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$75,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

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

Adding to this site’s soft tissue injury case archives, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic low back and neck soft tissue injuries.
In today’s case (Lampkin v. Walls) the Plaintiff was involved in a 2009 rear-end collision caused by the Defendant.  The Defendant admitted fault.  The Plaintiff suffered injuries to his neck and back which remained symptomatic at trial, were expected to carry on to the future and resulted in a permanent partial disability.  I assessing non-pecuniary damages at $75,000 Madam Justice Watchuk provided the following reasons:

[129]     I substantially agree with the application by Mr. Lampkin of the factors as set out in Stapley v. Hejslet. I accept the following facts with respect to these factors:

(a)  Age of the Plaintiff:  Mr. Lampkin is currently 46 years old. Both he and his wife are involved in raising their two children, Lexxus and Nathaniel. Prior to the accident, Mr. Lampkin enjoyed taking Lexxus to the park and playing soccer with him. As a family, they enjoyed going to the beach for barbeques and attending festivals. A great deal of this enjoyment has not been possible since the accident. Given his age, Mr. Lampkin has less opportunity to heal or find alternative ways to enjoy recreational activities.

(b)  Nature of the Injury:  Mr. Lampkin has been experiencing pain primarily in his neck and back for over 6 years. He reported those and other injuries immediately following the accident, and he continues to experience them although in lesser degrees. The pain affects his work and his day-to-day activities including driving, playing sports and playing with his children. At the end of a work day, Mr. Lampkin’s injuries are aggravated leaving him with little energy or patience to pursue his usual after work activities.

(c)  Severity and duration of the pain:  Mr. Lampkin’s injuries tend to vary depending on his activities. When he has had time to rest, the severity of his pain is manageable. However, after a work day, Mr. Lampkin requires pain medication to manage the pain. His symptoms are focused in his neck and back. The medical evidence supports that, in particular, Mr. Lampkin’s low-back symptoms are unlikely to resolve.

(d)  Disability:  Mr. Lampkin is partially restricted in many of his activities and has not been able to return to cricket. He is careful not to aggravate his neck or back. He now takes much longer to do things than he used to and is frustrated by his lack of energy.

(e)  Emotional suffering:  There is no doubt that Mr. Lampkin is clearly frustrated by his injuries. Ms. Rouse explained that Mr. Lampkin is much more irritable than he used to be.

(f)    Impairment of life:  Mr. Lampkin no longer plays cricket and is less interested in hobbies such as attending festivals, going to the beach or playing soccer. Doing too much tends to aggravate his symptoms.

(g)  Impairment of family, marital and social relationships:  Although Mr. Lampkin and Ms. Rouse have reconciled since the accident, Mr. Rouse has noted a significant change in Mr. Lampkin. He often does not have energy or is in too much pain to play with Lexxus. He is also much more irritable than he used to be.

(h)  Impairment of physical and mental abilities:  The injuries to his neck and back have directly impacted his ability to play soccer, basketball and cricket. Mr. Lampkin used to enjoy staying active but is now concerned that these activities will aggravate his symptoms.

(i)    Loss of lifestyle:  Mr. Lampkin and Ms. Rouse were carefree people. They now have to deal with their continued loss of income, particularly with raising a young family. Mr. Lampkin is also worried about his ability to partake in his sons’ lives and wants to be able to play sports with them.

(j)    The plaintiff’s stoicism:  Mr. Lampkin is resilient and hardworking. He takes pride in his ability to provide for his family and his skills. Despite the continued pain, Mr. Lampkin has continued to work in physical jobs, working as many as seven days per week. He was fortunate to have two employers in landscaping who made accommodations to assist him.

…

[140]     It is necessary to consider each case individually and I find that all of the cases relied on by the plaintiff have important differences with the plaintiff’s circumstances here. However, I find that those cases are informative for circumstances where the plaintiff has somewhat similar injuries and is limited to varying degrees in both their jobs and recreational pursuits. Mr. Lampkin is no longer able to perform the heavy tasks that he has relied upon to learn a living. In addition, he had excelled in cricket for his entire life and is no longer able to play this sport that was central to his identity both in St. Vincent and Canada. Considering all of the factors, I find that an appropriate award for non-pecuniary damages is $75,000.

Caselaw Dismissing Opinions of Expert Insufficient to Derail Court Ordered Medical Examination

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding that past history of judicially rejected opinions is not in and of itself enough to dis-entitle a Defendant to compel a Plaintiff to attend an independent medical exam with their chosen physician.
In today’s case (Wohlleben v. Dernisky) the Plaintiff sued for personal injuries.  In the lawsuit the Plaintiff agreed to be examined by a defense selected orthopedic surgeon and also agreed that a neurologist examination “was justified” but refused to consent to the Defendant’s chosen physician based on past court judgments rejecting the expert’s opinion.  In finding this was not, in and of itself, sufficient Master Bouck provided the following reasons compelling the appointment

[10]         Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.

[11]         Wheeler v. White, [1983] B.C.J. No. 2494 is a case where the plaintiff objected to the psychiatrist chosen by the defendant. The master accepted the expert evidence provided by another psychiatrist that, to have a valid psychiatric examination, the plaintiff is required to open up and allow the psychiatrist into their private world. This requires great trust. Further, at para. 7 of theWheeler decision at the chambers level:

[7]        … It is sufficient, in my opinion, for the plaintiff to have a reasonable apprehension that the examination will be fraught with peril. …

[12]         The plaintiff in the present case does not, in my view, have such a reasonable apprehension. If she does have an apprehension that the examination will be fraught with peril, which is not her evidence, her apprehension is not reasonable.

[13]         It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:

[22]      … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …

[14]         There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.

Court Tells Lawyer to "Focus" Their Questioning Instead of Extending Discovery Time

Written by admin on . Posted in BCSC Civil Rule 7.

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.
Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.
In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:
Master Dick Reasons for Judgement

$35,000 Non-Pecuniary Damages for "Temporary Aggravation of Pre-Existing Conditions"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Regisry, assessing damages for the temporary aggravation of a pre-existing condition following a vehicle collision.
In the recent case (Vintila v. Kirkwood) the Plaintiff “suffered from long-term and disabling chronic pain and depression” although she was enjoying improvement in this condition for 16 months until she was involved in a 2011 rear-end collision caused by the Defendant.  The collision aggravated her pre-existing injuries and set back the progress she enjoyed in the months prior to the collision.
In assessing non-pecuniary damages at $35,000 Mr. Justice Bernard provided the following reasons:
42]         I am in agreement with the foregoing submission. At the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her completely disabled from work and eligible for CPP disability benefits since 2005, and for similar private insurance benefits since 2002. While Ms. Vintila enjoyed some improvement in the management of her chronic pain in the MonaVie period, there is no evidence or suggestion that her underlying chronic and debilitating conditions had resolved. Ms. Vintila became slightly more physically active and inclined to attempt some physical activities previously eschewed; she was, nevertheless, always in the shadow of her chronic and disabling conditions, wary of flare-ups, and unable to cease collecting of disability benefits. ..
[46]         In light of the foregoing, I find that Ms. Vintila is a crumbling skull plaintiff. The evidence that Ms. Vintila’s pre-existing conditions were manifest and disabling at the time of the accident is convincing; moreover, the evidence is clear that her conditions were severe, chronic, long-term, and disabling from work. A relatively short pre-accident period of improvement in her pain symptoms is, in all the circumstances, insufficient to categorize Ms. Vintila as a “thin-skulled” plaintiff…

[53]         In the case at bar, the defendants’ negligence brought Ms. Vintila’s temporary improvement in her chronic pain symptomology to an abrupt and disheartening end. Ms. Vintila suffered from pre-existing chronic, long-term, deteriorating conditions that had almost completely disabled her in the past and were destined to do so in the future; nonetheless, at the time of accident she was experiencing a period of some relief from very debilitating pain. This window of respite was closed by the accident, and the evidence suggests that it is most unlikely to be re-opened. The pain from the aggravation of Ms. Vintila’s pre-existing conditions caused her to return to taking narcotic medications and to cease activities that improved both her physical and mental well-being and her overall enjoyment of life.

[54]          Given Ms. Vintila’s age, physicality, history, and rather grim long-term prognoses, I am satisfied that it was most unlikely that the aforementioned window would have been open for very long. In one sense, this accentuates the degree of loss to Ms. Vintila. The relief she lost was precious because it was most unlikely to endure for many years. In another sense, however, it necessarily limits the award for non-pecuniary losses.

[55]         Having regard for the factors in Stapley v.Hejslet, supra, the defendant’s negligence temporarily aggravated Ms. Vintila’s pre-existing conditions, increased her pain levels, and marked the end of Ms. Vintila’s relief from depression and the enjoyment she found in some social interaction, in performing simple household tasks, in interactions with her sons, and in making gift baskets. Ms. Vintila lost a sense of optimism she had for her future.

[56]         Of the two cases cited by ICBC, I am satisfied that Johal is much more similar to the case at bar. While each case and plaintiff is unique, Johal offers useful guidance in the assessment of a fitting award for Ms. Vintila’s non-pecuniary losses, which I assess at $35,000.

Double Costs Ordered For Unreasonable Response to "Notice to Admit"

Written by admin on . Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.
In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for.  Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash.  The Defendants did not admit all of these facts requiring ultimate proof at trial.
In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38]         In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a)      the truth of the fact is subsequently proved;

(b)      the fact was relevant to a material issue in the case;

(c)      the fact was not subject to privilege;

(d)      the notice to admit was not otherwise improper;

(e)      the notice to admit was reasonably capable of evaluation within the time required for response; and

(f)       the refusing party had no reasonable grounds for believing that it would prevail on the matter.

…

[43]         While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44]         Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).

Expert Witness Plagiarism Concerns Lead to Strong Criticism of Medico-Legal Report

Written by admin on . Posted in Uncategorized.

In my ongoing efforts to highlight judicial criticism of expert witnesses who stray into advocacy, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, excluding an expert report for numerous reasons including concerns about plagiarism.
In today’s case (Anderson v. Pieters) the defence objected to the admissibility of a report generated by the Plaintiff’s physician on numerous grounds.  The Court excluded the report finding ” I would not qualify Dr. Sank as an expert capable of offering the opinion evidence tendered in the April Report.”.
The Court went on to note a far more serious concern, namely that the physician “acknowledged in his direct testimony that he had lifted passages from the Steilen Article, copying them into his report without attribution“.
The physician explained this was inadvertent but the Court did not believe this noting “I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence“. In ruling the report was inadmissible for this transgression Mr. Justice Saunders provided the following reasons:

[57]         Lastly, Dr. Sank’s use of the Steilen Article raises very serious concerns as to bias and as to whether Dr. Sank has in fact fulfilled his duty to the court to provide an independent opinion. The concerns arise out of the failure to acknowledge his source material, and out of what he chose to copy, and what he chose to leave out.

[58]         Regarding the copying of the Steilen Article, I would say first that I do not accept Dr. Sank’s explanation as to his failure to credit the article having been through pure inadvertence. As can be seen from the excerpts in the Appendix to these Reasons, not only did he add a few words to the passages he copied, he included two of the citations in the Steilen Article and renumbered them (renumbering notes 110 and 111 as his own notes 1 and 2), effectively representing those citations as the product of his own research. It is inconceivable that he was not conscious of the fact that his April Report was lacking necessary citation of the Steilen Article, and the fact that he was misrepresenting large portions of the narrative as his own work product. This was plagiarism, pure and simple. The plagiarism, and Dr. Sank’s failure to acknowledge it as such, were dishonest, and severely impact his credibility.

[59]         The offence is not mitigated by the fact that the segments copied by Dr. Sank might be viewed as uncontroversial descriptions of basic human anatomy. The issue here is not whether the science is accurately stated. The issue is that Dr. Sank, who in fact had so little understanding of the neuro-vascular anatomy that he had to undertake research, is purporting to speak about the issues with authority, through almost entirely utilizing words, phrases, and a manner of expression that are not his own, without disclosure. He is misrepresenting his grasp of the material, and is thereby substantially exaggerating his expertise.

[60]         The final concern is Dr. Sank’s failure to acknowledge the fundamentally speculative nature of his proposed diagnosis. Given the tentative nature of the propositions put forward in the Steilen Article, there is clearly no basis for him offering his opinion as being “highly probable”. In this regard his report stands in contrast to the expert opinion evidence of the otologist Dr. Longridge, who, in his August 19, 2015 report, explicitly acknowledges the lack of support for his opinion in the medical literature. In failing to express his opinion in the guarded, careful manner used by the authors of the Steilen Article, Dr. Sank was not forthright. He in fact substantially exaggerated the strength of his opinion, apparently at least in part on the basis of a misapprehension as to the need to present a “black or white” opinion. Given his relationship to the plaintiff as her treating physician, this exaggeration of his opinion’s strength gives rise to significant concern as to bias.

[61]         In submissions on the voir dire, the plaintiff’s counsel argued that Dr. Sank did exactly what we want an expert to do: equipped with information from his patient and from other specialists, he undertook research, and as a medical practitioner he reached a medical diagnosis. I find Dr. Sank’s report markedly deficient, and I find him to have fallen short of the standard of independence that is required of an expert witness.

[62]         On any second-stage assessment of the April Report, the foregoing issues would reveal the report to have no substantial benefit, weighing strongly against its admission. On the “costs” side of the ledger, the concerns canvassed in White Burgess are present. It is apparent that admitting even a sanitized version of the report deleting reference to the inadmissible opinions of the chiropractor would risk the jury potentially being exposed to inadmissible evidence through inadvertence in the course of his cross-examination, given the extent to which Dr. Sank relied upon it. The defence would be obliged to call experts of its own in reply to Dr. Sank, lengthening the trial and imposing a further burden on the jury. Though the defence would now be relatively well-positioned to attempt to undermine Dr. Sank through cross-examination, there would remain the risk of the fact-finding process being distorted by evidence of little real value.

[63]         These concerns as to admissibility are not of the sort ideally addressed through instructions to the jury. The concerns are so broad that the necessary instruction to the jury would be something tantamount to a direction that they give the April Report no, or at best, very little weight. There is, practically speaking, nothing to be gained by burdening the jury with it.

[64]         Even absent my finding as to Dr. Sank not being sufficiently qualified under the first stage of the admissibility test, I would for these reasons rule against admission of the April Report.

Mr. Justice Saunders set out the below, as an appendix to his reasons, “some of the passages lifted from the article – in the column to the left – with the comparable passages from the April Report set out alongside for comparison, to the right. Original wording inserted by Dr. Sank is indicated in bold face.”

Expert alleged plaigarism

expert alleged plaigarism 2

BC Court of Appeal – ICBC Disability Benefits Can Be Revived Beyond 104 Week Mark

Written by admin on . Posted in Uncategorized.

In late 2014 the BC Supreme Court rules that ICBC wage loss benefits can be ‘revived’ if a collision related injury which was initially disabling retriggers disability beyond the 104 week mark.  ICBC appealed but in reasons for judgement released today the BC Court of Appeal upheld the trial court’s reasoning.
In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008.  She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year.  The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.
The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits. At trial Mr. Justice Baird ordered ICBC to reinstate the benefits.  ICBC appealed but the trial judgment was upheld. In finding ICBC wage loss benefits can be revived the BC Court of Appeal provided the following reasons:

[23]         ICBC argues that that was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.

[24]         Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.

[25]         In my opinion, the decisions in Rashella and Andrews have been overtaken by Halbauer and Charlton.

[26]         Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.

[27]         I would dismiss the appeal.

Court Questions Whether "WCB Defence" Applies to Indivisible Injuries

Written by admin on . Posted in Uncategorized.

Last year Mr. Justice Burnyeat reasoned, in Pinch v. Hofstee, that a Plaintiff’s damages for indivisible injuries must be reduced to the extent that one of the events causing/contributing to the injury arose from a matter where tort litigation is barred by the Workers Compensation Act.
Last week ICBC asked a Court to uphold this reasoning in a separate lawsuit but Mr. Justice Kent declined noting the Pinch ruling was “highly debatable“.
In last week’s case (Kallstrom v. Yip) the Plaintiff was involved in a total of 6 collisions which gave rise to indivisible injuries of chronic pain and depression.  While dealing with the consequences of her injuries the Plaintiff also made a claim with WorksafeBC and received some compensation.  The Defendants argued that damages must be reduced to the extent of the workplace incident’s contribution to the Plaintiff’s condition.  Mr. Justice Kent disagreed and noted as follows:

[371]     I do not agree that any reduction in damages is required.  There are several reasons for this.

[372]     First, this is not a defence that has been formally pleaded in any of the actions.  The facts relating to, and the legal basis for, such a technical and unique defence are required to be pleaded and this has not been done.

[373]     In any event, Pinch neither applies to nor governs the present claim.  It was the subject matter of an appeal and cross-appeal, but the case was settled and thus no definitive ruling on this interesting (and highly debatable) point of law has yet been made by the Court of Appeal.  It must be noted that other decisions of this Court have treated a subsequent workplace accident aggravating a pre-existing injury as a situation of indivisible injury for which the defendant in the first accident remains 100% liable:  see e.g., Kaleta v. MacDougall, 2011 BCSC 1259.

[374]     Further, I do not agree that the employer’s conduct is properly labelled as tortious in this case.  It is not necessarily a tort for an employer to be difficult and demanding.  Similarly, the distraught actions of a mother witnessing a near-death incident involving her child may also not amount to an actionable tort, particularly where the result is mental distress without accompanying physical injury. Pinch involved negligence on the part of the Workers Compensation Act-immunized worker.  Further, Kaleta involved an on-the-job injury while lifting heavy product, i.e. no third-party negligence.

[375]     In the result, I hold that the “WCB defence” does not apply and no reduction in damages is required on that account.

Ikea's "Sophisticated" Washroom Cleaning Policies Derail Slip and Fall Lawsuit

Written by admin on . Posted in Occupier's liability claims.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a slip and fall lawsuit against Ikea.
In today’s case (Dudas v. Ikea Ltd.) the Plaintiff slipped and fell in the washroom and speculated the cause of her fall was water left behind by Ikea’s janitorial contractor.  The Plaintiff sued both Ikea and the janitorial contractor.
Mr. Justice Weatherill dismissed the lawsuit finding the plaintiff’s speculation as to the cause of her fall was insufficient to prove liability but regardless that the washroom cleaning policies, which were followed, were “sophisticated, thorough and detailed” and these were sufficient in defeating the Plaintiff’s allegations of negligence.  In dismissing the claim the Court provided the following reasons:

42]         However, even if the plaintiff had proven on a balance of probabilities that she slipped on water left on the floor by Ms. Kaur while the plaintiff was in the washroom stall, she also has the onus of establishing on the balance of probabilities that she did so as a result of SBS, as an occupier, failing to meet the reasonableness standard required of it under s. 3(1) of the Act.  In my view, the plaintiff failed to do so.

[43]         Mr. Hay, SBS’s Chief Executive Officer, gave detailed evidence regarding the systems it had in place at Ikea for the provision of its maintenance and janitorial services and the training of its staff.  Those systems, policies and procedures are by any measure sophisticated, thorough and detailed.  It is hard to imagine reasonable steps that could have been implemented to improve them.

[44]         The plaintiff submits that it is apparent from the SBS Incident report that Ms. Kaur, the cleaner in question, knew that someone was in the washroom stall while she was mopping the floor, and that it was unreasonable for SBS not to have an established protocol in place for the cleaner to verbally alert patrons who were using washroom stalls to the fact that the floor outside of the stall was being mopped. 

[45]         Mr. Hay agreed that there is no such protocol in place.  He testified that, in such situations, SBS relies on the noise generated by the cleaners during the cleaning process. 

[46]         The plaintiff submits that the failure to have such a protocol was a breach of SBS’s obligations under s. 3 of the Act.  I disagree.  There is no evidence that such a policy exists anywhere in the industry.  Moreover, it raises policy issues relating not only to privacy, but also equality considerations in terms of the potential for hearing persons being preferred over non-hearing persons. 

[47]         This incident took place in a ladies washroom.  The potential for some dampness on the floor ought reasonably to have been expected by anyone using it.  The mere presence of some water on the floor does not constitute an objectively unreasonable risk of harm: Zary v. Canada Mortgage and Housing Corp., 2015 BCSC 1145 at para. 57.

$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

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

Update June 8, 2017 – Today the BC Court of Appeal ordered a new trial in this case finding the trial judge made several errors. 
_________________________________
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.
In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:
63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…
[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.