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ICBC's "Checkered Record" of Funding Treatments Impacts Part 7 Deduction Request

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, scrutinizing ICBC’s “checkered record” of paying for a plaintiff’s medical treatments.
In today’s case (Olson v. Farran) the Plaintiff was injured in a collision and was awarded just over $92,000 in damages including special damages and funds for future care costs.  The Defendant, who was insured with ICBC, requested certain damages to be deducted because of the overlapping coverage for some expenses under the Plaintiff’s own ICBC policy.
Mr. Justice Pearlman denied aspects of the request raising concern about ICBC’s “past partial and disrupted” payments.  In doing so the Court provided the following reasons.

[71]         The onus of showing that a deduction should be made is on the defendant.  I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid.  Any such uncertainty must be resolved in favour of the plaintiff.

[72]         Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.

[73]         In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.

[74]         Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition.  Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.

[75]         The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.

[76]         The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.  

[77]         I disagree.  The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson.  Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

[78]         The deductions from the award of costs of future care for Part 7 benefits total $4000.

BC Chief Justice – Indivisible Injury Assessment Applies for Charter Damages as Well

Written by admin on . Posted in Damages for Charter Breaches.

Today the Chief Justice of the BC Supreme Court published reasons for judgement finding that the ‘indivisible injury’ assessment that developed under tort law is equally applicable when damages are being assessed for a Charter breach.
In today’s case (Henry v. British Columbia) the Court awarded the Plaintiff over $8 million in damages for a wrongful conviction and some 27 years of incarceration.  Prior to trial the Plaintiff settled with other Defendants.  The Province sought to have those settlements deducted from the awarded damages arguing they all covered a single indivisible harm.  Chief Justice Hinkson agreed and in ordering that the principles of ‘indivisible injury’ assessment apply to Charter damages provided the following reasons:

[33]        The plaintiff alleged that but for the separate actions or inactions of the City employees and provincial Crown counsel, he would not have been convicted and incarcerated for almost 27 years, and that but for the action or inaction of Canada he would have been released far sooner than he was.

[34]        In tort law, where there are multiple causes of injuries, the Court must determine whether the injuries are divisible or indivisible when assessing whether double recovery principles will apply: Athey v. Leonati, [1996] 3 S.C.R. 458 and E.D.G. v. Hammer, 2003 SCC 52. I see no reason why such an approach is not equally applicable to an award of Charter damages.

[35]        While the allegations against the Settling Defendants and non-settling defendants were based upon different allegations of fault, the relief sought was essentially the same: compensation for a wrongful conviction and some 27 years of incarceration. I find that the results alleged to have occurred from the causes of action pleaded against the City and the Province were indivisible.

[36]        While the ambit of the compensation sought from the City defendants and the Province was broader than that sought from Canada, the compensation sought from Canada was in large measure subsumed in the award the plaintiff recovered against the Province. Thus, these claims are also indivisible.

[37]        I am mindful of the fact that the plaintiff was obliged to proceed to trial by all of the original defendants and obliged by the Province to proceed to judgment before recovering any damages from it. The Alberta Court of Appeal in Bedard rejected that factor as a basis for not deducting settlement proceeds from damages awarded at trial. At para. 13, the Court confirmed the prevailing principle that the plaintiff cannot receive more in damages than the court awarded at trial.

[38]        In Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, leave to appeal ref’d [2013] S.C.C.A. No. 160, the point was made even more starkly:

[164]    The effect of Bedard is that the risk of a Pierringer agreement falls on the plaintiff. If it settles and “under-recovers” from the settling defendant, it will not be able to make up that shortfall from the non-settling defendants. On the other hand, if it “over-recovers” from the settling defendant (as in Bedard) it will not be allowed to keep the windfall.

[39]        I conclude that Hogarth correctly summarizes the effect of the decisions in Dos Santos and Bedard. In the result, I find that at least some of the settlement funds paid by the Settling Defendants to the plaintiff must be deducted from the damages that I have found the plaintiff is owed by the Province.  

BC Court of Appeal Finds ICBC Part 7 Benefits Not Repayable in Contractual Subrogated Claim

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

Interesting reasons were released today by the BC Court of Appeal limiting the scope of a contractual subrogated claim to exclude part 7 benefits a plaintiff recovered in an ICBC claim settlement.
In today’s case (Brugger v. The Trustees of the IWA) the Plaintiff was ordered to repay over $40,000 of a personal injury settlement he obtained to the Defendant’s due to a contractual subrogated claim they enjoyed.  The Plaintiff appealed arguing the scope of the subrogated claim could not apply to ICBC part 7 benefits.  The BC Court of Appeal agreed and reduced the ordered repayment accordingly.  In reaching this decision the Court provided the following reasons:

[44]         The Trustees have a broad discretion to establish and change the terms upon which benefits are paid but are entrusted to pay the benefits described in the Plan.

[45]         Section 9 of the Plan describes the Disabled Employee’s obligation to reimburse the Plan. It is applicable where a Disabled Employee “recovers compensation from a Third Party [a person whose acts have caused or are alleged to have caused the Disability] or receives a Settlement [the conclusion of a Disabled Employee’s claim for monetary compensation against a Third Party]”. A Settlement is deemed to include payment of compensation by ICBC for damages arising out of the use or operation of a motor vehicle by an uninsured or underinsured motorist.

[46]         Gross Compensation is defined by the Plan to be the total of sums paid or payable upon Settlement or contingent upon Settlement.

[47]         The Reimbursement Agreement binds the appellant to make the repayment called for in the Plan, hence, repayment of a portion of any lump sum cash payment made upon or contingent upon resolution of a claim for compensation made against a Third Party.

[48]         In my view, Part 7 benefits should not be included in Gross Compensation or calculation of the reimbursement obligation. Such benefits are not paid by or on behalf of a person whose acts or omissions have caused or are alleged to have caused the disability. They are not paid pursuant to Part 6 of the Regulation, which describes third-party liability insurance coverage; they are paid, rather, by the Disabled Employee’s insurer as first-party benefits. Pursuant to s. 79 of the Regulation, they are paid “to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle” regardless of fault.

[49]         The Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, draws a distinction between Part 7 benefits and a tort claim for damages. Subsection 83(2) states:

A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

“Benefits” are defined in the Act as “the prescribed benefits”, including Part 7 benefits.

[50]         The fact that Part 7 benefits are distinct from and form no part of a tort claim, and that disputes with respect to entitlement to Part 7 benefits must be addressed by separate proceedings, was noted by this Court in Baart v. Kumar (1985), 66 B.C.L.R. 1 (C.A.). The Court there observed, at p. 12:

The enactments with which we are concerned have been changed from time to time. The general purpose of them, to shift responsibility from the person at fault to a body that provides insurance regardless of fault, has continued. The shift necessarily takes away the right to claim against a person other than the insuring body. That is a common feature in no-fault plans; the workers’ compensation scheme is a familiar example. This Court recognized that shift in Fisher v. Wabischewich (1978), 5 B.C.L.R. 335, 85 D.L.R. (3d) 106.

[51]         While the Trustees are given authority to set the terms upon which Plan Members are entitled to benefits, and have broad discretion to determine what portion of Gross Compensation represents compensation for wage loss, they have established a Plan and must abide by its terms. Without amending the Plan, they do not have discretion to include in Gross Compensation amounts received by the member that are not paid by or on behalf of a tortfeasor.

[52]         The chambers judge proceeded on the basis that the payment of the no-fault insurance benefits established by the statutory scheme of universal compulsory insurance could properly be considered to be compensation as defined by the Plan. Appellate courts must exercise caution in identifying errors of law in disputes arising from contractual interpretation: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633. However, in my view, the issue of whether Part 7 benefits constitute monetary compensation paid by or on behalf of a person whose acts are alleged to have caused the disability is a question of law requiring consideration of the legal distinction between first-party no-fault insurance benefits and tort damages.

Court Declines To Reduce Care Award Where "Health Benefits Program for Aboriginal Persons" May Cover Expenses

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a cost of future care award for a First Nation’s plaintiff can be reduced where the federal government’s health benefits program for Aboriginal persons may cover the needed treatments.
In today’s case (Watkins v. Harder) the Plaintiff was involved in a 2012 rear-end collision that the Defendants accepted blame for.  The Plaintiff was injured and was awarded damages for chronic soft tissue injuries at trial.  These included damages for future care costs.  The Defendants argued that these should be reduced by the amount of any payments that could be claimed under the health benefits program for Aboriginal persons.  Mr. Justice Gaul refused to make the deduction and in doing so provided the following reasons:

[75]         Mr. Benning estimates that the present day value of the costs of Ms. Watkins’ Tylenol 3 and Extra Strength Advil amount to approximately $12,500. The defendants do not challenge these costs but argue that, like the physiotherapy costs, the costs for these medications will likely be paid by the federal government under its health benefits program for Aboriginal persons. Consequently, to avoid Ms. Watkins’ unjustified double recovery, the defendants contend these costs should be deducted from any cost of future care award.

[76]         Ms. Watkins argues that to deduct her anticipated physiotherapy costs and her medication costs from a cost of future care award would be to force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendants’ admittedly negligent conduct. In this regard she relies on Harrington v. Sangha, 2011 BCSC 1035, which addressed the deductibility of benefits provided under the PharmaCare program. In that case, Mr. Justice Willcock found there was no risk of double recovery as the evidence showed that the program was intended to be an insurer of last resort and would not provide benefits where a tort award provided compensation for those costs. To deduct the costs from an award would be to presume the plaintiff would make a fraudulent claim for PharmaCare benefits. It was noted, however, that PharmaCare had made submissions on this issue and so was aware of any potential tort award, making double recovery unlikely (see: paras. 160-162).

[77]         In Mitchell v. We Care Health Services Inc. et al., 2004 BCSC 902, the plaintiff, a member of the Kwumut Lelum First Nation, was rendered a quadriplegic in a motor vehicle accident. On account of her injuries and as a part of her ongoing treatment, Ms. Mitchell used a variety of prescription and non-prescription medications. At trial the defendants argued the costs associated with those medications should not form part of any award for the costs of future care because they would be paid for under the federal government’s health benefits program for First Nations persons. Mr. Justice Kelleher declined to make any deduction on the basis that the plaintiff would not be eligible for the benefits program because of the tort claim compensation. A factor that distinguishes this case from Ms. Watkins’ is that Justice Kelleher had evidence before him from the acting manager of the health benefits program on that specific point (para. 124).

[78]         Other decisions not referred to by counsel indicate these benefits are generally not deducted from tort awards. In Whetung v. West Fraser Real Estate Holdings Ltd., 2007 BCSC 990, Mr. Justice Grist refused to make a deduction for health benefits received as a result of the plaintiff’s Aboriginal status. He noted at para. 71 that the “defendant’s obligation should not be put aside on the basis of possible double coverage where the social source is only prepared to be called on should any prior obligation fail”. Again, unlike the present case, there was evidence before Justice Grist that the coverage under this program only extended where no other source of funding was available.

[79]         In Cottrelle v Gerrard, [2001] O.J. No. 5472 (S.C.J.) the court took the opportunity to summarize the evidence on the nature of the health benefits program for Aboriginal persons. Madam Justice Leitch concluded at para. 103 that the publicly-funded benefits program was a matter of policy and, as such, even though there was no evidence to suggest the program would be terminated or the benefits would be reduced, there was no guarantee the benefits would continue. On this basis, the court did not deduct such benefits from the damage award. The decision was later overturned on the issue of liability and the issue of deductibility was not considered (Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.)).

[80]         In H.L. v. Canada (Attorney General), 2001 SKQB 233, at para. 71 the health benefits provided to Aboriginal persons were deducted from a tort award. The fact that the defendant government of Canada was both the tortfeasor as well as the benefits provider is an important distinguishing feature of that case. On appeal the court overuled the trial judge’s decision, concluding that the intensive therapy required by the plaintiff would not be covered under the benefits program and should therefore be compensated through the tort award (H.L. v. Canada (Attorney General), 2002 SKCA 131 at paras. 259-63).

[81]         Neither party has provided any evidence with regards to the nature of the benefits Ms. Watkins is entitled to as a result of her status as an Aboriginal person. I have no evidence before me regarding her continued entitlement or the certainty of the benefits provided under the program, or on the eligibility for benefits when an alternative source of funding, such as a tort award, is available.

[82]         In these circumstances I cannot conclude that the cost of the treatments and medications in question should be deducted from the award Ms. Watkins is entitled to for her future care costs. As was noted in Harrington, without any evidence to suggest it, I cannot presume that the plaintiff would make a fraudulent claim for publicly-funded health benefits. On this basis, I do not find that an award that provides for full compensation of these costs results in double-recovery for Ms. Watkins.

"Common Sense" Used to Uphold Diminished Earning Capacity Award

Written by admin on . Posted in ICBC Wage Loss.

Reasons for judgement were released this week by the BC Court of Appeal upholding an award for diminished earning capacity based on “common sense“.
In the recent case (Ali v. Glover) the Plaintiff was involved in two collisions and suffered chronic aggravation of degenerative issues in his neck and back.  The Plaintiff was able to continue working with his long-standing employer although some accommodations were made for limitations his injuries caused.  At trial the Court awarded $110,000 for diminished earning capacity on the basis that the Plaintiff’s injuries were permanent and very well could impact earning capacity in the future should he lose his present employment.
ICBC appealed arguing this award was rooted in speculation.  The BC Court of Appeal disagree noting it is simply a matter of common sense.  In upholding the assessment the Court provided the following reasons:
[19]         Mr. Ali’s case for damages for a loss in his earning capacity was based on the injury to his back precluding him from finding employment that would otherwise be available to him should the need arise.  The company for which he has worked for over 20 years has made adjustments to accommodate his limitations such that he does not do much of the “heavy lifting” that he once did, but for one reason or another his employment may be reduced in terms of the work available that he can do or be terminated altogether.  His loss is essentially one of a capital asset in that, because of his injury, he is less capable of earning income from all types of employment, less marketable, less able to take advantage of all employment opportunities which, save for his injury, may have been available to him, and less valuable to himself as an income earner, all as discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).  The judge concluded:
[157]    I am satisfied the plaintiff has proven there is a real and substantial possibility of loss of income earning capacity in the future. He has an accommodating employer but she may retire and sell or reduce his wage to one commensurate with the hours he is working on set up and supervising and not allow him to draw on a dwindling overtime bank. If he loses his job he is less valuable to himself and potential employers because he is not fully able to do physical work.
[20]         The appellants do not challenge the judge’s determination of the quantum of the award; they contend that no loss has been proven.  They maintain the judge’s conclusion is based entirely on speculation that Mr. Ali may not be able to continue working in his present capacity earning the salary he is paid.  But the fact remains, Mr. Ali’s marketability has been impaired by the injury he suffered; he is not capable of doing heavy physical work so some employment that would otherwise be available to him is now foreclosed.  The judge made no fundamental error in concluding, as she did, there was a real and substantial possibility of Mr. Ali being able to earn less income in the future and giving what amount to examples of why there is no assurance Mr. Ali will always be employed as he is earning the income he does.  What is said to be speculation devoid of evidentiary support is largely a matter of common sense. 
[21]         I would not give effect to the fifth ground of appeal.

$100,000 Non-Pecuniary Assessment For Chronic Low Back Injury

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.
In today’s case (Truong v. Lu) the Plaintiff was involved in a 2011 collision the Defendant accepted fault for. The Court found the collision caused a chronic low back injury that was amplified by non-collision related depression.  In assessing non-pecuniary damages at $100,000 Mr. Justice Affleck provided the following reasons:

[78]         The termination of Mr. Truong’s employment, particularly at the age of 58 when other employment was difficult to find, was an emotionally catastrophic event for him. He believed erroneously but sincerely that the job loss must have been connected to his poor performance on the job, which had been caused by the accident injuries. He was naturally upset by the immediate effects of the accident and in that sense was depressed emotionally by those effects and by his fear that he might lose his job. After that loss occurred he descended into a major depression. I believe the precipitating event that caused the major depression was the loss of employment and thereby the loss of his self-respect. I accept Dr. Shaohua Lu’s evidence that the major depression would not have happened without the job loss.

[79]         Even without the depression I find Mr. Truong would have experienced physical pain and discomfort for some considerable time after the accident. I find the plaintiff’s low back pain, which travels into his left leg, as well as his neck pain, even in the absence of the major depression, would have continued but gradually diminished over the last five years. It will remain chronic indefinitely into the future, but with medication for pain relief will no longer limit his ability to function to any significant extent.

[80]         The defendant is critical of much of the plaintiff’s evidence as unreliable and accuses him of embellishment particularly for example when undergoing a functional capacity evaluation. I agree there was some embellishment but I believe it was not deliberate deceit. Mr. Truong genuinely believes he is severely disabled and adjusts his behaviour, without conscious thought, to fit the way he sees himself. He is also very reluctant to push his physical boundaries because of a fear of further injuries. In my view that fear is not justified and there is no risk of further injury if he becomes more active…

[86]         I have been referred by the parties to numerous cases in which non-pecuniary damages were awarded. I need not review those authorities in these reasons for judgment. I am persuaded a substantial award should be made under this head of damage largely because, apart from his work with C2 Imaging the plaintiff’s handyman role at home provided him with one of his main pleasures in life and in late middle age he has been deprived of that role for at least several years. I award $100,000 under this head of damages.

Limitation Period Dismisses Two ICBC Injury Claims

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing two ICBC injury claims for being brought beyond the applicable limitation period.
In the recent case (DeWolfe v. Jones) the Plaintiff spouses were both injured in a 2005 collision.  They dealt with ICBC directly but never reached settlement.  During a conversation the acting adjuster, in response to the Plaintiffs advising they were not prepared to settle at the time told them that “I am leaving on maternity leave at month end and he knows that he can call to settle if things improve at any point.”
The Plaintiffs failed to start a lawsuit in time and argued that this statement from ICBC should prevent them from raising the limitation defense.  Mr. Justice Gaul disagreed and dismissed the lawsuits.  In reaching this decision the Court provided the following reasons:
[48]         In my opinion, Ms. Johal did not state or infer that liability had been accepted by the defendants to the extent that the only remaining issue was the quantum of damages. The parties had not entered into negotiations, only discussions in which Ms. Johal came to the conclusion that the plaintiffs did not want to consider settlement at that point.
[49]         Finally, even if the plaintiffs were able to establish that liability had been admitted and a promise made, I am of the view that they are unable to demonstrate they relied on such an assurance to waive the limitation period. In her examination for discovery, Mrs. DeWolfe admits that the main reasons why she did not commence her legal action earlier was that she simply did not realize there was a time frame in which she had to do so, and that “life just got busy”.
[50]         Although case authorities such as Esau v. Co-Operators Life Insurance Company Limited, 2006 BCCA 249, have commented on the advisability of insurers informing their clients of limitation periods, for better or worse the law remains unchanged. In my view, ICBC had no obligation or duty to raise the limitation period issue with the plaintiffs. Consequently, the plaintiffs’ assertion that they were unaware of that period is insufficient to ground a claim of promissory estoppel.
[51]         In my opinion, although the parties had discussed the possibility of settling the plaintiffs’ claims, there were no serious negotiations towards that end. At no point did ICBC concede to the plaintiffs that the defendants were responsible for the Accident and in my view there is no persuasive evidentiary foundation to infer that only the quantum of damages remained as an issue to be settled between them.
[52]         Finally, I am not convinced that the plaintiffs relied to their detriment on any assurances made by Ms. Johal or any other representative of ICBC.
[53]         In light of these findings, I conclude the defendants are not estopped from relying on the valid and complete defence that is available to them under the Limitation Act.
[54]         The defendants’ applications are granted and the plaintiffs’ actions are dismissed.

$65,000 Non-Pecuniary Assessment for Lingering but Non Disabling Soft Tissue Injury

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

In the latest addition to this site’s soft tissue injury assessment database, reasons for judgement were released today by the BC Supreme Court, assessing damages for a lingering but not disabling neck and upper back soft tissue injury.
In today’s case (Dhaliwal v. Randhawa) the Plaintiff was involved in a 2011 collision that the Defendant was found wholly responsible for.  The Plaintiff suffered an upper back and neck soft tissue injury that, while somewhat improved, continued to cause persistent symptoms to the time of trial.  Despite the long lasting lingering symptoms the injuries were not expected to be disabling.  In assessing non-pecuniary damages at $65,000 Mr. Justice Butler provided the following reasons:
[48]         When I examine all of the evidence, I reach the following conclusions about the nature and extent of Mr. Dhaliwal’s injuries and symptoms. He suffered a soft tissue injury to his upper back and the base of his neck. He may have suffered a minor soft tissue injury to his lower back but this was resolved within six weeks of the accident. The upper back, shoulder and neck symptoms persisted for more than two years. However, by September 2013, the symptoms were significantly less serious. While the symptoms have persisted up to the present time, they do not inhibit his ability to work or carry on with activities of daily life…
[58]         When I apply the considerations to the facts I have found, I conclude that a fair award in all of the circumstances of this case is $65,000. In arriving at that assessment, it is particularly significant that Mr. Dhaliwal is young and will suffer continuing, but manageable and non-disabling discomfort in his neck, shoulders and upper back. In other words, his discomfort may continue for a long time. At the same time, the more severe neck, shoulder and upper back pain was of limited duration. Further, any lower back pain after 2011 was not related to the accident. In addition, outside the 6 to 12 months following the accident, he has not experienced a significant impairment in his lifestyle and daily activities…

[61]         Of the cases the parties cite, Jiwani is the most similar to Mr. Dhaliwal’s circumstances. There the court found that the plaintiff suffered from back pain which had persisted for four-and-a-half years and was likely to continue. At para. 46, Sigurdson J. set out his conclusions which are similar in important respects to those which I have arrived at here:

… While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[62]         In a similar vein, I have concluded that Mr. Dhaliwal still suffers upper back pain but I have not accepted that the pain is as serious as he contends or that the low back pain was caused by the accident. As in Jiwani, Mr. Dhaliwal continues to suffer pain which is of “a type that causes modest discomfort”. He will continue to be able to take part in all of his recreational, home and work activities. He will need to have occasional manipulations or massages to assist with management of his symptoms.

$85,000 Lumbar Facet Syndrome Non Pecuniary Award Survives Appeal

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

Reasons for judgement were released today by the BC Court of Appeal dismissing the appeal of an $85,000 non-pecuniary award for a chronic low back injury.
In today’s case (Villing v. Husseni) the Plaintiff was injured in 2010 in a collision caused by the Defendant.  She suffered a low back injury diagnosed as Lumbar Facet Syndrome.  In finding nothing wrong with the trial judge’s $85,000 assessment of non-pecuniary damages the BC Court of Appeal provided the following reasons:

[9]             Both parties commissioned expert reports on the nature of Ms. Villing’s injuries.  Dr. Pankaj Dhawan, a physiatrist, testified at trial for Ms. Villing.  Dr. Robin Rickards, an orthopaedic surgeon, testified for the defendant, Ms. Husseni.  Both experts diagnosed lumbar facet syndrome.  A patient with lumbar facet syndrome will often have pain triggered by rotation, lateral flexion, and extension of the involved spinal segment.  Ms. Villing experiences this type of chronic back pain.

[10]         Dr. Rickards recommended that she try medial branch blocks and radio frequency facet rhizotomy.  Medial branch blocks inject local anesthetic to temporarily freeze the nerve affecting the involved facet.  A rhizotomy involves the insertion of needle-like electrodes into the bases of the nerves of the involved facet, and the application of heat to destroy the subject nerves.  The rhizotomy would be performed if the medial branch blocks were successful.  These procedures would be performed under a local anesthetic in an outpatient department.  These procedures carry a high expectation of success, although success does not entail total and continuing relief.

[11]         A medial branch block requires no time off work.  A rhizotomy can be more uncomfortable and may result in increased back pain for 7‑10 days.  Time off work or work modification may be required.  In most cases, significant relief is experienced four to six weeks following treatment and the patient is expected to then return to full work duties and activities.

…

[40]         The appellant referred the Court to five decisions in support of its position that the $85,000 award for non‑pecuniary damages should be reduced to $50,000–$60,000.  Those cases were Engqvist v. Doyle, 2011 BCSC 1585 ($70,000 for a 70‑year-old plaintiff with similar injuries); Perry v. Ismail, 2012 BCSC 123 ($42,500 where there was delayed recovery for not following the advice of a physician); Burton v. Insurance Corporation of British Columbia, 2011 BCSC 653 ($35,000 for a moderate soft tissue injury, which after two-and-a-half years was expected to continue to improve); and Sandher v. Hogg, 2010 BCSC 1152 ($40,000 for continued pain of uncertain duration, which was reduced for failure to adhere to a recommended exercise regime).

[41]         The respondent referred the Court to cases where young plaintiffs suffer chronic back pain, such as: Dickenson v. Passero, 2015 BCSC 908 ($100,000); Pett v. Pett, 2009 BCCA 232 ($85,000); Ruscheinski v. BiIn, 2011 BCSC 1263 ($85,000); Doho v. Melnikova, 2011 BCSC 703 ($80,000); Roberts v. Scribner, 2009 BCSC 1761 ($95,000); and Kirkham v. Richardson, 2014 BCSC 1068 ($120,000).  The respondent also referred to Engqvist v. Doyle ($70,000) as a case involving a similar injury, albeit a much older plaintiff.

[42]         An award of damages is a fact-finding exercise and attracts a deferential standard of review:  Ostrikoff v. Oliveira, 2015 BCCA 351 at paras. 2–3.  It is not for this Court to substitute its own opinion for that of the trial judge except where it can be said that the assessment is so inordinately high as to be wholly erroneous: Woelk v. Halvorson at 435–36.  While the award in the present case may be a generous one, I am unable to conclude that it is so inordinately high as to be wholly erroneous.  I would dismiss the second ground of appeal.

Plaintiff Stripped of Trial Costs Following Judgement Below Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released today stripping a plaintiff of trial costs and further ordering the Plaintiff to pay the Defendants trial costs after failing to beat a defense formal settlement offer at trial.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.
Prior to trial ICBC offered to settle the claim for $70,000.  The Plaintiff declined this offer and proceeded to trial where damages of just over $32,000 were assessed.
In finding the pre trial offer reasonable and attaching costs consequences for failing to beat it Mr. Justice Bowden provided the following reasons:

[8]             The rules on costs are intended to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Hartshorne v. Hartshorne, (2011 BCCA 29)

[9]             In considering whether the offer to settle was one that ought reasonably to have been accepted the circumstances that existed at the time the offer was made should be considered rather than the award that was made using hindsight.

[10]         At the time the offer was made there is no suggestion that the plaintiff was not ready for trial. By that time examinations for discovery would have been completed and documents exchanged along with expert medical reports. In my view, the parties were in as good as a position as they would ever be to assess the relative strengths and weaknesses of the case. (See the comments of Fleming J. in White v. Wang, 2015 BCSC 1080 at para. 10)

[11]         The plaintiff had four business days and a weekend to consider the offer of the defendants and presumably discussed the merits of accepting the offer with his counsel. The defendants’ offer was rejected and no counter-offer was made.

[12]         Fleming J. referred to comments by Griffin J. in Bevacqua v. Yaworski, 2013 BCSC 29, regarding the process at para. 8:

In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards. It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial. It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating. Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.

[13]         In that case the plaintiff was deprived of costs when the defendant delivered an offer to settle on the eve of trial.

[14]         While I understand that the plaintiff attended his daughter’s wedding on the weekend following the making of the offer, there is no suggestion that the plaintiff and his counsel had any difficulty discussing the offer before it expired.

[15]         The offer by the defendants was more than twice the amount that was awarded to the plaintiff.

[16]         As to the relative financial circumstances of the parties other than understanding that the plaintiff has not been employed for some period of time there was no evidence upon which to determine what the financial impact of the cost award sought by the defendants would be on the plaintiff.

[17]         Having considered the factors mentioned and the circumstances of this case, I have concluded that the plaintiff should be deprived of costs from the date of the offer to settle by the defendants until the end of the trial and costs shall be awarded to the defendants for that period.