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$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.

BC Injury Claims and Your Choice of Counsel

Written by admin on . Posted in Civil Procedure, Uncategorized. 48 Comments on BC Injury Claims and Your Choice of Counsel

If you are advancing an ICBC or other BC Personal Injury Claim you have the right to hire whatever lawyer you want.  What if you live in a smaller community in BC and don’t have access to a lawyer who can take on your case?  What if you live in a larger centre in BC but want to be represented by a specific lawyer from another community?  Is it convenient or cost effective for a lawyer from another city to advance a personal injury claim on a contingency basis in these circumstances?
The answer is often yes because in British Columbia a lawyer can file a claim in a BC Supreme Court registry which is convenient for them and set down the trial in a registry that is convenient for you.  Practically speaking this provides personal injury victims meaningful and Province-wide access to their top choice of lawyers regardless of where that lawyer primarily resides.
Reasons for judgement were released today by the BC Supreme Court discussing this practice of lawsuits being launched out of one registry for the convenience of the lawyer and set for trial in anther registry for the convenience of the parties/witnesses involved.
In today’s case (Cooper v. Lynch) the Plaintiff was involved in a Vernon, BC Car Crash.  She lived in Salmon Arm.  In advancing her personal injury claim she hired a lawyer who practices in Victoria.
The Lawyer launched a lawsuit in the BC Supreme Court.  As a matter of convenience the lawyer started the lawsuit in the Victoria Registry and set the place of trial at a location convenient for his client (Kelowna,  BC).
The Defence lawyer brought an application to have the case moved to Kelowna for all purposes.  The Defendant relied on Rule 64(13) which holds that:
At any time after a proceeding is commenced, the court may on application order it to be transferred from the registry in which it was commenced to any other registry of the court for any or all purposes.
At the initial hearing the Master who presided agreed with the defence lawyer and transferred the entire file to Kelowna holding that since the place of trial was to be Kelowna, BC the entire matter should proceed out of the Kelowna registry.
The Plaintiff’s lawyer appealed the Master’s decision and succeeded.  In overturning the Master’s decision Mr. Justice Barrow held that there was nothing wrong with a lawyer in a BC Personal Injury Claim filing out of one registry for the convenience of pre-trial applications and to have the trial itself in a different registry for the convenience of the parties and witnesses who will testify.  Specifically Mr. Justice Barrow summarized and applied the law as follows:

[9] It is appropriate first to identify the practical significance of the master’s decision. It is that, by operation of Rule 44(10), interlocutory and pre-trial applications will generally be heard in Kelowna. There are exceptions to this rule. Rule 44(14) permits a registrar, in some situations including to accommodate the convenience of the parties, to allow a chambers application to be heard elsewhere than in the location that Rule 44(10) would otherwise require. In the proceeding at hand, the effect of moving the file to Kelowna for all purposes will be that, absent agreement or an order under Rule 44(14), interlocutory and pre-trial applications will be heard in Kelowna, where neither counsel practice.

[10] The test to be applied to an application to transfer a file for all purposes under Rule 64(13) is the same as the test that governs an application to change the place of trial under 39(7) (see Nicholls v. McLean, [1996] B.C.J. No. 1160 (S.C.) and Roberston v. Zimmer, 2001 BCSC 1067, 12 C.P.C. (5th) 131 (B.C. Master)). An early and often cited expression of the test is found in Armstrong v. Revelstoke (City) (1927), 38 B.C.R. 253, [1927] 2 W.W.R. 245 (C.A.). In Armstrong, the chambers judge dismissed an application to move the place of trial. The Court of Appeal dismissed an appeal from that decision. McDonald C.J.A. wrote at p. 256:

…There is a preponderance of convenience in favour of a change of venue, but nothing short of a great or considerable preponderance of convenience and expense would justify the taking from a respondent the right which the law has given him to select his own place of trial.

In McPhatter v. Thorimbert (1966), 56 W.W.R. 497, Kirke Smith L.J.S.C. (as he then was) adopted this statement of the law. He also adopted the rationale for it as set out inMcDonald v. Dawson (1904), 8 O.L.R. 72, namely that the plaintiff, as the dominant litigant, has the right to control the course of the litigation. Controlling the course of the litigation extends to choosing the place of trial and choosing the registry out of which proceedings are taken. The right is not absolute, however, as the Rules of Court make plain but overriding the plaintiff’s decisions as to the course of the litigation by, for example, changing the place of trial or moving the proceeding from one registry to another, is only to be done where the “great preponderance” of convenience supports doing so.

[11] Although the test is the same whether considering moving the place of trial or changing the registry out of which proceedings are taken, the application of the test in these two contexts will not always yield the same result. That is so because circumstances which may prove inconvenient or greatly inconvenient for purposes of trial may be inconsequential for purposes of pre-trial applications. The most obvious example involves witnesses. The degree to which one place or another is convenient for purposes of trial will be affected by where the bulk of the witnesses reside. On the other hand, where the witnesses reside will usually have little bearing on whether it is appropriate to move a proceeding. That is so because generally witnesses are not required and rarely attend pre-trial or interlocutory applications.

[12] In Okayasu v. Poulsen, 2001 BCSC 729, Cullen J. heard an application by the defendants to transfer a file from the Vancouver registry to the Kamloops registry for all purposes, including trial. He ordered that the trial take place in Kamloops but declined to order that the file be transferred to the Kamloops for other purposes. He reached that conclusion, at least in part, because the circumstances that warranted a change in the place of trial were less significant in the assessment of the preponderance of convenience of pre-trial and interlocutory matters.

[13] In Smith v. Shabutura, the master observed that most pre-trial proceedings involve only lawyers. He concluded that the action was entirely connected to Kelowna (save for the fact that plaintiff’s counsel practiced in Victoria) and concluded that the circumstances that favoured holding the trial in Kelowna also militated in favour of the file being transferred to the Kelowna registry for all purposes. In so concluding, it seems to me that he conflated the effect on the trial of the various circumstances to be weighed in the balance with the effect of those same circumstances on pre-trial and interlocutory matters.

[14] It remains to be determined whether the master was clearly wrong in concluding that the great preponderance of convenience favoured moving this proceeding to the Kelowna registry for all purposes. In my view, and with the greatest of respect, I think he was. There is nothing in the record to suggest that the defendant, or the plaintiff for that matter, would be so interested in pre-trial or interlocutory matters as to wish to attend the hearing of them. Moreover, should that prove to be the case with respect to any particular application, it is open to counsel to apply to have that application heard elsewhere than in Victoria. There is no doubt some administrative convenience to having the file located where the trial will take place. Further, transferring the file to Kelowna has the effect of distributing or dividing the burden of travel as between counsel, given that neither resides nor practices in Kelowna. These circumstances whether taken individually or in combination do not support the conclusion that the great preponderance of convenience favours moving the proceeding or file from Victoria.

The practical consequence of this decision is that it makes it easier for British Columbians to hire their choice of lawyer in personal injury claims.  This is a great result advancing consumer rights by making it easier for all British Columbians to hire a lawyer that best suits their needs whether or not that lawyer resides in their community.

As readers of this blog may know, whenever possible I am referencing the current BC Supreme Court Rules with the New Rules which will take effect on July 1, 2010.  I am doing this to get a head start in determining which BC Supreme Court cases ought to retain their value as precedents under the soon to be in force overhauled Rules.

The rule relied on and interpreted in today’s case (Rule 64(13)) remains largely intact under the new Rules.  The rule can be found at section 23-1(13) of the New Civil Rules and reads almost identically to the current rule.  Specifically the new rule reads as follows:

(13) At any time after a proceeding is started, the court may on application order the proceeding to be transferred from the registry in which it is being conducted to any other registry of the court for any or all purposes.

Given the minor changes between the current rule and the new rule today’s case will likely retain its value as a guiding precedent after July 1, 2010.

More on Facebook and BC Injury Claims

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Further to my previous posts on the subject, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, showing that the use of Facebook photos by Defence Lawyers is a trend that is becoming well entrenched in ICBC and other BC Injury Claims.
In today’s case (Mayenburg v. Yu) the Plaintiff was injured in a 2006 BC Car Crash.  Liability (fault) for the crash was admitted by the Defendant.  The Plaintiff’s non-pecuniary damages were valued at $50,000.  In arriving at this figure Mr. Justice Myers accepted the evidence of Dr. Apel, an expert in physical and rehabilitation medicine.  Dr. Apel opined that the accident caused a soft tissue injury to the Plaintiff’s upper trapezius muscles described as a “myofascial pain of mild severity“.  Additionally the Plaintiff was found to have “myofascial chronic regional pain syndrome of the gluteus medius” and “mechanical back pain“.
The court accepted that the Plaintiff’s injuries were likely permanent, specifically noting that her “prognosis for complete symptom resolution is guarded“.
At trial the Defence Lawyer challenged the credibility of the Plaintiff and to this end tried to introduce 273 photos from the Plaintiff’s Facebook wall.
Mr. Justice Myers noted that “the bulk of these photos showed no more than (the Plaintiff) enjoying herself with her friends“.   He ruled that over 200 of these photos were inadmissible only permitting the photos that showed the plaintiff “doing a specific activity which she said she had difficulty performing”, he did not let the other photos in because they “had no probative value“.
Mr. Justice Myers did not agree with the Defendant’s challenges to the Plaintiff’s credibility noting that the admissible photos did not contradict the Plaintiff’s evidence, specifically he stated as follows:

[40]    This left a subset of approximately 69 photographs.  These showed Ms. Mayenburg doing things such as hiking, dancing, or bending.  However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them.  Rather, she said she would feel the consequences afterwards.

[41]    In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident.  That was not the evidence of Ms. Mayenburg.

[42]    As indicated above, I accept the conclusions of Dr. Apel.  That said, Ms. Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand.  Her damages must be assessed on that basis.

[43]    In terms of the facts relevant to assessing non-pecuniary damages (as opposed to loss of capacity) this case is remarkably similar to Henri v. Seo, 2009 BCSC 76, in which Boyd J. awarded the plaintiff $50,000.  I find that to be a suitable award in this case.

The Defence also tried  to minimize the extent of the Plaintiff’s injuries by pointing out that there was a “limited number of times she visited physicians to complain about her pain”  Mr. Justice Myers quickly disposed of this argument noting

[37]    I do not accept those submissions, which have been made and rejected in several other cases:  see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63.  Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation.  Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time.  Dr. Ducholke testified how her time with patients was limited.

[38]    In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

Lastly, this case is also worth reviewing as it contains a useful discussion of ‘rebuttal’ expert medical evidence at paragraphs 29-35.

Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

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

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.
In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.
The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.