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$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

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

Adding to this site’s archived ICBC case summaries involving shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, assessing damages for a rotator cuff tear requiring surgical intervention.
In today’s case (Mitchell v. Martin) the Plaintiff was involved in a 2009 motorcycle collision caused by the Defendant where “the plaintiff was thrown from his motorcycle and injured his right shoulder, neck and back and suffered from bruising and road rash“.
The Plaintiff’s most serious injury was a rotator cuff tear which required surgical intervention and the Plaintiff was left with chronic pain in the shoulder.  In assessing non-pecuniary damages at $85,000 Madam Justice Young provided the following reasons:
[41]         I am satisfied on a balance of probabilities that the labral tear and the rotator cuff tear were caused by the Accident and that the majority of the plaintiff’s right shoulder injuries were caused by the Accident. I prefer the evidence of the surgeon, who not only reviewed the MRI and treated the plaintiff, but actually visualized the shoulder joint during surgery…

[61]         The plaintiff suffered considerable pain and instability of his shoulder while waiting for surgery. This was a time period during which he saw no improvement. After 12 months, he then had to undergo the pain of surgery and a six-month recovery period. The surgery distinguishes this case from many of the defendant’s cases that fall in the lower range.

[62]         The plaintiff is a stoic, motivated individual who enjoyed an excellent recovery because of his rehabilitation efforts so that he has a stable, fully mobile shoulder but he is not without chronic pain. There is no indication that this level three out of 10 pain is going to improve and I expect, given that it has not improved in six years, he will continue to experience it.

[63]         His shoulder pain will affect his productivity at work and in his recreational activities, which impact his enjoyment of life. He does not suffer the level of pain that Ms. Cimino does, however, I take into consideration that award is seven years old and may have been higher in 2016.

[64]         I award $85,000 for non-pecuniary damages.

$65,000 Non-Pecuniary Assessment for "Persistent Myofascial Pain"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic back injury.
In today’s case (Cirillo v. Mai) the Plaintiff was involved in a 2012 collision where her vehicle was struck and pushed into oncoming traffic where she was struck a second time.  The Plaintiff suffered a chronic back injury with symptoms continuing at the time of trial and expected to likely persist into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Hinkson provided the following reasons:

[41]         Dr. Khalfan commented in her report of April 20, 2016 that:

a)       The plaintiff’s diagnosis at that time was persistent myofascial pain as a result of the Collision.

b)       The plaintiff’s range of motion in her spine was good, other than her spinal extension, which demonstrated significant impairments.

c)       The plaintiff had first received trigger point injection treatment on January 26, 2016. Other than experiencing some short-term flare-ups in pain for after treatment, the plaintiff responded well to the injections, and reported 50% improvement in her pain by the fifth treatment.

d)       By the sixth trigger point injection on April 12, 2016, the plaintiff had plateaued with that treatment, and decided to pursue ultrasound-guided injection treatment, which would require a series of diagnostic tests.

e)       Because the plaintiff responded well to trigger point injections, Dr. Khalfan was optimistic that the plaintiff would continue to experience improvement with ultrasound-guided injection treatment. Dr. Khalfan expected that the plaintiff would experience appreciable improvement of her symptoms in the future, but was unable to predict with precision the degree to which the plaintiff would recover.

f)        Given the fact that the plaintiff has experienced pain for years after the Collision, it is unlikely that she will experience full recovery of all symptoms. Dr. Khalfan opined that it was likely that the plaintiff would have ongoing pain well into the future and possibly indefinitely.

g)       Dr. Khalfan recommended a focused strengthening and stabilizing exercise program as a possible management tool for mitigating the plaintiff’s limitations and pain…

[92]         The authorities relied upon by the plaintiff are all cases where the injured parties suffered from chronic pain. Although I accept that Ms. Cirillo continues to experience back pain, I am unable to accept that it rises to the level of chronic pain as that term is used in the cases that she relies upon. While she may experience the improvement in her pain that is hoped for by Dr. Khalfan, I do not regard that as likely. I consider that the injuries and ongoing difficulties that she experiences are more consistent with the difficulties described in the awards cited by the defendant, with the exception of the loss of her ability to participate in the sport that she pursued with such devotion and considerable success before the Collisions.

[93]          As I have already found, it is unlikely that she would have been able to continue with her level of activity in the sport for much longer than she did, but the choice to do so was taken from her by her injuries from the Collisions, and this, in my view, elevates her damages from the range that can be derived from the cases relied upon by the defendant. I therefore assess her non-pecuniary damages at $65,000.

$85,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

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

Adding to this site’s soft tissue injury non-pecuniary damage database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries with associated headaches.
In this week’s case (Picton v. Fredericks) the Plaintiff was involved in a 2008 vehicle collision that the Defendant admitted responsibility for.  The Plaintiff suffered various injuries which were ongoing at the time of trial and expected to linger into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Williams made the following findings:

[37]         I conclude that Ms. Picton did sustain injuries in the course of the motor vehicle accident and that substantial discomfort has persisted for her. I am not minded to accept that all of the discomfort and all of the lost time is attributable to the accident. I also conclude that, while there was not insignificant discomfort, its effect upon her ability to do her usual activities and to engage in physical activities was significant but not to the extent she seemed to suggest. For example, I am inclined to accept that, from time to time, she engaged in activities such as golfing and snowboarding. I also believe that she continued to pursue her fitness regime, although in a somewhat diminished way.

[38]         I am satisfied that Ms. Picton sustained soft tissue injuries in the accident, resulting in neck, shoulder, and back pain and headaches. The neck, shoulder, and back pain have not resolved but continue, albeit less intensely. I am satisfied that she continues to deal with headaches; the frequency may not be as great as she contends, but I accept that she does occasionally experience very significant discomfort from those headaches. I also accept the evidence before me that the Botox treatments she receives are substantially effective in enabling her to deal with the discomfort of those headaches…

[51]         In summary, I conclude that Ms. Picton has suffered pain and discomfort from the accident, that it has impacted upon various aspects of her life, and that those effects continue. I am also satisfied that the ongoing Botox treatment is a meaningful contributor to mitigating the discomfort she experiences. I accept that the effects of the accident impacted upon her work and social life.

[52]         That said, I also recognize that there were other factors at play, including the psychological distress that she has experienced separate and apart from the accident. I find no basis to attribute that to the defendant’s conduct, and, accordingly, the effect of that cannot be included in the analysis of what award of damages will properly compensate the plaintiff for her pain, suffering, and loss of enjoyment of life as resulting from the defendant’s negligence…

[58]         As stated above, my conclusion is that the injuries resulting from the accident had a moderately serious impact upon Ms. Picton’s life. She has experienced pain and suffering, and her enjoyment of life has been compromised in a number of ways. I also conclude that the effects of the collision are not the sole cause for her difficulties; her pre-existing psychological problems have had a real role in causing those. Ms. Picton’s situation is in keeping with the “crumbling skull” rule as noted in Athey v. Leonati, [1996] 3 SCR 458, at paras. 34–35. The damages that this Court awards must reflect that distinction. The defendant should not be required to compensate Ms. Picton for effects she would have experienced anyway.

[59]         As well, my award is informed by my view that she has, fortunately, by availing herself of the Botox treatment program, been able to find a way to substantially overcome the discomfort of headache. I intend to provide an award of damages for her future care that will provide for that relief, going forward. Accordingly, I expect that her discomfort will be quite significantly relieved.

[60]         In the result, I find that a fit and appropriate award of damages under this head is $85,000.

ICBC's "Two Hats" Derails Litigation Privilege Claim

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.
In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.
The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.

ICBC's "Casual Disregard" of Court Order Results in Steep Costs Punishment

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, hitting ICBC with a steep costs award for the “casual disregard” of a Court disclosure order.
In today’s case (Norris v. Burgess) the Plaintiff was injured in a 2010 collision and sued for damages.  Prior to trial ICBC offered to settle the claim for $678,500.  The Plaintiff rejected this offer and proceeded to trial where a jury awarded $462,374.  After statutory Part 7 deductions the amount was reduced by $70,196.
Normally where a Plaintiff is awarded less than a defence formal settlement offer they are stripped of some of their costs and sometimes ordered to pay some of the Defendant’s costs.  ICBC sought such a result but the Court refused.  Mr. Justice Funt instead ordered that ICBC pay the Plaintiff an additional $155,340.86 in ‘special costs’ because the insurer disregarded a Court order to produce surveillance evidence.  In reaching this decision Mr. Justice Funt provided the following reasons:
[65] As noted, at the October 20, 2015 trial management conference, Justice Koenigsberg ordered the listing and description of any surveillance or video to occur on or before October 23, 2015. The existence of the 2015 Video was not disclosed until the start of the fourth week of trial and was, as Mr. Miller stated, harmful to the defence.
[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.
[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case..

[75]         When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.

[76]         The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[77]         Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

[78]         In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

 
 

Court Orders ICBC Disability Benefits Paid Despite Delayed Application

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

Earlier this year the BC Court of Appeal found that ICBC wage loss benefits can be ‘revived’ if a collision related injury which was initially disabling retriggers disability beyond the 104 week mark.  This week a BC Supreme Court judgement confirmed this principle ordering the insurer to pay years of backdated benefits.
In this week’s case (Powell v. ICBC) the Plaintiff was injured in a collision and wad disabled for about a month following the collision.  She returned to work and pressed on until she could no longer continue several years later due to the lingering effects of her collision related injuries.  She applied for ICBC’s disability benefits but was denied with the insurer arguing that she was not longer entitled.
In finding the Plaintiff qualified for benefits under the policy and further that benefits can be revived past the 104 week mark Madam Justice Dillon provided the following reasons:

[51]         This judgment was upheld in Symons where the issue on appeal was whether the chambers judge erred in concluding that Mrs. Symons was entitled to disability benefits under s. 86 of the Regulation. ICBC argued that an insured must have an ongoing disability and be receiving benefits at the end of the 104 week period in order to receive benefits. Because Mrs. Symons was not receiving benefits at the end of the 104 week period and because her disability did not flare up until after that period, the Regulation did not permit for the reinstatement of s. 86 benefits. The plaintiff urged a contextual and purposive approach to statutory interpretation of s. 86 that would not result in absurd results as urged by ICBC.

[52]         Bennett J.A., for the Court, found at para. 17 that the regulations in question should be considered in the context of the legislative scheme to provide universal, compulsory insurance and access to compensation for those who suffer losses from motor vehicle accidents. Benefits-conferring legislation is to be interpreted in a broad and generous manner (at para. 18). The Court concluded at para. 24:

[24] Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act – to provide no-fault benefits for persons injured in motor vehicle accidents.

[53]         The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident…

[62]         After consideration of all of the evidence, it is concluded that the plaintiff has established entitlement under s. 86(1) of the Regulation.

$6 Million Damage Assessment After Teen Injured By Corroded Lamppost

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for profound injuries after a plaintiff fell two stories after falling while swinging from a corroded lamp-post.
In this week’s case (Mackey v. British Columbia) the Court summarized the facts as follows
On March 31, 2007, when David Mackey was 17, he climbed onto a concrete baluster.  The baluster formed part of a railing along the perimeter of a pedestrian plaza at 812 Wharf Street, overlooking the waterfront, in Victoria.  On the baluster stood a lamp post.  It was about 6 feet tall.  David Mackey swung around the lamp post.  It was corroded to the core.  When David Mackey swung around it, the lamp post came loose.  It tottered, and he fell two storeys onto the concrete walkway below.  He suffered severe traumatic brain injury.
The Court found the injury caused profound disability and awarded damages assessing a lifetime of earnings and care totaling nearly $6 million.
The court reduced this amount by 65% to account for the Plaintiff’s contributory negligence.  In finding the Province 35% and the Plaintiff 65% for the incident Mr. Justice MacIntosh reasoned as follows:

[39]         From the evidence above, I reach the following conclusions.

[40]         The lamp post was severely corroded when David Mackey fell.  The lamp post had never been inspected or maintained to see that it was intact.  The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it.  Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.

[41]         But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened.  What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way.  Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below.  I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements, [2012] 2 S.C.R. 181:

[9]        The “but for” causation test must be applied in a robust common sense fashion.  There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  [Citations omitted.]

[10]      A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.  Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]

[42]         Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened…

[60]         When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall andPaquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident.  David Mackey was nearly 18.  He mounted a safe railing where there was a dangerous drop below.  He had probably also heard Ms. Arner’s warning to Ryan Ramsay.  On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job.  The lamp post, on top of the railing, was its own accident waiting to happen.  As noted earlier, it could have been pushed over by a force of only 12.5 pounds.

$50,000 Non-Pecuniary Assessment for "Lingering" Soft Tissue Injury

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

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court,  Vancouver Registry, valuing a claim dealing with a ‘lingering‘ neck and shoulder soft tissue injury.
In today’s case (Lal v. Le) the Plaintiff was involved in a 2011 rear-end collision that the Defendant accepted blame for.  The Plaintiff suffered various soft tissue injuries the most serious of which involved his neck and shoulder and symptoms lingered to the time of trial.  Some long term symptoms were anticipated.  In assessing non-pecuniary damages at $50,000 Madam Justice Adair provided the following reasons:

[102]     Accordingly, I find that, as a result of the accident, Mr. Lal sustained soft tissue injuries to his neck, back, chest, elbow, leg and shin areas.  He also sustained ulnar nerve irritation symptoms, and experienced headaches as a result of his injuries.  Most of these injuries resolved over a few months.  However, the most serious injuries, a moderate soft tissue injury to his neck, and a moderate muscular strain in his right middle and lower back, did not.  As of April 2014, there continued to be objective signs of injury.  I find that, by April 2014, Mr. Lal had improved to the point that he was pain-free at times, although, with heavier and awkward work, he experienced symptoms in his neck and back, and also occasional headaches.  I find that these symptoms resulted from the injuries he suffered in the accident.  By October 2015, Mr. Lal’s mid-back injury had resolved.  However, I find that, as of trial, Mr. Lal continued to experience symptoms as a result of the injuries suffered in the accident, particularly symptoms in his neck.  He is likely to have some lingering neck and shoulder pain long-term, although the prognosis is more favourable that his back pain will fully resolve over the next year.

[103]     I find further that, as a result of the injuries Mr. Lal suffered in the accident, there is a risk that he will be unable long-term to work as a boilermaker, although he should be able to work full-time as an armored car driver.  In addition, I find that, as a result of the injuries suffered in the accident, Mr. Lal will be at increased risk of a work-related neck or back injury.  Given the physical nature of his employment, this is a real risk…

[110]     Considering Mr. Lal’s age and the other factors described above, and the cases cited to me, I conclude that an appropriate award for non-pecuniary damages is $50,000.

$50,000 Non-Pecuniary Assessment for "Persistent" Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for ‘persistent’ soft tissue injuries.
In today’s case (Smith v. Evashkevich) the Plaintiff was involved in a 2010 rear end collision that the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries to his neck and shoulder which persisted at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $50,000 Mr. Justice Steeves provide the following reasons:

[74]         Considering the expert evidence summarized above with the evidence at trial, I conclude that the plaintiff continues to have complaints of pain and stiffness in his neck, shoulders and back as a result of the June 2010 accident. This is supported by medical findings of tenderness on palpation. The plaintiff, his family and close friends also describe the plaintiff’s discomfort with his neck and shoulders.

[75]         These have always been soft-tissue symptoms, albeit persistent ones. The plaintiff was prescribed with a muscle relaxant on July 5, 2010 for the accident injuries. After that he has used over the counter medication.

…

[84]         In summary the plaintiff continues to suffer from soft tissue injuries in the neck, shoulder and back that can be causally related to the 2010 accident. While there are flare-ups he manages the symptoms well and he does not miss work as a result of them. He does not golf or snowboard like he did before the accident and he is more withdrawn in his relationships. There is some general anxiety as a result of the chronic nature of the plaintiff’s symptoms but anything more is related to his feeling of being overwhelmed at work.

[85]         In these circumstances I conclude an award of $50,000 for non-pecuniary damages is appropriate.

Disputed Injury Diagnosis – Six of One, Half a Dozen of the Other…

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making the common sense finding that the debate over diagnosis is not nearly as important in a personal injury lawsuit as whether symptoms are tied to the indicent in question.
In today’s case (Tan v. Mintzler) the Plaintiff was injured in a 2012 collision and experienced chronic cognitive symptoms.  At trial a debate arose about whether the symptoms were due to a head injury from the collision or secondary to chronic pain.  The Court found the Plaintiff did indeed suffer a head injury however noted the debate was largely insignificant as whatever the diagnosis the symptoms were linked to the trauma of the collision.  In basically saying ‘six of one, half a dozen of the other’ Mr. Justice Groves provided the following reasons:

[54]         For the plaintiff, Drs. Weiss, Cameron, and Kaushansky gave evidence that they believed Ms. Tan had suffered an MTBI.  Dr. Weiss recommended Ms. Tan be referred to a neurologist to confirm her suspicion, a recommendation that was followed with her visit to Dr. Cameron.

[55]         One of the most significant factors in diagnosing the MTBI was Ms. Tan’s evidence that she has no recall of the Accident after hearing the initial sound of the impact.  The next thing she remembers is the policeman, Cst. Upshall, knocking on her car window.  It was also Ms. Tan’s evidence that she has a spotty memory of the events which transpired after she returned home from the hospital that day.  It was also relevant to the MTBI diagnosis that Ms. Tan was diagnosed as having a concussion at the hospital the day after the Accident and by Dr. Fong for several months after the Accident.  The doctors also relied on an MRI brain scan which showed an abnormality in the plaintiff’s left parietal lobe which Dr. Cameron testified “probably occurred” at the time of the Accident.

[56]         As I have said, Dr. Dost strongly disagreed with the MTBI diagnosis and with the methodology of the other three doctors.

[57]         The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with.  The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.

In going on to assess non-pecuniary damages at $210,000 the Court provided the following reasons:

[73]         Ms. Tan is 56 years of age.  I have found that she suffered an MTBI during the accident and that she suffers from depression, anxiety, and mild PTSD.  She has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  I have also found that Ms. Tan suffers from chronic pain on her left hand side and in her face and jaw.  The prognoses for Ms. Tan’s physical and psychological conditions were generally guarded or poor with the exception of the pain in her face and jaw, which may lessen with treatment.  I do note that several experts indicated that Ms. Tan may see some improvement with psychological treatment.

[74]         I also accept that the plaintiff’s personal and intimate relationships have been affected.  She now socializes very little and her relationship with her husband has deteriorated as a result of the injuries caused by the accident.  She is fearful of travel by car and has not driven since the accident.

[75]         Finally, I accept that the plaintiff’s ability to maintain her home, including her ability to cook, garden, and do laundry, has been impaired as a result of the accident.  She has and will continue to suffer some loss of housekeeping capacity.  However, Ms. Tan continues to be able to do some light housekeeping and has been able to manage the family home while her husband has been away for extended periods with only minimal assistance from her daughter.  I have therefore chosen to address this head of loss as part of the plaintiff’s non-pecuniary damages, rather than as a separate claim; Johal v. Radek, 2016 BCSC 454 at paras. 59-60….

[89]         Having regard to the findings I made and the authorities reviewed, I consider that an award of $210,000 properly compensates Ms. Tan for her non-pecuniary losses.  This award also includes and recognizes that Ms. Tan has and will continue to suffer some diminution in her housekeeping capacity.