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"Moderate to Severe" Soft Tissue Injury Non-Pecuniary Damages Assessed at $55,000

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

Reasons for judgment were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff approximately $85,000 in total damages from a 2004 BC Car Crash.
This case (BMM v. MLV) contains lengthy reasons that largely deal with the Plaintiff’s pre and post accident psychological difficulties.  Ultimately the Court rejected the Plaintiff’s claim that her pre-existing depression was affected by the accident.  Madam Justice Ballance concluded that “the evidence does not show that the Plaintiff’s pain and discomfort from her physical injuries caused by the Accident, exacerbated, compounded or intensified her Depression.”  Paragraphs 159-190 contain the Court’s reasoning behind this conclusion and are worth reviewing for anyone interested in seeing how BC Courts can deal with a claim that pre-existing psychological injuries are aggravated by a collision.
The Court did find, however, that the Plaintiff suffered “moderate to severe” soft tissue injuries and assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In reaching this figure Madam Justice Ballance summarized her findings and engaged in the following analysis:
[199] The plaintiff experienced moderate to severe soft tissue injuries to her neck and back as a result of the Accident. Although her shoulders were also implicated and she had initial sleep disturbance and was plagued with low-grade headaches that occasionally developed into migraine-like discomfort, the primary area of injury was her low back and her related left hip discomfort. I accept that during their acute phase, these injuries caused persistent and sometimes severe discomfort and pain to the plaintiff, and disabled her from attending work. Following her leave from work in 2005 and her intensive physiotherapy program, her symptoms improved significantly. She continued to be susceptible to flare-ups of her symptoms throughout the summer of 2005. Her discomfort prompted the plaintiff to attend a program at the CBI which she found considerably beneficial in improving her soft tissue injuries.
[200] I find that by the end of 2005, the plaintiff’s physical symptoms had largely settled, but had not resolved entirely. She was not restored to her pre-Accident condition at that time. I am satisfied that after that stage, the plaintiff experienced intermittent low back symptoms and associated pain throughout 2006 and continuing forward. Those episodes were infrequent but sufficiently bothersome to prompt her to obtain treatment from Dr. Weiss in late 2007 and endure two excruciating injections. I think that the plaintiff will probably experience intermittent bouts of low back discomfort caused by the Accident into the foreseeable future. The evidence indicates that those episodes will continue to be infrequent and rather mild in nature.
[201] I accept that the physical symptoms caused by the Accident brought about unwelcome and disruptive changes to the plaintiff’s enjoyment and quality of her life, especially during the first twelve months after the Accident. She was no longer the fun-loving and enthusiastic person familiar to her son, sister and co-workers. In time, she was able to gradually reintroduce and enjoy certain pursuits such as walking and some gardening, and bike-riding using her electric bike. I have found it challenging to attempt to parse out the changes in the plaintiff’s personality and life which can be said to be attributable to her physical injuries from the Accident, from those associated with her ongoing and severe bouts of Depression, which adversely affected her life but are unconnected to the Accident. I conclude that the enjoyment of certain of her activities was negatively affected at times by her low mood. Even the plaintiff agreed that her gardening could be affected by her mood. While I accept that in the first year or so following the Accident, the plaintiff’s physical symptoms made it uncomfortable for her to attend the usual family functions and pursue her normal community and political interests, I find that her sustained withdrawal from those endeavours and detachment from her sister and other extended family, are due to the plaintiff’s psychological state unrelated to the Accident….
204] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to the plaintiff’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $55,000. A deduction of 5% is to be taken to reflect the measurable risk that her low back symptoms would have manifested without the Accident.

Can a Plaintiff be Awarded Significant Funds for Future Wage Loss when their Pain and Suffering is Relatively Minor?

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

The answer is yes and reasons for judgment were released today by the BC Supreme Court demonstrating this.
In today’s case (Sidhu v. Kiraly) the Plaintiff was awarded $35,000 for non-pecuniary damages for accident related soft tissue injuries.
Madam Justice Brown found that the Plaintiff suffered “soft tissue neck and back injuries and developed secondary muscle contraction occipital headaches”  These injuries largely improved over time and the Court found that “so long as (the Plaintiff) does not undertake any heavy labour, he has no significant complaints.  If he undertakes heavy work of any kind, his symptoms flare, he has neck, mid-back and shoulder pain as well as headeaches.”
Unfortunately for the Plaintiff, his own occupation at the time of the collision involved heavy labour and once he realized the permanent nature of his injuries he concluded he could not carry on in his occupation.  He retrained for a lighter career as a realtor.  The court found that this was reasonable given the accident related injuries and awarded the Plaintiff $350,000 for his diminished earning capacity.  In arriving at this assessment Madam Justice Brown engaged in the following analysis:

[25] Turning now to future loss of income or future loss of capacity, as I have indicated, I accept that the plaintiff will not be able to return to his work as a heavy duty mechanic and that he is permanently unable to undertake heavy labour of any kind.  This is a limitation on the plaintiff’s “ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured”, and a valid consideration in the determination of future income loss: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[26] I also am of the view that his choice of real estate agent as a future career was a reasonable one in the circumstances.  In my view, given the plaintiff’s personality and his persistence, he is likely to succeed as a real estate agent.

[27] The plaintiff relies on the report of Gerry Taunton to calculate future income loss. Mr. Taunton calculates Mr. Sidhu’s without accident income as a mechanic to age 65 at $1,096,233 and his with accident income as a realtor at $561,552, a  difference of $534,681.

[28] The court must consider all of the evidence in assessing what makes a reasonable award for such a future loss.  Projections, calculations and formulas may be useful in determining what is fair and reasonable.  It is important for the courts to look at all relevant factors before fixing an amount.  Any award under this head of damages must be set off against appropriate contingencies.

[29] Having considered the assessment provided by Mr. Gerry Taunton and considering the contingencies in this case, positive and negative, in my view, an appropriate award for future loss of income or capacity is $350,000.  I do not accept the defendant’s submission that one year of income would be appropriate in this case.  As I have indicated, the plaintiff has been permanently disabled from his lifetime occupation as a heavy duty mechanic.  He has been forced to retrain.    There is some prospect that he will earn more than the median income of male realtors in British Columbia.  There is also the prospect that he will earn less.  I have assessed the amount of the award in this case as best I am able, considering all of the contingencies.

Registered Vehicle Owners and Fault in BC – A Heavy Burden

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 86 Comments on Registered Vehicle Owners and Fault in BC – A Heavy Burden

(Please note the case discussed in this post was overturned by the BC Court of Appeal.  Please go to the September 2010 Archives of this site to read my article discussing the BC Court of Appeal decision)
The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.
What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Reasons for judgement were released today showing just how far Courts in BC can go in determining the circumstances in which an owner “consents” to someone else operating their vehicle.
In today’s case (Snow v. Friesen) the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.
The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the Court went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted “express consent” under section 86 of the BC Motor Vehicle Act.
The Court’s discussion of the law of liability of registered owners is set out below.  This case is worth reviewing in full for all vehicle owners in British Columbia as it shows the serious duties courts impose on vehicle owners when they let others take possession of their vehicles:

[68] Pursuant to the common law and s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, an owner of a vehicle is vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent, express or implied, of the owner.

[69] As is apparent from my analysis of the evidence and findings of fact, the implied consent doctrine does not arise in this case.  Instead, the issue stands to be determined on the basis of express consent.  Specifically, it is necessary to decide whether, in these circumstances, the plaintiff has proven that Ms. Friesen had the vehicle with the consent of Mr. Saul.

[70] I consider the following statement of Thackray J.A. in Barreiro v. Arana, 2003 BCCA 58, to be apposite:

[13]      Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme.  The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor.

[71] The cases are replete with reference to the notion of public policy and the necessity of recognizing the legislative intent of s. 86.  Again, I will resort to a quotation from Barreiro:

[26]      The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

[24]  It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles.  Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative.  The legislation in question must be regarded as remedial.

[27]      Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need.  As Mr. Justice Goldie said, the legislation is remedial.  As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

[28]      The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.”  In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

[72] A helpful discussion of the importance of bearing in mind the underlying rationale, or legislative purpose, of the legislation is found in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, where the matter was touched upon by Newbury J.A., writing for a five judge division of the Court, although the issue there was principally one of determining the liability of an individual who held rights under a conditional sales contract.  Nevertheless, she considered the social and economic policy objectives of the legislation, and the legislative intention.  Her analysis is found at paras. 32 through 38.  I will not reproduce the entire discussion, but consider it worthwhile to quote a portion of her conclusion as found at para. 38:

… the purposes of s. 86 are, I would suggest, similar – to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.  These objectives are consonant with the objectives of vicarious liability generally, as described by McLachlin J. (now C.J.C.) in Bazley v. Curry [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173, the leading Canadian case on vicarious liability.

[Emphasis added.]

[73] In my view, the outcome which must result in the facts at bar is determined by an application of the leading decision on the issue, Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391.  There, an employee of Vancouver Motors U-Drive Ltd. had rented an automobile to a driver who had no valid licence.  The driver had falsely represented that he was another person, and showed that person’s valid driver’s licence.  He signed that person’s name to the rental agreement.  The driver was subsequently involved in an accident, and the appellant argued that it was not vicariously liable because the negligent driver had not acquired possession of the car with the appellant’s consent.  In interpreting a legislative provision similar to s. 86 of the Motor Vehicle Act, Kerwin J., for the majority, stated as follows:

In the present case, the appellant physically transferred the possession of the motor vehicle to Walker. Does the fact of Walker’s false statement that he was Hindle and the holder of a subsisting driver’s licence, accompanied by the forgery of Hindle’s name, vitiate the consent that was in fact given? There may be no difficulty in two of the hypothetical cases put in argument, (1) where a motor vehicle is stolen from a garage, and (2) where possession is obtained from the owner by duress. In the first there would be no consent in fact and in the second the owner would not have been at liberty to exercise his free will. On the other hand, the class of owners under subsection 1 of section 74A is not restricted to those who carry on such a business as the appellant and circumstances may be imagined where an owner loaned his automobile to a friend on the latter’s statement that he possessed a subsisting driver’s licence, which statement might be false either because he never had possessed such a licence or because his current licence had been revoked; or again, where A secured possession of an automobile by falsely representing himself in a telephone conversation with the owner of the vehicle to be a neighbour’s chauffeur. It is impossible to conceive all the various circumstances that might give rise to the question to be determined here but in my view an express consent is given, within the meaning of the enactment, when possession was acquired as the result of the free exercise of the owner’s will.

[74] Later, Kerwin J. reached the following conclusion:

The word “consent” may have different meanings in different statutes. In the present case it has, in my opinion, the meaning already indicated and, on that construction, express consent was given by the employees of the appellant to Walker’s possession of the motor vehicle even though the action of the employees was induced by Walker’s false statements.

[75] In this case, Mr. Saul, of his own free will, absent duress or theft, gave consent to the person who asked to use the motor vehicle.  The fact that Mr. Saul was mistaken as to the identity of that individual does not change the outcome.

[76] In Vancouver Motors U-Drive, consent was not vitiated even though the agent/employee was misled as to the identity of the person renting the car.  In Bareham (Guardian ad litem of) v. Desrochers, [1994] B.C.J. No. 1826, 97 B.C.L.R. (2d) 186 (S.C.), on an application of the same principle, the mother of the driver argued that she had not consented to her son having her vehicle because she was not aware that he had no driving licence.  The trial judge there, Macdonell J., found that once the mother gave consent, the fact that her son was driving her car illegally was irrelevant to the application of s. 86(1).

[77] The erroneous basis upon which Mr. Saul granted his consent is no defence.  The onus was on him to ensure the public safety in lending his truck.  The statute imposes a duty upon him, which duty includes knowing and assessing the fitness of the driver who seeks to have his vehicle.  The heavy burden which is imposed upon motor vehicle owners was not met.

[78] In the present case, Mr. Saul did not take steps to confirm the identity of the person who sought to use his vehicle, other than relying upon what turned out to be the assumption of Mr. Connolly.

[79] The focus of the analysis is on whether the owner gave express consent to the individual who seeks to have the vehicle.  Once that is found, as the facts of that case indicate, there is not a great deal which will impact upon the imposition of liability.

[80] While judicial interpretation of s. 86(1) may, at first glance, appear overly strict, as Paris J. stated in Beaudoin v. Enviro-Vac Systems Inc., [1992] B.C.J. No. 205, 1992 CanLII 444 (S.C.), at para. 13:

The Legislature has placed a very heavy onus on the owner of a motor vehicle who chooses to permit another to drive it. Whether that policy is or is not draconian is not for me to say.

[81] I have no doubt that the outcome here may seem harsh from the perspective of Mr. Saul.  However, holding him liable fits within the purpose of s. 86(1) and the manner in which it has been applied.  From a broader policy perspective, it fits within what has been found to be the most efficient and effective risk allocation from both an economic and public safety perspective, two elements that are central to s. 86(1).

Another LVI Case, Another Award for Damages

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

I’ve blogged many times about ICBC’s LVI program.  This program is not unique to ICBC.  Many auto insurers have a similar program where they deny compensible injury in tort claims where little vehicle damage occurs in the collision.
The difficulty with the LVI defence, however, is that to successfully run it the defence lawyer is basically inviting the court to find that the Plaintiff is lying about or exaggerating their injuries.  There have been many LVI cases that have gone to trial recently and the overwhelming judicial response to these was to find that compensible injury in fact did occur. Reasons for judgment were released today dealing with 2 LVI cases and such a finding was made again.
In today’s case (Loik v. Hannah) the Plaintiff was involved in 2 collisions in 2006.  Fault was admitted in each case leaving the Court to deal with the issue of quantum of damages (value of the claims).  The cases were defended on the LVI basis where the defence lawyer denied that the Plaintiff was injured in either of the accidents.
Mr. Justice Goepel rejected this argument and found that, notwithstanding the minor nature of these collisions, the Plaintiff was indeed injured.  The court’s useful analysis is set out at paragraphs 34-36 which I set out below:

[34] Ms. Loik claims damages arising from injuries she alleges to have suffered in what were two admittedly low velocity conditions. If the plaintiff was injured in the accidents, the injuries have persisted much longer than one would normally expect. In determining this case, the comments of Chief Justice McEachern, as he then was, in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 398-99 (S.C.), must be kept in mind:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation. …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

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.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[35] In this case, as in most soft tissue injury cases, the case largely turns on the plaintiff’s credibility. The evidence of her injuries is based almost entirely on her subjective reporting to her doctors and to the Court. In such circumstances, it is important to consider whether the evidence of the witness accords with the circumstances that are proven on a balance of probabilities:  Faryna v. Chorny (1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.).

[36] I find the plaintiff to be a credible witness. Her evidence accords with the surrounding circumstances. Prior to the accident, she was living a healthy active life, participating in many activities. She no longer is able to do so. I find that the reason she cannot do so is the ongoing pain she continues to suffer as a result of the motor vehicle accidents.

Mr. Justice Goepel found that the Plaintiff suffered soft tissue injuries in these collisions “which have caused her ongoing problems with her neck, back and shoulders.”  He went on to value the Plaintiff’s non-pecuniary damages at $25,000.

In addition to a useful discussion about LVI Accidents, the court went on to discuss a topic that I wrote about yesterday, namely the connection between the value of a claim and the numnber of medical appointments attended.

The Defendant argued that since the Plaintiff did not seek medical treatment between November 2006 and April 2008 her injuries had fully recovered.  Mr. Justice Goepel rejected this argument finding that “She thought she was getting better and continued to do the exercises that had been prescribed for her. When, over the next 18 months, her condition did not improve, she sought further medical treatment. In the circumstances of this case, I find that the failure to seek medical treatment does not establish that the plaintiff had recovered from her injuries by November 2006.”

Can an ICBC Tort Claim be Worth Less for Not Going to the Doctor Regularly?

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

Perhaps with the exception of the “failure to mitigate defence” the frequency of medical appointments attended by a plaintiff is not necessarily tied to the value of an ICBC tort claim.  The value of a claim is largely tied to the severity of injuries and the impact of the injuries on a persons life.  As a matter of common sense one would expect a Plaintiff with very severe injuries to receive more extensive medical intervention than a Plaintiff with relatively minor injuries.  In this sense there may be an indirect connection between the value of a claim and the number of medical treatments.  However, the number of doctor’s visits does not in and of itself add value to an ICBC tort claim and reasons for judgement were released today exploring this area of the law.
In today’s case (Brock v. King) the Plaintiff was involved in a 2006 T-Bone collision in Burnaby, BC.  The Court found that the Plaintiff suffered various injuries and in awarding $50,000 for her pain and suffering summarized the injuries as follows:
I find that the plaintiff continues to suffer from back pain, neck pain and headaches. These injuries continue to interfere with her work and her daily activities. It appears that some further improvement may occur but that some level of ongoing chronic pain is probable.
The Defence Lawyer argued that the Plaintiff’s injuries were not all that serious and in support of this conclusion drew the court’s attention to the fact that “there were large gaps in treatment and medical visits“.
Mr. Justice Punnett rejected this submission and in doing so summarized some of the principles courts consider in tort claims when reviewing the frequency and nature of post accident medical treatment.  The key discussion was set out at paragraphs 58-65 which I set out below:

[58]         The defendants place significant emphasis on the fact that the plaintiff had relatively little in the way of treatment, that there were no referrals to any specialists, that there was limited therapy, that there were large gaps in treatment and medical visits, little in the way of prescription medication and that there were no diagnostic examinations arranged by the family physicians.

[59]         The defendants rely on Mak v. Eichel, 2008 BCSC 1102, and Vasilyev v. Fetigan, 2007 BCSC 1759, in support of their position on the issue of gaps in the plaintiff’s reporting to her physician and the inference to be drawn. In Mak v. Eichel there appeared to be a gap in treatment with no evidence that the discomfort continued during that period and inVasilyev v. Fetigan there were credibility issues. As a result both cases are distinguishable.

[60]         The plaintiff relies on Travis v. Kwon, 2009 BCSC 63, and Myers v. Leng, 2006 BCSC 1582. In both cases there were gaps in the plaintiffs’ attendance on their physicians. InTravis v. Kwon, Mr. Justice Johnston states at paras. 74 and 77:

[74]      …Where a plaintiff gives credible evidence at trial, and is not significantly contradicted by entries in medical records or otherwise, the absence of a full documentary history of medical attendances it not that important.

[77]      In this case the plaintiff is generally credible, and I do not fault her for a commendable desire to avoid making a nuisance of herself by going to a doctor primarily in order to build a documentary records and thus avoid the risk of an adverse inference from failing to do so, or out of a misguided belief that by papering her medical files, she can prove her claim. A sensible plaintiff, having some knowledge of the medical system and its capabilities from her training, would be better advised to go to the doctor only when necessary, and thus avoid accusations that she is exaggerating, or suffering from what some authorities have referred to as “chronic benign pain syndrome”: Moon v. Zachary, [1984] B.C.J. No. 241, 1984 CarswellBC 2000, at para. 100.

[61]         In Myers v. Leng Madam Justice Gropper stated at para. 50:

[50]      I am not troubled by the gap in the plaintiff seeking treatment. His decision not to continue to see a doctor about his neck and back complaints was clearly based on a reasonable conclusion that the doctors could only provide temporary relief from the pain by prescribing medication and physiotherapy. The plaintiff did not consider either to be helpful. It is a sensible and practical approach to medical treatment. If continuous medical treatment can cure you, or make you feel better, then it is worthwhile to attend on a regular basis. If it cannot, there really is no point in taking the doctor’s time. The purpose of a seeing a doctor is not to create a chronicle of complaints for the purpose of proving that you have ongoing pain from an injury arising from a motor-vehicle accident. Rather than detract from the accuracy of the plaintiff‘s complaint, I consider the plaintiff‘s course of conduct, in not seeing the doctor on a continuous basis, to enhance his evidence.

[62]         Mrs. Brock testified that she is not sure if the physiotherapy helped that much and sometimes it increased her pain. Likewise she indicated that she did not like taking prescriptions and preferred to avoid medications other than Tylenol or Advil. She was told to exercise daily doing stretching and other exercises which she did.

[63]         I accept that she was aware that her doctor really could not do much more for her than he had already done. Given that, it made sense not to keep raising her injuries with him on a regular basis or, indeed, each time she visited with him.

[64]         The defendants also argued that the fact that Dr. Nakamara did not order further tests or investigations relating to the neck and back injuries while doing so for an earlier knee injury and a sprained thumb indicates that the neck and back injuries could not have been viewed by him as serious.

[65]         The defendants did not call Dr. Nakamara for the purposes of cross examination on his report. They are asking that the court infer the medical reasons for the lack of a more extensive investigation of the plaintiff’s injuries. That is a medical decision and not one for the court to make. It is likely more probable that he did not order more extensive investigations because in his opinion they were not required. He notes in his report that there was no structural damage. I decline to accept the defendants’ submission on this point.

Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases. 46 Comments on Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Reasons for judgement were released today (Wormell v. Hagel) by the BC Supreme Court, Kamloops Registry, awarding a Plaintiff just over $570,000 in total damages as a result of a 2003 injury.
The facts behind the injury are a little unusual.  The Plaintiff was standing on top of cargo on a flat bed truck.  At the same time, the Defendant was operating a crane and intended to lift the cargo.  The cargo shifted while the Plaintiff was still standing on it and in the “agony of the moment” the Plaintiff jumped off the truck to the ground which was some 12 feet below.  In jumping on the ground the Plaintiff suffered various injuries including a “crush fracture to the left ankle and a tear to the anterior cruciate ligament of his right knee“.
The Defendant was found at fault for this incident for operating the crane at a time when it was unsafe to do so.  The Plaintiff was found faultless for jumping to the ground in the “agony of the moment” and Mr. Justice Goepel did a good job summarizing this principle of law at paragraphs 35-37 stating as follows:

[35] A party who acts negligently and creates a danger carries a heavy onus if he then seeks to cast any blame for the accident on the injured party:  Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273 (C.A.) at para. 16, aff’d [1971] S.C.R. 669.

[36] The standard of care applied to individuals in emergency situations is not one of perfection. The law in such circumstances was explained in Walls v. Mussens Ltd. et al(1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A):

… I think the plaintiff is entitled to invoke the “agony of the moment” rule as an answer to the allegation of contributory negligence made against him. The rule is stated by Mr. Glanville Williams in his work Joint Torts and Contributory Negligence at p. 360-1:

It is well settled that where a sudden emergency arises through the fault of the defendant, the plaintiff who acts reasonably in an attempt to extricate himself is not guilty of contributory negligence merely because he unintentionally aggravates the situation. Also, where the plaintiff is compelled to make a quick decision in the ‘agony of the moment’ he is not expected to take into account all the considerations that a calmer appraisal of the situation might present to the mind. Perfect foresight and presence of mind are not required. This rule, sometimes called the ‘agony of the moment’ rule, is merely a particular application of the rule that the standard of care required of both plaintiff and defendant is that of a reasonable man.

The Law of Torts, 3rd ed., by J.G. Fleming contains the following statement at p. 247:

On the other hand, a person’s conduct in the face of a sudden emergency, cannot be judged from the standpoint of what would have been reasonable behaviour in the light of hind-knowledge and in a calmer atmosphere conducive to a nice evaluation of alternatives. A certain latitude is allowed when in the agony of the moment he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable conduct in such a situation, and he will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly took the wrong course.

The rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: see The “Bywell Castle” (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards,[1931] 2 D.L.R. 521, [1931] S.C.R. 167.

The test to be applied in circumstances such as those as in the case at bar is, in my opinion, not whether the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency.

[37] In this case, Mr. Hagen’s negligent act caused the emergency situation. Mr. Wormell did not have time to determine with any certainty whether the load was going to fall or stay. He had to make a quick decision in the “agony of the moment”. He chose to jump clear. As it turned out, that was the wrong decision because the load itself did not come off the truck. Matters, however, could have turned out otherwise. In deciding to jump away from the load Mr. Wormell did something an ordinary prudent man might reasonably have done under the stress of the emergency.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 Mr. Justice Goepel noted the following about his injuries and their effect on his life:

[96] Mr. Wormell’s injuries are permanent and will impact him for the rest of his life. He has undergone one surgery and will have to undergo at least one more for an ankle fusion. He also possibly faces surgery to reconstruct his ACL.

[97] In the months immediately following the accident, he was in significant pain. The March 2004 surgery reduced his pain and made his injuries more manageable. He now works steadily but seldom can do more than three or four hours of physical work. As his ankle worsens during the day, more of his weight bears on his right leg which aggravates his knee problems.

[98] If the fusion surgery is successful, he will have less pain in his ankle and will be more functional at work. The fusion will, however, cause some permanent limitations.

[99] Prior to his injuries, he was active in sports but he has not been able to return to sports in any meaningful way. This will not improve…

[105] I accept Mr. Wormell’s evidence as to why he has not undergone the fusion surgery. That surgery will leave him incapacitated for six months to a year. Given his ongoing financial obligations, he has not been able to afford to take the necessary time off to have the surgery.

[106] As is often the case, none of the cited cases involve the identical combination of injuries as that suffered by Mr. Wormell. That said, the cases cited by the defendant are closer to the mark. In particular, in this regard, I refer to the Graham and Nicoll cases which both involved serious leg injuries to men of an age similar to Mr. Wormell. I award $95,000 in non-pecuniary damages.

$45,000 Non-Pecuniary Damages for Aggravation of Chronic Pain

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

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accident related injuries.
In today’s case (Cheng v. Kamboz) the Plaintiff was involved in a 2005 BC Car Crash. The other motorist admitted fault.  The issue the court dealt with was quantum of damages (value of the Plaintiff’s claim).
Mr. Justice Myers found that the Plaintiff suffered from pre-existing chronic pain at the time of the crash.  Specifically he found that the Plaintiff suffered from headaches, neck pain, shoulder pain, hip pain and low back pain.  Notwithstanding these pre-accident complaints the Court found that the Plaintiff’s pre-existing “chronic pain” was transformed into a “chronic pain syndrome” as a result of the collision.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 for this aggravation Mr. Justice Myers reasoned as follows:

[39]    I find that before the accident Ms. Cheng was suffering – to a lesser extent – from all the pain of which she now complains.  Ms. Cheng says that she had no hip pain before the accident; however, that is not what she told Dr. Feldman when she mentioned what she referred to as being symptomatic of myasthenia gravis, to which I referred above at para. 29.  Whether it was caused by the myasthenia gravis is, in this context, beside the point.

[40]    Ms. Cheng was suffering from headaches prior to the accident in question.  While she says they are more frequent now, the difference is minimal.  Further, they are often brought on by stress at work and that is a variable which has nothing to do with the accident.

[41]    That said, the accident exacerbated the injuries and escalated chronic pain into chronic pain syndrome.  Causation for the exacerbation and chronic pain syndrome has been shown.  The harm caused by the defendant is divisible from the harm caused by the prior accidents and the plaintiff’s pre-existing condition.  To be clear, this is not the type of case, as was Athey v. Leonati, [1996] 3 S.C.R. 458, in which a pre-existing condition of the plaintiff made him more amenable to a specific injury (a disc herniation).

[42]    Damages are to be assessed on the basis that Ms. Cheng is to be put in the position she was before the accident, but not in a better position.

[43]    Ms. Cheng referred me to cases in which the damage range was between $80,000 and $100,000.  The defendants’ cases ranged from $35,000 to $60,000.

[44]    The injuries will not result in a drastic change of lifestyle for Ms. Cheng.  As I have noted, she was not physically active before the accident.  None of the doctors have opined that she will not be able to resume the limited walking she was doing before the accident.  The same can be said with respect to going to the theatre.  The migraines were present before the accident and her reduced playing of video games because of the migraines cannot be blamed to any substantial degree on the accident.

[45]    On the other hand it must be recognised that the accident did cause her chronic pain syndrome and that it is likely to continue for some time.

[46]    In my view, the proper assessment of damages for the exacerbation of Ms. Cheng’s prior injuries and the addition of the chronic pain syndrome is $45,000.

Rule 37B and the Discretion of the Court

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 52 Comments on Rule 37B and the Discretion of the Court

As I’ve previously written, one of the biggest improvements in the new Rule 37B over it’s predecessor (Rule 37) is that it gives the Court discretion when assessing costs consequences when a party beats a formal settlement offer at trial.
Reasons for judgment were released today by the BC Supreme Court demonstrating the flexibility of this discretion in assessing fair costs consequences.
In today’s case (Petojevic v. Solari) the Plaintiff sued for personal injuries.  Prior to trial the Defendants made a formal settlement offer of $60,000.  After trial the Plaintiff was awarded a total of just over $42,000 in damages.  In the defence of the claim the Defendants incurred “costs” of $5,051 and disbursements of $2,060.
The Defendants brought an application to be awarded “double costs”.  Under the old Rule 37 the Judge would have had no discretion in making such an award and double costs would automatically be awarded in these circumstances.  Under the new Rule 37B, the court has significant discretion over the costs to be awarded when a formal settlement offer is beat due to Rule 37B(5) and (6) which read as follows:

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

In today’s case Mr. Justice Williamson refused to award the Defendant double costs but did award increased costs at 125% of the actual costs.  In justifying this result Mr. Justice Williamson highlighted the following facts:

[5] Here, the offer was not accepted and the matter went to trial. Nevertheless, the Court retains a discretion with respect to costs. Generally, litigants will be limited to the maximum costs allowable pursuant to Rule 66 (29) unless the Court rules otherwise.  In determining whether to “otherwise order” the circumstances to be considered may include the making of an offer pursuant to Rule 37, the relationship of the award to the offer, the length of the trial, the degree of complexity, the conduct of the litigation, the financial circumstances of the parties, and any other relevant circumstances.

[6] In addition, I have in mind the express object of Rule 66 to provide a speedier and less expensive determination of certain actions, and the object of Rule 37 to encourage settlement.

[7] The defendant concedes that in exercising a discretion pursuant to Rule 37B(5) an award may be discounted for work done prior to the delivery of an offer to settle.  They note that the ceiling for double costs awards pursuant to Rule 66 would amount to $13,200. They therefore say that their claim for costs in the amount of $10,102.24 plus disbursements is reasonable as it is equivalent to a discount of approximately 25%. In addition, the defendants note that the plaintiff was granted several adjournments and given the fact that the plaintiff was represented by counsel during two periods after the delivery of the offer to settle, he had considerable time to consider the appropriateness of the offer and the consequences of failure to accept it.

[8] The plaintiff submits Rule 66 should apply. He submits in any case the offer came after examination for discovery, an attempt at mediation, and an application to strike portions of the plaintiff’s claim. As such, he submits, any award of costs to the defendants should be limited.

[9] Here the trial took two days, the period contemplated by Rule 66. Liability was admitted, and the trial was not particularly complex, although previously existing injuries were a somewhat complicating issue. The defendant submits the plaintiff’s conduct of the litigation had a negative impact on the proceedings, a situation unfortunately not unusual when litigants represent themselves. I have no direct evidence of the financial circumstances of the plaintiff, although I infer from the evidence of impact of his injuries that he is in financial difficulty.

[10] The amount awarded at trial is more than two thirds of the amount offered by defendants. As well, on the second day of the proceedings the plaintiff succeeded in obtaining an award of special damages greater than that offered at that point by the defendants.

[11] The defendants proffered Bill of Costs in the amount of $5,051.12 plus disbursements of $2,060.02. They seek a doubling of the costs plus the disbursements ($10,102.24 plus $2,060.02 = $12,162.26).

[12] Taking all of these factors into consideration, and exercising the discretion permitted a trial judge pursuant to the Rules, I am satisfied that it would be contrary to the object of these Rules to deny the defendants application. However, I am not persuaded in the circumstances of this case that the award of costs sought by the defendants is warranted. In the result, I award costs to the defendants at 125% of their claimed costs ($5,051.12 X 1.25 = $6,313.90) plus disbursements of 2,060.02 for a total of $8,373.92.

More on BC Injury Claims, Pre-Existing Conditions and Causation

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Spine Injury Cases, Uncategorized. 64 Comments on More on BC Injury Claims, Pre-Existing Conditions and Causation

(UPDATE:  The below decision was upheld by the BC Court of Appeal in Reasons for Judgement released on January 19, 2012)
Reasons for judgment were released today by the BC Supreme Court (JFC v. Ladolcetta) awarding a Plaintiff just over $500,000 in total damages as a result of a serious BC motor vehicle collision.
The Crash occurred in 2005 and was a near head-on collision for which the Defendant was found 100% at fault.  As a result of this crash the Plaintiff suffered various serious injuries including a compression fracture in the low back, a brain injury with post concussive problems and various cuts, bruises and soft tissue injuries.
The majority of the judgement dealt with the Plaintiff’s pre-existing psoriasis and psoriatic arthritis and the extent to which this was affected by the collision.
Mr. Justice Brown concluded that in addition to the above serious injuries the Plaintiff’s pre-existing conditions were made significantly worse by the car crash.   The Plaintiff’s non-pecuniary damages were assessed at $150,000 although this award was then reduced to $120,000 to account for the plaintiff’s ‘failure to mitigate’.
In summarizing the Plaintiff’s accident related injuries and their effect on his life Mr. Justice Brown found as follows:
[112] I find no sufficiently persuasive reason to doubt that the plaintiff sustained significant soft tissue neck, thoracic, lumber spine, right shoulder, ankle, right knee and other soft tissue injuries, as set out in paragraph 3 of these reasons, together with a compression fracture in the lumbar spine, and ongoing sequelae. The ultimate residual effect of these injuries absent the influence of the plaintiff’s psoriatic arthritis will have to wait on the full remediating effects of medication, unfortunately unknown to the date of trial. However, given the history and opinions in this case, I find that the evidence supports a finding that, more likely than not, he will continue to experience some residual symptoms that may be alleviated to a degree by further therapy….
In this case, a belief based on clinical experience that physical or psychological trauma can initiate or influence the course of both psoriasis and psoriatic arthritis, is one, based on the sufficiently weighty evidence heard in this case, widely held among dermatologists and rheumatologists in their respective fields…
[153] Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis…
I find the evidence, including the plaintiff’s, persuades that the plaintiff’s psoriasis and psoriatic arthritis worsened sufficiently soon after the accident…

[158] What is important here is that the evidence sufficiently establishes that the plaintiff was struggling when he returned to work in mid-February 2006 experiencing joint pain and limitation that he thought he needed to hide for the sake of job security. He saw some improvement in the summer, to be expected because of the sun’s benefits and the fact that he had most of June and July off work, presumably a time when he golfed and was in the sun more. As it is, I note that by early October 2006, he saw Dr. Hong, reporting a flare-up. I accept the plaintiff’s evidence that over-all he had experienced a change in the pattern of the disease from a slow gradual worsening over time between treatments to one of intense flares involving both skin and joints. The basic pattern and course of the disease had manifestly altered; I accept the plaintiff’s evidence that pre-accident he never had to abrade the skin for over two hours each day; that the plaques and other aspects of the disease had taken on an aggressive flaring pattern. This is not to overlook the fact that the worsening condition went largely untreated, which likely worsened his situation; but that points to questions of mitigation discussed below.

[159] Further, as also discussed below, I find that the evidence well establishes that accident-induced ongoing emotional trauma and persistent stress are the pre-dominant and most significant exacerbating factors of both the plaintiff’s psoriasis and psoriatic arthritis.

[160] I also reject the defence argument that the onset of psoriatic arthritis suffered by the plaintiff was too temporally removed from the accident to be related to it. There is sufficient accepted evidence to show that the plaintiff’s psoriatic arthritis flared within a few weeks of the accident and involved new areas and that to the date of trial he has not returned to his pre-accident level of functioning…

[216] It must be borne in mind that although the plaintiff in this case did suffer from a psoriatic arthritis condition pre-accident, it was very mild; and he was able to work in what were heavy labor intensive positions. Accepted evidence indicates that the plaintiff’s condition, both in relation to his psoriasis and psoriatic arthritis, were set upon a new and more aggressive course after the accident. This was not a short term exacerbation—which said, is not to over look the contribution that the plaintiff’s failure to seek or follow treatment advice played in his worsening condition psoriasis. Further, I find that the plaintiff suffered significant sequelae from his brain injury; and further, and very significantly, as earlier explained, that his other physiological and emotional accident-induced stressors amplified his symptoms, which gradually became worse over time. He has obviously suffered a serious depression and remains vulnerable in that regard. Moreover, he suffered significant soft tissue injuries, the ultimate prognosis for which is not certain. As Dr. Shahid explained, most people do make a good fairly uneventful recovery from compression fractures and are able to return to work; but a significant proportion of those people continue to suffer pain and disability and some of those are unable to return to labor intensive work.

[217] Further, the plaintiff has suffered a substantial loss of enjoyment of life, is now unable to participate in golf and other activities he enjoyed before the accident. With successful treatment, he may be able to return. As I view the evidence, his suffering, both physiological and physical, has been quite intense, albeit partly in relation to his failure to follow treatment recommendations.

[218]     Considering all of the evidence and the submissions of counsel, for non-pecuniary damages I award $150,000, and taking into account the plaintiff’s failure to mitigate before the date of trial, reduced to $120,000.

In addition to the above, today’s case contained an interesting discussion of causation when it comes to traumatic injury.  Often in ICBC Injury Claims different experts come to different conclusions as to the reasons for a Plaintiff’s disabilities.  In this case there was a debate whether many of the Plaintiff’s problems were due to a head injury, depression, chronic pain or perhaps other causes.  Mr. Justice Brown gave useful reasons holding that it is not necessary to pigeon-hole a Plaintiff’s injuries into specific categories to find that a compensable loss occurred.  Specifically he stated as follows:

I find the conclusion that most accords with the testimony and medical evidence that I have accepted is this: All of the plaintiff’s injuries and associated symptoms, including those from his mild concussive frontal lobe injury, his subclinical PTSD and its symptoms, the stress and anxiety he experienced related to pain from his soft tissue injuries, his incrementally worsening psoriasis and psoriatic arthritis, and his inability to work operated over time to produce a serious depression. These factors in varying degrees punctuated the plaintiff’s experiences from the time of the accident onwards, and produced the levels of psychological stress that produced the ongoing exacerbation of the plaintiff’s condition that plaintiff experts identified as the cause of the worsening of the plaintiff’s psoriasis and psoriatic arthritis. Given the extensive evidence heard, I find this consilient view of the evidence and medical opinions removes the need to reduce judicial findings to specific diagnostic categories; at the same time more accurately reflecting the actual subjective experiences of the plaintiff. These causative stressors were caused directly or indirectly by the accident, subject to consideration of mitigation arguments.

The above quote, particularly the bolded part, could prove persuasive in ICBC Injury Claims where experts agree that a Plaintiff suffers a deterioration in health and functioning following a colliison but cannot agree on the exact medical cause for the same.

$60,000 Non-Pecuniary Damages Awarded for Chronic STI's and an Anxiety Disorder

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

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff close to $120,000 in total damages as a result of motor vehicle related injuries and losses.
In today’s case (LaFarge v. Natt) the Plaintiff was involved in 3 BC motor vehicle accidents.  The Plaintiff was not at fault for any of the crashes.  The lawyer representing the defendants admitted the issue of liability so the trial focused on the sole issue of damages.
Since all 3 defendants were represented by the same lawyer and fault was admitted for each of the crashes the court did not attribute damages to each specific crash rather damages were assessed globally.  This is not uncommon in BC Injury Claims were ICBC is the insurer for multiple at fault defendants.
Mr. Justice Truscott found that the Plaintiff suffered chronic soft tissue injuries and an anxiety disorder as a consequence of these collisions.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $60,000 he summarized the Plaintiff’s injuries and their effect on her life as follows:

[165] I accept that the plaintiff is continuing to suffer from physical injuries sustained in the first accident of March 1, 2002 and aggravated slightly in the following two accidents of October 5, 2002 and May 1, 2003.

[166] I accept that her injuries are now chronic as it is over seven years after the first accident when these injuries were first sustained.

[167] I do conclude that she has developed a restriction of movement as a pain avoidance technique as Dr. Feldman says.  As he states her chronic pain is clouded by her pain focused behaviour without any real pain behaviour being identified…

[169] The critical issue on the plaintiff’s claim for damages for pain and suffering and loss of enjoyment of life is whether her anxiety issues constitute a psychological disorder or something less, and whether they are caused by the injuries she sustained in the motor vehicle accidents…

[180] I conclude that the initial attack in August 2004 has not been proven to be causally related to her motor vehicle injuries, and some attacks since, as Dr. Buch says, are possibly caused by unrelated aversive social transactions or other stresses in her life.  In fact on consideration of all the evidence of the other stresses in her life I find it just as likely that some of her anxiety attacks are not related to her motor vehicle injuries.

[181] Whether or not her anxiety attacks have reached the level of a psychological disorder, I also conclude the plaintiff has satisfied the onus of proving that at least some of her anxiety attacks are causally related to the injuries in her motor vehicle accidents.

[182] Accordingly, with some of these anxiety attacks caused by injuries in the motor vehicle accidents and some by other stresses in her life, the issue becomes what the defendants should be responsible for…

[185] My conclusion that some of the anxiety attacks are causally connected to the plaintiff’s motor vehicle injuries while the initial anxiety attack of August 2004 is not proven to be so causally connected, and other unidentified anxiety attacks thereafter are likely not causally connected appears to fit the legal doctrine described in Athey as the “crumbling skull” doctrine which recognizes a pre-existing condition inherent in the plaintiff’s original position.  The defendants are not obliged to compensate the plaintiff for any disability effects of the pre-existing condition which the plaintiff would have experienced anyway or did in fact experience.

[186] Here it is my conclusion that the plaintiff’s damages throughout should be discounted by 25 percent to reflect my finding that the first anxiety attack in August 2004 was not causally connected to her injuries and also to take into account the likelihood that other identified anxiety attacks since are unrelated to her injuries and are therefore unproven to be causally connected to her injuries.

[190] I consider the plaintiff’s cases to be more appropriate to consider, particularly Pelkinen v. Unrau where the injuries and psychological consequences to the plaintiff there were somewhat similar and the award for non-pecuniary damages was $90,000 less ten percent for failure to mitigate for a net award of $81,000.

[191] Here the plaintiff submits that an appropriate award to her would be $80,000 and I am prepared to accept this figure for general damages subject to a reduction by 25 percent to allow for the unrelated anxiety attacks to include the August 2004 attack.  The award for non-pecuniary damages will therefore be in the amount of $60,000.