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Tag: assessment of damages

Indivisible Injury Analysis Applicable For Both Causation and Quantum of Damages

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The BC Court of Appeal released reasons for judgement this week further addressing the law of indivisible injuries.
In this week’s case (Moore v. Kyba) the Plaintiff was member of the Canadian Navy and suffered an interscapular injury in a 2007 motor vehicle collision.   A year before this he injured his right shoulder in a shipboard fall and lastly suffered a bicep tear during a fall in 2008.
He sued for damages claiming the collision injury permanently disabled him from his naval career.  ICBC argued that no injury was caused and that this man’s disability was related to the falls.  The Jury accepted the Plaintiff’s claims and awarded $823,962 in damages for loss of earning capacity.  ICBC appealed arguing the trial judge gave the Jury improper instructions addressing indivisible injuries.  The Appeal was dismissed with the Court providing the following summary of the law:
[32] Much judicial ink has been spilled concerning the characterization of multiple injuries as divisible or indivisible, and the impact of that characterization on the determination of causation and assessment of damages in a negligence case.

[33] The legal principles underlying these concepts are clear, but explaining them to a jury “is no easy task” (see Laidlaw v. Couturier, 2010 BCCA 59 at para. 40).  Nor is their application in varying particular factual contexts always straightforward.

[34] The relevant principles were clearly set out in Athey v. Leonati, [1996] 3 S.C.R. 458.  Their elaboration in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, and by this Court in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 22-37, B.P.B. v. M.M.B., 2009 BCCA 365, Bradley v. Groves, 2010 BCCA 361 and Laidlaw are also helpful.

[35] The basic principles at play in this analysis are that a “defendant is not liable for injuries which were not caused by his or her negligence” (Athey at para. 24), and “the defendant need not put the plaintiff in a position better than his or her original position” (Athey at para. 35).  These two principles, which deal with the concepts of causation and assessment of damages, were distinguished in Blackwater (at para. 78):

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey.

[36] Thus, whether a defendant is liable to a plaintiff for an injury is a matter of causation; the amount of compensation the defendant must pay is a matter of assessment of damages.

[37] The concepts of divisible and indivisible injury are relevant at both stages of the analysis.  At the stage of determining causation, the characterization of the plaintiff’s injury or injuries as divisible or indivisible is relevant in determining what the defendant is liable for.  As explained in Athey (at paras. 24-25):

The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff’s foot and the other the plaintiff’s arm): Fleming, supra, at p. 201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p. 202.  Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.

In the present case, there is a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. The disc herniation and its consequences are one injury, and any defendant found to have negligently caused or contributed to the injury will be fully liable for it.

[Emphasis added.]

[38] In this case, in determining causation, the jury had to determine whether the appellant caused injury to the respondent, and if so, whether the rotator cuff injury, the interscapular pain, and the bicep tear were divisible injuries or an indivisible injury.  If they were divisible, the appellant could only be found to be liable for the interscapular pain caused by the motor vehicle accident.  If they were indivisible, the appellant would be liable for that indivisible injury. ..

[41] At the stage of assessment of damages, the question is what compensation the plaintiff is entitled to receive from the defendant.

[42] If the injury is divisible, then the plaintiff is entitled to be compensated for the injury caused by the defendant.  In this case, if the interscapular pain was a divisible injury, then the respondent was entitled to compensation for his loss flowing from that injury.

[43] If the injury is indivisible, then the plaintiff is entitled to be compensated for the loss flowing from the indivisible injury.  However, if the plaintiff had a pre-existing condition and there was a measurable risk that that condition would have resulted in a loss anyway, then that pre-existing risk of loss is taken into account in assessing the damages flowing from the defendant’s negligence.  This principle is called the “crumbling skull” rule.  As explained in Athey (at para. 35):  “This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.”

[44] For a recent example of a reduction in damages to reflect a pre-existing condition, see Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331.

At the conclusion of the reasons the Court of Appeal attached the trial judge’s jury charge which is worth reviewing.  For access to my archived posts addressing indivisible injuries you can click here.

Loss of Housekeeping Capacity in BC Personal Injury Claims

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When an injured person is less able to perform their usual tasks in and around the home they will often be awarded a higher amount for their Non-Pecuniary Damages and this loss can also be accounted for in awards for Special Damages, Cost of Future Care and Loss of Future Earning Capacity. However, British Columbia Courts have sometimes recognized the loss of past housekeeping capacity as a separate head of damage and award extra money for this specific loss.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Campbell v.  Banman) the Plaintiff was awarded damages as a result of injuries and loss from 2 BC Car Crashes.  The award for damages included just over $22,000 for ‘loss of housekeeping capacity“.  The defendants appealed this award arguing it was not reasonable.  The BCCA disagreed and dismissed the appeal.  In doing so Madam Justice Saunders provided the following useful discussion of the law of diminished housekeeping capacity in BC Personal Injury Claims:

[11] The award for loss of housekeeping capacity is made in the shade provided by Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.). In Kroeker this Court, in a majority decision authored by Mr. Justice Gibbs sitting on a five judge division, without characterizing the nature of the award as pecuniary or non-pecuniary, affirmed the availability of an award for loss of housekeeping capacity. In reaching that conclusion Mr. Justice Gibbs said, in a passage said by the appellants to establish a mandatory judicial attitude of restraint:

[29]      There is much merit in the contention that the court ought to be cautious in approving what appears to be an addition to the heads of compensable injury lest it unleash a flood of excessive claims. But as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.

[12] The Court in Kroeker reviewed the award for loss of housekeeping capacity in the amount of $23,000, found it was inordinately high where the loss was assessed at 130 hours a year, decreasing over time (at an hourly rate of $10), and reduced the award to $7,000.

[13] This Court addressed the issue of loss of housekeeping capacity again in McTavish v. Mac Gillvray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281. In McTavish the trial judge had awarded $20,000 for past loss of housekeeping capacity and $43,170 for future loss of housekeeping capacity, sums arrived at by reference to the cost of replacement services for 10 hours each week until age 60, at an hourly cost of $10 an hour. This Court dismissed the appeal, finding there was evidence family members replaced the housework Ms. McTavish formerly had performed, and she was not required to prove she would hire someone to perform the duties in order to be fully compensated for the loss of her ability to perform the tasks herself. In the majority reasons for judgment I observed as to Kroeker:

[73]      This Court, in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5 (C.A.) recognized that damages for past and future loss of housekeeping capacity may be awarded by a trial judge, even though housekeeping services were gratuitously replaced by a family member. Further, it recognized that, depending on the facts, this compensation may be by pecuniary or non-pecuniary damages, and if non-pecuniary, that there was no reason these damages could not be segregated.

[14] In my view, this case bears many of the same hallmarks as McTavish, although the extent of incapacity here is less and the damage award is accordingly attenuated.

[15] In particular, and notwithstanding the submissions of the appellants, there is evidence from Ms. Campbell and her common law husband that she had been, and still was at the time of trial, restricted in her ability to perform certain repetitive motions and those involving a certain degree of strength. Likewise Ms. Campbell and her common law husband testified he had accordingly assumed those tasks. It was open to the trial judge to accept that evidence. Further, there was no finding that the husband’s assumption of tasks formerly performed by Ms. Campbell was matched to any degree in a reallocation of duties between them…

[25] Last, the appellants are critical of the award for loss of housekeeping services on the basis it reflects an exercise in arithmetic and not an assessment.

[26] There is some force to the submission that the award should have been arrived at by assessment rather than arithmetic. An arithmetical calculation where, as here, there has not been any actual expenditure and the judge is simply estimating the value of the loss, suggests the order is untempered by judgment, and results in an award expressed in terms of precision beyond the courts faculty. To that extent, I would agree that the figures $8,132 and $10,920, awarded for past loss of housekeeping capacity are overly precise, and the award should have been expressed in more global terms. Nonetheless, it seems to me that the scale of damages is not something with which we should interfere, and thus any adjustment to the award to take account of the principle of assessment would be minor. Given this conclusion, I would not interfere with the order made.

[27] For these reasons I would dismiss the appeal.

Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized. 54 Comments on Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Reasons for judgement were released today by the BC Supreme Court dealing with a fair range of damages for pain and suffering when an accident victim has a pre-existing condition which likely would have been progressive and painful without the accident.
In today’s case (Kaur v. Bhoey) the Plaintiff was injured in a 2005 BC Car Crash.  She was a passenger and her vehicle lost control and she struck a utility pole.  She was apparently concussed in this collision and was in and out of consciousness at the scene of the crash.
The Plaintiff had a pre-existing condition (osteoporosis with spinal compression fractures) which may have been progressive and led to chronic back pain even without the crash.
Mr. Justice Truscott found that the crash caused ‘soft tissue injuries‘ which caused a ‘kyphotic condition‘ otherwise known as a humpback.   The Court held that, despite the injury, there was “a significant risk that (the plaintiffs) osteoarthritis would have led to more back fractures and more pack pain and kyphosis”  He went on to award $50,000 in damages for the plaintiff’s pain and suffering.  In arriving at this figure Mr. Justice Truscott summarized the law and the key findings of fact as follows:

[5] The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[6] Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.

[7] However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage… Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award… This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position…

[137] I accept that the kyphotic condition the plaintiff suffers from was caused by her low back soft tissue injuries sustained in the motor vehicle accident, and not by her pre-existing spinal compression fractures. I accept Dr. Hershler’s opinion in this regard.

[138] I accept Dr. Hershler’s opinion that the two compression fractures the plaintiff had before the accident in her low back were insufficient to cause this kyphotic condition.

[139] Dr. Hershler was able to push the plaintiff’s back to make her stand erect and that is some evidence that the kyphotic condition is being caused by pain and not by the compression fractures in her spine.

[140] This is not to conclude, however, that the plaintiff did not already suffer from some back pain before the accident caused by the compression fractures in her low back, in turn caused by her osteoporosis. Dr. Panesar’s records, and his evidence, as well as Dr. Yorke’s reports, set out previous incidents of back pain.

[141] I do accept, however, that prior to this motor vehicle accident these incidents were being generally controlled by medication.

[142] Still, such a finding does not answer the issue raised in Athey as to whether the plaintiff would have suffered her present state of back pain and accompanying kyphotic condition in any event of the motor vehicle accident, or at least there was a measurable risk of that occurring absent the motor vehicle accident that must be taken into account in reducing the overall award.

[143] With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…

[149] Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.

Vehicle Damage and the Law of "Accelerated Depreciation"

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When a vehicle is damaged in a BC car crash and subsequently repaired, the repaired vehicle may have a lower market value than it otherwise would have.  Can the owner of such a vehicle be compensated for this loss?  The answer is yes and is dealt with under a head of damage known as ‘accelerated depreciation’.  Reasons for judgment were released today by the BC Supreme Court dealing with this legal principle.
In today’s case (Cummings v. Daewoo Richmond) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff purchased a used vehicle from the Defendant Daewoo.  Seven days later she lost control of her vehicle and was injured as a result of the crash.  Madam Justice Gerow found that the Defendant sold the Plaintiff a vehicle with defective tires.  The court then concluded that “the accident was caused by a loss of friction due to the wear on the rear tires of the vehicle, and that Daewoo has failed to establish that Ms. Cummings’ operation of the vehicle either caused or contributed to the accident.”
The court went on to award the Plaintiff just over $38,000 in total damages including $7,600 for ‘accelerated depreciation’ of her vehicle.  I set Madam Gerow’s discussion out of this area of the law below:

Accelerated depreciation

[70] Ms. Cummings is claiming the amount of $7,600 for accelerated depreciation of the Nissan due to the damage it sustained in the accident. For the following reasons, I have concluded that an award in that amount for accelerated depreciation is appropriate.

[71] The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.

[72] Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73] It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.