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Alberta Soft Tissue Injury Cap Declared Unconstitutional

Written by admin on . Posted in Tort Reform.

On February 8, 2008, Associate Chief Justice Neil Wittmann concluded that the Alberta Minor Injury Regulation (a regulation which imposed a $4,000 cap on auto-accident victims who sustained soft tissue injuries) is unconstitutional.
Justice Wittmann concluded that the cap on damages for soft tissue injuries”sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums.”
In striking down the legislation Justice Wittmann held that the Minor Injury Regulation is discriminatory against victims who sustained soft tissue injuries and that this violated Section 15 of the Canadian Charter of Rights and Freedoms.
This is a great decision as it restores the rights of victims of Alberta auto accidents who sustained soft tissue injuries to seek fair compensation for their losses from the courts. The decison has been hailed a success by the Alberta Civil Trial Lawyers Association who have urged the government to accept the decision.
The government, however, has announced that they will indeed appeal the decision. Justice Wittmann’s reasoning appears sound and hopefully will withstand appeal. However, nothing in the judgement prevents Alberta’s legislature from introducting new legislation which would limit the compensation available for pain and suffering for auto accident victims.
Only time will tell whether Alberta’s legislature will institute revised legislation capping damages for ‘minor injuries’ in a way that is not inconsistent with Justice Wittman’s interpretation of Section 15 of the Charter or if the government will allow Alberta auto accident victims with soft tissue injuries to have unfettered access to the courts for fair compensation. In the meantime, however, many plaintiff’s may now have access to the courts to receive fair compensation for their soft tissue injuries.

BC Court Awards $102,680 for Soft Tissue Injuries and Chronic Pain

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

In a judgement released on March 19, 2008, The BC Supreme Court awarded a Plaintiff a total of $102,680 for various soft tissue injuries that resulted in chronic pain.
The Plaintiff was a passenger in a mini-van that was involved in a relatively severe collision on January 11, 2004.
As is often the case in ICBC injury claims, competing medical evidence was presented at trial. The trial judge accepted the opinions of the Plaintiff’s treating GP and her physiatrist. It was accepted that the Plaintiff sustained significant soft tissue injuries in the collision. As a result of these, the judge concluded that the Plaintiff will be left with chronic pain that will affect her future employability, the number of hours she will be able to work, and the duration of her working years.
The Plaintiff’s damages included $50,000 for pain and suffering.
The case includes an interesting analysis as to whether a subsequent accident was to blame for the Plaintiff’s injuries and whether or not the Plaintiff did a reasonable job in mitigating her injuries.

MS and Trauma – Difficult to Legally Link

Written by admin on . Posted in ICBC Head Injury Cases.

Two recent BC Court decisions illustrate the difficulty in proving a legal link between MS and trauma on a balance of probabilities.
In a unanimous decision of the British Columbia Court of Appeal pronounced February 20, 2008, the court dismissed the appeal of a Plaintiff’s claim in which the trial judge found that she did not sustain brain injuries in 2 motor vehicle accidents.
The trial judge found that “Ms Roeske has received a diagnosis of probable multiple sclerosis. She has multiple sclerosis of a remitting/relapsing type. All of her neurological signs, including her cognitive deficits, can be explained by multiple sclerosis. The later improvements in her test results in the areas that Dr. Amell found deficient due to brain injury suggest that her remitting/relapsing multiple sclerosis caused those deficits. There is no evidence that traumatic brain injuries can be relapsing/remitting in nature”
On appeal, the court found no errors in the trial judgement and concluded that “The judge merely was relating the test result evidence to the diagnosis of probable multiple sclerosis. He concluded in that context the test results did not support a traumatic brain injury. The judge did not conclude Ms. Roeske’s condition was attributable to multiple sclerosis. He concluded she did not establish on the balance of probabilities that her condition was caused by the accidents”
In an other interesting decision considering the potential link between trauma and MS, Mr. Justice Cullen disposed of an alleged connection by way of summary trial.
Mr. Justice Cullen was specifically asked “Does the Evidence Prove on a Balance of Probabilities that there is a Causal Relationship between Trauma, including Mild Head Trauma or Whiplash, and the Onset or Exacerbation of MS Symptoms?”
Competing medical evidence was called making this a difficult issue to resolve. Mr. Justice Cullen thoroughly reviewed much of the leading scientific evidence with respect to this topic making this decision must-reading for anyone advancing a claim connectin MS and trauma.
In the end, Mr. Justice Cullen dismissed the Plaintiff’s claim concluding that “the question before me of whether trauma, including mild head trauma or whiplash injury, can cause the exacerbation of MS symptoms, was the precise question before the court in Dingley supra. As did the Lord President and the House of Lords in that case, I conclude that the plaintiff has not proved on a balance of probabilities that such a causal connection exists.”
The judgement went on to state that “In finding that the evidence falls short of establishing a causal link on a balance of probabilities, I also rely on the fact that a substantial majority of the relevant scientific community has rejected the notion of a causal connection based on developments in understanding the pathogenesis of the disease, epidemiological studies, reanalysis of previous studies said to support the link, and a weakening of the biological plausibility of the theory through studies such as the Werring Study and the Filippi Study. In the result, I have an advantage over the court in Dingley, supra, in knowing what the future held for the issue in the scientific community in the years following that judgment.”