Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial. In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision. Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.”
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions. In the course of the lawsuit a total of 32 expert reports were obtained by the litigants. The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“. Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows: [27] Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.
Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
In last week’s case (Nemoto v. Phagura) the Plaintiff, who recently moved to Canada from Japan, was injured in a 2008 collision. She was 13 at the time. Fault was admitted by the offending motorist. She suffered soft tissue injuries to her neck and lower back. She also experienced anxiety while riding in a vehicle subsequent to the collision. In assessing non-pecuniary damages at $25,000 Mr. Justice Smith provided the following reasons: [16] On the evidence before me, I find that the plaintiff suffered significant pain and limitations from the date of the accident until approximately the end of 2008, with intermittent, lingering difficulties for at least another year, but had achieved full physical recovery no later than two years after the accident. The physical difficulties in the immediate post-accident period were likely more difficult for the plaintiff to deal with than might otherwise have been the case because she was, at the same time, adjusting to a new school and life in a new country. [17] I also find that the plaintiff experienced severe anxiety while riding in cars for approximately two years and that anxiety still affects her efforts to learn to drive. For purposes of assessing damages, it does not matter that this anxiety may, to some extent, be influenced by the fact that her mother has similar fears and anxiety flowing from the same accident. In any event, there is no reason to believe this will be a long-term problem. [18] The plaintiff is in Canada on a student visa, which does not permit her to work, so there is no claim for income loss. I find there is no need for any future care arising from the accident… [22] In all the circumstances, I assess the infant plaintiff Rui Nemoto’s non-pecuniary damages at $25,000…
In my continued efforts to track judicial comments addressing expert witness advocacy, reasons for judgement were released last week by the BC Supreme Court, Cranbrook Registry, dismissing an application for a defence medical exam where the proposed examiner wrote a previous report that, in the Court’s view, “border(ed) on advocacy“.
In last week’s case (Moll v. Parmar) the Defendant sought to have the Plaintiff examined by a neuropsychologist. Prior to the proposed exam the doctor wrote a “very vigorous critique” relating to the Plaintiff’s expert’s conclusions. The Court held that, in such circumstances, it is “not appropriate for the court to order a medical examination…by an expert who has previously taken such a strong stance“.
In dismissing this application Mr. Justice Meiklem provided the following reasons: [13] Turning first to the Master’s errors alleged by the appellant, I initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig and Williams had been recruited as advocates for the defence by virtue of the nature of the defence requests to them and the nature and content of their reports, that they should be viewed as lacking the necessary objectivity to warrant being appointed by the court to conduct IMEs of the plaintiff. After considering the retainer letters and the reports of Drs. Williams and Craig, I see considerable merit in the appellant’s argument with respect to Dr. Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s report are somewhat different. [14] The appellant’s concern was not only the advocacy bias apprehended by the plaintiff, but also the bias concerning the plaintiff’s condition that was already demonstrated by the roles these experts were retained for and the reports they had already delivered. He considered it highly improbable and purely theoretical that either of these specialists would be able to change any previously expressed views after their examinations of the plaintiff. [15] Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams. [16] Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace. [17] Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.
It is a well worn principle that you take your victim as you find them when assessing damages for personal injuries in BC. It is equally true that a defendant is not responsible for compensating an injured party beyond the injuries that they have caused. Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with these principles in the face of chronic pre-existing psychological injuries.
In this week’s case (Carson v. Henyecz) the Plaintiff was injured after being struck by a vehicle being driven by her mother. The Plaintiff sustained injuries that “essentially recovered…within a year of the accident”. The Plaintiff, however, had a pre-existing “borderline personality disorder” and this caused for a prolonged recovery and with other complicating factors. The Court grappled with this pre-existing injury, its effect on recovery and further on the fact that the Plaintiff’s symptoms at the point of trial would be largely similar even absent the collision. In assessing non-pecuniary damages at $90,000 Mr. Justice Powers provided the following reasons: [111] I find that Ms. Carson had essentially recovered from her physical injuries within a year of the accident. I accept that she continued to have some pain for at least another year and still occasionally suffers pain from the injury. However, from a physical point of view she has made an excellent recovery. I am not satisfied that the shoulder complaints relate to the accident or were caused by the accident. In November of 2008, when she began to notice shoulder pain, the doctor’s evidence indicates that she had a full range of motion and was quite strong. [112] I do find that her pre-existing psychological or borderline personality disorder was a factor in the impact this accident had on her. These injuries and the circumstances of the accident had a greater impact on Ms. Carson than they would on somebody without her pre-existing psychological problems. [113] I also find that the necessity for narcotic medication to deal with the pain immediately after the accident and for at least a short time after also complicated and delayed Ms. Carson’s efforts to free herself from her prior addiction and abuse of pain medication. I find that the psychological impact of this accident also complicated her efforts to free herself from the pain medication and made it more difficult for her to do so. [114] However, the accident is not the cause of Ms. Carson’s ongoing problems. I am satisfied her ongoing problems, both psychological and physical, are as a result of her prior psychological problems. Given her complicated psychological history, I find that the accident has become the focus of and not the cause of her complaints. It is difficult to be precise about when the accident was no longer a significant contributing cause to her complaints. However, I am satisfied that within two to three years of the accident, and certainly by the time of the trial, the accident was no longer a significant contributing cause. Similar to the case of Wilson and the cases cited in that decision that I have referred to in paras. 105 and 106 of my reasons, Ms. Carson’s pre-existing condition was so dominant in her life and, based on the evidence I have heard, would have continued to dominate her life whether this accident occurred or not. Essentially she appears to be back to her pre-accident condition and it cannot be said that the accident is the cause of her present condition. [115] In considering all of the above, I find that the appropriate damage award for non-pecuniary damages is $90,000.00.
In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision. Prior to trial ICBC made three formal settlement offers, the final being $222,346. The Plaintiff rejected this offer and proceeded to trial. A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000. ICBC applied for post offer costs. Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements. Given that the trial lasted 10 days this is a significant financial consequence. In finding this appropriate Mr. Justice Voith provided the following reasons: [41] There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a common injury sustained in a motor vehicle collision; the onset of symptoms in pre-existing but otherwise asymptomatic spinal degeneration.
In this week’s case (Johnson v. Kitchener) the Plaintiff was involved in two collisions, the first in 2007 where he was rear-ended by a tractor trailer, the second in 2008 which aggravated in the injuries from the first crash. Prior to the first collision the Plaintiff had “significant degeneration” in his neck and less severe degeneration in the rest of his spine. Despite this condition the Plaintiff was asymptomatic. The collisions caused this condition to become painful. The court found that while the neck symptoms likely would have developed at some point in time absent the collision, the back would have remained asymptomatic absent trauma. In assessing non-pecuniary damages at $90,000 (prior to making a modest deduction for the likelihood of neck symptoms in any event) Madam Justice Gerow provided the following reasons: [58] In my view, the evidence establishes the probable cause of Mr. Johnson’s ongoing neck, upper back and lower back pain is that the injuries he sustained in the 2007 accident, and the 2008 accident to a lesser extent, exacerbated his pre-existing asymptomatic degenerative disc disease. While there was risk to the degenerative disc disease in his neck becoming symptomatic, the medical evidence was that the lower back would likely not have become symptomatic absent some trauma. [59] Dr. Travlos’ evidence was that he did not know exactly when the neck would become symptomatic and could not give an opinion regarding the severity of any symptoms. It is clear from the expert evidence that the 2007 accident caused a serious injury to the neck which has caused pain and suffering sooner, more frequently and to a notably greater degree. [60] It is apparent from the evidence that Mr. Johnson has returned to his sporting activities and he has a strong work ethic. He is not a man to sit around and he continues to be active despite the pain it causes him. Mr. Johnson’s evidence is that he will continue to work at Ocean Concrete until he finds something more suitable despite the increase in symptoms he has from the physical aspects of the job. As well, he will continue to engage in whatever sports he can, knowing he will pay for it. [61] Mr. Johnson’s evidence is consistent with the medical opinions. For example, Dr. Froh’s opinion is that Mr. Johnson will not harm himself with high demand activities; however, it will likely result in increased pain and symptoms. [62] In my opinion, Mr. Johnson’s neck symptoms fall within the crumbling skull rule enunciated in Athey, and any award must reflect that. However, I am of the view, the defendants are liable for his lower back symptoms even though they may be more than severe than expected due to his pre-existing condition. The evidence of the experts is that many individuals have degeneration in their spines without any symptoms and that the degeneration in Mr. Johnson’s lower back was similar to other individuals of his age. There is no evidence that his lower back would have become symptomatic absent the 2007 accident. Accordingly I have concluded that his lower back symptoms fall within the thin skull rule enunciated in Athey. .. [68] Having considered the extent of the injuries, the fact that the symptoms are ongoing five years after the accident with little improvement, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $90,000 if the accidents were the only cause of Mr. Johnson’s ongoing symptoms. However, given the evidence that Mr. Johnson was likely to have suffered some neck symptoms from his degenerative condition within 3 to 10 years, that award should be reduced by 10% to $81,000.
Just as loss of wages are compensable in personal injury claims, if an injury delays a person’s entry into the workforce the law in BC recognizes that the financial repercussions that flow from this are recoverable. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this principle.
In last week’s case (Rezaei v. Piedale) the Plaintiff was injured in a 2009 collision. Fault was admitted. Due to the Plaintiff’s injuries she scaled back from intended full time courses to a part time course load at University. As a result her graduation, and expected entry into the workforce was delayed by two years. The Court addressed this by awarding damages equivalent to two years income. In doing so Mr. Justice Voith provided the following comments regarding delayed graduation claims: [87] The plaintiff’s former high school principal, Mr. Li, testified that he recalled Ms. Rezaei and that she was a good student who was engaged in her high school. She was a likely scholarship candidate. He said that there was no reason she would not have been able to take a full course load at university and that most students with her academic background did. In her first and second terms of Grade 12, she had an 85% and 83.75% overall average, respectively. In her third term, after the Accident, her average was 53.25%. She ultimately graduated with a 78.1% average for her Grade 12 year. Both the plaintiff and Ms. Toghiani-Risi said that the plaintiff had expected to take a full course load when she went to university. I accept the foregoing evidence and consider that this was an entirely realistic expectation on the part of the plaintiff. [88] In the ensuing years at Simon Fraser University, the plaintiff has generally taken a part-time course load. She has often taken additional courses at the outset of an academic term only to later drop them. She has had to repeat certain courses to improve her grades. The details of what has happened from term to term are of no moment. The fact is that, at this point, her graduation has been delayed by at least one year and seven months, from May 2013 to December 2014. She requires 120 credits to graduate; she currently has 67 credits. [89] The plaintiff’s anticipated graduation date is premised on her taking and carrying a full-time course load henceforth, something she has not yet done. It is further premised on her studying in the summers, or at least part of them, and on being able to take the courses that she requires in the summer. If she is unable to graduate by April 2015, her plans to go to graduate school and obtain a Master’s Degree would be further delayed. [90] Ms. Rezaei presently plans to work in public health or health administration. The expert report of Mr. Peever, an economist, establishes that $35,000 per annum represents an average salary for the jobs that the plaintiff might be suited for when she graduates. No objection was taken to that figure. [91] The defendants sought to argue that the plaintiff could have made up some time by taking more courses in the summer. The plaintiff did say that she has, at times, chosen to work during the summer rather than study. She also said that she felt she needed a break. Dr. Frank has opined that “her persistence in schooling even though she was significantly disabled has been impressive”. Dr. Robinson stated that “[h]er accident related symptoms have been an impediment in pursuing her postsecondary education.” [92] Counsel for the defendants, in his submissions, said that he did not question the plaintiff’s efforts to reasonably mitigate her losses. Yet, the foregoing submission directly engages the issue of mitigation. The onus of establishing that a plaintiff has not acted reasonably to mitigate his or her losses falls on the defendant. In this case, the defendants have not satisfied that onus. I would also observe that this issue is somewhat artificial. Had the plaintiff gone to school during the summers, her summer wage loss claim would have increased. The amount that she originally anticipated earning while working at her mother’s daycare approximates the amount that she hopes to earn on graduation. [93] The plaintiff’s present claim, in conceptual terms, is supported by each of Pelkinen v. Unrau, 2008 BCSC 375 at para. 98; and Williams v. Nekrasoff, 2008 BCSC 1520 at para. 36. [94] The plaintiff’s graduation has already been delayed. I find this delay was caused by the Accident. I also consider that there is a real and substantial possibility that her graduation may be further delayed. I consider that a total delay of two years is likely for the plaintiff’s graduation. Accordingly, I award the sum of $70,000 for this head of loss.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury caused as a result of a motor vehicle collision.
In the recent case (Peso v. Holloway) the 26 year old Plaintiff was involved in a 2007 collision where the Defendant backed into his vehicle. The Plaintiff suffered from pre-existing “mild, non-disabling” low back pain. Following the collision the plaintiff experienced significant low back pain ultimately requiring surgical intervention by way of a discectomy. The Plaintiff remained symptomatic and the Plaintiff faced ‘significant risk of additional surgery‘. The Court found the aggravation of the pre-existing condition was caused by the collision. In assessing non-pecuniary damages at $100,000 Mr. Justice Wong provided the following reasons: [70] Regardless of Mr. Peso’s pre-existing condition, he was able to enjoy his life before the collision. He was able to perform ordinary household tasks, cook, and socialize with his friends and family. He had a long history of competing in competitive and recreational sports and was very active on the weekend trip to Osoyoos immediately before the collision. In addition to working at a physical job, he participated in renovation and building projects for his brother, putting in an estimated average of 12 hours a week. [71] According to Dr. Street, in the absence of the collision Mr. Peso would have likely continued to experience mild, non-disabling symptoms in his low back. As a result of the collision, Mr. Peso required surgery and faces a significant risk of additional surgery at some point in the future. He is limited in his capacity to perform some aspects of his work. His left leg is weaker than the right and his capacity to lift is diminished. Mr. Peso, a gifted athlete before the collision, is unlikely to return to anything close to his pre-collision level of activity. [72] Non-pecuniary damages ought to be assessed in the context of a young man who has sustained a permanent, life changing injury. It was clear from Mr. Peso’s testimony that he has not let his injuries stop him. He has persevered with school and actively hid his symptoms from his employer. He has tried all of his former activities but he has only been able to tolerate some successfully. It is clear that despite Mr. Peso’s determination he has real fears about his future. He worries about recurrence of pain and he worries he will be expected to perform tasks that he cannot do. [73] Mr. Peso suffered chronic pain disability and loss of recreational amenities for over a year until his December 2008 surgery. His scope of future recreational enjoyment will continue to be curtailed. [74] I fix pain and suffering with loss of amenities, past and future, at $100,000.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which occurred as a result of a so-called ‘low velocity‘ impact.
In this week’s case (Ram v. Rai) the Plaintiff was involved in a 2008 rear-end collision. The crash resulted in little vehicle damage. The Defendant testified that the impact involved ‘very little force‘ although the Court rejected this finding that the Defendant’s version of events was “ internally inconsistent and generally unconvincing.“. The court went on to find that the Plaintiff suffered a year long soft tissue injury. In assessing non-pecuniary damages at $16,000 Mr. Justice Holmes provided the following reasons: [47] As I find, at the time of the accident Ms. Ram was an active and healthy young woman of 21 years of age, who was busily engaged not only in full-time post-secondary studies but also in two part-time jobs. She had an active social life with friends that involved playing several different sports as opportunities presented. She enjoyed gym workouts and doing workout exercise tapes at home. [48] As I find, the accident left Ms. Ram with throbbing pain in her back, neck, and head that became intermittent over time, with occasional numbness in her legs. The pain in the various areas gradually resolved within a year, the back pain last of all. [49] The effects of the injuries caused Ms. Ram to miss work and some school during the few days or a week after the accident. They made her withdraw from social activities over a longer term, so that she seemed to her family to be withdrawn and reclusive, no longer her bubbly self. These effects resolved as her injuries resolved, within about a year… [55] On all the evidence, I conclude that the appropriate award for non-pecuniary damages in this case is $16,000.
Tinnitus, a subjective perception of non-existant sound, is a consequence sometimes seen following a motor vehicle collision. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such a condition.
In this week’s case (Yang v. Chan) the plaintiff was struck as a pedestrian in a marked crosswalk in 2007. Fault was admitted for the crash. The Plaintiff sufferd various soft tissue injuries but these largely settled down in the months following the crash. What persisted was moderately severe tinnitus, a symptom that was expected to linger indefinatley. The Court accepted this and assessed non-pecuniary damages at $60,000. In arriving at this assessment Madam Justice Wedge provided the following reasons: [62] I accept the evidence of Dr. Longridge that Mr. Yang’s tinnitus was caused by the accident. According to Dr. Longridge, given the proximity of the onset of the condition to the accident, it is most unlikely that there is any other cause. Further, the tinnitus is moderately severe which, Dr. Longridge testified, is capable of significantly diminishing one’s enjoyment of life. It is a condition Mr. Yang will likely have to live with for the rest of his life. [63] Taking into account the pain and disruption suffered by Mr. Yang due to his soft tissue injuries in the first six months after the accident, together with the ongoing tinnitus condition which is unlikely to resolve and will continue to interfere with his enjoyment of life, I have concluded that an appropriate award of damages for non-pecuniary loss is $60,000.
