of care as advanced at trial (one which the appellant pressed at trial, has now been judicially determined to be largely without merit) ought to reduce the entirety of his tort award.  I would not accede to this argument.  This is not a question of matching Part 7 claims to specific heads of damage in tort, which Gurniak says is wrong, but rather a question of not estimating claims under Part 7 in a manner opposite to what has already been found in this case to be unnecessary or unrelated to the motor vehicle accident.

[82] That leaves for consideration the question of the award of $28,205 for future cost of care and whether the trial judge erred in making only a nominal estimate under s. 25.

[83] The s. 25 estimate should be, as it was here, based upon the evidence and arguments advanced at the trial:  Coates v. Marioni, 2009 BCSC 686 at para 35; Schmitt v. Thomson (1996), 132 D.L.R. (4th) 310, 70 B.C.A.C. 290 at para. 19.

[84] Section 25(5) says that the “court must estimate” the amount of benefits to which the claimant is entitled.  That necessarily involves some kind of itemized examination of benefits that the appellant may claim in the future under Part 7.  After all, how else is the court to perform the estimate?  Gurniak has been interpreted to mean that this s. 25 assessment or estimate is not to be matched with heads of damage claimed in the tort action for deductibility purposes, but that interpretation does not preclude the court from taking into account the itemized amounts claimed in the tort claim when making its estimate under s. 25.  I recognize that in advancing its s. 25 claim the respondent is not limited to specific items claimed by the appellant in the tort action, although usually one would expect some overlap between the future cost of care and the estimate of items to be deducted under s. 25.

[85] The trial judge may exercise caution in her findings about the likelihood that ICBC would in the future pay any benefits under s. 88 of the Regulations:  Schmitt at para. 19.  The trial judge may have regard to the position taken at trial.  (Uhrovic v. Masjhuri, 2008 BCCA 462, 86 B.C.L.R. (4th) 15 at paras. 37–42).  Should the trial judge take into account the verdict in her assessment of the likelihood of payment?  In my view that is one of the considerations that may be taken into account in adopting a cautious approach.  In my view, the trial judge may properly infer that the same considerations propounded by ICBC at trial, and which appear to have been reflected in the damage award, may determine ICBC’s position on an application for payment of future benefits.

[86] In summary, the Court may take into account the evidence and submission on necessity and causation in assessing the likelihood of ICBC paying the Part 7 expenses.  This is so because those same factors are pre-conditions for payment under Part 7.  It was implicit in the comments of the trial judge at paras. 51 and 53 of her reasons for judgment that she considered the appellant was unlikely to be entitled to receive payment under Part 7.  I cannot say that she erred in her conclusion.  I would not accede to this argument.

The reason this case is important is because, as I wrote yesterday, often times ICBC refuses to provide Part 7 Benefits and then has their lawyer in the tort trial argue that these benefits should have been paid thereby giving the Defendant a statutory deduction.  In today’s case BC Court of Appeal specifically stated that it is proper for a trial judge to look at the Defendant’s trial position during the damage assessment portion (where the lawyer usually argues that the Plaintiff’s expenses are unreasonable) and infer that this mirrors ICBC’s position when considering the payment of Part 7 benefits.

The Importance of Pursuing Part 7 Benefits in an ICBC Injury Claim

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I’ve previously written about the important role Part 7 Benefits play in ICBC Injury Claims. In short if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these the Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received.
This argument can be made by a Defendant in a lawsuit even if the injured person applied for the benefits and ICBC refused to pay them.  Reasons for judgement were released this week by the BC Supreme Court showing this principle of BC Injury Law in action.
In this week’s case (Sauer v. Scales) the Plaintiff was injured in a 2004 BC Car Crash and successfully sued the at fault motorist and was awarded damages of over $300,000 (click here to read my post discussing the trial judgement)
After reasons were pronounced the Defendant’s lawyer brought a motion to reduce a portion of the award as it covered damages for benefits that the Plaintiff could have received from ICBC under his own policy of insurance.  Specifically the motion was brought relying on Section 83 of the Insurance (Vehicle) Act which holds in part that “A person who has a claim for damages…who…is entitled to receive benefits respecting the loss on which the claim is based is deemed to have released the claim to the extent of the benefits”
The Plaintiff argued that this application was an abuse of process because he applied to have the benefits paid from ICBC directly but the adjuster cut him off claiming that “the accident did not cause the injuries“.
As with most ICBC Injury Claims I presume the same adjuster that told this to the Plaintiff was also responsible for the defence of the Plaintiff’s lawsuit against the at fault motorist (click here to read more about this conflict of interest).    The Plaintiff argued that ” the onus is on the defendant to establish that a deduction should be made under s. 83(5) of the Act. …the defendant chose to interpret Part 7 of the Regulation in a manner which initially severely restricted the plaintiff’s claim, and subsequently interpreted his entitlement to include virtually all of the damages for cost of future care awarded to him by the Court.  In addition, the plaintiff says that ICBC ignored requests for particulars in the plaintiff’s Part 7 action, and directed the plaintiff to include Part 7 items in his tort claim.  The plaintiff submits that this is a case where ICBC took an extreme position on the plaintiff’s entitlement to Part 7 benefits, and then resiled from that position for the purpose of seeking a deduction from the judgment equalling the plaintiff’s cost of future care award.”
Ultimately Mr. Justice Cohen agreed with the Defendant and held that ICBC’s refusal to pay for requested Part 7 Benefits under the Plaintiff’s policy of insurance does not prevent the ICBC appointed Defence Lawyer in the tort claim to argue that the benefits should have been paid.  The Court went on to reduce the judgement by $25,000 for monies that could have been received from ICBC as No Fault Benefits.  Mr. Justice Cohen provides a comprehensive summary of this area of law at paragraphs 11-18 of the decision that are worth reviewing in full.
This case goes to show that Part 7 benefits need to be pursued vigorously otherwise one can limit the amount of damages and benefits available after a BC Car Crash.

$70,000 Non-Pecuniary Damages for Chronic Myofascial Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 49 Comments on $70,000 Non-Pecuniary Damages for Chronic Myofascial Pain

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, (Bove v. Lauritzen) awarding a Plaintiff just over $180,000 in total damages as a result of a 2006 BC Car Crash.
Liability was admitted by the Defendant in the lawsuit leaving the Court to deal with only the issue of damages.
Madam Justice Gray accepted the opinion evidence of Dr. Hunt, an expert in the field of “emergency medicine and pain medicine” in its in entirety.  Most of Dr. Hunt’s opinion is reproduced at paragraph 42 the highlights of which are as follows:

Medical Diagnosis

1.         Chronic myofascial pain involving the right SI joint and right buttock with referred pain to the right hip.

2.         Chronic myofascial pain right inguinal region.

3.         Chronic myofascial pain right shoulder girdle.

4.         Mechanical low back pain of a posterior element pattern localizing to the right L5/S1 facet joint region.

5.         Mood disorder (mild) and sleep disorder (moderate) secondary to chronic pain condition.

6.         Left trochanteric bursitis (mild).

MEDICAL VOCATIONAL CONSIDERATIONS

1.         Restrictions with respect to her lower back and right buttock with referred pain.

(a)        She must avoid all repetitive bending, twisting, stooping and moving in and out of awkward positions.

(b)        She must work only in the sedentary category.

(c)        She must avoid all prolonged sitting with no periods greater than 20 min or prolonged standing with periods no greater than 10 min or prolonged walking greater than 20 min.

(d)        She must be able to stand, sit and move at will.

(e)        She must avoid all lifting greater than 5 lbs and must keep the weight that she is lifting close to her body and avoid carrying it for any distance.

(f)        Materials handling or activity is best done between mid chest and waist.

(g)        She must avoid activities which involve extension of the spine.

(h)        She must avoid walking repetitive flights of stairs or inclines.

2.         Restrictions with respect to her mid thoracic spine and right shoulder girdles include:

(a)        Avoid prolonged static positions of the neck and thoracic spine such as leaning forward.

(b)        All activities with regards to the upper limb should be done below mid chest and she should avoid any repetitive reaching, pushing or pulling activities of the right upper limb.

When she is capable of attempting to return to a productive life, it will need to be on a very paced graduated return to work basis; it should take place over approximately two months and should be supervised by an occupational therapist and/or vocational counselor.

In assessing the Plaintiff’s non-pecuniary damages at $70,000 Madam Justice Gray provided the following summary of the Plaintiff’s accident related injuries:

[45]        In summary, I find that the January 24, 2006 accident caused Ms. Bove moderate to severe chronic myofascial pain in her right buttock and lower lumbar region with symptoms reaching into the right hip and right inguinal region, and chronic myofascial pain in her right shoulder girdle, mechanical low back pain, mild mood and sleep disorder, and mild left trochanteric bursitis. It is likely that the bursitis will resolve fully. It is likely that the other problems will be ongoing, although there may be improvement in the low back pain and sleep disorder.

[46]        Ms. Bove’s need for frequent changes of position, and the other restrictions described by Dr. Hunt, make it unlikely that Ms. Bove can be competitively employable…

54] Ms. Bove is entitled to $70,000 for non-pecuniary damages arising from the January 24, 2006 accident

Personal Injury Claims and Radiologists Opinion Evidence

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(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
X-rays, CT Scans, Bone Scan and MRI’s are routinely used in the diagnosis of traumatic injury and accordingly the findings of these diagnostic tests are frequently used at trial by personal injury lawyers.
Strictly speaking, however, the findings of radiologists interpreting the raw data generated by these tests are opinions and opinion evidence needs to comply with the Rules of Court to be admissible.  If an MRI shows a traumatic injury it is not good enough to show up at trial with only the radiologists consultation report in hand.  If you want the Court to rely on the radiologists findings of injury the reports need to be served in compliance with Rule  40A (Rule 40A is being overhauled in July 2010 and you can click here to read my previous article discussing this) Reasons for judgement were released today by the BC Supreme Court showing this legal principle in action.
In today’s case (Wittich v. Bob) the Plaintiff was injured in a 2004 BC Car Crash near Merritt, BC.  She sued for her injuries seeking up to some $800,000 in damages.  She claimed various accident related injuries including a herniated disc at C5-6.  In support of this claim two CT Scan Reports were entered into evidence, the first taken before the crash and the second after the crash.  The later scan was “interpreted by the radiologist as showing….a c56 level …herniated disc“.
The radiologist’s consultation report did not comply with Rule 40A.  Accordingly the report was only admitted for the fact that the diagnosis was made but not for the truth of the opinion.  Ultimately the court did not make a finding that the herniated disc was caused by the car crash.    Madam Justice Bruce summarized and applied the law to the facts of this case as follows:

[143] Of particular concern is the plaintiff’s failure to call any medical opinion evidence to support a finding that she suffered a herniated disc at C5-6 during the accident. As part of Dr. Grist’s clinical records, Mrs. Wittich entered two CT scan reports; one taken prior to the collision and one taken shortly thereafter. While the later scan was interpreted by the radiologist as showing a change from disc degeneration at the C5-6 level to a herniated disc that was impinging on the nerves of the spinal canal, this evidence cannot be regarded as expert medical opinion. These reports do not comply with Rule 40 and contain no indication of the radiologist’s qualifications and expertise to make these findings. Thus they are only admissible for the fact that this diagnosis was made and not for the truth of their contents.

[144] Moreover, even if I were to accept these reports as expert opinion evidence, there is the cogent evidence of Dr. Maloon, an orthopaedic surgeon, which supports a contrary finding as to the existence of a disc herniation. Dr. Maloon provided a detailed explanation for his conclusion that Mrs. Wittich did not suffer from a herniated disc, which included factors related to his physical examination of Mrs. Wittich and the symptoms she presented with at the time of his examination and interview. Dr. Maloon was qualified as an expert in the field of orthopaedic surgery and qualified to give opinion evidence as to the existence, cause and prognosis of spinal cord injuries. His evidence was thoroughly tested in cross examination and held up to scrutiny. In my view, it would be in the most unusual circumstances that the court would prefer the radiologist’s report to the evidence to that of Dr. Maloon and I find there are no such circumstances in this case. There is no evidence of the radiologist’s qualifications or expertise and no explanation of the reasons underlying his diagnosis.

[145] As a consequence, I find there is really no medical evidence before the court that Mrs. Wittich suffered any injuries to her neck apart from soft tissue complaints. In this regard, it was Dr. Maloon’s evidence that she likely experienced such injuries in the accident, but he was unable to specify which tissues (muscles, ligaments, or facet joints) were damaged based on Mrs. Wittich’s subjective reporting of vague pain symptoms.

The Plaintiff’s claim was largely dismissed and damages of just over $30,000 were awarded.  This case serves as a reminder that if the findings of a radiologist make up an important part of your personal injury case the evidence has to be served in compliance with the rules governing expert opinion evidence.