Tag: back pain

$50,000 Non-Pecuniary Damages for Chronic Neck/Low Back Soft Tissue Injuries

Written by admin on March 9, 2010. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $50,000 Non-Pecuniary Damages for Chronic Neck/Low Back Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the fair assessment of damages for chronic soft tissue injuries.
In today’s case (Baxter v. Jamal) the Plaintiff was involved in a ‘substantial‘ 2005 motor vehicle collision. The Plaintiff was in her vehicle in an intersection waiting to turn left. The Defendant “ran a red light and struck the driver’s side door of the plaintiff’s vehicle“.
Despite feeling no pain at the time of the accident the Plaintiff in fact was injured. Her symptoms came on shortly after the crash and some of them persisted to the time of trial. In awarding $50,000 for the plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Boyd stated as follows:
[18] Dr. Witherspoon and Dr. Rosemary Nairne Stewart, a physiatrist who conducted an independent medical examination on behalf of the plaintiff in February 2009, both opine the plaintiff has suffered soft tissue injuries to her neck and back. Since more than three years have passed since the injury, they expect she will continue to experience her current symptoms over the long term and that as a result, she will likely be unable to do physically demanding work. ..

I am satisfied that pre-accident, the plaintiff was asymptomatic and that since the accident, she has unfortunately been plagued by ongoing neck and back pain which now remain unresolved over four years since the accident. I accept Dr. Nairne Stewart’s opinion that her condition is either the reflection of the soft tissue injuries (suffered at the time of the accident) which remain unresolved or are the result of the trauma to her back (suffered at the time of the accident), which has rendered a previously asymptomatic condition symptomatic.

[34] I accept Dr. Nairne Stewart’s evidence concerning the plaintiff prognosis, namely that she is “likely to continue to experience all of her current symptoms and limitations over the long term. She will be unable to do physically demanding work because of her injury. In sedentary work, she will continue to need a good ergonomic setup in her workstation and the flexibility to change her work tasks and position periodically throughout her workday”.

[35] I accept that these injuries have had a significant effect on the plaintiff’s life, both in terms of her career and her recreational activities. ..

[43] On a revinew of all of the evidence, and considering the significant impact these injuries have had and will continue to have on this young woman, I find that an appropriate award of damages is $50,000.

An interesting part of this decision dealt with the Court’s analysis of the competing medical evidence. As is common in ICBC Injury Claims the Defence called the evidence of an ‘independent medical examiner’ (orthopaedic surgeon Dr. Maloon) who provided an opinion contrary to the Plaintiff’s treating physician with respect to the extent of the accident related injuries. The court noted that Dr. Maloon’s competing opinion was ‘obliquely stated‘ and ultimately preferred the evidence of the Plaintiff’s doctors. This case is worth reviewing for the Court’s discussion of the competing expert evidence and the analysis of the Court in favouring the expert evidence in support of the Plaintiff’s case.

Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Written by admin on October 19, 2009. 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.

Can an ICBC Tort Claim be Worth Less for Not Going to the Doctor Regularly?

Written by admin on August 31, 2009. Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Perhaps with the exception of the “failure to mitigate defence” the frequency of medical appointments attended by a plaintiff is not necessarily tied to the value of an ICBC tort claim. The value of a claim is largely tied to the severity of injuries and the impact of the injuries on a persons life. As a matter of common sense one would expect a Plaintiff with very severe injuries to receive more extensive medical intervention than a Plaintiff with relatively minor injuries. In this sense there may be an indirect connection between the value of a claim and the number of medical treatments. However, the number of doctor’s visits does not in and of itself add value to an ICBC tort claim and reasons for judgement were released today exploring this area of the law.
In today’s case (Brock v. King) the Plaintiff was involved in a 2006 T-Bone collision in Burnaby, BC. The Court found that the Plaintiff suffered various injuries and in awarding $50,000 for her pain and suffering summarized the injuries as follows:
I find that the plaintiff continues to suffer from back pain, neck pain and headaches. These injuries continue to interfere with her work and her daily activities. It appears that some further improvement may occur but that some level of ongoing chronic pain is probable.
The Defence Lawyer argued that the Plaintiff’s injuries were not all that serious and in support of this conclusion drew the court’s attention to the fact that “there were large gaps in treatment and medical visits“.
Mr. Justice Punnett rejected this submission and in doing so summarized some of the principles courts consider in tort claims when reviewing the frequency and nature of post accident medical treatment. The key discussion was set out at paragraphs 58-65 which I set out below:

[58] The defendants place significant emphasis on the fact that the plaintiff had relatively little in the way of treatment, that there were no referrals to any specialists, that there was limited therapy, that there were large gaps in treatment and medical visits, little in the way of prescription medication and that there were no diagnostic examinations arranged by the family physicians.

[59] The defendants rely on Mak v. Eichel, 2008 BCSC 1102, and Vasilyev v. Fetigan, 2007 BCSC 1759, in support of their position on the issue of gaps in the plaintiff’s reporting to her physician and the inference to be drawn. In Mak v. Eichel there appeared to be a gap in treatment with no evidence that the discomfort continued during that period and inVasilyev v. Fetigan there were credibility issues. As a result both cases are distinguishable.

[60] The plaintiff relies on Travis v. Kwon, 2009 BCSC 63, and Myers v. Leng, 2006 BCSC 1582. In both cases there were gaps in the plaintiffs’ attendance on their physicians. InTravis v. Kwon, Mr. Justice Johnston states at paras. 74 and 77:

[74] …Where a plaintiff gives credible evidence at trial, and is not significantly contradicted by entries in medical records or otherwise, the absence of a full documentary history of medical attendances it not that important.

[77] In this case the plaintiff is generally credible, and I do not fault her for a commendable desire to avoid making a nuisance of herself by going to a doctor primarily in order to build a documentary records and thus avoid the risk of an adverse inference from failing to do so, or out of a misguided belief that by papering her medical files, she can prove her claim. A sensible plaintiff, having some knowledge of the medical system and its capabilities from her training, would be better advised to go to the doctor only when necessary, and thus avoid accusations that she is exaggerating, or suffering from what some authorities have referred to as “chronic benign pain syndrome”: Moon v. Zachary, [1984] B.C.J. No. 241, 1984 CarswellBC 2000, at para. 100.

[61] In Myers v. Leng Madam Justice Gropper stated at para. 50:

[50] I am not troubled by the gap in the plaintiff seeking treatment. His decision not to continue to see a doctor about his neck and back complaints was clearly based on a reasonable conclusion that the doctors could only provide temporary relief from the pain by prescribing medication and physiotherapy. The plaintiff did not consider either to be helpful. It is a sensible and practical approach to medical treatment. If continuous medical treatment can cure you, or make you feel better, then it is worthwhile to attend on a regular basis. If it cannot, there really is no point in taking the doctor’s time. The purpose of a seeing a doctor is not to create a chronicle of complaints for the purpose of proving that you have ongoing pain from an injury arising from a motor-vehicle accident. Rather than detract from the accuracy of the plaintiff‘s complaint, I consider the plaintiff‘s course of conduct, in not seeing the doctor on a continuous basis, to enhance his evidence.

[62] Mrs. Brock testified that she is not sure if the physiotherapy helped that much and sometimes it increased her pain. Likewise she indicated that she did not like taking prescriptions and preferred to avoid medications other than Tylenol or Advil. She was told to exercise daily doing stretching and other exercises which she did.

[63] I accept that she was aware that her doctor really could not do much more for her than he had already done. Given that, it made sense not to keep raising her injuries with him on a regular basis or, indeed, each time she visited with him.

[64] The defendants also argued that the fact that Dr. Nakamara did not order further tests or investigations relating to the neck and back injuries while doing so for an earlier knee injury and a sprained thumb indicates that the neck and back injuries could not have been viewed by him as serious.

[65] The defendants did not call Dr. Nakamara for the purposes of cross examination on his report. They are asking that the court infer the medical reasons for the lack of a more extensive investigation of the plaintiff’s injuries. That is a medical decision and not one for the court to make. It is likely more probable that he did not order more extensive investigations because in his opinion they were not required. He notes in his report that there was no structural damage. I decline to accept the defendants’ submission on this point.

More on Soft Tissue Injuries, ICBC, and Expert Evidence

Written by admin on July 9, 2008. Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today awarding a Plaintiff $12,000 for ‘pain and suffering and loss of amenities‘ (non-pecuniary damages) for ‘a mild soft tissue injury which had essentially cleared within 3 months or so. ‘.
The Plaintiff was rear-ended in 2006 in North Vancouver. The court found that the impact was significant. The Plaintiff complained of headaches, neck pain, low back pain, mid back pain, left elbow and forearm pain and occasional pain shooting to his knees.
In what can be described as a very unusual occurrence, the trial proceeded without any medical opinion evidence addressing the extent of injury. The Plaintiff attempted to have his GP testify but the court would not permit it as proper notice of the ‘expert opinion’ was not provided per Rule 40-A.
The court admitted the doctor’s clinical notes into evidence. The Plaintiff then tried to treat these as notice of what the doctor was going to testify to. The court found this improper and did not permit the doctor to give opinion evidence stating that:

During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.

[12] In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert’s opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.

[13] To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

The court went onto award $12,000 for pain and suffering and $180 for special damages.
This case is a great reminder of the need to comply with Rule 40-A if you are advancing an ICBC injury claim in Supreme Court and wish to call expert evidence to give the court an opinion about injuries, causation, future treatment, and prognosis. Failure to do so can result in the court not admitting the evidence which can badly damage an ICBC claim. Here the court expressly stated that “although an opinion of a medical expert such as a medical/legal report from (the Plaintiff’s) GP may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion.”
Another note-worthy result of this judgement is the apparent ‘cost’ consequences.
From reading paragraphs 25-29 of the judgement it appears that the lawyer for the defendant made a formal offer of settlement prior to trial which was greater than the judgement. In such circumstances a defendant can be awarded ‘costs’ for the trial. In this case the court awarded $4,400 in costs which would have to be subtracted from the judgement amount prior to the Plaintiff getting paid. In addition, the Plaintiff would not be reimbursed disbursements for the trial and would be responsible for the Defendant’s trial disbursements. After taking all this into account the true value of the judgement may in fact be $0. When considering ICBC claim settlement it is very important to consider the likelihood of beating ICBC’s formal offer at trial.

ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

Written by admin on July 3, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.
The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.
The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’
The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.
As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.
No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.
The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.
The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:
[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.
The court awarded $80,000 for ‘general damages’ (pain and suffering).
The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.
This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.
In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.
Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“
This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.
The court summarized the law of ‘failure to mitigate’ as follows:
[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).
The court rejected ICBC’s failure to mitigate arguments.
This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.

More on LVI's, ICBC Claims and Soft Tissue Injuries

Written by admin on June 30, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Whiplash Cases, Uncategorized.

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result. It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash? Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005. It was a rear-end crash. The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’. The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles. The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash. The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall. This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries. In other words, she should get better. The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case. It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’. In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan. The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’. Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however. The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident. I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

Damages of $216,430 Awarded for 2 rear-end collisions

Written by admin on May 12, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.
The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.
The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.
A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.
This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.
After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.
Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work”
In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.”
In the end the court awarded damages as follows:

For the Accident of May 18, 2002:

Non-pecuniary damages	$30,000.00
Past income loss (subject to deduction for Income tax)	$5,939.18.

For the Accident of May 5, 2005

Non-pecuniary damages	$52,500.00
Past income loss (subject to deduction for Income tax)	$62,499.00
Loss of Future Earning Capacity	$45,500.00
Cost of Retraining	$2,730.00
Cost of Future Care	$15,300.00
Special Damages (Not apportioned)	$1,926.39

$50,000 Awarded for Pain and Suffering in Neck Injury Case

Written by admin on March 23, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases.

On February 21, 2008, the Honourable Mr. Justice Wong awarded $50,000 for pain and suffering for a neck injury.
The Plaintiff was involved in a forceful collision on June 2, 2004. She sustained various injuries including headaches, back pain and neck pain. By the time of trial some of the injuries improved, however the Plaintiff continued to suffer from back pain and neck pain. Evidence was presented that she likely had damage to the facet joints in the upper cervical spine and that the prognosis for resolution of her pain was poor.
In addition to compensation for pain and suffering, the Plaintiff was awarded damages for past income loss, loss of general earning capacity, special damages, and cost of future care.