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$120,000 Non-Pecuniary Assessment for Soft Tissue Injuries with Disabling "Pain Disorder"

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain disorder caused by two vehicle collisions.
In today’s case (Litt v. Guo) the Plaintiff was involved in two collisions, the first in 2003, the second in 2010.  The Plaintiff was not at fault for either.  The Court found both collisions caused various soft tissue injuries which went on to form a chronic pain disorder which was largely disabling for the Plaintiff.  In assessing non-pecuniary damages at $120,000 Mr. Justice Schultes provided the following reasons:

[371]     In summary, I will make the following findings on causation and the current state of Ms. Litt’s injuries:

·                 Ms. Litt suffered moderate soft tissue injuries to her neck, shoulders and back in the 2003 and 2010 accidents, which would not have been significantly disabling in themselves.

·                 Her physical injuries from the 2003 accident had receded to a manageable level by the time of the 2010 accident, but those injuries were aggravated by the 2010 accident.

·                 Ms. Litt developed a pain disorder as a result of the 2010 accident.

·                 Ms. Litt’s pre-existing anorexia nervosa and depression made her more vulnerable to developing depression and other psychological difficulties after the 2003 accident and to developing a pain disorder after the 2010 accident.

·                 Despite the other stressors in her life, Ms. Litt would not have suffered any disabling reappearance of her pre-existing conditions if the accidents had not occurred.

·                 There is a possibility of a continued improvement to her functioning and her capacity for employment, based on her self-described improvements to her outlook after beginning to follow a regime of healthy diet, exercise and counselling…

[378]     Keeping in mind the need to tailor the award to the particular circumstances of the case, but to consider outcomes in similar cases to ensure the overall fairness of the amount, I conclude that damages of $120,000 are appropriate under this heading.

Also of note are the Court’s critical comments of two defence expert witnesses in the case.

The first, a defence expert in ‘spine pain’ testified that soft tissue injuries would certainly have healed within 12-16 weeks of each accident and that this was “scientific fact”.  In rejecting this assertion the Court commented as follows –

[349]     Turning to the evidence dealing with the extent of Ms. Litt’s physical injuries, I find first of all that I am unable to accept Dr. Bishop’s categorical assertion that the outside limit of the duration of her actual physical injuries is 16 weeks. A comprehensive study that he accepted as authoritative shows that there is a greater variation in that recovery period, before even considering the influence of any psychological problems on the experience of pain. In addition, though through no fault of his own, he has no records and therefore no real evidentiary basis to critique the medical findings that were made by others in relation to Ms. Litt’s 2010 accident. While, as I will discuss, there is a good argument that Ms. Litt’s psychological condition has overtaken any physical causes of her pain, I am not convinced that any contribution by her physical injuries ended as quickly as he contends.

Next, the Court heard from a defence hired psychiatrist who minimized the connection between the Plaintiff’s chronic pain condition and the collisions.  In rejecting this evidence Mr. Justice Shultz provided the following critical comments-

[355]     I will start by saying that I find I cannot attach any weight to Dr. Levin’s opinion. He conflates the routine nature of the accidents with the requirement for a diagnosis of pain disorder under the DSM-V that the patient experiences the injuries as “significant, catastrophic or life threatening”. Their objective severity aside, Ms. Litt certainly perceives her injuries as being significant. His assertion that there can be no PTSD here because the accidents were not traumatic also ignores that fact that Dr. Lu does not rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent in Dr. Lee’s records, and I would not give as much weight to his diagnoses in psychiatric matters in any event.

[356]     More importantly, Dr. Levin made assumptions that are not borne out by the evidence, such as that Ms. Litt’s function was “seemingly unimpaired” in the years following the accidents, which he seems to have based largely on her continuing ability to take family vacations that involved air travel.

[357]     Worst of all in my view, he overlooked or ignored numerous entries in Dr. Lee’s clinical records that had the potential to undermine his opinions. My overall impression was that the primary purpose of his report was to counteract Dr. Lu’s opinion, rather than to address the evidence objectively, and that it was not prepared carefully.

"There Is No (Discovery) Continuation As of Right Once a Matter is Removed From Fast Track"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure.

Unreported reasons by the BC Supreme Court, Vancouver Registry, were recently shared with me finding that there is no right for examination for discovery continuation once a matter is removed from fast track prosecution.
In the recent case (Nordin v. Wong) the Plaintiff sued for damages for injuries and her claim was initially prosecuted under Rule 15.  She underwent examinations for discovery which was limited to the two hour cap under the fast track rule.
The case was removed from Rule 15 and the Defendant sought a further discovery under the greater timelines allowed.  In dismissing the application and finding there was “no continuation as of right” when a matter is removed from fast track Master Scarth provided the following reasons:
[4]  To the extent that this is an application for a continuation of the examination for discovery which took place in May of 2014, I am satisfied that it should be dismissed…
[5]  Counsel conducting the discovery stated it to be concluded.  Responses have been provided to the outstanding document requests, and the defendant here concedes that nothing arises fro the material which was so provided.   Further, there is no continuation as of right once a matter is removed from fast track…No conditions were placed on the removal of the action from fast track, apparently it not being in the contemplation of the defendant at the tine that they might require a further discovery.
[6] In my view, therefore, the fact that Rule 7-2(2) provides for seven hours of discovery does not assist the defendant here.  
 

$100,000 Non-Pecuniary Assessment for Chronic Back and Neck Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic neck and back pain caused by a vehicle collision.
In today’s case (Tourand v. Charette) the Plaintiff was injured in a 2009 rear end collision that the Defendant accepted responsibility for.
The Plaintiff suffered chronic neck and back pain as a result with symptoms lingering at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $100,000 Mr. Justice Joyce provided the following reasons:

[119]     It is true that there were occasions in the past when the plaintiff experienced episodes of neck, shoulder and back pain, for which she received chiropractic treatments. Some of these episodes were associated with prior motor vehicle accidents and others appear to have been brought on by the physical activities in which she engaged, including her participation in karate. However, I am satisfied, on the whole of the evidence, that prior to the Accident the plaintiff was not experiencing the kind of chronic pain and symptomology in her neck and low back that she has experienced since the Accident in question. I am satisfied that the causal connection between her present symptomology neck and low back and the Accident has been established. In short, but for the Accident the plaintiff would not be in the physical condition that she now finds herself.

[120]     Ms. Tourand plaintiff had some pre-existing degenerative changes in her neck and low back, but I am satisfied that her current symptoms are not due simply to the progression of that degeneration. Rather they are due to either an aggravation of a pre-existing condition or to trauma that has made symptomatic that which was not previously symptomatic.

[121]     I accept that in the years before the Accident, the plaintiff was a physically active, social person, who enjoyed life and was enjoyable to live with and be around. I find on the basis of the evidence of her husband and friends that she is now a very different person. The Accident has negatively impacted her ability to enjoy physical activity and perform former household management tasks to the same extent as before. It has led to difficulty sleeping, depression and has affected her marital relationship.

[122]     On the other hand, I also find that the other life events that the plaintiff has endured since the Accident, in particular, the difficulties that her children experienced and with which she has been integrally involved, have probably contributed to the severity and prolongation of her symptoms.

[123]     Ms. Tourand is not, however, incapacitated. She can still manage most of her household chores, with moderation and careful sequencing of the tasks. There seems to be consensus among the experts that Ms. Tourand is capable of some employment, provided it does not involve heavy physical tasks and provided she is not required to either sit or stand in one position for a prolonged period of time.

[124]     I am also of the view that it is probable that the plaintiff’s physical capacity and general well-being will improve if she becomes more active, including: engaging in a program involving further physiotherapy under the direction of a kinesiologist or physiotherapist, swimming and psychotherapy to deal with the emotional affects of her symptoms. In my view, based upon a consideration of all of the evidence, it is still open to the plaintiff to accept that advice and follow that treatment path; and that, if she does so, she can expect to achieve some further reduction in her symptomology and improvement in her functioning and enjoyment of life…

[128]     Considering the nature of the chronic pain caused by the motor vehicle Accident; the poor prognosis for anything like a full recovery; the relatively young age of the plaintiff; and the effects that the symptoms have had and will likely continue to have on the quality of her life in the future, I assess non-pecuniary damages at $100,000.

Slow Moving Prosecution Plays Role in Fast Track Removal Application

Written by admin on . Posted in BCSC Civil Rule 15.

Reasons for judgement were released today finding that a slow moving prosecution, in part, was a factor in removing a claim from Rule 15.

In today’s case (Bagri v. Bagri) the Plaintiff alleged injury as a result of two collisions, the first in 2007 and the second in 2009.   The matters were prosecuted subject to the fast track Rule (Rule 15) and the Defendants brought an application to remove the claims from this rule.
In finding that the claims were not suited for fast track prosecution, both based on the claims potential value and the likely length of trial, the Court also commented on the speed of prosecution.  In removing the cases from the fast track rule Master Scarth provided the following reasons:

[28]         There are other factors which support a finding that these actions are not fast track actions. Given that the earlier accident is from almost 8 years ago, the fast track procedures have not assisted the parties in resolving the disputes quickly or efficiently. In contrast, applying fast track procedures restricts the defendants’ right to proceed as a jury trial and caps their potential costs. While it has not been made out that the plaintiff has invoked Rule 15-1 specifically to defeat the defendants’ jury notice, it is fair to conclude that, in the circumstances, using fast track procedures would negatively impact the defendants more than it would positively assist the plaintiff or advance the purposes of Rule 15-1.

[29]         In my view, taking all these factors into account, it is fair to conclude that Rule 15-1 does not apply to these proceedings. Accordingly the application by the defendants to remove the actions from fast track is allowed.

No Negligence Found in Case of Failed Emergency Brake

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

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.
In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.
He sued the vehicle owner alleging negligence.  The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[18]        The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.

[19]        In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.

[20]        Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.

[21]        An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.

[22]        In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:

[175]    ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.

[23]        There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.

[24]        There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.

[25]        In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.

[26]        The action must be dismissed with costs.

Court Has "Inherent Jurisdiction" To Order Party To Produce Medical Report Addressing Their "Capability"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Court of Appeal confirming it is within the BC Supreme Court’s inherent jurisdiction for a judge to order a party to produce a medical report addressing whether that party is “capable or incapable of managing” their litigation.
Today’s case (Walker v. Manufacturers Life Insurance Company) the Plaintiff sued the Defendant alleging breach of contract.  The lawsuit had a complicated procedural history and in the course of an application a Chambers judge ordered that the lawsuit could not continue until the Plaintiff’s “doctor or psychiatrist write a report to the court and advise whether the Plaintiff is capable or incapable of managing this litigation”.
The Plaintiff appealed this order but the BC Court of Appeal upheld it finding it was in the inherent jurisdiction of the Judge to make such an order.  In reaching this conclusion the BC Court of Appeal provided the following reasons:

[34]        This, then, was the dilemma facing Weatherill J. when Ms. Walker argued that R. 20-2(14) applied to her as a “person under disability”. As I have said, he found that there was a real question as to whether she comes within this phrase. In my opinion, there is no doubt that this question had arisen and that it had to be answered before he could possibly accede to the contention made by Ms. Walker herself that a “step in default” could not have been taken against her. As Ms. Murray argued in her factum, it was entirely within the Court’s discretion to request the assistance of a current medical report addressing Ms. Walker’s capacity before the matter could proceed further. This step is required for the Court to protect its own process and thus comes within its inherent jurisdiction. Ms. Walker’s designation under the Act may be relevant, but is not determinative of the issue under Rule 20-2.

[35]        If it turns out that Ms. Walker is a “person under legal disability” within the meaning of the Rule, then a litigation guardian will have to be appointed under R. 20-2. The Rule is a “complete code” in the sense that it does not permit persons under legal disability to bring or defend proceedings in Supreme Court except through a litigation guardian.

[36]        It follows that I see no error in the chambers judge’s making the order he did.

$60,000 Non-Pecuniary Assessment For Chronic Back Injury

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering injuries caused by two vehicle collisions.
In the recent case (Ali v. Rai) the Plaintiff was involved in two collisions in 2011.  He was found faultless for both.  The collisions caused a lingering back injury which remained symptomatic at the tie of trial and the symptoms were expected.  The Court found both collisions caused the injury and it was indivisible.  In assessing non-pecuniary damages at $60,000 Madam Justice Duncan provided the following reasons:

[134]     On the whole of the evidence, I find the plaintiff suffered back and neck injuries as a result of the two accidents at issue before me along with headaches and sleep issues. I cannot find the injuries divisible as between the two accidents. The plaintiff was not fully recovered from his injuries after the First Accident when the Second Accident occurred. This is reflected in Dr. O’Connor’s opinion that the First Accident aggravated the plaintiff’s underlying condition, he was improving by the time of the Second Accident, and that accident did not cause additional injuries, simply a re-aggravation.

[135]     I find the plaintiff’s neck pain had substantially cleared up by the summer of 2011. The aggravation in 2012 which caused the pain to manifest in the right side instead of the left is unexplained and I cannot find it was as a result of the accidents. The plaintiff continues to suffer from back pain to this day. I find it limits his work and recreational activities. I will have more to say about it under the individual heads of damages…

[137]     The plaintiff is now 50 years of age. He has a chronic back injury and suffered from a neck injury for some months after the accidents in addition to headaches and disturbed sleep. The back injury continues to affects his social life. He does not do as much volunteer work as he once did. He has to sit in a chair to pray rather than join his contemporaries and use prayer mats. He cannot sit through a movie or drive long distances. He cannot referee soccer at the high level he once did and he no longer plays recreational soccer due to the impact of the accidents. His back injury has affected his mood and his wife feels it has affected their social and intimate life. The plaintiff does not contribute to work within the home as he once did, nor does he feel able to perform yard work or work that arises from the tenanted basement. Overall, the plaintiff’s back injury has permanently altered all aspects of his life…

[140]     As noted above, while I found the plaintiff’s neck condition had improved by the summer of 2011 and there was no evidence as to why it was aggravated in 2012 and transferred to the opposite side, his back injury continues to affect him. He was a formerly active, engaged and giving member of the community whose quality of life and self worth has been affected by his injury. Balancing all of the factors, I find a fair and reasonable award for non-pecuniary damages is $60,000.

BC Court of Appeal – Vicarious Liability Under the Privacy Act is an Open Question

Written by admin on . Posted in ICBC Privacy Issues.

Today the BC Court of Appeal released reasons for judgement finding it is an open ended question whether BC’s Privacy Act allows an employer to be vicariously liable when an employee willfully violates the privacy of another.
In today’s case, (Ari v. ICBC) a proposed class action, the Plaintiff sued ICBC alleging various improprieties arising from an employee improperly accessing “the personal information of about 65 ICBC customers“.
A chambers judge dismissed all of the claims except one under BC’s Privacy Act which makes it a tort  “for a person, wilfully and without a claim of right, to violate the privacy of another.“.
ICBC argued this section does not permit them to be sued for an employees wrongdoing.  The BC Court of Appeal disagreed and found it is an open ended question of whether vicarious liability can be attached to this statutory tort and that the issue needs to be addressed through the trial process.  In allowing this claim to survive the pleadings motion the BC Court of Appeal provided the following reasons:

[25]        It is not clear that s. 1 of the Privacy Act should be interpreted as limited in the same fashion as the relevant provisions in Nelson. Section 1(1) states that “[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”. There is no language (as there was in Nelson) that clearly limits a plaintiff to recovery of damages from the person identified in s. 1(1). While, as the chambers judge observed, vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of (see: Lewis Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at 682). To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not per se incompatible with vicarious liability.

[26]        Although Nelson may provide, by analogy, a basis for denying the availability of vicarious liability, I cannot conclude that the chambers judge erred in finding the appellant’s claim is on this basis, not bound to fail.

[27]        Alternatively, ICBC says that there is a policy argument which supports its position that there is no cause of action in vicarious liability. For policy reasons ICBC says, employers should not be held vicariously liable for wilful breaches of privacy under the Privacy Act.

[28]        ICBC also contends that the question before the chambers judge was whether vicarious liability should be imposed due to policy considerations. It says that the appropriate question to ask is: should liability lie against a public body for the wrongful conduct of its employee, in these circumstances? The question necessarily demands some exploration of the evidence about the connection between ICBC’s security procedures and the security lapse that occurred, as well as a weighing of the policy considerations involved. It is reasonable to conclude that a factual matrix is necessary in order to fairly address whether ICBC’s conduct materially enhanced the possibility of committing the breach of privacy, and to determine the connection between the impugned conduct and ICBC’s conduct. In other words, to clearly determine how public policy considerations affect the viability of the vicarious liability claim, some evidence is required.

[29]        ICBC submits in the further alternative that ss. 73 and 79 of the Freedom of Information and Protection of Privacy Act bar recovery for vicarious liability. Section 79 provides that the Act prevails where it conflicts with the provisions of other legislation. Section 73(a) prohibits proceedings against a public body for damages resulting from good faith disclosure or non-disclosure of all or part of a record under the Act.

[30]        As the disclosure alleged was not a good faith disclosure, s. 73 has no application to the circumstances of this case.

[31]        I am of the view that the question of vicarious liability on the facts of this case cannot be resolved on a pleadings motion. It is not plain and obvious the claim would fail. The chambers judge considered that the appellant ought to have the opportunity to develop and argue this aspect of his claim. I see no error in her conclusion.

[32]        For these reasons I would dismiss ICBC’s cross-appeal.

$60,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injury With Associated Headaches

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $60,000 for chronic soft tissue injuries with associated headaches.
In today’s case (Hinder v. Yellow Cab Company Ltd) the Plaintiff was involved in an intersection collision.  The Defendant denied liability but was found fully at fault at trail.  The Plaintiff suffered a variety of soft tissue injuries, some of which resolved.  She continued to have neck symptoms with associated headaches at the time of trial (some five years later) which were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Arnold-Bailey provided the following reasons:

[140]     The Plaintiff is a young woman, age 29 at the time of the accident. While her soft tissue injuries did not appear to be severe and some resolved, she has been left with neck pain and headaches that regularly progress to become very painful and disabling, forcing her to stop whatever she is doing. The medical evidence is that even with significant medical intervention, the neck pain and cervicogenic headaches are likely to continue into the foreseeable future. Debilitating headaches occur about every two weeks. The Plaintiff is not a complainer. She is stoic, a hard worker and she carries on despite the pain. Her home life and recreational activities have been impaired to a significantly lesser degree than likely would have been the case for a less strong and stalwart person. That does not mean, however, that she does not suffer while incapacitated by the neck pain and headaches; and she clearly misses pursuing her sports activities, particularly downhill mountain-biking, with her pre-accident intensity. She has maintained her family and social relationships because of her positive attitude and how well she generally manages her chores and commitments at home and at work in the face of her neck pain and headaches…

[149]     For these reasons, I find that an award of $60,000 in non-pecuniary damages is appropriate in the present case.

$20,000 Non-Pecuniary Assessment for 17 Month Long Soft Tissue Injury

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

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing $20,000 in non-pecuniary damages for recovered soft tissue injuries.
In today’s case (Scott v. Hoey) the Plaintiff was involved in a 2006 collision caused by the Defendant.  The Plaintiff was 13 years old at the time of the collision and alleged she sustained injuries which permanently impacted her and sought significant damages.  The Court rejected much of the Plaintiff’s claim noting credibility concerns.  The Court did accept that the collision cause soft tissue injuries which fully resolved in 17 months.  In assessing non-pecuniary damages of $20,000 Mr. Justice Bowden provided the following reasons:

[169]     In my view the facts and reasoning of Barrow J. in Jensen v. Felker, 2008 BCSC 541, suggest that the amount of non-pecuniary damages awarded in that case approximate those that should be awarded in the case before me. After reviewing a number of authorities where short term injuries produced symptoms in the plaintiffs for 12 to 14 months, Barrow J. awarded non-pecuniary damages of $18,000.

[170]     While the evidence supports a finding that the plaintiff’s injuries resolved within a period of about six months following the accident I am prepared to assess non-pecuniary damages on the basis that some of her symptoms may have continued until November 2007, which is a period of about seventeen months after the accident.

[171]     I award the plaintiff $20,000 in non-pecuniary damages.