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More on Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 47 Comments on More on Chronic Soft Tissue Injuries

Today reasons for judgment were released by the BC Supreme Court in 2 separate cases dealing with chronic soft tissue injuries.  I summarize these below in my continued effort to grow this public database addressing awards for pain and suffering in ICBC and other BC Injury Claims.
In the first case (Warren-Skuggedal v. Eddy) the Plaintiff was involved in a very serious collision in Prince George, BC.  The defendant was “driving well in excess of the speed limit…(he) lost control and the truck swerved into the lane in which (the Plaintiff) was driving…the force of the impact tore (the defendants) vehicle in half“.
Fault was not at issue, rather, the court dealt solely with the issue of damages.  The Plaintiff unfortunately had some serious pre-existing health issues and Mr. Justice Sewell had to decide “the true extent of Ms. Warren-Skuggedal’s injuries and disabilities and the extent to which they are attributable to the injuries she suffered in the accident. ”
In valuing the Plaintiff’s non-pecuniary damages at $60,000, Mr. Justice Sewell summarized her injuries, their relationship to the collision and their effect on her life as follows:
[19] I conclude that Ms. Warren-Skuggedal suffered soft tissue injuries in the accident which aggravated her pre-existing depression and anxiety.  I find that she genuinely experiences the symptoms she has described although I do think that she does exaggerate and dramatize them to a certain extent….

[23]         I conclude that some of the symptoms Ms. Warren-Skuggedal reports are attributable to the accident but that the more serious ones are attributable to her pre-existing condition.  Specifically I find that the anxiety, depression and cognitive problems she experiences are not caused by the accident.  As I understand the law in this area the onus is on Ms. Warren-Skuggedal to prove, on a balance of probabilities, that her symptoms would not be present but for the negligence of the defendant, which led to the injuries and trauma suffered in the accident.  I do not think that she has met that onus with respect to the difficulties described in this paragraph.  I think it is more likely that she would have continued to suffer from depression, anxiety and cognitive difficulties even if she had not been injured in the accident.  The difficulties were part of her original position.

[24]         I must also conclude that Ms. Warren-Skuggedal’s inability to find employment since the accident and any impairment of her capacity to earn income in the future are not attributable to the accident.  While I base this conclusion on the whole of the evidence I note that it is consistent with the opinions expressed by Dr. Reddy and Dr. Hirsch, both of whom concluded that the motor vehicle accident did not negatively affect her employment prospects.

[25]         On the other hand, I do conclude that Ms. Warren-Skuggedal does suffer chronic pain as a result of the defendant’s negligence.  I also find that it is likely that she will continue to suffer from that pain for the foreseeable future.  I also conclude that that pain has resulted in some permanent restriction of Ms. Warren-Skuggedal’s ability to enjoy recreational activities and carry out such household tasks as heavier cleaning and gardening.

This case contains a useful analysis of the Courts role in wading through injuries both related to and unrelated to an accident.  The full judgement is worth reviewing for anyone interested in this area of the law.
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The second case released today (Gordon v. Timins) involved a 2005 BC Car Crash.  The Plaintiff’s vehicle was rear-ended by a u-haul truck.  This collision was significant enough to propel the Plaintiff’s vehicle into the vehicle in front of her.
The Plaintiff’s main injury was chronic neck pain.  Mr. Justice Cullen awarded the Plaintiff $45,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  He summarized this lasting injury as follows “In the result Ms. Gordon is left with an injury to her neck that, I find, never fully abates and is aggravated by aspects of her work.  I also find that the plaintiff’s neck pain when aggravated is associated with headaches, some dizziness and impaired sleep patterns with consequential fatigue. ”
In reaching this conclusion the court largely accepted the evidence of Dr. Dhawan, a specialist in physiatry, whose evidence was summarized as follows:

[96]         Dr. Dhawan was a specialist in physiatry or physical medicine.  He testified that the neck has a complicated anatomy with soft and hard tissue structures.  It has ligaments in front and the muscles on top of that.  If the muscles or ligaments are torn, it can lead to instability of the structure.  Dr. Dhawan’s diagnosis of the plaintiff when he saw her on July 18, 2008 was that she had torn muscles and ligaments.  He said that ligaments take longer to heal than muscles because they have less blood supply.  Scar tissue can form and it is not as strong as the original ligament and can stretch or tear more easily and can remain inflamed after forming.  He testified that in the case of a rear-end accident, the usual source of pain is the upper facet joints.  In his report, he reported no boney discogenic or neurological injury, characterizing it as a soft tissue injury.  He noted that the plaintiff “was referred to Kevin Tam … who was able to help her tremendously.”  He noted that she has difficulty in extending her head upwards to prune trees.  He recommended injection therapy – local steroid and anaesthetic injections, 2 – 3 times over a 2 – 3 month period.  He testified that those injections with a stretching and posture control program could resolve the syndrome of soft tissue injury.

[97]         He opined there would be no permanent sequelae like development of arthritis or any need for surgery and no disability from her work as a landscaper/arborist.

[98]         Dr. Dhawan concluded, however, that given the chronicity of her symptoms “some symptoms of neck and shoulder girdle pain may remain on a longer term basis and she will have to learn to live with pain and a quick resolution of symptoms is not likely.”…

[100]     Dr. Dhawan noted that although the degenerative changes are unrelated to the motor vehicle accident, “…individuals who have such changes in the neck do not respond well through treatment and have more prolonged symptoms after soft tissue injuries and symptoms of neck pain may persist for several years and may become chronic.”

[101]     Dr. Dhawan noted in Appendix 3 to his July 18, 2008 report that the plaintiff’s neck extension was only 25% of normal without pain.  He concluded that that was an objective symptom and consistent with his diagnosis.

$75,000 Non-Pecuniary Damages for Moderate/Severe Post Traumatic Stess Disorder

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

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.
In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.”
ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.
Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

This case is also worth reviewing for the courts awards of Loss of Future Earning Capacity.
In this case the Plaintiff’s past wage loss was modest up to the time of trial totalling neat $6,000. Notwithstanding this minimal past wage loss the Court awarded significant damages of $225,000 for loss of future earning capacity because of the ongoing impact of the Plaintiff’s PTSD on his ability to work in his own occupation.  Paragraphs 28-42 of this case are worth reviewing for anyone interested in the law of damages in BC relating to future wage loss.

Bus Driver Found at Fault for Injuries to Passenger, $38,000 Non-Pecs for Fractured Wrist

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

In reasons for judgment published today on the BC Supreme Court website (Patoma v. Clarke) a Plaintiff was awarded $38,000 for non-pecuniary damages for injuries he sustained while on a Translink bus.
The Plaintiff was injured when he was thrown to the floor of a bus as a result of the driver’s sudden braking.  The key facts and the law surrounding this finding were summarized and applied by Madam Justice Fenlon as follows:

[2] As the defendant Mr. Clarke put his bus in motion to leave the stop, two young women, the defendants Claudia Wang and Jane Doe, who were running across the street mid-block to catch the bus, suddenly appeared in front of the bus. Mr. Clarke braked to avoid hitting the young women.

[3] As a result of the sudden braking, Mr. Patoma was thrown to the floor of the bus, and fractured his left wrist….

[6] It is clear that bus drivers owe a duty of care to their passengers based on the reasonable foreseeability test. The standard of care is the conduct or behaviour that would be expected of the reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver, and what the driver knew or should have known:  Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 (C.A.).

[7] I note that the standard to be applied to the bus driver is not one of perfection. Nor is the transit company in effect to be an insurer for any fall or mishap that occurs on a bus.

[8] The first question I must address is whether Samuel Clarke met the standard of care he owed to his passengers as he pulled his bus away from the bus stop that August night…

[27]         From Mr. Clarke’s description, I find that he was looking in his left side mirror as he took his foot off the brake, and that he permitted the bus to move albeit ever so slightly, before looking forward and without checking through his left blind spot. That is why he did not see the pedestrians, who must have been in that blind spot, as he lifted his foot from the brake and the bus started to move.

[28]         In my view, the driver either failed to check that blind spot as he started to lift his foot off the brake, or failed to sweep the area to the left of the bus far enough out to detect the two young women as he moved to check his left mirror before he pulled out. The two pedestrians were, at that time, crossing the street in some fashion from his left….

[31] In the case at bar, the driver set the bus in motion, albeit ever so slightly, without noticing two pedestrians already in the street and moving to cross in front of the bus, causing him to have to brake suddenly.

In assessing the Plaintiff’s claim for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $38,000 Madam Justice Fenlon summarized the Plaintiff’s injuries as follows:

[42]         The fracture Mr. Patoma sustained could not be set despite two attempts. He was required to undergo surgery with external pins to set bones in place. The surgery occurred eight days after the accident. The external fixator was removed on September 29, 2005, approximately five weeks after the surgery. Mr. Patoma underwent physiotherapy, beginning mid-October, attending four times and then two sessions in the months following until February 2006. He engaged in daily exercises to strengthen his wrist.

[43]         I find Mr. Patoma worked hard at his rehabilitation. By 2007, about two years after the accident, he was fully recovered except for occasional cramping or tightness in the muscles of his left hand. It is unlikely that Mr. Patoma will develop arthritis in his wrist or need further surgery, according to the medical report of Dr. Perry.

[44]         During the healing process, Mr. Patoma could not garden during part of 2006. He is an avid tennis player, and he could not play tennis or badminton in the fall of 2005. But the biggest impact by far of the injury was on Mr. Patoma’s ability to play the bagpipes. He told the court that he engaged in competitions in his youth. At one point, he took lessons from the personal piper to Queen Elizabeth. He said that classical Highland piping requires considerable dexterity in the fingers.

[45]         There was evidence that playing the bagpipes was an important part of Mr. Patoma’s daily life. He is a bachelor and lives alone, and he said that he played in the morning and the evening, and it brought him great comfort. It was a cause of real concern that his fingers were too stiff for him to play without slurring, and for him to play with the kind of skill and at the level he was accustomed to. He said that, when he found he could not play, he was gripped by worry and anxiety.

[46]         Mr. Patoma happily reported at trial that, by 2007, he had made a “terrific recovery”. He said that at 71, he still has the dexterity in his fingers that he had as a teenager….

[48] I find that an appropriate quantum of damages to compensate Mr. Patoma for his pain and suffering and temporary loss of enjoyment of life is $38,000.

$35,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Back Injury

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

Reasons for judgment were released Friday awarding a Plaintiff just over $69,000 in total damages for injuries and losses sustained as a result of a 2006 BC Car Crash.
In Friday’s case (Dermody v. Gassier) the Plaintiff was injured when his vehicle was rear-ended in South Surrey.  Fault was admitted leaving the court to deal with the sole issue of damages (value of the claim).
Mr. Justice Williams found that while the Plaintiff “embellished his description of the way things were before the accident” the Plaintiff nonetheless was injured and had a pre-existing condition worsened as a consequence of this collision.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000  Mr. Justice Williams summarized the Plaintiff’s injuries as follows:

[92] The plaintiff sustained soft tissue injuries in the motor vehicle accident.  Some of them were relatively transitory in nature; others were more serious and he says they have continued to impact him in a significant way.

[93] The bruising and such injury abated within a short period of time, that is, within two or three weeks.  The headaches continued, albeit on a diminished basis, for a period of time in the order of 12 months.  The neck pain was initially a serious problem but I conclude resolved substantially within 12 to 16 months.  The driving apprehension, again, resolved within a fairly short period of time and did not meaningfully impact in any long-term way upon the plaintiff.

[94] There is the matter of the sensation loss in the plaintiff’s feet.  None of the medical experts have been able to understand what causes that, and Dr. Sovio was quite sceptical of it.  Nevertheless, there appears to be no reason to find that it is not an actual condition; its onset was concurrent with the accident.  I, therefore, find that it is a consequence, albeit a relatively minor one, of the incident and that it is a continuing condition.

[95] The most serious and sustained injury was that to the plaintiff’s back.  I accept that it caused him significant pain and discomfort.  Based on the medical evidence, I accept as well that there will be some residual back pain going forward….

[103] To clarify, I find that, at the time of the motor vehicle accident, the plaintiff’s back condition was not asymptomatic.  He was having back pain with certain attendant limitations.  Whether that was from the incidents at the courier job, whether it was because of degenerative conditions, or whether it was some combination, I am not able to say.

[104] However, I am satisfied that his back was symptomatic at the time of the accident, and, in accordance with the crumbling skull principle, he is only entitled to recover damages that reflect the difference between his post-accident condition and his pre-accident condition….

I conclude that there were weaknesses in this plaintiff’s pre-accident condition that were not symptomatic at the time of the accident injury, but which would have the effect of making the plaintiff likely to experience greater consequences from the insult of the accident.  Injuries that result where such a situation is present are compensable…

[115] On the particular facts of the matter at hand, it is my conclusion that a fit and appropriate award of non-pecuniary damages in this case is $35,000.

In addition to the discussion addressing the award for non-pecuniary damages, this case contains a useful discussion of the “thin skull” and “crumbling skull” legal principles which is worth reviewing for anyone interested in how BC courts deal with pre-existing conditions and their interplay with traumatic injuries in BC tort claims.

BC Court of Appeal Orders "Stay" in UBC Parking Fines Class Action Lawsuit

Written by admin on . Posted in Uncategorized.

While this post does not deal with an ICBC or other BC Injury Claim I though the topic may be of general interest to my readers.  (This entry is reposted from my BC Class Action Law Blog.)
In reasons for judgement released this week by the BC Court of Appeal in the UBC Parking Fines Class Action (Barbour v. UBC) a stay was ordered permitting UBC to continue to collect parking fines until the appeal of Mr. Justice Goepel’s judgment of March 30, 2009 is heard.
By way of background a class action was launched against UBC claiming that the University wrongfully collected parking fines from 1990 onward.  At trial Mr. Justice Goepel held that the University indeed did collect parking fines unlawfully over the years, specifically the Court held that:
The (UBC) Parking Regulation Fines are ultra vires.  UBC cannot enter contracts or licenses that incorporate the Parking Regulation Fines.  UBC’s common law proprietary rights authorize the towing and storage of vehicles parked contrary to the Parking Regulations.  UBC is entitled to collect the costs arising from such towing.  UBC cannot, however, rely on its proprietary rights to charge or collect the Parking Regulation Fines.  The plaintiff and other class members are entitled to restitution in the amount of the Parking Regulation Fines subject only to applicable defences under theLimitations Act, towing and storage charges and the applicability of UBC’s claim of set-off which has yet to be resolved.
The University appealed this judgement.  Pending the hearing of the Appeal UBC applied to “stay” Mr. Justice Goepel’s order (which basically means to put a hold on it until the appeal can be heard).  The University argued that a stay was necessary because there has been “a substantial increase in parking violations subsequent to the judge’s order” and a stay would “maintain order with respect to parking on the campus in the interest of public safety and preservation of substantial parking revenue which will otherwise be lost to the University“.
The Plaintiff argued that a stay would not be necessary because granting one would “amount to endorsing what has been determined to be an unlawful regime, which will never be determined to be lawful, when there is an alternative way in which the University can enforce parking restrictions“.
The BC Court of Appeal sided with the University and ordered a stay.  In doing so the Court reasoned as follows:
[4] The considerations on an application of this kind are well established.
[5] It is accepted there is a serious question to be considered by this Court and it appears clear to me the University will suffer irreparable harm, particularly with respect to lost revenue and a large measure of parking disorder if a stay is not imposed.
[6] The balance of convenience favours the imposition of a stay principally because it will constitute no prejudice in any practical sense to the class. There has been no determination of what, if any, portion of fines paid since 1990 any members of the class are entitled to recover from the University. That aspect of the action remains outstanding and, assuming the appeal is prosecuted diligently, it should not unduly interfere with the resolution of the remaining issues in any event. It appears to me the only real effect a stay will have is to facilitate the enforcement of essential restrictions on parking that have been in place for a long time. The members of the class cannot, and of course do not, complain about that.
[7] I do not accept the granting of a stay will necessarily amount to endorsing an unlawful regime that will remain unlawful should the appeal succeed. As I understand it, if the appeal were to succeed, the University would be entitled to continue to regulate parking by imposing fines, albeit as a private law right at common law. But in any event, the situation requires a remedy, however short term, and I have no confidence it is to be found in the alternative suggested even if its prompt implementation could be said to be feasible, which I doubt.
[8] The order is stayed until the disposition of the appeal. It will be a term of the order that any fines collected by the University during the period of the stay be held in trust by the University for distribution by court order and that the recognition of academic achievement in no way be impaired by the University’s attempts to collect parking fines during the period of the stay. The University agrees that the class period and the opt-in period are to be extended to the termination of the stay. The University has filed its factum and is required to continue to prosecute the appeal diligently.
The course of this Appeal can have consequences not only to this case directly but also to a Class Action Lawsuit launched against the University of Victoria and SFU alleging similar wrongdoing as well as a potential challenge to the University of Northern British Columbia (UNBC) for arguably similar wrongdoing.

More on Liability – Stop Signs, Speeding and Fault

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Liability – Stop Signs, Speeding and Fault

Reasons for judgment were released this week dealing with the issue of fault for a car crash where one motorist bound by a stop sign enters an intersection and gets hit by a speeding vehicle.
In this week’s case (McKinnon v. Peterson) the Plaintiff stopped at a stop sign heading northbound on Marlborough Avenue at the intersection of Kingsway.  As the Plaintiff entered the intersection and almost cleared it he was struck by the defendants vehicle who was travelling westbound.   The Plaintiff’s vehicle was struck on the right passenger side in a “violent” collision which caused all four tires of the defendant’s vehicle to leave the ground and “drove the plaintiff’s vehicle… over the curb, flattening a stop sign, shearing a light standard, and through a garden bed, and finally into the front of a restaurant. ”
When a motorist leaves a stop sign and attempts to cross an intersection on a through highway the motorist needs to comply with s. 175 of the Motor Vehicle Act which holds in part that:

175(1)  If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a)        the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b)        having yielded, the driver may proceed with caution.

(2)        If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway.

Mr. Justice Hinkson held that while the Plaintiff entered the intersection at a time when the Defendant did not constitute an “immediate hazard” the Plaintiff failed to proceed with caution by “failing to observe the defendant’s vehicle that was there to be seen” and for this the Plaintiff was found at fault.

The analysis did not end there, however, as the Defendant was also found at fault for speeding and failing to yield the right of way to the plaintiff who gained the right of way after he entered the intersection at a time when the Defendant did not pose an immediate hazard.

Specifically Mr. Justice Hinkson found that “the defendant was traveling at a speed of close to double the posted speed limit as he approached the intersection of Kingsway and Marlborough Avenue on November 2, 2006, and that he was unable to do so safely. He failed to yield the right of way to the plaintiff.”

The Court went on to find the Defendant 2/3 at fault for this collision and the Plaintiff 1/3 at fault.  In doing so Mr. Justice Hinkson described the relative fault of the parties as follows:

[47] I am unable to conclude that such a division of liability is warranted in this case. Mr. Petersen was travelling at what I have found to be an unsafe speed in all of the circumstances, and knew, or should have known that he would be unable to safely stop for vehicles that might choose to cross Kingsway, having acquired the right of way to do so. His conduct in these circumstances was reckless.

[48] On the other hand, Mr. McKinnon chose to cross a six lane street at other than a traffic controlled intersection, knowing that vehicles travelled that road at that time of day at speeds greater than posted. In so doing, he was obliged to proceed with caution, and I find that he did not.

[49] Weighing the respective negligence of the parties, I consider that the defendant must bear the majority of the liability for the collision. I conclude that the defendant’s conduct was considerably more negligent than the plaintiff’s, and that the defendant must bear two-thirds of the blame for the collision, and the plaintiff the remaining one-third. There will be judgment accordingly.

Intersection crashes are some of the most complicated cases when determing the relative blameworthiness of each party.  While each case turns on its own facts and the results can very depending on all the subtleties of evidence in any given case, this decision is worth reviewing for a careful analysis of some of the factors that come into play when deciding whom to blame to what degree for an intersection crash.

More from BC Supreme Court on LVI Crashes, Net Past Income Loss Awards

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

(Note: the case discussed in this post was overturned by the BCCA addressing the issue of tax consequences in ICBC past income loss awards.)
In reasons for judgement published today by the BC Supreme Court (Laxdal v. Robbins) Madam Justice Gerow discussed two interesting issues that often come up in ICBC Claims.
The first is the “LVI Defence“.  In today’s case the Plaintiff was injured in a 2006 car crash in Nanaimo, BC.  This collision appears to fit ICBC’s LVI criteria in that the Plaintiff’ vehicle suffered minimal damage and this was stressed by the defence at trial.  In finding that the Plaintiff indeed suffered injury in this crash despite the rather insignificant amount of vehicle damage Madam Justice Gerow had this very practical take on the evidence presented:

[17] Although the severity of the accident is a factor that should be taken into consideration when determining whether Ms. Laxdal suffered injuries in the motor vehicle accident and the extent of those injuries, it is not determinative of either issue. Rather, the whole of the evidence must be considered in determining those issues.

[18] In this case, the uncontradicted evidence of both Ms. Laxdal and Dr. Roy, her family doctor, is that Ms. Laxdal suffered a soft tissue injury in the accident. As a result, I have concluded that Ms. Laxdal’s injuries were caused by the motor vehicle accident of September 11, 2006.

The court went on to award $15,000 for the Plaintiff’s pain and suffering for “mild to moderate soft tissue injury in her neck and back with some pain radiating into her shoulders.  Her injuries had mostly recovered…approximately 8.5 months after the accident, and it is unlikely that there will be any significant residual symptoms as a result of the accident“.

The second issue dealt with by the court worth noting was the award for past loss of income and the proper calculation of “net income loss”.

There is a debate amongst lawyers in the Personal Injury Bar with respect to the proper calculation of “net income loss” when the amount of past wage loss in a BC Vehicle Crash tort claim for any given year is so small that the figure would be tax exempt but when added up with the other income earned by the Plaintiff the gross figure would be taxable.  The answer to this question is important as it effects the amount that can be awarded for past wage loss in a BC Car Crash tort claim due to s. 98 of the Insurnance (Vehicle) Act.

In today’s case, Madam Justice Gerow decided as follows:

“In my view, the authorities support the conclusion that where the gross award is at or below the amount exempt from taxation, there would be no tax payable so that the net past income loss would be the same as the gross past income loss….Accordingly there will be no deduction for income tax as the amount of past wage loss is below the personal exemption.”

This is a great result for BC Plaintiff’s injured in car crashes who suffer a modest past wage loss as it permits the gross amount to be recovered so long as the award fall below the personal income tax exemption for any given calendar year.  I imagine ICBC is not as pleased as Plaintiffs are with this interpretation and perhaps this issue will go up to the Court of Appeal for consideration.  If it does I will be sure to write about the result.

More ICBC Injury Claims Updates – The Kelowna Road Edition

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 57 Comments on More ICBC Injury Claims Updates – The Kelowna Road Edition

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court.  Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.
4 cases worth noting were released today by the BC Supreme Court.  The first deals with the issue of fault and the others deal with damages (value of the the claims).
In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident.  She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.
The Plaintiff had a stop sign and was the ‘servient driver’.  The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so.    Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”
The court also found that the Defendant was speeding.  The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10th at between 83.5 and 86 km/h as he approached the Intersection.  He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street.  The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred.  I also find fault with Mr. Peck for failing to keep a proper look-out.  He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way.  That is why he did not see her pull into the Intersection when he was 62 to 65 metres away.  The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes.  To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him.  Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration.  The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres.  Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff.  This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.
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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.
In this case the Plaintiff was injured in a 2005 BC Car Crash.   In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:
88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages:   $45,000

Income Loss:  $8,771.97

Future Loss of Opportunity:  $30,000

Special Damages:  $12,045.96

Cost of Future Care:  $5,500

Loss of Houskeeeping Capacity:  $3,721

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The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“.   Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘.  Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do  to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate“

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms.  I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries.  I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi).  There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present.  Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found.  It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear.  However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal.  Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC.  Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision.  With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury.  She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling.  The Accident aggravated the existing condition of her spine.  The nature and extent of her symptoms changed.  The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004.  I accept Dr. Matishak’s opinion as the treating surgeon.  He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck.  He was cross-examined extensively on the issue.  He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident.  She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent.  She worked at physically demanding jobs without experiencing low back pain.  In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic.  She continued to experience pain from the date of the Accident onwards.  However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure.  Drs. Watt and Matishak were cross-examined on this issue.  Both maintained that this fact did not cause them to alter their opinions.  They both noted that there were symptoms of radiating leg pain shortly after the Accident.  Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case.  The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries.  I have found that the symptoms and back pain were caused by the Accident.  Those symptoms persisted and became chronic.  The conservative treatment attempted did not provide relief.  Consequently, Ms. Sanders chose surgery.  The fact that three surgeries were required was a direct result of the condition of her spine after the Accident.  In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.

Striking a Jury and Timing in a BC Personal Injury Lawsuit

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 56 Comments on Striking a Jury and Timing in a BC Personal Injury Lawsuit

When personal injury claims, including ICBC claims, are prosecuted in the BC Supreme Court either side has the right to elect trial by jury.  (The exception to this rule is when the claim is prosecuted under BC’s fast track Rules 66 or 68).
For a party to elect trial by Jury they simply need to give notice in accordance with Rule 39(26).
If an opposing party wishes to challenge the election for a jury trial they can oppose it pursuant to Rule 39(27) which holds in part that:

(27) Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)  within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)  the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)  the issues are of an intricate or complex character […]

What if a party opposes trial by jury but fails to challenge the jury election within the 7 day limitation period set out in Rule 39(27)?  Are they out of luck?  Not necessarily and reasons for judgment were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with this are of the law.

In yesterday’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents 10 years apart.  One of the Defendant’s chose to have the case heard by judge and jury.  The Jury notice was filed in 2003.  The Plaintiff brought an application to dismiss the jury notice years after it was filed.

One way to challenge a jury notice outside of the 7 days required by Rule 39(27) is to do so at a pre-trial conference.  This is so because s. 35(4)(a) of the current Supreme Court Rules permits a judge or a master at a pre-trial conference to order that a “trial…be heard by the court without a jury, on any of the grounds set ouyt in Rule 39(27)“.  Yesterday’s case, however, was not heard at a pre-trial conference and this subrule did not assist the Plaintiff.

Rule 3(2) was of assistance which states that:

The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

In yesterday’s case Madam Justice Arnold-Bailey held it was appropriate to extend the time permitted to challenge the Jury Notice under Rule 3(2) and ultimately ordered that the trial proceed by judge alone.  (the judgement is worth reviewing in full for anyone interested in the factors courts consider when considering whether the trial will require a ‘prolonged examination’ or is too “intricate or complex” to be tried by a jury).  In so ordering the Court summarized and applied the law with respect to late jury strike applications as follows:

[19] In Reischer v. Love & ICBC, 2005 BCSC 1352, the court was faced with similar issues in relation to an application to strike a jury notice in the context of two actions that were going to be heard together.  Well after the original jury notice for the first action was filed, but shortly after the court set a new trial for both actions to be heard together, the plaintiff brought an application to have the jury notice struck.  Drost J. first cited the settled law, explaining that the mode of trial selected for the first action is what determines the mode of trial for the several actions to be heard together.  From this principle flows the further settled point that it is the original jury notice that must be considered with regard to Rule 39(27).  In that case, as well as the case at bar, the seven day time limit had clearly passed.

[20] Drost J. then addressed Rule 35(4)(a) and held that since the application occurred outside the scope of a pre-trial conference, he could not rely upon that section to strike the jury notice either.  These circumstances also parallel the case at bar.

[21] Finally, Drost J. turned to the general judicial discretion to extend time limits afforded in Rule 3(2) and stated (at paras. 37-38) that there are two questions to consider in the circumstances: 1) whether, at an early stage of the proceedings, the plaintiff formed an intention to strike the jury notice, and 2) whether there has been such a change in circumstances as to materially alter the character of the proceedings and render them clearly inappropriate for a trial by judge and jury.  The court answered both questions in the negative, finding in particular that all of the circumstances of the combined actions were known to the plaintiff even when the initial jury notice was filed.

[22] Despite this, the court in Reischer still allowed the time extension for the application to strike the jury notice under Rule 3(2) by relying on the authority of Harder v. Nikolov, [2001] B.C.J. No. 1528 (S.C.), where the court held at para. 17 that lack of timeliness does not necessarily preclude an application to strike a jury notice.  Rather, the time restrictions set out in Rule 39(27) may be overcome if consideration of trial fairness so requires.  In Reischer, at para. 41, Drost J. stated that but for the application of this principle from Harder, the court would have dismissed the plaintiff’s application.

[23] With these decisions in mind, I note firstly that unlike the plaintiff in Reischer, the plaintiff in this matter could not have been aware of all the circumstances in relation to the combined actions dealing with her motor vehicle accidents at the time the original jury notice was filed.  Whereas the accidents in Reischer occurred a relatively short time apart, the accidents in this case occurred a decade apart and the court proceedings in relation to the first accident were essentially at the point of trial before the plaintiff could have possibly been aware of the circumstances arising from the second accident.  I also note that the plaintiff advised of her intention to strike the jury notice within five days of the Court adjourning the first trial and filed her notice of application to strike the jury notice before the Court reset the trial of the two actions.

[24] As to the second question set out in Reischer, and unlike the court’s finding in that case, I do find that a significant change in circumstances has occurred here.  The trial will now be significantly longer and will involve complex legal issues related to causation, including the defence of novus actus, in the context of two accidents that occurred a decade apart.  I find that this is a sufficient change to the character of the proceedings such that a consideration, at least, of the plaintiff’s application to strike the jury notice is necessary and just.

[25] Alternatively, like the court in Reischer, I would in any event also apply Harder and find that the lack of timeliness in the plaintiff’s application is overcome by considerations of trial fairness.

[26] In short, I do not give effect to the Chandra and Doorandish defendants’ initial objections to this application, and I will now turn to consider its merits.

ICBC Injury Claims and Credibility

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court, Prince George Registry, dealing extensively with Plaintiff credibility in ICBC Injury Claims.
In today’s case (Willing v. Ayles) 2 Plaintiffs were involved in a 2005 crash that was described as a ‘significant rear end collision causing some significant physical damage to the vehicle occupied by the plaintiffs‘
The court found that both Plaintiffs sustained injuries and non-pecuniary damages of $20,000 and $35,000 were made for various soft tissue injuries.
The lion’s share of this 43 page judgement focuses on the Plaintiff’s credibility.  I reproduce some highlights of the courts discussion on this topic below.   Anyone interested in seeing how BC Courts deal with Plaintiff credibility in ICBC injury claims in encouraged to read this judgment in full:
[75] For reasons which will become apparent these statements are demonstrably inaccurate and untrue.  Of more concern, they appear to be repeated consistently to create a particular impression, namely that she was far more active before the accident and that her injuries had restricted her activities and resulted in a major weight gain…

[153] I am satisfied that both Dr. Haskins and Dr. McKenzie suffered in the preparation of their reports and opinions from information that was, at best, exaggerated and inaccurate.

[154] This factor alone diminishes the value of their reports and opinions but when it is combined with the absence of evidence from either family doctor the difficulties become even greater.

[155] Ms. Willing struggled to fill the void created by the absence of her family doctor by repeatedly offering her own opinions on a wide variety of topics ranging from the reason for notes found in Dr. Scott’s clinical records to the cause of her weight gain after the accident.  These opinions, though revealing, are of extremely limited evidentiary value and do not supplement the actual medical evidence before the court.

[156] In the absence of medical evidence based on a proper foundation I am not prepared to accept Ms. Willing’s opinions as to causation.  To be clear, I am satisfied that, above all, Ms. Willing demonstrated a remarkable capacity to blame the collision in question for virtually everything which crossed her path.  This included attributing her weight gain to the accident, her move to Smithers, and complaints of headaches with orgasm which appears to have surfaced on March 21, 2007, approaching two years post-accident, and that of lower back and hip pain after sex which appears to have been reported to Dr. Haskins on February 11, 2008.

[157] This penchant for exaggeration and attribution appears to have been passed on to her husband who, at least in the reports of Dr. Haskins, attributes the change from his job as a mechanic to a salesman to the after effects of his injuries.

[158] Perhaps the most troubling aspect of the evidence in this case arises again in the reports and the opinion of Dr. McKenzie about the plaintiff, Kristina Willing.

[159] This report is replete with qualifications which make it clear that Dr. McKenzie’s opinion that her reported complaints were caused by the collision in question were based on the fact that she had recovered completely from previous injuries and she was asymptomatic from the degenerative disc condition prior to the accident.

[160] Those qualifications include the following –

(a)      For approximately 10 years following her last pregnancy however she had no significant back pain;

(b)      She was involved in a previous motor vehicle accident with some neck and right shoulder pain.  By her history the neck pain completely resolved although she had some mild residual shoulder pain;

(c)      The degenerative disc disease almost assuredly pre-existed but was minimally or completely asymptomatic.

[161] It seems clear that Dr. McKenzie’s opinion as to causation, even couched as it is on the various contributing factors, is based on his acceptance of her evidence of her health and condition prior to the accident.

[162] Clinical records produced apparently from the Glover Physiotherapist Corporation (Exhibit 3, Tab 10) contain an intake form dated April 9, 2002.  The symptoms recorded include neck problems, headache and problems with her right shoulder area.  After the initial assessment Ms. Willing is recorded as attending for three treatments – April 16, 2002; April 18, 2002; and April 25, 2002, before apparently discontinuing physiotherapy.

[163] A second intake form on February 17, 2004 references an “old mva” and contains a similar pain diagram to that found in the earlier intake form.  This assessment goes on to record constant pain and a series of difficulties mainly centred on her right shoulder.

[164] On this occasion Ms. Willing apparently attended four physiotherapy treatments over a period of some 16 days from February 21, 2004 to March 9, 2004 before discontinuing her attendances.

[165] During the course of her evidence Ms. Willing was insistent that she recovered completely from these symptoms and that they had completely resolved after March 9, 2004.

[166] Coincidently her claim arising from the 2002 motor vehicle collision was settled on February 27, 2004.

[167] The third intake form is dated August 19, 2005 and follows the present collision.  The pain diagram in this case covers a somewhat larger area of the neck and upper back and includes the lower back.

[168] On this occasion Ms. Willing apparently attended on some 26 occasions from August 29, 2005 until April 7, 2006 before apparently discontinuing the treatments.

[169] Upon arriving in Smithers Ms. Willing began attending at the Bulkley Valley Chiropractic Clinic.  These attendances began on August 9, 2006 and concluded on October 18, 2006 after some 16 visits which apparently included two acupuncture sessions.

[170] On July 27, 2007 Alpine Physiotherapy in Smithers completed an initial assessment form which records, amongst other information, that she had just returned from a trip to France.

[171] The physiotherapist, Graham Pollard, notes in a letter dated July 14, 2008 that he has treated her on five occasions since her initial assessment.

[172] What is interesting about this entire sequence of events in Smithers, I hesitate to describe it as a pattern, is the gaps in what she now claims are necessary therapy treatments.

[173] When Mr. Pollard refers to five treatments after her initial assessment he is not speaking about the July 27, 2007 initial assessment, because after that assessment she did not attend a single physiotherapy treatment until she returned for another initial assessment on June 3, 2008, some eleven months later.

[174] Dealing initially with the initial assessment on July 27, 2007, this appointment took place immediately after the plaintiffs retained counsel to pursue the present claims.  The writs were prepared and signed on July 25, 2007, and they were filed and these actions commenced on July 26, 2007.  The next day she attended Alpine Physiotherapy.

[175] On June 3, 2008 she returned, was assessed and began a series of five treatments.  This followed her attendance at her examination for discovery some weeks before.

[176] Once again I am forced to conclude that this is not a pattern that supports the recital of symptoms and problems presented by Ms. Willing in her evidence.

[177] The adverse credibility findings in this case go to the heart of the factual underpinnings of Dr. McKenzie’s opinion.

[178] The absence of evidence from Dr. Scott and, indeed, from the time of the accident until Ms. Willing first saw Dr. Haskins leaves the court without any medical assessment from the time of the accident until nearly two years later.  More importantly, it leaves the court without any evidence from her doctor concerning the extent of her recovery at the time of the present accident.

[179] There is, in the body of evidence before the court, little in the way of objective evidence let alone convincing evidence of any significant injury.

[180] A medical/legal report or evidence from Dr. Scott may have provided a clearer picture and the basis for a factual finding of continuing pain and discomfort related to the accident; but we do not have the benefit of any such evidence.

[181] A decision must not be based on speculation, supposition or facts not placed in evidence.  While this may possibly result in Kristina Willing being under-compensated she has only herself to blame.

[182] The absence of evidence from Dr. Scott in this case fulfills the circumstances necessary for the drawing of an adverse inference.  The inference in this case is, that if his evidence had been called, Dr. Scott’s evidence would not have supported the ‘complete recovery’ scenario found in Ms. Willing’s evidence and on which, to a significant extent, Dr. McKenzie’s opinion is based.