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$130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases. 44 Comments on $130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision.  The Defendant admitted fault for the collision.  The crash caused a disc herniation which required a bilateral disectomy.  The Plaintiff was left with chronic pain accompanied with depressive symptoms.   In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
[41]         Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop.  Following the accident, he was a very different person.
[42]         There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
[43]         In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement.  He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
[44]         Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions.  She also opined that he has mechanical lower back pain.  She reported, “Unless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.”  She also concluded in her prognosis, “It is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor.  It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.”
[45]         Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff’s major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression.  Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
[77]         When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.

BC Court of Appeal Upholds Jury Strike Applicaiton in "Prolonged" Personal Injury Case

Written by admin on . Posted in BCSC Civil Rule 12.

Reasons for judgement were release this week by the BC Court of Appeal upholding a judges decision to strike a jury notice in a complex and prolonged personal injury trial.
In this week’s case (Wallman v. Gill) the Plaintiff alleged that “he suffered serious injuries” in a rear end collision.   The trial was scheduled with “at least 23 experts…as well as some 31 civilian witnesses” and was expected to last 7 weeks.  The Defendants wished to have the trial judge proceed before a jury but a chambers judge struck the jury notice finding the trial was too prolonged and complex for a jury.  In upholding this decision the BC Court of Appeal provided the following reasons:
[7]           The decision to strike a jury notice is a discretionary one that relates to the management of a trial and may not be interfered with lightly on appellate review: MacPherson v. Czaban, 2002 BCCA 518. Absent an error of principle, or failure to give sufficient weight to all relevant considerations, deference must be accorded to such an order.
[8]           The legal test to be applied on review of a discretionary order is whether the judge “has given weight to all relevant considerations”: Mining Watch Canada v. Canada (Minister of Fisheries & Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at para. 43. The appellants contend that the chambers judge acted on irrelevant considerations or alternatively failed to apply established legal criteria. With respect, I do not agree.
[9]           In this case, the chambers judge found that the issues for trial will require a scientific investigation. This is a factual determination for which deference must be accorded absent palpable and overriding error, which is not alleged. In the exercise of his discretion, he found that the scientific investigation into the proposed evidence could not conveniently be undertaken by a jury. In reaching that conclusion, the judge was satisfied that a proper review of the evidence and the legal issues could not be ensured by a jury that would be required to understand and retain opinion evidence from a large number of expert witnesses over a protracted period of time…
[13]        These decisions, in addition to many others, demonstrate the type of considerations that must be weighed when faced with an application to strike a jury notice. The management of a proposed civil jury trial requires the judge to ensure, as best as he or she can, that all who are involved, including the parties, their counsel, the potential jurors and the trial judge are able to satisfactorily perform their respective duties and responsibilities in order to meet the common objective of a fair trial.
[14]        In this case, the chambers judge applied the correct legal test under R. 12-6(5) for the striking of a jury notice and in my view cannot be said to have erred in the exercise of his discretion in striking the jury notice in order to ensure the proper conduct and management of the trial of this action. Accordingly, I find no basis upon which this Court might interfere with the order and therefore I would dismiss the appeal.

Private MRI Disbursement Disallowed Due To Lack of Evidence of Urgency

Written by admin on . Posted in Uncategorized.

Adding to this site’s arcived decisions addressing the recovery of private MRI costs as a disbursement, reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, disallowing such a claim.
In the recent case (Cooknell v. Quinn) the parties could not agree on the reasonableness of a variety of disbursement items including a privately funded MRI.  In rejecting this item Master Bouck held that the claim must fail as there was no evidence supporting the need for a privately funded MRI.  Master Bouck provided the following reasons:
[38]         Dealing firstly with the MRI disbursement, the facts of this case are somewhat analogous to those described by then Registrar Blok in Phelan v. Newcombe.
[39]         Although Dr. Smith did recommend an MRI in this case (it is not clear exactly when), there is no explanation offered for proceeding to a private clinic when a publicly funded scan was available — or at least no evidence to suggest that such a process was unavailable. As the MRI charge is disallowed on this basis, I do not need to consider whether such an investigation was necessary or proper.

"Cumulative Effect of Misstatements and Transgressions" Results in Jury Discharge

Written by admin on . Posted in Jury Trials, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, discharging a jury prior to the conclusion of a personal injury trial.
In this week’s case (Vander Maeden v. Condon) the Defendant objected to a series of “misstatements and transgressions” following the Plaintiff’s final submissions to the Jury.  The Plaintiff argued that there was no need to discharge the jury and proper instructions “could cure any defects in the trial“.  Mr. Justice Gaul held that while some of the misstatements could have been dealt with by proper instructions, their “cumulative effect” was beyond remedy.  In discharging the jury the Court provided the following reasons:
[13]         In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct…
[35]         Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.
[36]         With great respect for each member of the jury, in my opinion their ability to fairly and impartially perform their role as the triers of fact was irreparably compromised by Mr. Vander Maeden’s counsel’s final submissions.
[37]         In my view counsel for the defendants is correct when he submits the only means of salvaging the trial is to discharge the jury and have the proceeding continue as a judge alone trial. In my view a just, effective and efficient resolution to the situation is for the jury to be discharged, for Mr. Vander Maeden’s counsel to make additional submissions on the issues at trial if he believes they are necessary and then for counsel for the defendants to make his final submissions.

$60,000 Non-Pecuniary Damages For Soft Tissue Injuries Interfering With Infant Care

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for collision related injuries which interfered with a Plaintiff’s ability to breastfeed her infant.
In this week’s case (Mezo v. Malcolm) the Plaintiff was injured in a 2010 rear end collision.  She was three months pregnant at the time.   She suffered a variety of soft tissue injuries which not only made her pregnancy more difficult but also interfered with her ability to care for her newborn with the Court noting that the Plaintiff ” could not comfortably lift her baby or hold her to breast feed. Her neck hurt from bending down over the baby and her headaches returned.”
The plaintiff remained symptomatic at the time of trial and her symptoms were expected to continue into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Russell provided the following reasons:
[133]     The plaintiff was a young, fit woman at the time of the Accident.
[134]     The plaintiff’s pregnancy at the time of the Accident added to the fear she felt and impacted on her ability to achieve any pain relief. I accept her evidence that she chose to endure the pain rather than risk damage from medication to her unborn child.
[135]     After the baby’s birth, her neck, back and arm pain interfered with her ability to care for her baby. She lost the opportunity to breastfeed her baby after a short period of time. For a conscientious contemporary mother, this was a serious loss.
[136]     Her ability to lift the baby was compromised due to her back and neck pain. One of the joys of motherhood is to hold the infant close. Losing this opportunity is another serious loss. Having her mother enjoy this pleasure no doubt was helpful to the baby’s wellbeing, but it does not replace the disappointment suffered by the plaintiff.
[137]     The athletic lifestyle enjoyed by the plaintiff, Florin, and the plaintiff’s mother is now beyond the ability of the plaintiff due to her injuries. It is all well and good for Dr. Bishop to say that it is likely her pain will increase with more activity but that does not mean re-injury, but the continuing pain does and will interfere with her activities. Not every accident victim is able to ignore pain to the extent Dr. Bishop seems to suggest is desirable.
[138]     I agree with Dr. Adrian that she will continue to suffer some degree of disability for the foreseeable future….
145]     Taking into account the circumstances of this case, I award the plaintiff the amount of $60,000 for non-pecuniary damages.

"Rigid" Expert Evidence Regarding Soft Tissue Injuries Rejected by BC Supreme Court

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing ‘rigid’ evidence which downplayed the relationship between lingering symptoms and a motor vehicle collision.
In this week’s case (Mezo v. Malcolm) the Plaintiff suffered a variety of soft tissue injuries in a motor vehicle collision.  These remained symptomatic at the time of trial.  The Defendant hired an independent medical examiner who stated that “all soft tissue injuries heal within 12 to 16 weeks after a motor vehicle accident….the plaintiff’s symptoms outside this time range cannot be soft tissue injuries related to the trauma of the Accident”
In rejecting this ‘rigid’ opinion as unhelpful Madam Justice Russell provided the following reasons:
[114]     I found Dr. Bishop to be rigid in his point of view and unable to do other than say that if the plaintiff’s pain continued long past the 12 to16 month time limit for the healing of soft tissue injuries, the pain could not come from soft tissue injuries. In my view, this begs the question of why the plaintiff continues to suffer pain from activities which place stress on her spine. That her injuries are not objectively demonstrable does not mean she does not suffer pain.
[115]     Dr. Bishop agreed in cross-examination that there can often be soft tissue injuries in patients where the pain endures more than 16 weeks but which are not objectively determinable.
[116]     The plaintiff’s pre-existing low back pain has not been a factor in the injuries stemming from the Accident.
[117]     I did not find Dr. Bishop’s report helpful.

"A Relatively Small Change May Have Significant Practical Consquences"

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registy, addressing non-pecuniary damages for injuries imposed on a plaintiff with significant pre-existing difficulties.
In last week’s case (Campbell v. Van Den Broek) the Plaintiff was injured in a 2010 collision.  The Defendant admitted fault.  The court was presented with competing and “not reconcilable” medical opinions about the extent of the collision related injuries.  Ultimately the Court accepted the collision caused some new injuries and exacerbated long standing pre-existing problems.  In assessing non-pecuniary damages at$90,000 Mr. Justice McEwan recognized that “for a person with serious limitations a relatively small change may have significant practical consequences.“.  The Court provided the following reasons:
[106]     The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell’s departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff’s situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.
[107]     The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences…
[111]     I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff’s unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff’s complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff’s damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.

Ovetaking Vehicle Striking Left Hand Turning Car Fully At Fault for Collision

Written by admin on . Posted in ICBC Liability (fault) Cases. 108 Comments on Ovetaking Vehicle Striking Left Hand Turning Car Fully At Fault for Collision

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing fault for a collision involving a vehicle overtaking another.
In last week’s case (Shallow v. Dyksterhuis)  the Defendant was driving behind the Plaintiff when the Plaintiff vehicle slowed near an intersection.  The Defendant attempted to pass the vehicle by overtaking it on the oncoming lanes.  At the same the time the Plaintiff attempted a left hand turn and a collision occurred. In finding the Defendant fully liable for the collision Mr. Justice Kelleher provided the following reasons:

[3]             The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C.  Ms. Orcutt was driving south on the Alaska Highway, Highway 97.  She intended to turn left onto an access road, two kilometers south of the junction with Highway 29. 
[4]             Highway 97 has one southbound lane in this area.  However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection.  The intersection is not controlled by a traffic light.  The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane. 
[5]             The accident occurred at 8:30 a.m.  There was daylight.  The roads were covered with snow and it was continuing to snow.  Visibility was satisfactory.  Ms. Orcutt testified that she had her left turn signal on.  As she commenced her turn, the defendant’s vehicle struck her vehicle as he was attempting to overtake her by passing her on the left.
[6]             The defendant testified that he was driving south in a loaded logging truck.  He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John.  This was his second load of the day. 
[7]             Mr. Dyksterhuis testified that he was travelling in the one southbound lane.  He noticed the plaintiff’s car driving south in front of him.  He saw the vehicle slow down and saw that the brake lights were coming on and off.  Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there.  He presumed, then, that the plaintiff was either turning right or stopping on the highway. 
[8]             The defendant decided it was safe to pull out and pass her on the left.  As he came up on her left, she began her left turn.  His front bumper struck her vehicle. ..
25]         There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone.  There was a solid double yellow line on the highway, but it was covered with snow. 
[26]         Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt.  First, he was in a no passing zone.  Second, he wrongly assumed that she was not able to turn left at that place.  Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her. 
[27]         The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)).  The defendant did not dispute the ticket.  Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).
[28]         The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame.  This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn. 
[29]         I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care.  She was making a lawful left turn.  She was in an area where passing was not permitted.  She was in the left turn lane.  The defendant did not sound his horn to warn her. 
[30]         Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault.

$95,000 Non-Pecuniary Assessment for Permanent Knee Injury Likely Requiring Replacement

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 52 Comments on $95,000 Non-Pecuniary Assessment for Permanent Knee Injury Likely Requiring Replacement

Adding to this site’s database addressing non-pecuniary damages for knee injuries, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In the recent case (Majchrzak v. Avery) the Plaintiff was injured in a 2007 motorcycle collision when the Defendant’s vehicle failed to yield the right of way.  The Plaintiff suffered a knee injury which continue to pose problems at the time of trial and likely would need full replacement in the future. In assessing non-pecuniary damages at $95,000 Madam Justice Brown provided the following reasons:
[81]         I consider the following factors relevant in this case:
(a)      Age of the plaintiff: Mr. Majchrzak was 51 years old at the time of trial. The evidence establishes that he will likely suffer some measure of pain for the remainder of his life.
(b)      Nature of the injury: Mr. Majchrzak suffered grade 2 chondromalacia and post-traumatic arthritis from the impact of the accident. His knee is permanently damaged, and it is likely that he will require knee replacement, although it is unclear when that will be. He also suffered minor injuries and bruising to his left hand and back that resolved uneventfully.
(c)      Severity and duration of pain: Almost six years post-accident, the plaintiff continues to suffer pain daily. While he has been able to work through the pain, by doing stretching exercises, icing his knee and taking medication, I have concluded that he has endured much pain doing so. Indeed, he is now retraining to work in a less physically demanding position.
(d)      Disability: The plaintiff has a permanent impairment of his physical capabilities.
(e)      Emotional suffering: Dr. Raffle and Mrs. Majchrzak both gave evidence that Mr. Majchrzak has suffered some measure of depression and anxiety caused by chronic pain and his inability to work and provide for his family.
(f)       Loss and impairment of life: Mr. Majchrzak has permanent injuries that require him to leave what he described as his “dream job”. Furthermore, many of his non-work activities, such as ballroom dancing with his wife, sports activities with his children, and maintenance of his home have been affected.
[82]         After both reviewing the authorities and considering the specific factors in this case, in my view, an appropriate award for the plaintiff is $95,000.

"Chandi is Binding" Registrar Allows Interest on Disbursement Claim

Written by admin on . Posted in Uncategorized. 107 Comments on "Chandi is Binding" Registrar Allows Interest on Disbursement Claim

One of the developing areas of law relates to whether interest charged on disbursements are recoverable under the BC Supreme Court rules.  The BC Court of Appeal may weigh in on the subject but until that time, useful reasons for judgement were released noting that interest on disbursements can indeed be recovered.
In this week’s case (Franzman v. Munro) the parties could not agree on the reasonableness of many disbursements incurred in a personal injury claim which totaled approximately $90,000.  The interest for financing these disbursements came to over $5,000.   Although there was mixed success on some of the claimed disbursements the Court noted that the interest charged was a fairly claimed item.  In reaching this conclusion Master McDiarmid provided the following reasons:
[27]         I find that it was necessary for the plaintiff to incur significant disbursements in order to properly pursue her claim. I find as well that the arrangement she made with her lawyer was both necessary and proper.
[28]         We are constantly hearing how difficult it is for ordinary people to afford access to our courts. The fee agreement entered into between the plaintiff and her lawyer facilitated her having access to the courts. The interest rate charged by the law firm, that being essentially the interest it was paying on its operating line of credit (a way in which many law firms finance their operations) is reasonable.
[29]         Defendant’s counsel advised that Chandi is under appeal. Plaintiff’s counsel pointed out that the plaintiff has no ability to control whether that appeal will ever proceed, and the plaintiff should not be restricted from executing on its judgment, including costs, while awaiting the unknown result of an appeal.
[30]         Savage J., at paras. 35 and 36, gave a succinct and accurate analysis of comity and the principles enunciated in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (BCSC), as follows:
[35] In Re Hansard Spruce Mills, Wilson J., as he then was, was asked to give a ruling that was at direct variance with the ruling of a fellow judge of the Supreme Court. In refusing to contradict the ruling of a judge of the same court, Wilson J. said:
The Court of Appeal, by overriding itself in Bell v. Klein, [1954] B.C.J. No. 152, has settled the law. But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.
Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:
(a)        Subsequent decisions have affected the validity of the impugned judgment;
(b)        it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c)        the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.
Re Hansard Spruce Mills at 592.
[36] Re Hansard Spruce Mills has been cited in over 460 cases (and counting). It has a lengthy history of application in British Columbia courts and has been described as the “dominant approach” to judicial comity in Canada: Debra Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2007) 32 Man. L.J. 135 at 160.
[31]         Chandi is binding on me. No restriction is placed on the award of interest as part of my assessment of costs. The interest claimed is both necessary and proper, and is claimed in a reasonable amount. It is allowed in full as claimed.