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$30,000 Non-Pecuniary Assessment for Long Lasting Soft Tissue Injury With "Relatively Minimal" Impact

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

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.   The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back.  Her symptoms carried on to the time of trial and were expected to continue indefinitely.  Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function.  In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
[54]         I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
[55]         I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
[56]         With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
[57]          However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
[58]         It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
[59]         Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
[79]         In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain  four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
[80]         Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.

Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 52 Comments on Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC.  ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries.  Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician.  The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination.  In dismissing the application the Court provided the following reasons:
[23]         In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
[24]         On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
[25]         More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
[26]         Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
[27]         On the basis of the material before me, the application is dismissed.

Motorcyclist At Fault for Collision After Making "Poor Reactive Choice"

Written by admin on . Posted in ICBC Liability (fault) Cases.


Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.
In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff.  The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“.  In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:
[42]         I find that the accident happened through no fault on the part of the defendant.  She did what was reasonably expected of her.  She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again.  She cannot be held responsible for his decision to veer to the right.
[43]         The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn.  That evidence struck me as a post hoc rationalization of the plaintiff’s actions.  There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.
[44]         I find this accident happened solely due to the plaintiff’s fault.  He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant.  He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.
[45]         The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.
[46]         The action is, therefore, dismissed.

$70,000 Non-Pecuniary Assessment for Chronic Facet Joint Injury

Written by admin on . Posted in ICBC Spine Injury Cases. 42 Comments on $70,000 Non-Pecuniary Assessment for Chronic Facet Joint Injury

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back injury.
In this week’s case (Bearpark v. Lakhanpal) the Plaintiff was injured in two collisions.  The Defendants accepted fault.  The Plaintiff suffered injury to his facet joints in the L4-S1 region.  This caused chronic pain and resulted in restrictions in the Plaintiff’s ability to do heavier work.  In assessing non-pecuniary damages at $70,000 Mr. Justice Greyell provided the following reasons:
[100]     I am satisfied the evidence presents a consistent and reliable picture of the plaintiff’s injuries, which he did his best to describe in his evidence. His evidence was generally consistent with the findings of his physicians that in the two motor vehicle accidents he sustained and suffers from chronic lower back pain which originates from injury to his facet joints in the L4 – S1 region, shoulder pain which flares up (and was likely aggravated in the bus accidents) and neck pain. His neck pain has now mostly resolved…
[103]      Mr. Bearpark has been left with significant ongoing chronic lower back pain which I find is the result of an injury to his lower back in the L-5-S-1 area. I find this injury to be a direct result of the two motor vehicle accidents. The injury to his lower back bothers him more when he engages in heavy labour and limits him in the job functions he can perform. He is able to tolerate it in the sedentary position he now occupies with accommodations provided to him by his employer.
[104]      I find the injuries to his right shoulder, hand, and knee have mostly resolved. I find that his left shoulder is now more susceptible to injury as a result of an impingement in that shoulder and along with his neck, bothers him, and will likely continue to limit his functional ability when he engages in heavy labour. I find that the ongoing intermittent problems in his neck and left shoulder were caused by the motor vehicle accidents. His left shoulder injury may well have been aggravated by the First Bus Accident. That is, as the defendants submit, not a matter to be considered in this action.
[105]     The plaintiff’s main ongoing and persistent complaint is of ongoing pain in his lower back or organic problems in his lower spine as described above.
[106]     I also find that he is likely still bothered by symptoms of depression and Post Traumatic Stress, including difficulty sleeping, anxiety, and flashbacks to the motor vehicle accidents. The depression likely has an effect on the amount of pain he feels. As described in the medical evidence, the two often go hand in hand…
[110]     Mr. Bearpark is a relatively young man who, at the time of both motor vehicle accidents, had not yet settled into a career path. He was active in both sporting and social activities, although somewhat reserved and shy. The accidents have left him with ongoing chronic back pain, which limits his performance of heavier work involving lifting, bending or twisting, and intermittent pain in his neck and left shoulder. He will likely be restricted to sedentary work in the future as a result of the injuries to his back and shoulder. His physicians have recommended that conditioning and exercises may help him although, as stated above, his prognosis is “guarded”.
[111]     Taking into account the principles outlined in Stapley and the authorities referred to by counsel, I am of the view an appropriate award for non-pecuniary loss in this case is $70,000.

Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

Written by admin on . Posted in Occupier's liability claims, Uncategorized. 63 Comments on Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

BC law requires ‘occupiers’ to take reasonable steps for the safe use of their property.  The law does not require a standard of perfection as was demonstrated in reasons for judgement released this week by the BC Court of Appeal.
In this week’s case (Dandell v. Thompson Rivers University) the Plaintiff slipped and fell while walking down an “icy pathway into a grassy snow-covered hill” while walking to class.  He chose this path despite the availability of a “convenient and well-maintained sidewalk leading right to the place where he was going“.
The Plaintiff suffered severe fractures to his leg and ankle.  He sued for damages arguing that the University was at fault because they knew this shortcut was being used and that it posed a danger.  The case was dismissed at trial and the BC Court of Appeal upheld the dismissal finding that the University acted reasonably.  In reaching this conclusion the BC Court of Appeal provided the following reasons:
[4]             The building Mr. Dandell was going to when he fell opened in 1997.  It is adjacent to a roadway.  The sidewalk alongside runs parallel to the building and then cuts back slightly in a V-shape leading down to the ground level entrance.  Instead of following the sidewalk into the building, many students would cut the corner, as it were, by walking down one of the pathways worn into the grassy hill from various points at the top.  They saved 11 seconds in walking time.  The practice was ongoing year round with the incumbent risk in winter conditions that someone would slip and fall.  This was evident to the university’s administration, although there had never been a report of an injury.  Mr. Dandell had seen students using the shortcut in winter conditions lose their footing, but it did not cross his mind he might fall and be injured.  In hindsight he was, by his own candid admission, “thoughtless” in regard to his safety.  He chose to walk down what was a visibly icy slope instead of using a cleared sidewalk and, near the bottom, he fell…
[11]         I am unable to accept Mr. Dandell’s contention that, by virtue of what was said in Waldick, the university was, as a matter of law, required to eliminate the risk of a student being injured as he was.  InWaldick, the court was concerned with an injury that occurred as a consequence of an occupier’s failure to provide any safe access to a home.  The only access at the time of the incident in question was icy, slippery, and covered with a dusting of snow.  No one could access the home without being exposed to a risk of the injury that was suffered.  As is made clear in the passage quoted above, the legislation requires positive action to remove or minimize the risk of injury, not in every instance but where the circumstances warrant.  It is the circumstances in any given instance that govern what the occupier must do to take reasonable care to see that those on the premises will be reasonably safe.
[12]         Here there was a well-maintained access to the building the university intended students like Mr. Dandell to use rather than taking the shortcut.  It would have taken him only 11 more seconds.  Far from being arguably irrelevant, the university’s positive action to maintain a safe access to the building was clearly a proper and significant factor in the judge’s application of the legal standard of reasonableness in all of the circumstances. 
[13]         The trial decisions Mr. Dandell cites to support his contention that an alternative access is not necessarily conclusive of the occupier’s duty having been discharged appear to me to be instances where the risk of injury, or the alternative access, although known to the occupier, was not apparent to the person injured.  Kinnear v. Canadian Recreation Excellence (Vernon) Corp. (February 24, 2011), Vernon Docket 39746 (B.C.S.C.), is an example of an alternative access (40 seconds longer) being largely conclusive of the proper discharge of an occupier’s duty in circumstances somewhat similar to those leading to the injury Mr. Dandell suffered.  The existence of an alternative access, like the extent to which the risk taken was apparent, must be a part of all the circumstances to be considered in applying the legal standard in any given case where a choice of access – one safe, the other not – is made.

$75,000 Non-Pecuniary Asssessment For Onset of Symptoms in Pre-Existing Degenerative Changes

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

Adding to this site’s archives addressing damages for collisions triggering symptoms in pre-existing degenerative changes, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with such an injury.
In last week’s case (Savoie v. Williams) the Plaintiff was injured in a collision when the Defendant ran a stop sign.  Although fault was not admitted the Defendant was found fully at fault.  The 53 year old plaintiff, who was fit and active, suffered soft tissue injuries.  She also had degenerative changes in her neck which pre-existed the collision.  Following the crash these became symptomatic and the symptoms were expected to linger into the future.  In assessing non-pecuniary damages at$75,000 Mr. Justice Johnston provided the following reasons:
[34]         Dr. Maloon agreed that there was no indication that the plaintiff had any complaints arising from these areas of her body prior to the accident, and described as a “million dollar question” the reason some people with similar wear and tear will have pain or other symptoms from the wear and tear, whereas others will not.
[35]         Dr. Maloon also said that once there are wear and tear changes to the neck, nothing can be done to change the natural course of that condition; it is a mechanical problem and treatment is largely symptomatic.
[36]         At page 6 of his written opinion Dr. Maloon says:
It is possible that the soft tissue strain that she sustained initiated the symptoms of degenerative changes that have persisted to date.
[37]         I conclude that Ms. Savoie’s initial soft tissue injuries, which I consider moderate to severe, have plagued her from the time of the accident until the date of trial. I also find that these injuries precipitated symptoms from the pre-existing (but asymptomatic) degenerative state of her neck and upper back, that the combination of the injury and the degeneration has created more discomfort than either would alone, and that to the extent that the continuing symptoms come from the degenerative neck condition, it is unlikely they will ever completely go away.
[38]         I have reviewed the authorities tendered by each counsel and consider that the facts of this case more nearly approximate the facts in Ortega v. Pena, 2012 BCSC 1884, and Thomas v. Wormsley, 2009 BCSC 919.
[39]         In personal injury litigation there never are identical plaintiffs, circumstances or injuries and consequently authorities are, at the best, guidance on the question of damages.
[40]         On the evidence before me, I assess Ms. Savoie’s non-pecuniary damages at $75,000.

$45,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

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

Adding to this site’s archived case summaries addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injuries.
In last week’s case (Smith v. Both) the Plaintiff was injured in a “not particularly severe” collision in 2009.  She sustained soft tissue injuries which remained symptomatic at the time of trial and were expected to have some lingering consequences.  In assessing non-pecuniary damages at $45,000 Madam Justice Russell provided the following reasons:
[99]         It is clear from the evidence that the impact in the Accident was not particularly severe. In coming to this conclusion, I have considered the fact that the damage to the vehicles was negligible, neither vehicles’ airbags deployed, the defendant’s seatbelt did not lock, and the plaintiff’s car did not move forward far enough to hit the car in front of it.
[100]     However, on the basis of the evidence before me I find that the plaintiff has demonstrated that the pain in her neck, shoulders, and lower back, as well as headaches, were caused by the Accident. These symptoms emerged after the Accident, and according to both the plaintiff’s and the defendant’s medical experts, these pain symptoms are consistent with soft tissue injuries…
104]     I find it is likely she will continue to have some pain resulting from the soft tissue injuries she suffered in the Accident.
[105]     However, I am not satisfied the plaintiff has demonstrated that this pain will not improve or that the residual pain will be severe…
[131]     In the circumstances of this case, considering Ms. Smith’s age, pre-Accident activity level, injuries, severity and duration of pain, interference with lifestyle, and impairment of life and of social relationships, I award the plaintiff $45,000 in non-pecuniary damages.

Diminished Homemaking Capacity Award Made Despite "No Evidence By Which Services Can Be Valued"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking a practical approach to damages for diminished homemaking capacity.
In this week’s case (Savoie v. Williams) the Plaintiff was injured when the Defendant ran a stop sign causing a collision.   The crash caused soft tissue injuries and further caused pre-existing degenerative changes in the Plaintiff’s neck and upper back to be symptomatic. Although the Plaintiff missed little time from work she struggled in her daily household activities and modified/limited how these were conducted.  ICBC argued that no award should be made because there was no evidence that she was completely disabled from household tasks.  In dismissing ICBC;s argument and assessing the loss at $20,000 Mr. Justice Johnston provided the following practical reasons:
[51]         It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).
[52]         I agree with the Third Party that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…
[55]         The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach. I note that the court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.
[56]         I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.
[57]         I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.
[58]         I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.
[59]         I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.
[60]         Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.

Motorist Passing Left Hand Turning Vehicle Found 75% at Fault for Collision

Written by admin on . Posted in ICBC Liability (fault) Cases.

Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.

In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle.  The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles.  At the same time the Defendant commenced a left hand turn into her driveway.  Both motorists were found at fault with the Plaintiff shouldering 75% of the blame.  In reaching this decision Mr. Justice Weatherill provided the following reasons:
[76]         Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted.  She ought reasonably to have been alive to the possibility of a passing vehicle.  She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn.  If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have. 
[77]         Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely.  I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident.  Each is partly liable for the accident.
[78]         I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision.  It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left.  The Truck/Trailer’s left turn signal should have been evident to him.  It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass.  The plaintiff did not do so.
[79]         In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook.  The defendant William Joseph Cook is vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of theMotor Vehicle Act.