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$55,000 Non-Pecuniary Damages for Chronic and Pervasive Back Pain

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

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry (Wilson v. Manzano), awarding a Plaintiff over $350,000 in total damages as a result of chronic soft tissue injuries sustained in a 2004 BC Car Crash.
The collision occurred at a relatively low speed with the Defendant accelerating from a stop on the mistaken belief that his light turned green.  He rear-ended the Plaintiff’s vehicle which was stopped in front of him.  The crash caused about $5,000 in damages to the Plaintiff’s vehicle.
The Plaintiff was injured despite the relatively low speed of the crash as she was in a vulnerable position at the moment of impact with her “head and upper body turned toward (a rear seat passenger).”
The Plaintiff’s GP gave evidence that she suffered from a ‘chronic myofacial pain in the upper lumbar area‘ as a result of this crash and that she went on to develop a ‘chronic pain syndrome in the back‘.  The medical evidence established that this injury was permanent and would likely continue to adversely effect the Plaintiff in the future including limiting the types of jobs she could take advantage of.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Bernard summarized the effect of these injuries on the Plaintiff’s life as follows:

[37] The collision in question was one of moderate impact. The significance of it in relation to injury is not the force of the impact, per se, but rather that the impact came without warning while Ms Wilson’s body was in a particularly vulnerable position in relation to the effect of the force upon her. Ms Wilson was seated in the driver’s seat, but not facing forward. Her head and body were twisted to the right so that she could converse face-to-face with her nephew who was seated in a rear passenger seat. Given these circumstances, it is not surprising that she might have sustained an injury qualitatively different than the usual “whiplash” and that her prognosis for recovery might also be quite different.

[38] I am satisfied that Ms Wilson is neither an idle complainer nor a hypochondriac. At the time of the collision she was a strong, healthy, active and vibrant woman who was happily employed in a relatively physically demanding job. Within hours after the collision, she was in tears and paralyzing pain from a spasm in her lower back. At 4:30 a.m. she took a hot shower to help alleviate the spasm. She attended her job site the next morning and was in so much pain by the end of the day that she stopped at a medical clinic en route to her home and received pain medication. Thereafter she saw her family physician and went through a physiotherapy program. She wants to recover from her injury and get on with her life as she knew it, but she has been able to make very little progress in that regard.

[39] Ms Wilson’s back pain, caused by the collision, has not abated. I am satisfied that there is no prevarication or exaggeration in relation to her symptoms. I also find that there were no intervening events which might reasonably account for the pain she now suffers. There were some medical issues subsequent to the collision; however, I am satisfied that none of these were related to the chronic back pain from which Ms Wilson suffers. There has been continuity of symptoms since the collision. There is no evidence of events inconsistent with Ms Wilson’s claims; to the contrary, her family, friends, and co-workers corroborate her continuous suffering and the significantly negative impact the injury from the collision has had upon her life. Ms Wilson’s frustration with the pain and the manifold ways it has affected her life is palpable. The evidence establishes that her chronic back pain has forced her to give up most, if not all, of her activities and pursuits, both in leisure and work, which she found enjoyable, fulfilling, and rewarding. The pain she suffers has made her very unhappy. It has robbed her of a rewarding career and fulfilling pastimes. It has jeopardized valued personal relationships.

[40] I am similarly satisfied that her pain symptoms are now chronic, with no reasonable prospect of amelioration except over the course of many years, if not decades. In this regard, I accept the diagnosis and prognosis of Dr. Mason. He presented as a very knowledgeable physician and a reasonable man who knows Ms Wilson, as his patient, well. His opinion is corroborated, in critical aspects, by Dr. Gouws…

[48] I accept that each of the cases cited bear some similarities to the case at bar and establish a range of damages from $40,000 to $100,000. These cases offer some guidance; however, each set of circumstances is unique, as is each plaintiff. I consider two compelling aspects of the case at bar to be: (a) the pervasiveness of the injury upon the plaintiff’s life, and (b) the reasonable prospect of some amelioration of her symptoms over time. In all the circumstances, and having regard to the cases cited, I set the award for non-pecuniary losses at $55,000.

Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized. 54 Comments on Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Reasons for judgement were released today by the BC Supreme Court dealing with a fair range of damages for pain and suffering when an accident victim has a pre-existing condition which likely would have been progressive and painful without the accident.
In today’s case (Kaur v. Bhoey) the Plaintiff was injured in a 2005 BC Car Crash.  She was a passenger and her vehicle lost control and she struck a utility pole.  She was apparently concussed in this collision and was in and out of consciousness at the scene of the crash.
The Plaintiff had a pre-existing condition (osteoporosis with spinal compression fractures) which may have been progressive and led to chronic back pain even without the crash.
Mr. Justice Truscott found that the crash caused ‘soft tissue injuries‘ which caused a ‘kyphotic condition‘ otherwise known as a humpback.   The Court held that, despite the injury, there was “a significant risk that (the plaintiffs) osteoarthritis would have led to more back fractures and more pack pain and kyphosis”  He went on to award $50,000 in damages for the plaintiff’s pain and suffering.  In arriving at this figure Mr. Justice Truscott summarized the law and the key findings of fact as follows:

[5] The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[6] Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.

[7] However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage… Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award… This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position…

[137] I accept that the kyphotic condition the plaintiff suffers from was caused by her low back soft tissue injuries sustained in the motor vehicle accident, and not by her pre-existing spinal compression fractures. I accept Dr. Hershler’s opinion in this regard.

[138] I accept Dr. Hershler’s opinion that the two compression fractures the plaintiff had before the accident in her low back were insufficient to cause this kyphotic condition.

[139] Dr. Hershler was able to push the plaintiff’s back to make her stand erect and that is some evidence that the kyphotic condition is being caused by pain and not by the compression fractures in her spine.

[140] This is not to conclude, however, that the plaintiff did not already suffer from some back pain before the accident caused by the compression fractures in her low back, in turn caused by her osteoporosis. Dr. Panesar’s records, and his evidence, as well as Dr. Yorke’s reports, set out previous incidents of back pain.

[141] I do accept, however, that prior to this motor vehicle accident these incidents were being generally controlled by medication.

[142] Still, such a finding does not answer the issue raised in Athey as to whether the plaintiff would have suffered her present state of back pain and accompanying kyphotic condition in any event of the motor vehicle accident, or at least there was a measurable risk of that occurring absent the motor vehicle accident that must be taken into account in reducing the overall award.

[143] With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…

[149] Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.

ICBC Injury Claims, Lawyers and Trials

Written by admin on . Posted in Uncategorized.

Many people that are unhappy with an ICBC settlement offer seek the advice of a personal injury lawyer.  Often times, however, people don’t consult with a lawyer because of the mistaken belief that if they hire a lawyer they will have to go to trial to resolve their injury claim.  Some revealing statistics were released today showing just how few ICBC Injury Claims proceed to trial, even when claimants are represented by a lawyer.
Today the Office of the Information & Privacy Commissioner released their report into the Investigation Into Disclosure of Jurors’ Personal Information by ICBC.
In the body of the report statistics about the number of ICBC Claims settled in 2008 were revealed.  Specifically page 4 of the report noted that “An example of the number of claims handled by the division in a given year is available from 2008 when approximately 674,500 claims were settled.  Individuals were represented by lawyers in approximately 21,500 of settled claims.  Only 299 of the claims proceeded to trial and only 37 were jury trials.”
If you do some quick math on the above figures you will see that only 1% of the people that hired lawyers and resolved their ICBC claims in 2008 actually went to trial.  In other words, one in one hundred people who hired a lawyer for their ICBC Claim went to trial.
While there are many reasons why injury victims may choose not to consult with a lawyer these statistics show that the fear of an inevitable trial should not be one of them.

$80,000 Non-Pecuniary Damages for Onset of Pain in Degenerative Spine

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

A common set of facts Courts grapple with in ICBC Injury Claims is when an accident causes a Whiplash Injury and also causes pre-existing but symptom free neck degeneration to become painful.  Reasons for judgment were released today by the BC Supreme Court dealing with exactly these facts.
In today’s case (Prednichuk v. Spencer) the Plaintiff was involved in a 2004 BC Car Crash.   The Defendant was travelling at about 100 kmph when he lost control and the collision occurred.   He was found 100% responsible for the collision.   In addressing the Plaintiff’s damages the majority of the medical evidence focused on the extent that this accident was responsible for the Plaintiff’s degenerative neck condition.  Dr. Hershler, a specialist in physiatry gave the following opinion evidence which was largely accepted by the court:

[80]         In Dr. Hershler’s opinion, the accident caused the following musculoskeletal injuries, which fall into three diagnostic categories:

(1)   Musculoligamentous injury to the lower region of her cervical spine (moderate severity);

(2)   Musculoligamentous injury at the thoracolumbar junction (moderate severity);

(3)   Mild bilateral carpal tunnel syndrome….

[83]         Dr. Hershler’s overall view is that while the spinal degenerative changes were probably present before the accident occurred, it is more likely than not that the accident accelerated their development and rendered them symptomatic.  Dr. Hershler clarified that, in his view, had the accident not occurred, it is not likely that Ms. Predinchuk would have developed the same degree of cervical degeneration and that, in all probability, her degenerative condition was contributing to her pain.

[84]         In Dr. Hershler’s view, the prognosis for Ms. Predinchuk’s complete recovery is guarded.  He believes it more likely than not that she will continue to have to deal with some level of symptoms indefinitely.  At the same time, however, he stated that he would not rule out completely the prospect of further healing and additional improvement occurring over the next two years.

In assessing the Plaintiff’s non-pecuniary damages at $80,000 Madam Justice Ballance of the BC Supreme Court made the following findings and highlighted the following facts:

[105] Based on the evidence as a whole, I conclude that, in all probability, the accident caused Ms. Predinchuk’s soft tissue injuries to her neck, back and shoulders, her headaches and intermittent arm and hand numbness.  I conclude also that the accident caused the formerly dormant degenerative condition throughout Ms. Predinchuk’s spine to become symptomatic, which has added another component to her overall discomfort and pain and the chronicity of her symptoms….

[113]     Members of Ms. Predinchuk’s family and her friends testified at trial.  Without exception, their evidence was reliable and credible.  Their evidence, in conjunction with testimony of Ms. Predinchuk, Ms. Chu, Mr. Mason and Mr. Markus, establishes that before the accident Ms. Predinchuk was a highly industrious, successful businesswoman with many recreational interests and pursuits.  She was self-confident and strong with an established social network.  She was “house proud” and spent considerable energy maintaining and improving her homes over the years.  She kept a garden and did most small household repairs herself.  Over the years, Ms. Predinchuk had painted her various homes, removed wall-to-wall carpeting, sanded wood floors, laid ceramic tile and laminate flooring, jack-hammered a wall, installed cupboards, drywalled a play room for her grandchildren, and tiled a fireplace surround.  I accept that she had no physical limitations in carrying out those activities and enjoyed performing them.

[114]     Ms. Predinchuk’s life at work and outside of work changed dramatically after the accident.  Her impairments with respect to work with Crown have already been canvassed.  In terms of her non-work activities, I find that she significantly curtailed her participation in the social activities that she had once enjoyed, such as line dancing, playing bingo and cards and dinner parties with friends.  She became increasingly reclusive.  Her energy levels became markedly depleted after the accident, and have never fully revived.

[115]     Ms. Predinchuk’s daughter-in-law, who has known her for 26 years, testified that currently Ms. Predinchuk does not accomplish half or even a quarter of the activities that she previously carried out in a typical day.  She routinely complains of a sore neck, back and arm, and avoids driving.  I accept that Ms. Predinchuk’s worry over driving has prevented her from driving across town to see her grandchildren and son as much as she would like.  She no longer hosts large family dinners on her own, which was a long-standing tradition that she assumed from her mother and which she enjoyed immensely before the accident.

[116]     For a self-made and self-sufficient woman like Ms. Predinchuk, her perceived loss of independence due to a weakened body and difficulty performing her work, doing mundane chores and driving is especially distressing, and continues to bother her deeply today.

[117]     I find that the physical symptoms caused by the accident have brought about unwelcome and disruptive changes to the enjoyment and quality of Ms. Predinchuk’s life and continue to do so.  She is an older plaintiff and has not recovered the way a younger person might have.  While her symptoms have clearly improved, the prognosis for a full recovery is poor.  Ms. Predinchuk is not the woman that she was a moment before the accident occurred and probably never will be again.

[118]     A tragedy occurred in Ms. Predinchuk’s family in 2006.  There was a mild suggestion made by counsel for ICBC that certain aspects of Ms. Predinchuk’s apparent unravelling could be attributed to that.  The evidence does not support that contention, and I reject it.

[119]     Ms. Predinchuk seeks an award for non-pecuniary damages in the range of between $80,000 and $125,000, and has provided case authorities in support.  The defendants have provided case authorities favouring significantly smaller awards.

[120]     Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to Ms. Predinchuk’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

More on Medical Records, Document Production and Privilege in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 47 Comments on More on Medical Records, Document Production and Privilege in ICBC Injury Claims

Useful reasons for judgement were released today by the BC Supreme Court dealing with the records that need to be disclosed to opposing counsel following an Independent Medico-Legal Exam.
In today’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents approximately one decade apart. In the course of the lawsuits she attended various medico-legal appointments at the request of the Defence Lawyers under Rule 30 of the BC Supreme Court Rules.
Following these the Plaintiff’s lawyer brought an application that  these doctors deliver “copies of their examining notes or any other recording generated by or on behalf of the said doctors that record any history given to them by the plaintiff on the examination, and any notes that record the doctor’s observations or findings on physical examination together with copies of any tests, questionnaires, or other documents completed by or on behalf of the plaintiff including scoring documents prepared by the examiner“.
The Defence lawyers opposed this motion and argued that the sought materials “constitute the doctors’ working papers and underlying materials that are privileged and part of the solicitor’s brief until the doctor testifies in court, at which point the privilege is waived. ”
Madam Justice Arnold-Bailey rejected the defence position and noted that “solicitor’s brief privilege can be trumped when it comes to the bare facts” and that “there is no property in a witness of fact”.  In ordering production of the sought records the Court extensively canvassed the law in this area and summarized its position as follows:

[24]         Stainer and Traynor clearly indicate that any notes, annotations, recordings, or working papers that reveal an examining doctor’s confidential opinion or advice to counsel will, generally, be privileged.  Even things as small as question marks or exclamation marks added to raw test data could fall into this category and would potentially need to be redacted:Traynor, at para. 21.

[25]         However, the cases also illustrate that notes or recordings that capture the factual history given by the plaintiff to an examining doctor, as well as raw test data and results, are outside the scope of solicitor-client privilege and are subject to production.  I agree with the conclusion reached by the learned master in McLeod as one that follows these basic principles and extends them to circumstances outside the scope of a Rule 30 order. General principles are indeed just that – general principles – and not principles that are only to be applied in making a Rule 30 order or only to be applied when such an order is made.  As Master Caldwell opined in McLeod, the timing of the request for disclosure and whether a court order triggered the examination are factors which do not override the application of Rule 1(5) and the court’s role to “secure the just, speedy and inexpensive determination of every proceeding on its merits”.  I share this view.

[26]         I do not disagree with the submission by counsel for the Chandra defendants, in line with S. & K. Processors and Vancouver Community College, that an expert’s working papers remain privileged until that expert takes the witness stand.  As I understand the jurisprudence, however, there is a clear distinction between an expert’s working papers, which contain opinions, or which may be prepared for the sole purpose of advising counsel, and the facts underlying those opinions or advice.  In the case at bar, the plaintiff is not asking for the type of documents that were at issue in those cases, and those cases reaffirm that the factual material the plaintiff seeks is indeed subject to production.

[27]         The Sutherland case is perhaps, at first blush, most problematic for the plaintiff, in that it appears to imply that the only factual material requiring disclosure will be that which is not already adequately set out in the written statement accompanying the expert report (in the context of Rule 40A).  As I have indicated above, however, upon further analysis I do not believe the case stands for this point.  The court in Sutherland could not find that giving notice under Rule 40A meant that everything underlying the report was suddenly subject to production before the witness took the stand, because a pre-existing privilege existed over the documents, and was not entirely waived simply by virtue of giving notice under Rule 40A.  The court therefore only ordered production of the raw data from among the requested general “rubric of clinical records” – material that was clearly factual in nature and did not involve opinion or advice.

[28]         On that note, the question that may remain after reviewing many of these cases is whether, prior to notice being given under Rule 40A, there is any privilege over the examining doctors’ materials, specifically over anything factual in nature reported by the client and not involving opinion or advice.

[29]         I am of the view that this is not so in the circumstances of the case at bar.  The passages from Stainer cited above reaffirm that even the solicitors’ brief privilege can be trumped when it comes to the bare facts, since it is well settled that “there can be no property in a witness of fact”.  Further, regardless of the way any of the cases cited in these reasons unfolded, including applications under Rule 30, outside of Rule 30, under Rule 26, pursuant to Rule 40A, and under s. 11 of the Evidence Act, and both before a report has been put into evidence and before a report has even been created, I fail to see any examples where a court has declined to order production of the factual underpinnings of an expert’s report, as reported by the plaintiff and recorded in notes, annotations and test data.

[30]         The facts of the present matter are also such that it is the plaintiff who has applied for the information in question, and it was of course the plaintiff herself who provided that information and raw data to the doctors in question.  Further, as I appreciate the circumstances of the present application, it is the non-party doctors who have the information in their hands, and not counsel for the Chandra defendants, who presumably have not been privy to the underpinnings of the reports.  As such, I fail to see how, in these circumstances, there is any doctor-client privilege or solicitor-client privilege to assert, or any strong argument to be made about non-party rights in the context of Rule 26(11)…

[36] In conclusion on this issue, I therefore order that the defendants and Doctors Hawkins, Hepburn, Weeks, Magrega, and Munro deliver to the solicitor for the plaintiff copies of their examining notes or any other recording generated by or on behalf of said doctors that records any history given to them by the plaintiff on the examination and any notes that record the doctor’s observations or findings on physical examination together with copies of any tests, questionnaires, or other documents completed by or on behalf of the plaintiff, including scoring documents prepared by the examiner, except any documents containing the doctors’ opinions or advice, within 14 days of the pronouncement of this order.

In addition to the above, the Plaintiff’s lawyer also brought a motion for production of records documenting the extent of MSP Billings that one of the Defence Doctor’s had with respect to Thoracic Outlet Syndrome. In partially granting this order Madam Justice Arnold-Bailey held as follows with respect to the relevance of such a request:

[44] I agree with plaintiff’s counsel’s that the expertise of Dr. Munro is an issue, albeit ancillary, to this matter and that the information has been properly sought pursuant to Rule 26(11).  The information sought is relevant because, to use the wording in Peruvian Guano, it may allow the requesting party to damage the case of its adversary.  After all, to properly cross-examine Dr. Munro on his qualifications at trial will require counsel to be prepared with the relevant information to be able to do so, and as I understand it, acquiring the information at that later stage would interrupt the trial given the time it takes to receive it from Health Services.  To be clear, I find that Dr. Munro’s opinion and expertise is important as it relates to the plaintiff’s injury claims, particularly because it conflicts with the opinion of another medical expert.

$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.
In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

Infants, Injury Claims and Waivers of Liability

Written by admin on . Posted in Civil Procedure, Uncategorized. 113 Comments on Infants, Injury Claims and Waivers of Liability

When people participate in riskier organized sports such as martial arts, mountain biking, skiing or rafting often times the companies that organize these events require participants to sign a ‘waiver of liability’ agreement.
These agreements generally state that in the event the participants are injured while performing the events, even if injured through the fault of the organizers, the participants will not sue the organizers of the events.  These waivers of liability come in many different forms and these contracts can be binding and effectively take away a persons rights to sue.
What about when infants (in BC people under the age of 19 are considered infants) or their parents enter into these contracts on the infants behalf?   Can these be binding?  Reasons for judgement were released today by the BC Supreme Court dealing with this issue.
In today’s case (Wong v. Lok’s Martial Arts Centre Inc.) the Plaintiff alleged he was injured when engaged in a sparring match with a Defendant in the lawsuit. The Plaintiff claimed that the defendant company was “negligent in failing to take preventative measures to ensure that injuries did not occur in the course of sparring matches by taking such measures as screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches. ”
At the time the Plaintiff began taking martial arts courses with the Defendant the Plaintiff’s mother signed a contract which stated in part that “It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.!”
The Martial Arts School brought a motion to dismiss the lawsuit based on this contract.   Mister Justice Willcock was asked specifically “whether a child’s parent can effectively execute a pre-tort release on behalf of a minor”.  The Court held that the contract was not enforceable because the Infant’s Act “does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort. ”
Mr. Justice Willcock engaged in a thorough and lengthy analysis of the law at paragraphs 19-53 of the judgement which are worth reviewing in full for anyone interested in BC Infants Law.  In holding that this contract was not enforceable Mr. Justice Willcock concluded as follows:
[55] The release is a simple document. It clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school…

[59] I have considered the defendant’s submissions that the Court should not limit the full range of parental authority. I am also cognizant of the policy reasons for permitting parents to sign limited releases (considered in the Washington State cases Scott v. Pacific West Mountain Resort, 834 P. 2d 6 (Wash. 1992); and Wagenblast v. Odessa School Dist.(1988), 110 Wn.2d 845, 758 P.2d 968) and the arguments that such releases are permissible in the common law.  (Malamud and Karyan “Contractual Waivers for Minors In Sports-Related Activities” (1991-1992) 2 Marquette Sports L.J. 151; Doyice J. Cotten & Sarah J. Young, in “Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools” (2007) 17 J. Legal Aspects Sport 53; Robert Nelson, “The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive their Children’s Tort Liability Claims” (2001-2002) 36 U.S.F. L. Rev. 535)

[60] I am of the opinion, however, reading the Infants Act as a whole that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors. In coming to this conclusion I place some weight upon the fact that the rationale for prohibiting parents and guardians from releasing infants’ claims after a cause of action has arisen applies with some force to pre-tort releases as well.

[61] The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.  The Defendant’s application is therefore dismissed.

$40,000 Non-Pecuniary Damages Awarded for Moderate Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, New Westinster Registry (Lehtonen v. Johnston), awarding a Plaintiff just over $60,000 in total damages as a result of a 2005 BC Car Crash.
The car crash was a rear-end collision.  The issue of liability (fault) was admitted and the trial focused on quantum of damages (value of the Plaintiff’s injuries).
The accident was found to be a “very minor” one and appears to fit ICBC’s Low Velocity Impact program as the Plaintiff’s vehicle sustained only $780 in damages.  Notwithstanding the minor amount of vehicle damage the Plaintiff alleged she suffered from serious injuries including a right hip misalignment.
Madam Justice Baker found that many of the Plaintiff’s complaints were not caused from the crash, however, despite the minor nature of this crash the Court found that the Plaintiff did suffer various injuries.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Madam Justice Baker summarized the accident related injuries as follows:

[83] Having considered the evidence as a whole, with particular reference to the medical opinion evidence, I conclude that Ms. Lehtonen sustained a mild injury to the soft tissues of her neck and upper back and a mild to moderate injury to the soft tissues of her lower back as a result of the motor vehicle accident on July 30, 2005.

[84] While the injuries caused discomfort, Ms. Lehtonen did not lose or quickly recovered full range of motion in the affected areas. The neck and upper back symptoms improved significantly within the first six weeks after the accident, although the symptoms recurred from time to time, exacerbated by physical exertion.  The lower back symptoms caused by the accident persisted for about a year but after the first several months have not been proved to be disabling.  Ms. Lehtonen testified that her physical injuries improved steadily over the first six months after the accident and that she did not have an exacerbation of her anxiety or depression related to the accident during that period…

[86] I accept that Ms. Lehtonen continues to have a subjective perception of a variety of symptoms, but I consider it more probable than not that the symptoms she has experienced from the second half of 2006 to present are not caused by the relatively mild soft tissue injuries resulting from the motor vehicle accident and are the result of a complex interplay of social, psychological and emotional factors unrelated to the motor vehicle accident; and fibromyalgia…

[90] I am satisfied that the discomfort from Ms. Lehtonen’s injuries likely did contribute to Ms. Lehtonen’s pre-existing depression and anxiety, although she denied this during the first six months post-accident.  I am also satisfied, however, that Ms. Lehtonen would have had depression even if the accident had not happened, and that any exacerbation of her mental health problems was temporary and minor.  The depression is, in my view, a chronic condition, that waxes and wanes….

[92] I am satisfied that Ms. Lehtonen had recovered from her physical injuries within a year following the accident. I accept that after that time she has continued to experience episodes of lower back discomfort from time to time.  However, her experience of other symptoms after that date is more probably caused by her complex pre-existing and ongoing psychiatric condition; in particular, depression and anxiety, exacerbated by adverse reactions to and, at times, abuse of medications prescribed to treat the depression and anxiety.  I also conclude that Ms. Lehtonen’s later and current subjective symptoms of soft tissue and joint pain are more probably the result of Ms. Lehtonen’s fibromyalgia than any sequelae of the motor vehicle accident injuries…

[94] As Chief Justice McEachern stated in Price v. Kostryba, [1982] B.C.J. No. 1518:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

[95] I might add that the same caution must be exercised when a plaintiff’s recovery not only deviates significantly from the normal course of recovery, but where a plaintiff develops new, different, unusual and more serious subjective complaints long after the event said to be the cause of those complaints.

[96] In saying this, I have not concluded that Ms. Lehtonen has fabricated these symptoms.  I accept that she subjectively perceives these things to be true.  I do not consider her perception of these symptoms to be reliable, however.  I consider it more probable than not that they are subjective physical manifestations of a complex interplay of emotional, physical and psychological factors unrelated to the motor vehicle accident.  Ms. Lehtonen’s statement to Dr. Riar that even the pain from a mosquito bite persists for months indicates that while these symptoms are real to her, they cannot be accepted on any objective evaluation.

[97] I am not persuaded that any symptoms that Ms. Lehtonen continued to experience subjectively more than 12 months after the accident, except for episodic and non-disabling muscle tightness and discomfort in her lower back, were caused by the motor vehicle accident.

More on ICBC Claims and Breach of Insurance

Written by admin on . Posted in Uncategorized. 150 Comments on More on ICBC Claims and Breach of Insurance

I’ve previously written about the significant financial consequences that can come with being in breach of your ICBC Insurance and reasons for judgement were released today by the BC Supreme Court, Penticton Registry, demonstrating the consequences of ‘breach’ in action.
In today’s case (Booth v. ICBC) the Plaintiff was the registered owner of a Camaro.   When purchasing her insurance with ICBC she declared that she was the principle operator.  In 2004 her son was driving the Camaro and was involved in an accident.  He injured a passenger in another vehicle in this collision.  ICBC payed out over $37,000 in settlement of the passenger’s injury claim.
ICBC came to the conclusion that the Plaintiff misrepresented who the principle operator was when she purchased insurance and concluded that the Plaintiff’s son was in fact the principle operator of the Camaro.  ICBC told the Plaintiff she was in breach of her insurance and demanded repayment of the $37,000.  The Plaintiff sued ICBC for a declaration that she was not in breach of her insurance.
Mr. Justice Barrow sided with ICBC and concluded that the son in fact was the principle operator.  In so concluding he summarized the law relating to principle operator misrepresentations as follows:

[5] The phrase “principal operator” is defined in s. 1 of the Insurance (Motor Vehicle) Regulation, B.C. Reg. 447/83, as follows:

“principal operator” means the person who will operate the vehicle described in an application for a certificate for the majority of the time the vehicle is operated during the term of the certificate;

[6] Section 19 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, deals with forfeiture of claims. It provides, in part, as follows:

19(1) If

…

(b) an applicant for an owner’s certificate or driver’s certificate knowingly misrepresents or fails to disclose in the application a fact required to be stated in it…

all claims by or in respect of the applicant or the insured are rendered invalid…

[7] It is common ground that an applicant for an owner’s certificate by which insurance is acquired under the Act is required to identify the principal operator of the insured vehicle. It is also common ground that the defendant bears the burden of proving, on a balance of probabilities, that the insured knowingly misrepresented a fact contemplated by s. 19(1)(b). (See generally Gill v. Insurance Corp. of British Columbia, 2006 BCSC 1397 at para. 20, and Rai v. ICBC, 2005 BCSC 92 at para. 3.)

[8] Because an assertion that an insured knowingly misrepresented a material fact is tantamount to a claim of fraud, until the Supreme Court of Canada’s decision in F.H. v. McDougall, 2008 SCC 53, it was thought that in order to establish such a claim, it was necessary that it be proven on something more than a mere balance of probabilities and/or that the evidence said to support it be subjected to a heightened scrutiny (see Bevacqua v. I.C.B.C., 1999 BCCA 553 at para. 44). In F.H., the court concluded at para. 40 that:

…it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.

[9] Finally, whether an insured has knowingly misrepresented a material fact is to be determined on the basis of the circumstances at the time the policy of insurance was issued (see s. 19(1)(b) and Rai at para. 14).

He went on to conclude that the son was the likely principle operator.  This case is worth reviewing in full for anyone interested in the types of considerations the courts make when making such a determination and in seeing the evidence that ICBC can lead in proving who the principle operator of a vehicle is.

Misrepresenting the principle operator of a vehicle may save a few bucks but this case gives over 37,000 reasons why doing so is not a good idea.

Hyperextension Knee Injuries from Car Crashes Discussed

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

Reasons for judgment were released yesterday by the BC Supreme Court, Vancouver Registry (Cabrera v. Sandhu), awarding a Plaintiff close to $350,000 in total damages for injuries and loss as a result of a 2003 BC Car Crash including an award of non-pecuniary damages of $60,000.
The collision occurred in Coquitlam, BC.    It was a near head on collision for which the Defendant admitted fault.  The issue at trial was quantum of damages (value of the Plaintiff’s claim).
The Plaintiff suffered various injuries including a “medial meniscus tear” which was stabalized through arthroscopic surgery.  The Plaintiff also had a ‘partial tear of her ACL which had scarred back to her PCL” which required a second surgery to correct.  The Plaintiff did not fully recover from these knee injuries by the time of trial and it was accepted that she was plateaued and “left with a significant and permanent disability.”  It was also found to be probable that the Plaintiff would need further knee surgery in the future.
One of the key issues at trial was weather the knee injury was related to the collision because the Plaintiff’s knee complaints did not come until sometime after the crash.  In accepting that the knee injuries were related to the crash Mr. Justice Rice accepted the evidence of the Plaintiff’s surgeon, Dr. Guy, who gave evidence that “it is common that passengers seated in the front of a car sustain knee injuries after having their foot braced against the pedal or floor board at the time of an accident.  In that position, injuries occur as a result of hyper extension of the knee during the collision”
In addition to the knee injury Mr. Justice Rice found that the Plaintiff suffered from various soft tissue injuries described as a “mysofacial pain of the neck, upper and low back regions“.    These injuries had ‘resolved somewhat” by the time of trial but caused occasional pain to the Plaintiff.    The Plaintiff’s non-pecuniary loss was valued at $60,000 for these injuries.