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Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 112 Comments on Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, criticizing and restricting the practice of allowing late defense medical examinations in the guise of obtaining ‘responsive’ reports.
In last week’s case (Timar v. Barson) the Plaintiff was injured in a 2011 collision and sued for damages.  The alleged injuries included a concussion.  In the course of the lawsuit the Plaintiff served a psychologists report which found the plaintiff suffered from a variety of cognitive issues.  As the 84 day deadline approached the Plaintiff served the balance of his reports which included a psychiatric opinion that the Plaintiff suffered from an ongoing concussive injury from the collision.  The Defendant applied for an independent medical examination beyond the 84 day deadline arguing they needed a responsive opinion in the face of these new reports.  Mr. Justice Smith disagreed and in doing so provided the following reasons criticizing the ‘wait and see’ approach in defendant’s exercising their rights for independent medical exams:

[19]         Rule 11-6(4) establishes a notice requirement for responsive evidence, but it does not exempt any party from the basic notice requirement in R. 11-6(3). In other words, it is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.

[20]         A party seeking an IME after expiry of the deadline in R. 11-6(3) must, as stated in Luedecke,  satisfy the court that the examination is necessary to properly respond to an expert report served by the other party and not simply to respond to the subject matter of the plaintiff’s case.

[21]         However, other factors beyond the meeting of that evidentiary threshold must be considered. The principle one that emerges from virtually all the cases is the extent to which the party seeking the examination can claim to be truly surprised by the expert evidence served by the other party: Jackson at para. 27; Compton v. Vale (4 June 2014), Kelowna M95787  at para. 11 (B.C.S.C.). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s evidence is received, then attempt to introduce all of their expert evidence as response, do so at their peril: Crane v. Lee, 2011 BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011), Victoria 09-4160 at para. 11 (B.C.S.C.)…

[31]         A defendant in a personal injury action must therefore know that the plaintiff will have to rely on medical evidence if the matter proceeds to trial. Knowing that, the defendant must consider whether an IME is required in order to obtain a report that can be served at least 84 days before trial pursuant to R. 11-6(3). In order to determine that and to identify the type of medical expert to involve, the defendant must determine what the plaintiff is saying about his or her condition. An examination for discovery is the obvious, most effective and most important way to do that.

[32]         The defendant in this case chose not to exercise its rights under the Rules. It did not conduct an examination for discovery and made no effort to obtain a timely IME. In the absence of such efforts, I must hold that the Master erred in permitting the defendant to use R. 11-6(4) as a means of obtaining its first medical evidence. In the limited time she had to deal with the application, the Master failed to fully and properly consider the limited purpose of R. 11-6(4) and its interaction with other rules as they affect actions of this kind.

 

BC Court of Appeal Discusses Evidence For Cost of Care Awards

Written by admin on . Posted in Cost of Future Care Cases. 47 Comments on BC Court of Appeal Discusses Evidence For Cost of Care Awards

Reasons for judgement were released today by the BC Court of Appeal addressing the evidence needed to justify an award for cost of future care.
In today’s case (Lo v. Matsumoto) the Plaintiff was injured in a 2009 collision and was awarded damages at trial.  The Plaintiff appealed the trial judgement arguing the damages for cost of future care was unreasonably low and that the trial judge was wrong in requiring the Plaintiff to testify as to the intention to pursue all recommended care items.  The BC Court of Appeal modestly increased the award for care and in doing so provided the following comments on the evidence required to justify such a claim:

[18]        The plaintiff submits that the trial judge was wrong to require that the plaintiff should have had to give positive evidence of his intention to pursue the various medical recommendations as a condition of awarding amounts for any of the items sought. Counsel suggests that since the costed items were recommended by one or more doctors, the onus should have been on the defence to show Mr. Lo would not have used them. In counsel’s submission, an “evidentiary link” was drawn in this case because Ms. Henry was relying on the recommendations of the physicians referred to in her report.

[19]        As well, counsel for the plaintiff referred us to evidence given by Mr. Lo that he had obtained physiotherapy, although he had not done so within the 12 months prior to trial. At the end of the day, counsel suggested an award of $100,000 would have been appropriate, but did not explain how she had reached that figure.

[20]        I agree with counsel for the plaintiff that there is no hard and fast rule that requires a plaintiff to testify that he intends to use every item in the “wish list” of an occupational therapist in order to justify some award. On the other hand, a plaintiff must prove his case, both in terms of need and the likely utility of the item sought: see O’Connell v. Yung, 2012 BCCA 57 at para. 68. Where the costs claimed are not matters of absolute necessity, a plaintiff cannot assume that the court will simply accept the recommendations of occupational therapists or even of medical practitioners. Unfortunately in this case, Mr. Lo was not closely examined in chief or cross-examined on every item in the therapist’s report or on any discrepancies between his own testimony and what he had told the therapist.

Motorist at Fault For Collision With Scooter During U-Turn

Written by admin on . Posted in ICBC Liability (fault) Cases. 64 Comments on Motorist at Fault For Collision With Scooter During U-Turn

Reasons for judgement were released today addressing fault for a collision involving a vehicle conducting a U-turn.
In today’s case (Longford v. Tempesta) the Plaintiff was operating a scooter and was travelling behind the Defendant’s vehicle.  The Defendant “put on his brakes aggressively” and the Plaintiff then stopped.  The Defendant then “went to the right parking lane and stopped, aggressively applying his brakes again, and then hesitated.“.  The Plaintiff then proceeded to pass the Defendant who then commenced a U-turn and the vehicles collided.
In finding the Defendant 100% responsible Madam Justice Hyslop provided the following reasons:

[34]        I find that the plaintiff could not have anticipated that the defendant, after briefly stopping, would then turn in front of her. Nor do I find that she had enough time to observe the defendant’s actions and avoid the accident.

[35]        The plaintiff did not state that the defendant was driving erratically when he stopped aggressively in front of her and when he parked. The defendant in his written argument, states:

14.       The Plaintiff in her statement seems to have assumed that the Defendant had missed his turn, was driving erratically and ought to have anticipated some other erratic move from the Defendant and driven accordingly.

15.       Further, the physical evidence of where the collision took place is more consistent with the Defendant’s version of events than the Plaintiff’s. Impact occurred very near the centre of the road when the Defendant’s vehicle had almost left the west bound lane. This would mean for the Plaintiff’s version to be correct the Defendant would had to have started from a complete stop accelerated through a turn and almost completed it before the Plaintiff arrived at the impact site.

[36]        This does not coincide with the defendant’s evidence that he was three quarters of the way in his driveway, having crossed the eastbound lane.

[37]        In Rai v. Fowler, 2007 BCSC 1678, Madam Justice Holmes stated:

[34]      In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.) at 195-6, Madam Justice Southin noted that drivers are entitled to assume that other drivers will obey the rules of the road, and are required to anticipate, in other drivers, “only those follies which according to the teachings of experience commonly occur”. By implication, and as explained in Walker v. Brownlee, [1952] 2 D.L.R. 450 at 461 from which Southin J.A. quoted, a driver may bear liability if he or she became aware of another driver’s disregard of the law, or by the exercise of reasonable care should have become aware, and unreasonably failed to avoid the accident that followed from that disregard.

[38]        When the defendant stopped aggressively in front of the plaintiff, she slowed down and was able to stop. I find there was no erratic driving on the part of the defendant such that she could anticipate that the defendant would perform a U-turn in front of her.

[39]        I conclude that the defendant stopped as he realized that he had overshot the driveway to his workplace. I find he then went to the right, stopped again as to park, intending to go into the driveway and, in doing so, crossed the path of the plaintiff on her scooter. At no time did the defendant observe the scooter and he should have. I find that the plaintiff has met the burden of proof and that the defendant was negligent when he turned from where he was parked and into the path of the plaintiff driving her scooter. The defendant is 100% responsible for the accident. The defendant’s actions were negligent.

$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

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

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury sustained in a vehicle collision.
In today’s case (Mir Tabatabaei v. Kular) the  Plaintiff was involved in a 2010 collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[66]         It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

[67]         Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one…

[71]         The plaintiff is 53 years of age. He experiences pain in his right shoulder when he exerts himself. He experiences pain in his neck at night which disrupts his sleep. There is no cure for either of these conditions. His shoulder may get worse and require him to undergo surgery which in turn carries risks. Notwithstanding the pain and discomfort, the plaintiff has continued to work to the extent that he is able and to participate in his previous leisure activities, such as biking and swimming, albeit it to a lesser extent than before the accident. I agree with counsel for the plaintiff that Wong is very similar in terms of the type of injury involved; however, the plaintiff in that case had an additional injury to her knee. Nonetheless, it is a helpful benchmark. In all the circumstances I find an award of $75,000 for non-pecuniary damages is appropriate.

Court Rejects "Perplexing" Defence Doctor Evidence Minimizing Plaintiff Disability

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages following a rear-end collision.
In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for.  In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries.  In rejecting these opinions Madam Justice Warren provided the following critical comments:
[140]     In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.
In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:

[159]     Mr. Sirak is a middle aged man. He was 45 years old when the accident occurred and is now 55 years old. Prior to the accident, he was healthy, energetic and physically active. It is apparent from the lay witnesses, who testified on his behalf, that he was a cheerful, happy, outgoing person who enjoyed life and had many friends. His family was important to him and he enjoyed spending time with them. He enjoyed participating in a wide range of recreational activities. He worked long hours in a physically-demanding career, and had earned the respect of those in the construction industry in the Squamish and Whistler area.

[160]     For the past ten years, Mr. Sirak has suffered from severe, disabling, and progressively worsening pain and neurological symptoms. These symptoms have very significantly affected all aspects of his life. Even if he undergoes surgery, he is unlikely to experience any substantial improvement. His condition is most likely permanent. He faces many years of ongoing pain and compromised lifestyle. His personality has been affected. He has gained weight. His sleep has been affected. His appearance has changed. He has become sloppy and unkempt. He can no longer participate in most of the recreational activities he previously enjoyed. He cannot play with his grandchildren in the physical, rambunctious way that was his pre-accident nature. This, in particular, has caused emotional suffering. He has become quiet and socially withdrawn. He now spends most of his time alone.

[161]     It has become increasingly difficult for Mr. Sirak to continue to work as a painter or in any physical job. He has suffered financial consequences as a result, which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. First, he has had to force himself to continue to work on a part-time basis so that he is able to support himself and his son, but this has further compromised his health and exacerbated his pain. Second, he has had to live with the prospect that his injuries will eventually preclude him from working in any physical job. Given his limited formal education, and now limited functionality, his options for more sedentary work are few. It is apparent, from a consideration of the whole of his evidence, that this reality, together with his poor prognosis, has weighed heavily on him, and has had an adverse effect on his overall emotional well-being…

[167]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having considered the extent of Mr. Sirak’s injuries, and all of the cases presented by counsel, I am of the view that an award of $160,000 for non-pecuniary damages is appropriate in this case.

Passenger Found 40% At Fault For Riding in Over-Crowded, Speeding Vehicle

Written by admin on . Posted in Uncategorized.

Update October 26, 2016 – Today the BC Court of Appeal overturned the finding of contributory negligence but otherwise left intact the trial reasons rejecting much of the Plaintiff’s claim
____________________________
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, largely rejecting a personal injury claim from a Plaintiff who sustained modest injuries in a 2009 roll-over collision.
In today’s case (Wormald v. Chiarot) the Plaintiff was 15 year old passenger in the Defendant’s vehicle at the time of the collision.  The Defendant had a Novice licence and had 9 passengers in her vehicle ‘far exceeding its designed capacity’.  The vehicle’s passengers encouraged the driver to speed, who did so and ultimately lost control of the vehicle, rolling several times coming to a stop in a ditch.
The Plaintiff sued for damages arguing she suffered serious injuries and sought approximately $250,000 in damages.  The Plaintiff’s claim was largely rejected with the Court noting that the Plaintiff’s evidence was not entirely reliable.
The Court assessed damages for the Plaintiff’s scars, bruises, scrapes and cuts at $8,000 and then reduced these by 40% due to the Plaintiff’s contributory negligence.  In reaching this deduction Mr. Justice Funt provided the following reasons:

[52]         In assessing Ms. Wormald’s contributory negligence, the Court has considered that she knew that:

(a)       Ms. Chiarot had a novice licence;

(b)       Ms. Chiarot had been drinking, contrary to her novice licence;

(c)        Ms. Chiarot had more passengers in the vehicle than was allowed by her novice licence;

(d)       the vehicle had more occupants in it than it was designed to carry;

(e)       over the course of the night in question, she had several opportunities to remove herself from the situation but did not do so;

(f)         she sat in an area of the vehicle where she knew there were no seatbelts; and,

(g)       the other occupants planned to throw eggs at people from the moving vehicle (with the reasonable expectation that the vehicle might be chased).

[53]         With respect to Ms. Wormald’s failure to wear a seatbelt, the Court notes that she was not thrown from the vehicle. There was no evidence presented that her injuries would have been any different if she had been wearing a seatbelt. Accordingly, the Court will ignore this factor in assessing Ms. Wormald’s contributory negligence based on the rule in Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145 (BCCA).

[54]         The Court has also considered Ms. Chiarot’s involvement. She would have known everything Ms. Wormald knew regarding the situation and, moreover, as the driver of the vehicle, would have had control of the situation. Accordingly, Ms. Chiarot was at greater fault than Ms. Wormald. The Court finds Ms. Wormald to be 40% at fault.

$70,000 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, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by two collisions.
In today’s case (Larsen v. Moffett) the Plaintiff was injured in two collisions, the first in 2010, the second in 2012.  ICBC admitted fault on behalf of the defendants in both cases.  The crashes caused soft tissue injuries to the Plaintiff’s neck and back which continued to the time of trial and interfered with his ability to work as a painter and drywaller.  His symptoms were not expected to improve.   In assessing non-pecuniary damages at $70,000 Mr. Justice Steeves provided the following reasons:

[46]         In summary this 44 year old man has suffered two soft tissue injuries to his neck and back and he has developed related headaches. These injuries cause ongoing and severe pain and they limit his daily activities, including his social life and work. With respect to the former, the plaintiff’s pain contributed significantly to the breakup of a potentially long-term relationship he started with Ms. Briere. Prior to the 2010 and 2012 injuries the plaintiff took over his father’s contracting business and, despite some personal difficulties and problems with record keeping, he was able to feel confident that he had a business that would look after him, as it did his father. That is now in significant doubt.

[47]         All of this has had a negative effect on the plaintiff’s sense of self-worth and emotional well-being. The experts are unanimous that this situation will continue into the future. The defendants’ expert suggests that there may be future improvement but this is put in very guarded terms.

[48]         Taking this into account with the authorities cited to me I assess the non-pecuniary damages in this case to be $70,000.

$160,000 Non-Pecunairy Assessment for a "Complicated MTBI with Residual Symptoms"

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 49 Comments on $160,000 Non-Pecunairy Assessment for a "Complicated MTBI with Residual Symptoms"

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a “complicated MTBI with residual symptoms“.
In today’s case (Matromonaco v. Moraal) the Plaintiff pedestrian was standing on a sidewalk waiting to cross a street when the Defendant ran a red light, lost control of his vehicle, drove onto the sidewalk and struck the Plaintiff.  The Defendant was soley responsible for the crash.  The Plaintiff suffered a variety of soft tissue injuries that fully healed.  She also suffered a mild brain injury which caused continuing symptoms at the time of trial.  In assessing non-pecuniary damages at $160,000 Mr. Justice Harvey provided the following reasons:

[210]     The Plaintiff suffered a number of physical injuries which I characterize as soft tissue injuries. All healed uneventfully within a reasonably short period of time after suitable treatment by way of physiotherapy and exercise.

[211]     Her most significant injury by far is the MTBI.

[212]     I accept that this injury has caused the Plaintiff mild cognitive impairment in processing, which in turn has impacted memory, mood concentration and focus. The result, not surprisingly, is that the Plaintiff exhibits signs of depression and social isolation.

[213]     Counsel for the Plaintiff referred me to a number of authorities involving plaintiffs with injuries similar to Ms. Mastromonaco, suggesting an appropriate range for non-pecuniary damages is $150,000 to $200,000.

[214]     Specifically, I have been referred to and considered Curtis v. MacFarlane, 2014 BCSC 1138; Watkins v. Dormuth, 2014 BCSC 543 [Watkins]; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111;Harrington v. Sangha, 2011 BCSC 1035 [Harrington]; Sirna v. Smolinski, 2007 BCSC 967; and Dikey v. Samieian, 2008 BCSC 604 [Dikey].

[215]     No two cases are alike. At one end of the extreme is the decision in Dikey, where the plaintiff suffered profound cognitive deficit requiring that he have daily assistance with his living requirements for the rest of his life. He also suffered significant ongoing pain. Similar findings were made in Harrington.

[216]     In terms of similarities, the Plaintiff’s present condition, attributable to the aftereffects of the accident, are as follows: irritability, anxiety brought about by stress, poor memory, concentration, distractibility, fatigue and general low mood.

[217]     While not so severe as the 32-year-old plaintiff in Watkins, the case is similar, such that it provides a useful starting point for the analysis. In Watkins, Blok J. awarded general damages of $175,000.

[218]     Unlike the plaintiff in Watkins, the Plaintiff here is not experiencing ongoing headache, problems with balance or noise intolerance. I also take into account the difference in the plaintiff’s respective ages, as Ms. Watkins was 27 years old at the time of she was injured in a car accident. Accordingly, I assess the Plaintiff’s non-pecuniary loss at $160,000.

$64,000 Non-Pecuniary Assessment Following "Low Velocity" Collision

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized.

Adding to this site’s archived judgments dealing with ‘low velocity’ collisions, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In today’s case (Park v. Abd El Malak) the Plaintiff was involved in 2010 rear end collision caused by the Defendant.  The impact was not severe but did cause the Plaintiff injuries.  The Defendant argued it was a low velocity impact and therefore the Plaintiff’s injuries must be from other causes.  In rejecting this defense and awarding $64,000 in non-pecuniary damages for the Plaintiff’s injuries Mr. Justice Davies provided the following reasons:

[73]         Counsel for the defendant has submitted that all aspects of Mr. Park’s ongoing back problems are related to his pre-existing disc problems that would have occurred in any event. He also submits that the low velocity of the collision supports that finding.

[74]         I do not agree.

[75]         The defendant’s submission ignores the overwhelming cumulative effect of the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that Mr. Park’s injuries were caused by the collision and that his pre-existing back conditions were asymptomatic at the time of the collision and were rendered symptomatic by the collision…

[95]         I reach that conclusion with specific reference to the following evidence which I accept:

1)    Dr. Kim’s prognosis that despite all medical measures undertaken, Mr. Park’s symptoms persist and have now persisted for more than five years and will continue to with perhaps some (but gradual) improvement.

2)    Dr. Heran’s prognosis and recommendations as recorded in his opinion of June 26, 2014, that:

The recommendations that Dr. Craig makes for management based on the fact that he does not believe that Mr. Park has reached maximal medical improvement in his primary medical legal report are somewhat conflictual as clearly Mr. Park has developed L4 radiculopathy into his right leg likely before and definitely after the assessment with Dr. Craig and this confounds any abilities to recover overall. The myofascial components of his pain definitely have improved. The optimistic approach to him being able to do all of his usual activities back in a setting where only intermittent exacerbations would be incurred is therefore not supported by the presence of the L4 radiculopathy either. Dr. Craig does appropriately note that there is potential for slightly increased risk of accelerated degenerative changes in his neck and back due to the injuries from this accident. This is more importantly for the lumbar spine where he already has prominent degenerative changes already resulting in narrowing of the space where the nerves pass through in a setting where he has already been symptomatic in such distribution.

In my opinion Mr. Park is now well over two to three years out from the motor vehicle accident which is the time one would expect him to be plateaued from his myofascial injuries. Your records support that he has reached a point where he has intermittent neck pain, albeit not a major concern by the time he saw me, as well as persistent low back pain, albeit much improved than when it first started following the motor vehicle accident. What I don’t know is whether the L4 radiculopathy i.e. the radiation into his right leg, will improve with time. This is possible, however, not probable, given the imaging abnormalities. Subsequent MRI scan has not yet been performed. A comparative MRI scan which I have already ordered, requesting this to be performed around December 2014, will be valuable for further delineation of true causation for the right sided L4 radiculopathy as it is likely to be from height loss, disc settling and osteophytes as opposed to a disc herniation, with the former not getting better with time. If it were to persist, then a recommendation for intraspinous device for decompression of the nerve root indirectly is what I would propose. I would not recommend an aggressive surgery with instrumentation or aggressive open surgery with laminectomy for decompression. For this reason I would like to see Mr. Park following his MRI scan of around December 2014.

At this point in time I feel that Mr. Park is limited from all moderate to heavier activities yet is able to participate in all of his usual daily activities of light to moderate nature. Assistance would be required for heavier lifting, repetitive activities requiring bending and twisting maneuvers. His recreational activities have also been affected and this is well outlined.

3)    Dr. Craig’s prognosis to which I earlier referred and quoted at para. 57 of these reasons.

4)    Mr. Park’s evidence which I accept, that he is now able to be less physically active and unable to enjoy outdoor activities that he used to enjoy, is burdened by headaches when trying to read historical treatises which he used to very much enjoy, and finds that he is more tired from the standing his work requires and also less able to do the heavier lifting that he previously did.

[96]         I do, however, find that Mr. Park’s pain and suffering and loss of enjoyment of life are less than that suffered by the plaintiffs in those cases in which the plaintiffs were awarded general damages of $100,000.

[97]         Although Mr. Park has suffered pain that is chronic, it does however, wax and wane. He is also still able to enjoy travel to Asia although of a more sedentary nature than before the collision. He is still also able to make the long drive from Valemount to Vancouver although with more frequent stops and discomfort. The sparse evidence of the need for future surgical or other invasive medical intervention is also insufficient to establish entitlement to compensation for such eventualities.

[98]         In all of the circumstances I find that an award of $80,000 would appropriately compensate Mr. Park for his past, present, and future pain and suffering and loss of enjoyment of life.

[99]         By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that has been caused by the defendant’s negligence, I award Mr. Park $64,000 to compensate him for his non-pecuniary losses.

$80,000 Non-Pecuniary Assessment Following Chronic Injuries from 7 Collisions

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff who had the misfortune of being involved in 7 collisions.
In today’s case (Sediqi v. Simpson) the Plaintiff was involved in seven collisions from 2010-2013.  He was not at fault for any of these.  He suffered a variety of injuries, some of which lingered to the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher made the following findings and provided the below reasons:

[78]         I find that the plaintiff suffered soft tissue injuries in his neck, right upper back and shoulder and lower back as a result of these accidents (with the exception of accident #4, which appears to have been limited to the neck and upper back or shoulder). He had a pre-existing rotator cuff tear in his right shoulder that was aggravated by each successive accident, as well as pre-existing carpal tunnel syndrome (aggravated by accidents #5 and 6) and a degenerative spine condition (aggravated by accidents #6 and 7). He also suffered from headaches from accidents #1, 4, 5 and 7, and the pain resulting from all of these injuries has affected his mood and contributed to his feelings of sadness. He was unable to work for a week after accident #4, for about four weeks after accident #5 as well as a month of reduced hours, for about three weeks after accident #6 as well as further weeks of reduced hours, and for three weeks after the last accident followed by several months of reduced hours.

[79]         The plaintiff is a 51 year old man who prides himself as a person who works hard for his family. He has been the unfortunate victim of seven accidents, which caused injuries that have affected him cumulatively. I consider the cumulative effect of these injuries to be an important factor.

[80]         The plaintiff continues to experience pain symptoms more a year following the last accident, particularly in his right shoulder and the right side of his back. He has problems sleeping and experiences low moods and feelings of sadness. He has changed from a good natured, positive individual to one who is less jovial, less patient of others, and at times argumentative. He has had some limitations in his physical activities at home and at work. Evidence from his wife and from Mr. Poirier and Mr. Murray confirms this. He does little at home and has difficulty carrying heavy objects at work.

[81]         The plaintiff has tried physiotherapy, exercise and various kinds of pain medication but he is not a physically active person. His prognosis is guarded. Considering how long he has been in pain, it is likely to continue. However, his symptoms should improve to some extent with proper management, which includes physical exercise…

[89]         In general, I found the cases cited by Mr. Wilson to involve injuries less severe than those in this case, either due to shorter periods of pain symptoms or reductions due to contingencies that do not apply here. Not surprisingly, none of the cases cited by either counsel involved plaintiffs suffering the cumulative effect of injuries from seven accidents. In my view, general damages appropriate in a case like this range from $50,000 to $90,000. Taking into account the plaintiff’s pre-existing conditions (which as I said before do not require a significant reduction), I would assess a fair award here to be $80,000.