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$125,000 Non-Pecuniary Assessment for "Complex" Psychological Injuries With Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for the victim of a hit and run collision.
In today’s case (Crozier v. ICBC) the Plaintiff was injured in a 2013 collision caused by an unidentified motorist.  ICBC admitted statutory liability for the crash.  The Plaintiff suffered both physical and psychiatric injuries which were partially disabling and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $125,000 Mr. Justice Saunders provided the following reasons:

[99]         The physical and psychological injuries Ms. Eros suffered include pain in the neck, back, shoulders, rib and chest; headache; dizziness and nausea; post-traumatic stress disorder, together with symptoms of depression and anxiety; fatigue, and problems with concentration and memory, either as a result of a mild traumatic brain injury (not confirmed through neuropsychological testing), or a combination of the physical and psychological/psychiatric injuries. Ms. Eros suffers from some residual headache and rib and chest pain. Fatigue remains a concern. She has significant chronic pain in the thoracic spine, and her psychological injuries continue. She is significantly disabled from working fully in her chosen field of massage therapy, and from engaging in physical labour of the type she did with SCRD. Her physical activity is limited. She can only do light housework.

[100]     I also consider the following factors as particularly influential in the damages award. Ms. Eros avoids driving where possible. She is not the joyful, outgoing person she used to be. Her self-identity as a strong and fearless person is gone. She lost the chance of pursuing her relationship with Mr. Johnson. Her relationship with her mother deteriorated after the accident. She is more socially isolated.

[101]     The defendant’s suggested range of $60,000 to $80,000 for Ms. Eros’ non-pecuniary damages, and the case law submitted in support of an assessment in that range, are premised on the substantial improvement of Ms. Eros’ physical injuries within 12 months of the accident, and of the psychological injuries within 18 months. The defendant’s submissions do not come close to acknowledging the devastating psychological effects of the accident, the continuing functional limitations imposed by the plaintiff’s pain, and the complex interrelationship of the pain condition and the post-traumatic stress disorder…

[104]     I find an appropriate award of non-pecuniary damages is $125,000.

$85,000 Non-Pecuniary Assessment For Soft Tissue Injuries with Persistent Flare Ups

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

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for persistent soft tissue injuries with frequent flare ups.
In today’s case (Palmer v. Ansari-Hamedani) the Plaintiff was involved in two collisions with the Defendants accepting fault.  The first crash was relatively minor with injuries well on their way to recovery by the time of the second crash.  The second collision caused persistent soft tissue injuries which continued to the time of trial and often flared up with various activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Morellato provided the following reasons:

[86]         In conclusion, I find that Ms. Palmer’s suffered from the following symptoms in the months following the Second Accident: mental “fogginess”; nausea, dizziness, balance issues; ringing in ears, a bump on back of the head, bruising in swelling in the forearm and overwhelming nerve tenderness in the forearm.  I find that these symptoms had substantially resolved by the time she returned to full-time work at Dr. McDougall’s office in February of 2013.  Other related symptoms, however, persisted as described below.

[87]         Ms. Palmer’s soft tissue injuries to her neck and back have persisted for some time; however, I find that by the time she saw Dr. Pascoe in May of 2017, Ms. Palmer had substantially recovered from these injuries.  However, I find that she continues to suffer “flare-ups” as recognized by Dr. Pascoe in her August 2017 reporting letter.  Further, as noted above, I also accept that the flare-ups in her neck and back cause occasional headaches, some of which are migraine headaches but these are less frequent.

[88]         The evidence before me has not established, on a balance of probabilities, that Ms. Palmer suffers cognitive deficits or permanent brain damage from her Second Accident.  Nor am I satisfied that her Second Accident affected or compromised her ability to retrain or attend to further educational pursuits.

[89]         I find that while the injury to Ms. Palmer’s right shoulder and arm is not symptomatic on a daily basis, the injury has not yet resolved and continues to cause her pain and discomfort.  She suffers pain and numbness in her arm when her arm is tired or she holds her forearm and hand in flexed or extended positions.  I am also satisfied on the evidence before me that Ms. Palmer suffers flare-ups of pain in her shoulder area.

…
[94]         I have also considered the cases counsel have drawn my attention to as well as the related case law: see e.g.  Cleeve v. Gregerson et al, 2007 BCSC 1112 [Cleeve]; Senger v. Graham, 2018 BCSC 257; Knight v. Belton, 2010 BCSC 1305.  In this light, and having regard to the specific circumstance before me, I am of the view that an award of $85,000 is fair and reasonable.

$85,000 Non-Pecuniary Assessment For Chronic Neck Pain and Headaches

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

Reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic neck pain and headaches following two vehicle collisions.
In the recent cast (McCully v. Moss) the Plaintiff was involved in two separate collisions with the Defendants accepting fault for both.  The collisions caused a neck injury with associated headaches which continued to the time of trial.  The symptoms were expected to continue and flare with heavier household and vocational duties.  In assessing non-pecuniary damages at $85,000 Madam Justice Devlin provided the following reasons:

[99]         Ms. McCully is 66 years-old and she suffers some limitation and restriction as a result of her persistent neck pain and headaches caused by the accidents. However, I do not agree that the injuries have a profound or life altering affect on Ms. McCully. I do find that she continues and will continue to experience some pain and discomfort and the medical experts confirm this. Although the medical evidence does not foreclose the possibility that she can increase her work hours or certain activity levels, I find that even where she does attempt these pre-accident activities, her injuries would increase her discomfort and pain.

[100]     While she is able to continue to work as an esthetician, she does experience discomfort if she exceeds working for a comfortable amount of time. Fortunately for her, her schedule is flexible and ultimately she is the one who will determine when she will work and for how long. While she may resort to the use of the TENS machine at the end of a long day to deal with the discomfort in her neck, she appears to be pleased to be able to continue to work for and service her clients.

[101]     I note that she has also returned to playing bridge a few times per week and has participated in a bridge tournament over the weekend albeit with the assistance of her pain medication. Participating in these bridge games is particularly important for Ms. McCully as it provides her an opportunity to engage socially. She continues to engage with her family and while she does not take her grandchildren to the pool she does babysit them at her residence. In a similar vein as Buckle, I note that Ms. McCully’s injuries restrict her from engaging in her domestic and work activities with the same energy and ability she had before the accidents. However, as I discussed earlier, despite having the chronic neck pain and headaches she continues to travel and has done so since shortly after the accidents.

[102]     In the following reasons, I will specifically address the parties’ arguments in relation to a segregated loss of housekeeping capacity damages. However, as I will re-state below, the impact of Ms. McCully’s injuries on her ability to perform household tasks informs my assessment of her non-pecuniary damages. I note also that she keeps a fairly large 2,900 sq. ft. house on a 12,000 sq. ft. lot. Overtime I find that Ms. McCully has been able to do some light housekeeping although she cannot do some of the more physically demanding tasks. Additionally, it is clear that she is more limited in performing yard maintenance.

[103]     There is no doubt that her neck pain and headaches have and will continue to have an impact on Ms. McCully in every aspect of her life to varying degrees. I am satisfied that Ms. McCully is entitled to compensation for the impact the injuries have had on her general well-being.

[104]     Having reviewed the cases provided by both parties, I assess Ms. McCully’s non-pecuniary damages at $85,000.

"Standard of Perfection" Not Needed for Victims of Hit and Run Collisions

Written by admin on . Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identify of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act.
In today’s case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact.  The Plaintiff’s wife was in a separate vehicle nearby but did not notice the collision.  The Plaintiff drove away from the scene and did not find any other witnesses.  The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act.
ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist.  Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances.  In addressing the required standard for victims of hit and run collisions the Court noted as follows:

[62]         Overall, I find the plaintiff acted reasonably at the time of the Collision and its immediate aftermath, but was unable to obtain the required information. The driver of the SUV immediately fled the scene. The lead vehicle left quickly as well. There were no other potential witnesses in the area of the Collision, other than perhaps Mr. Ghuman’s wife, but she was unaware the Collision even occurred. In these circumstances, I think a reasonable person would believe this low-impact accident was not so obvious that others in the area would have even seen it, let alone observed details of the offending vehicle in the seconds before it fled the area.

[63]         However, as the case authorities make clear, the requirement to make all reasonable efforts to ascertain the identity of the other driver and owner is not limited to the immediate aftermath of the Collision. Mr. Ghuman must be found to have also made all reasonable efforts to ascertain the identity of the unknown driver and owner in the days and weeks that followed.

[64]         In those days and weeks, Mr. Ghuman took several steps to try and ascertain the identity of the SUV, its driver or owner.

[65]         He called police the following day and gave them all of the information he had. He also reported the Collision to ICBC the following day and followed up with the written claim form a few days later.

[66]         Within a week of the Collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the Collision occurred. He retained counsel shortly thereafter to protect his interests and within about a month of the Collision, his counsel arranged for more signs seeking witnesses to be posted around the intersection and for an advertisement seeking witnesses to run for a week in the local newspaper.

[67]         None of the above efforts generated any witnesses to the Collision or any information that might have led to the identity of the SUV, its driver and owner.

[68]         ICBC identifies two steps that Mr. Ghuman did not take in the days and weeks following the Collision as a basis for finding that Mr. Ghuman did not make all reasonable efforts. It points to Mr. Ghuman’s failure to follow up with police and his failure to canvass business in the Strawberry Hill complex for potential video recordings or records of witnesses who may have come forward to those businesses.

[69]         I agree with the observations of Justice DeWitt-Van Oosten in Rieveley that there are often other steps that a plaintiff could have taken in particular circumstances, but that s. 24(5) of the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a “plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time”: Rieveley at paras. 36-37.

[70]         Mr. Ghuman did not follow up with police following his initial call because he reasonably believed police would not investigate the Collision and/or that any investigation would be fruitless. Mr. Ghuman reported the Collision to police because he understood that the law obliged him to, but given the circumstances of the Collision and the presence of only very generic information about the SUV, Mr. Ghuman’s belief that police would not investigate or such an investigation would be fruitless is reasonable. I accept there was little benefit in following up with the Surrey RCMP in these circumstances. To do so would be highly unlikely to produce any results.

[71]         Mr. Ghuman did not check with businesses near the area for video surveillance and/or records of witnesses who may have come forward because he relied on another person, his wife, who told him that she was making some of those efforts. Not admissible for the truth that those steps were actually taken, Mr. Ghuman’s belief that some of those steps were being done does provide a reasonable explanation why he did not undertake them himself.

[72]         I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

[73]         In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

[74]         For all of these reasons, I find the plaintiff has met the onus upon him to establish that he made all reasonable efforts to ascertain the identity of the SUV’s owner and driver under s. 24(5) of the Act and that the identity of the unknown owner and driver of the SUV is not ascertainable. Accordingly, ICBC is appropriately named as the nominal defendant to this action and liability is found against ICBC.

Lawsuit Against Expert Witness Dismissed on Grounds of Witness Immunity

Written by admin on . Posted in Uncategorized.

In British Columbia expert witnesses in litigation are granted a broad immunity in cases where they are alleged to be negligent or otherwise provide less than adequate services when testifying.  Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, applying this principle in dismissing a lawsuit against an expert witness.
In today’s case (Owimar v. Warnett) the Plaintiff was involved in several collisions and sued for damages.  In the course of the lawsuits the Defendants retained a physician who “examined the plaintiff three times, provided five medical reports from 2003 to 2013 and testified in court“.
The Plaintiff sued the Doctor and the defence counsel that retained him alleging “various kinds of fraud and negligence in their respective capacities as defence counsel and expert witness and claims that they substituted his lumbar spine x-ray taken in November 1996 with an x-ray that would disprove his claims of being injured in the MVAs.“.
The lawsuits were dismissed for various grounds with the Court noting that “the allegations advanced by the plaintiff are nothing more than wild speculation.“.  Additionally, one of the reasons dismissing the claim against the expert witness was the principle of witness immunity.  In triggering and applying this doctrine Madam Justice Murray provided the following comments:

[34]         With regard to Dr. McGraw I am satisfied that the doctrine of witness immunity applies. Under that doctrine witnesses are immune from civil liability. In addition as for expert witnesses the doctrine applies to anything they say in court as well as pre-trial activities including assessments and reports: P.(J.) v. Eirikson, 2015 BCSC 847 at paras. 21 and 25.

[35]         Our Court of Appeal recently confirmed that a professional witness who gives evidence in court is protected from civil action in 311165 BC Ltd v. Canada (A.G.), 2017 BCCA 196:

[50] It must be kept in mind that the immunities from suit that prevent claims based on evidence given in court and on bringing litigation are broad in order to protect the justice system. Witnesses should not be dissuaded from giving evidence or fettered in what they tell a court by the fear that an aggrieved person will sue them. Prosecutorial decisions must be allowed to be made in an atmosphere that is free from the chilling effects of potential civil liability. Access to the courts must not be impeded by leaving litigants in fear of being open to lawsuits brought in retaliation.

[36]         As a result of the witness immunity defence I am satisfied that the plaintiff’s allegations against Dr. McGraw will fail. Accordingly there is no genuine issue to be tried and the claim must be dismissed under Rule 9-6(5)(a).

[37]         In conclusion, having considered all of the evidence and all of the submissions I am satisfied that the action against the defendants must be dismissed as it offends Rule 9-5(1). In the alternative I am satisfied for the reasons above that the action against the defendants must be dismissed under Rule 9-6.

Saanich Police Officer Found To Use Excessive Force During Arrest

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

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing $120,000 in non-pecuniary damages for a plaintiff who sustained a shoulder injury while being arrested by the Saanich police.  The Court found there was negligence however the claim was ultimately dismissed as the Plaintiff failed to provide the needed statutory notice under the Local Government Act.
In the recent case (Lapshinoff v. Wray) the Plaintiff was removed from his vehicle while being investigated for erratic driving.  The Defendant forcefully took the plaintiff to the pavement which resulted in a complex shoulder injury requiring two surgeries along with “an irreparable rotator cuff tear that is permanently disabling“.
The Court found that while the arrest was lawful the police used excessive force.  In reaching this conclusion and assessing non-pecuniary damages at $120,000 Mr. Justice Meiklem provided the following reasons:

[128]              I accept Mr. Lapshinoff’s evidence that his initial comment about his truck being hit and asking what that was about was not belligerent or loud. He had no concern about damage to his very experienced dilapidated vehicle, but that exchange and Mr. Lapshinoff’s immediate request for ID probably contributed to an antagonistic atmosphere. Constable Wray did not provide ID, and demanded Mr. Lapshinoff get out of the vehicle. Mr. Lapshinoff unlatched his seat belt but did not get out promptly. Constable Wray repeated the demand more emphatically with a profanity. Lapshinoff was in the process of complying, perhaps somewhat reluctantly, with his left foot partially out the door which he opened partly, at the same time repeating that he would still like to see ID, when Constable Wray reached over and yanked him out forcefully in the manner previously described.

[129]              The fact that Constable Wray was able to pull the 200-pound Mr. Lapshinoff out of the truck in one pull, even though he said that he did so as hard as he was able, is consistent with Mr. Lapshinoff being turned and beginning to get out on his own. If both his feet were still in the vehicle and he was facing forward when he was yanked out, it is difficult to see how he could have emerged even partially on his feet.

[130]              In my view, this very forceful removal was completely unnecessary and is only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity. He acknowledged that he did not consider any less violent means of dealing with the situation he perceived.

[131]              It is clear that he was either blind to the fact that Mr. Lapshinoff was starting to comply with his demand to get out, or that he simply expected a faster response and was making that point with physical aggression.

[132]              I note that during cross-examination Constable Wray volunteered an explanation as to how the plaintiff could have reacted differently and how it is in the interests of people to listen, even if they disagree with the reasonable grounds. He suggested that was “safest for everyone”. He neglected to practice that advice himself in dealing with Mr. Lapshinoff. He perceived Mr. Lapshinoff as belligerently wanting answers to the questions he was asking. If he was in fact providing the answers he claims he was providing and perceived that Mr. Lapshinoff was not hearing or listening him, as he testified, there were certainly safer and more reasonable measures that he could have employed to gain his attention and compliance other than yanking him out of the truck within seconds of arriving and engaging him in a tussle for a few seconds before tripping him and forcefully sending him to the ground.

[133]              The plaintiff’s right shoulder or arm struck the truck door as he was yanked out, causing it to fly open. This further demonstrates a degree of aggressiveness and lack of foresight and care for the safety of the plaintiff, which was unnecessary and disproportionate to the exigencies of the arrest. Although it is unknown whether that impact actually contributed to the plaintiff’s shoulder and arm injuries, there certainly was a foreseeable risk of injury in yanking the plaintiff through a partly open truck door.

[134]              There was also a foreseeable and unnecessary risk of injury with a 6’ 3”, 240 lb officer taking a person to the ground with a leg sweep trip while holding his upper body and falling with him.

…
[148]              In light of the consensus between the parties on the appropriate general damage award, which I find to be appropriate, no detailed analysis is required on that issue. I would award general damages in the sum of $120,000 against the defendant Saanich. I would not award punitive damages.

BC Court of Appeal – A Sandbar is Not a Highway

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Court of Appeal dismissing an unidentified motorist injury claim on the basis that the collision occurred on a sandbar which is not a ‘highway’ which is a condition to such a claim succeeding.
In today’s case (Adam v. ICBC) the Plaintiff suffered injuries when struck by an unidentified motorist while on a sandbar that people used to camp and fish from along the Fraser River.  The Plaintiff sued ICBC under s. 24 of the Insurance (Vehicle) Act.  At trial the Plaintiff was successful but ICBC appealed arguing that a s. 24 claim could not succeed in these circumstances as a sandbar is not a highway and a crash has to occur on a highway for s. 24 to be triggered.  The BC Court of Appeal agreed and provided the following reasons:
[91]         In summary, none of the means of becoming a highway as required by paragraphs (a) to (g) of the Transportation Act definition apply to the sandbar. Nor is the sandbar a “highway” within the meaning of paragraph (b) or (c) of the Motor Vehicle Act definition. I therefore conclude the judge erred in finding the sandbar is a “highway” within the meaning of s. 24 of the IVA.

$12,000 For Medical Cannabis Awarded to Crash Victim With Chronic Pain

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, awarding damages, including a $12,000 future care award for the cost of medical cannabis, to a collision victim.
In today’s case (Carrillo v. Deschutter) the Plaintiff was involved in a 2011 collison.  The Defendant admitted fault for the crash.  The Plaintiff suffered a variety of injuries including a frozen shoulder, soft tissue injuries and went on to develop chronic pain with a poor prognosis for full recovery.
At trial, in addition to other heads of damages, the Plaintiff sought damages for the future cost of medical cannabis.  The Defendant objected to this arguing that “conventional prescription drugs” should be adequate.  The court was not persuaded by this defence and awarded $12,000 for the cost of medical cannabis.  In reaching this conclusion Madam Justice Dardi provided the following reasons:

[158]     I have reviewed all the authorities on medical cannabis relied on by both parties. The authorities establish that, in some cases, medical cannabis is compensable in a personal injury case: Wright v. Mistry, 2017 BCSC 239 at para. 84; Amini v. Mondragon, 2014 BCSC 1590 at paras. 133-136; Chavez-Salinas v. Tower, 2017 BCSC 2068 at para. 539.

[159]     An important fact in this case, and one that distinguished this case from many of the cases relied on by the defence, is that Mr. Carrillo, after receiving Dr. Hershler’s recommendations, has been using cannabis balm, tincture oil and capsules. I accept his evidence, that he has found the cannabis products effective and, as a result of using the cannabis products, he has experienced some pain relief. There was no evidence that the consumption has produced any negative side effects. Notably, since the Accident, Mr. Carrillo has pursued the more traditional modalities of physiotherapy, chiropractic treatments, massage and injections without any significant benefit. Mr. Carrillo’s prescription pain medication provides him with some symptomatic relief but I do not accept that it controls his pain as is asserted by the defendant.

[160]     With respect to the defence submissions on Mr. Carrillo’s mental health issues, I note that Mr. Carrillo’s medical condition is currently being monitored by his primary care provider, Dr. Sennewald. The six-month’s use of cocaine for pain was some six years ago and there is no evidence of any issue arising since that time.

[161]     All things considered, I conclude that the medical cannabis program recommended by Dr. Hershler is medically justified within the meaning contemplated by the authorities and that it is reasonable to make an award for the costs of the cannabis as part of Mr. Carrillo’s future pain management plan.

[162]     The evidence on the costs of the medical cannabis was thin but not so thin as to justify not making any award for Mr. Carrillo. There was no evidence as to what the cost would be through a Health Canada supplier. Those costs may be different from the costs Mr. Carrillo actually incurred purchasing them through other dispensaries. This is a significant shortcoming that I have taken into account in my assessment. I have also factored into my assessment that in his report Dr. Hershler did not say how long Mr. Carrillo should be on the medical cannabis program. It is uncertain how long he may continue using medical cannabis.

[163]     In the result, and on the totality of the evidence and taking into account the relevant contingencies, I assess an award for medical cannabis in the amount of $12,000.

$95,000 Non-Pecuniary Assessment For Chronic Pain with Psychiatric Overlay

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Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain symptoms with psychiatric overlay caused by a series of collisions.
In today’s case (Sandhu v. Bates) the Plaintiff was injured in three collisions.  Fault was admitted by the Defendants.  The Plaintiff suffered injuries which developed into a myofascial pain syndrome.  She further developed somatic symptom disorders.  Her prognosis for full recovery was guarded.  In assessing non-pecuniary damages at $95,000 Madam Justice Winteringham provided the following reasons:

[137]     In summary, I make the following findings of fact respecting Mrs. Sandhu’s injuries:

a)    Mrs. Sandhu sustained moderate soft tissue injuries to her neck, lower back, buttock, right hip, right ankle, and right knee in the accidents.

b)    Rather than following a typical course of recovery after the accidents, Mrs. Sandhu experienced chronic low back pain affecting her buttock and pain down the right leg and associated numbness in the left buttock. Her chronic pain worsened in the first and second years following the accident and persisted at the time of trial.

c)     I accept Dr. Squire’s opinion that the diagnosis for her physical injuries is most consistent with myofascial pain syndrome of the lumbopelvic area and that the intermittent exacerbations are likely episodic acute muscle spasms and the right leg pain is likely referred pain from the myofascial pain syndrome. I also accept that she continues to experience intermittent neck pain.

d)    Dr. Joy, Dr. Anderson and Dr. Suhail all agree, and I find, that Mrs. Sandhu developed somatic symptom disorders. I note that though their diagnoses were not identical, Dr. Anderson and Dr. Suhail report that she meets the diagnostic criteria of somatic symptom disorder with predominant pain, following the accidents.  In addition, I accept Dr. Anderson’s opinion that following the accidents, Mrs. Sandhu suffers from a generalized anxiety disorder.

e)    I find that, as Mrs. Sandhu’s psychological condition deteriorated, her ability to cope with pain was poor. Dr. Suhail’s opinion, with which I agree, was that “as here pain would trigger her anxiety, her subsequent psychological problems would reduce her ability to cope with pain. Whenever she would be stressed and anxious, her back pain would increase.”

f)      Dr. Joy, Dr. Anderson, Dr. Suhail, Dr. Chapman and Dr. Kashif all agree that Mrs. Sandhu suffered from anxiety after the accidents. They disagree about prognosis. I find that the first accident, and aggravated in the second and third, caused Mrs. Sandhu’s generalized anxiety disorder. The medical experts are all of the opinion that Mrs. Sandhu’s prognosis is guarded, particularly if she is unable to address her anxiety disorder. Dr. Suhail indicated some recent improvement and, with ongoing cognitive behavioral treatment, there is some reason for cautious optimism.

…

[153]     I have reviewed the cases referred to by the parties. On my review of Mrs. Sandhu’s cases, as her counsel admits, the injuries suffered in some of those cases were more serious than what I have found in the present case. Similarly, I have found the cases relied on by the Defendants involved Plaintiffs with lesser injuries than those I have found in Mrs. Sandhu’s case.

[154]     In all of the circumstances, and taking into account the authorities I have been referred to, I am satisfied that an award of $95,000 will appropriately compensate Mrs. Sandhu for her pain and suffering and loss of past and future enjoyment of life, for which the Defendants are responsible.

Pedestrian Found 80% At Fault For Being Struck While Jaywalking

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

Reasons for judgement were published this week by the BC Court of Appeal upholding a trial judge’s assessment of fault for a pedestrian/vehicle collision.
In the recent case (Vandendorpel v. Evoy) the Plaintiff was struck while crossing a street.  He was at a light controlled intersection.  He pressed the button to activate the pedestrian walk signal but did not wait for the signal to come on.  Instead, he proceeded to cross the street while the signal for traffic in his direction was still red.  The Defendant was driving marginally over the speed limit and entered the intersection on a fresh yellow light striking the jaywalking pedestrian.   At trial the plaintiff was found 80% at fault for the crash.  In upholding this result the BC Court of Appeal agreed with the following reasonsing of the trial judge:

[53]      While both parties failed in their respective duties of care, I find Mr. Evoy’s failure was much less significant than Mr. Vandendorpel’s. His negligence consisted of driving at a speed that was over the posted limit, even if it was only minimally above that limit (i.e., approximately 55 km/hr in a 50 km/hr zone) and doing so when the lighting and road conditions were less than optimal. Compared to this conduct, Mr. Vandendorpel’s failures were more serious. He was dressed in dark clothing, including a dark hooded pullover that was zipped up to the top. None of his clothing had any light reflective qualities. Counsel for Mr. Vandendorpel submits that wearing dark clothing is not in and of itself contributory negligence. That submission is correct, but Mr. Vandendorpel’s failures are greater than simply the clothing he was wearing. He was also wearing headphones and listening to music and that reduced his ability to hear any on-coming traffic. He also had to cross a five-lane roadway that spanned approximately 18 metres. Although he depressed the pedestrian control device, he only waited a second or so before he attempted to cross the roadway. He carelessly did so even though the pedestrian control signal was still red and the traffic control signals were still green. Mr. Evoy’s vehicle approached the Intersection from the north. That is the direction Mr. Vandendorpel was initially walking. The headlights of Mr. Evoy’s vehicle would have been visible from at least 100 metres away. Mr. Vandendorpel must not have looked north on Sooke Road as he began to cross the roadway because he did not see the headlights of Mr. Evoy’s vehicle until it was approximately 30 metres away from him. That is, until the vehicle was just about to enter the Intersection. At that point, the pedestrian control signal was still red and the traffic control signal was yellow. Notwithstanding all of this, Mr. Vandendorpel chose to run across the path of the on-coming car instead of standing fast or retreating.

[54]      I remain of the firm opinion that Mr. Vandendorpel showed a reckless disregard for his duties as a pedestrian on the roadway and conclude that his degree of fault for the accident is greater than that of Mr. Evoy.

[55]      The case authorities counsel provided me with respect to apportionment have been helpful. Each party’s degree of responsibility is to be decided by assessing the risk their respective conduct created, the effect of that risk, and the extent to which each party departed from the standard of reasonable care (see: MacDonald (Litigation guardian of) v. Goertz, 2008 BCSC 394, aff’d 2009 BCCA 358).

[56]      In my view, the risk Mr. Vandendorpel created when he chose to walk and then run across Sooke Road, into the path of Mr. Evoy’s on-coming vehicle created a much more significant risk than Mr. Evoy driving at a speed marginally above the speed limit on a dark morning with a wet roadway. Moreover, I find the departure from the standard of care expected of Mr. Vandendorpel as a pedestrian was much more pronounced than the departure of Mr. Evoy from his duty of care as a driver of a motor vehicle.