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BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Written by admin on . Posted in BCSC Civil Rule 5, BCSC Civil Rule 7, Uncategorized. 148 Comments on BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Earlier this year I highlighted two  judgements (here and here) discussing that the New Rules of Court don’t allow the Court to override solicitor’s privilege.  Further reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Nowe v. Bowerman) the Plaintiff was injured in a 2008 motor vehicle collision and sued for damages.  The Defendant set down a Case Planning Conference asking for an order that “Plaintiff’s counsel advise the defence of the areas of expertise of his proposed experts“.
Madam Justice Dickson dismissed this request finding it would infringe on solicitor’s brief privilege.  In doing so the Court provided the following reasons:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.  In this case, however, I am unable to identify such a compelling reason.  In these circumstances, I decline to make the order sought.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$85,000 Non-Pecuniary Assessment for Bilateral Carpal Tunnel Syndrome and Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Wrist Injury Cases.


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing non-pecuniary damages for a host of injuries including a broken nose, bilateral carpal tunnel syndrome requiring surgery and chronic soft tissue injuries.
In this week’s case (Mayervich v. Sadeghipour) the 72 year old Plaintiff was injured in a 2007 crash.  Liability was admitted by the Defendant.   The Plaintiff suffered chronic injuries in the crash with symptoms persisting to trial.  While there was some room for further improvement some symptoms were expected to last indefinitely   In assessing non-pecuniary damages at $85,000 Mr. Justice Grauer provided the following reasons:
[57]         In my mind, the significant features of this case are these: 
·                 As a result of the accident, Mrs. Mayervich suffered a constellation of injuries, the most significant of which has been myofascial injury in the neck and back resulting in a chronic pain condition accompanied by a major depressive order and cognitive difficulties. 
·                 Included the constellation were a deviated septum (broken nose), and injuries to the arms and hands that culminated in bilateral carpal tunnel syndrome.  Both of these conditions required surgical intervention and both have resolved.  There was additional discomfort from injuries to the abdomen and chest. 
·                 These injuries have had a significant impact on Mrs. Mayervich’s quality of life.  The myofascial injuries in particular continue to interfere with her activities of daily living and recreation and have impaired her ability to interact with her husband, her daughters, and her grandchildren. 
·                 Mrs. Mayervich has already experienced nearly 5½ years of physical pain, depression, emotional upheaval and cognitive difficulty as a result of the accident. 
·                 It is likely Mrs. Mayervich will experience real improvement if she undertakes a program such as that recommended by Dr. Posthuma; full recovery however is unlikely, and a real possibility remains that she will experience no significant recovery. 
[58]         In my view, these features bring Mrs. Mayervich’s situation closer to the cases cited by counsel by the plaintiff than those cited by counsel for the defendants.  The award of $125,000 approved by the Court of Appeal in the Rizzolo case was to a considerably younger man who had suffered debilitating chronic pain affecting all aspects of his life but who had been able to return to his pre-accident employment.  In Hsu, on the other hand, the most recent of the three cases relied on by the defence where the award was $30,000, the plaintiff suffered from chronic neck and back myofascial disorder but this was an aggravation of pre-existing soft tissue conditions from a previous accident that had already given rise to chronic pain. 
[59]         Each case must of course be decided upon its own facts.  Considering all of the facts discussed above, I assess Mrs. Mayervich’s non-pecuniary damages at $85,000.

Double Costs Awarded Following Liability Trial With Formal Settlement Offer In Place

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, ICBC Liability (fault) Cases.


One issue that was unclear under the new BC Supreme Court Rules was weather a formal settlement offer could trigger costs consequences following a liability only trial with quantum of damages still outstanding.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, answering in no uncertain terms that this was possible.
In this week’s case (Pike v. Dandiwal) the Plaintiff was injured in a 2007 collision.  Liability was disputed.  A liability only trial was heard and ultimately the Defendant was found wholly at fault for the crash.  Prior to trial the Plaintiff issued a formal settlement offer addressing the liability issue.  The Defendant provided a global settlement offer with a specific quantum.  Having succeeded on the issue of liability the Plaintiff sought double costs.
The Defendant argued that “costs should not be determined until after the assessment of damages because if Mr. Pike does not beat the dollar amount of the defendants’ offer, he should be denied his costs not only in respect of that (second) trial but this trial in which he was successful.“.  In rejecting this submission the Court noted that “no caselaw has been provided in support of this submission“.  In awarding double costs Mr. Justice Walker provided the following reasons:
[38]         In my view, double costs should be awarded to Mr. Pike. I find it most troubling that defence counsel has not brought me any case law to support his submissions. We are now at 5:05 p.m. I am going to impose a stay on the operation of my judgment for costs for 48 hours to allow the defendants the opportunity to find case law that supports their position, because the last thing I wish to do is commit an error in law.
[39]         If the defendants find that case law and wish to seek to have me reconsider my decision, I will hear it, so long as I receive advice of that by next Wednesday at noon through Trial Scheduling. Otherwise, the order will stand that the defendants pay double costs to Mr. Pike.
The Court then confirmed this result in supplementary reasons once no case-law was produced with the following reasons:
[1]             In my oral Reasons for Judgment dated October 5, 2012, I awarded double costs to the plaintiff.  I allowed counsel for the defendants 48 hours to provide me with case law supportive of their costs submissions.  On October 11, 2012 counsel for the defendants advised me through Trial Scheduling that no case law was located.  Accordingly, the plaintiff is entitled to an award of double costs.

$80,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases.


Adding this this site’s archived cases addressing non-pecuniary damages for thoracic outlet syndrome, reasons for judgement were released last month addressing such an injury.
In last month’s case (Rollheiser v. Rollheiser) the Plaintiff was injured in a 2008 collision.  She suffered from long-standing Thoracic Outlet Syndrome.  The crash caused an aggravation of this condition with the Court accepting the following medical evidence:
[24]         Dr. Flaschner, a specialist in physical medicine and rehabilitation, also provided a report, dated February 2, 2012. Dr. Flaschner initially saw Ms. Rollheiser on December 2, 2009. His diagnosis included exacerbation of pre-existing TOS and musculoligamentous injuries to the cervical and thoracic spine. He states:
Ms. Rollheiser has subsequently been seen on numerous occasions for symptomatic management. She has undergone various trials of medications, local anesthetic trigger point injections botulinum toxin injections and has also been receiving regular IMS therapy from her physical therapist. Her pain has evolved as well and the current diagnoses secondary to the motor vehicle collision would include:
1.   Thoracic outlet syndrome, exacerbation of pre-existing injury.
2.   Cervical WAD II injury with chronic regional myofascial pain syndrome.
3.   Thoracic musculoligamentous injury with chronic regional myofascial pain syndrome.
[25]         Dr. Flaschner considers that Ms. Rollheiser’s symptoms will continue indefinitely.
[26]         Dr. Flaschner’s report continues:
Further symptomatic management options for the chronic regional myofascial pain syndrome would include regular physical activity from a cardiovascular perspective as well as stretching and strengthening of the painful musculature, ensuring adequate restorative sleep, various manual therapies, medications as well as needle based therapies including acupuncture, IMS, local anesthetic  trigger point injections, botulinum toxin injections or potentially fluoroscopically guided facet based procedures. It should be noted that the treatments will be expected to provide some temporary relief and would not be expected to be curative.
In assessing non-pecuniary damages at $80,000 Madam Justice Gropper provided the following reasons:
[35]         In sum, Ms. Rollheiser’s injuries have reduced her enjoyment of life. There has been impairment of family, marital and social relationships as well as physical abilities.
[36]         As noted, the case authorities provide guidance only; no two cases are exactly alike.
[37]         I agree with the defendant that not all of Ms. Rollheiser’s symptoms are attributable to the accident. It appears that some of the plaintiff’s limitations are due to the rotator cuff as opposed to injuries from the accident.
[38]         Of the authorities provided, I find Kaleta v. MacDougall, 2011 BCSC 1259 (Kaleta) to be most instructive. Justice Truscott awarded a 28 year-old male plaintiff non-pecuniary damages of $80,000 for soft tissue injuries to the knee, back, arm, shoulder and neck. Like Ms. Rollheiser, Mr. Kaleta only missed a brief period from work, although he found it to be more difficult to resume work upon his return. Again, like Ms. Rollheiser, his moderate ongoing pain was probably chronic.
[39]         Accordingly, I assess Ms. Rollheiser’s non-pecuniary damages at $80,000.

"Fat Bottomed Girls": When Free Speech and Alleged Witness 'Victimization' Collide in the BC Supreme Court

Written by admin on . Posted in Uncategorized. 50 Comments on "Fat Bottomed Girls": When Free Speech and Alleged Witness 'Victimization' Collide in the BC Supreme Court

This is a little off topic but thought this may be of interest for my readers.
Trials are a matter of public record and Canada’s open-court principle can sometimes create legitimate privacy concerns for litigants.  The BC Supreme Court published reasons for judgement today addressing such a concern.
In today’s case (Mainstream Canada v. Staniford) a blog entry was posted during a trial referring to two witnesses who testified that “It is not clear if they both cycled to the courtroom – but there were echoes of Queen’s classic 1978 hit “Fat-Bottomed Girls” playing as they both took the stand.”
The Plaintiff’s lawyer brought an application for a direction that the Defendant “refrain from making postings referring to witnesses in any derogatory or disparaging fashion that may have the effect of victimizing a witness or witnesses who are testifying, or may have testified, at this trial.”  Madam Justice Adair refused to make such an order but in doing so provided the following reminder to the litigants:
[7]             I am going to quote from Lord Denning’s judgment in the case of Attorney-General v. Butterworth, [1962] 3 All E.R. 326 (C.A.).  This is a decision of the English Court of Appeal.  It is from 1962.  But in my view it is still well worth quoting, and well worth reminding counsel, parties and those present in this courtroom, concerning issues relating to the administration of justice and the appropriate and fair treatment of witnesses who come forward, often under the compulsion of a subpoena, to give evidence and perform their civic duty in a trial.
[8]             Lord Denning says (in the context of ruling on an application that individuals be found in contempt of court), at p. 329:
For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it.  How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he had given?  After he has honestly given his evidence, is he to be liable to be dismissed from his office, or to be sent to Coventry [a reference that perhaps had more resonance in 1962 than it does now, but essentially meaning banished or punished] simply because of that evidence which he has given?  I decline to believe that the law of England permits him to be so treated.  If this sort of thing could be done in a single case with impunity, the news of it would soon get round.  Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.
[9]             Further down at p. 329, Lord Denning says:
I have no hesitation in declaring that the victimization of a witness is a contempt of court whether it be done whilst the proceedings are still pending or after they have finished.
[10]         In my view, it is clear from Lord Denning’s remarks that the court takes the intimidation or the victimization of a witness extremely seriously and is willing to use its contempt powers to punish that conduct.
[11]         Having said that, in the light of the submissions made by Mr. Sutherland concerning the live issues in this case relating to the conduct of Mr. Staniford – his conduct of the case inside and outside the court – I am not going to give the direction sought by Mr. Wotherspoon.  However, my expectation is that the parties and those present in this courtroom will take very seriously Lord Denning’s comments which I have read out and which I adopt.
 

Travelling Expenses "An Integral Part" of ICBC Part 7 Benefits

Written by admin on . Posted in Uncategorized. 63 Comments on Travelling Expenses "An Integral Part" of ICBC Part 7 Benefits


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing benefits which ought to be covered under a plaintiff’s first party insurance (Part7 benefits) with ICBC.
In today’s case (Wepryk v. Juraschka) the Plaintiff was injured in a 2008 collision and sued for damages.  At trial the Plaintiff’s damages were assessed at just over $83,000.  The Defendant then applied to have some of the assessed damages deducted pursuant to section 83 of the Insurance (Vehicle) Act.  In finding that mileage and parking expenses ought to be covered by ICBC’s no-fault benefits scheme (and therefore deductible from the tort damages) the Court provided the following findings:
[10]         I also agree that $22.50 for parking should be deducted as a component of travelling expenses for treatment. Travelling expenses are an integral part of necessary treatment and as such are a benefit subject to deduction:  Petersen v. Bannon, (1991) 1 C.C.L.I. (2d) 232 (B.C.S.C.).
[11]         The plaintiff also claimed car expenses for driving to and from medical appointments at a rate of .50¢ per kilometre, and I awarded the entire amount of $1,368.90 claimed by the plaintiff on the basis of her calculations. The defendants originally submitted that the entire amount of $1,368.90 should be deducted, but now say the deduction should be $684.45. According to ICBC’s Claims Procedure Manual for Accident Benefits, ICBC will only reimburse the use of one’s own vehicle at a rate of .25¢ per kilometre. Therefore, one half of the $1,368.90 awarded at trial, or $684.45, should be deducted for driving expenses.
 

"Belt and Suspenders" Exam Denied in Face of Previous Opinion on Plaintiff's Medical Condition

Written by admin on . Posted in Uncategorized.

As previously discussed, while the BC Supreme Court Rules permit multi-disciplinary defence medical exams in appropriate circumstances.  Once a Defendant obtains an opinion from a properly qualified expert with respect to the Plaintiff’s alleged injury, a further exam will not be ordered to bolster the opinion of the initial expert.  This is sometimes referred to as the “Belt and Suspenders” principle.  Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry, further addressing this issue.
In the recent case (Knowles v. Watters) the Plaintiff alleged she suffered from balance issues including imbalance, dizziness and light-headedness due to a motor vehicle collision.  In support of her case the Plaintiff tendered reports from a neurologist  psychologist, an otolaryngolosit and a general practitioner    The Plaintiff’s otolaryngologist opined that the dizziness issues were “multifactoral” in origin   .
The Plaintiff agreed to see a defence expert who opined that “there was nothing in my evaluation to suggest that she has sustained any injury to her peripheral balance mechanisms, including the inner ear vestibular mechanisms“.  The Defendant then sought  an additional exam with an ENT to further address this issue.  Master McCallum dismissed the application finding the Defendant already had an opinion on the issue and a further expert was not warranted in the circumstances   In dismissing the application the Court provided the following reasons:
[8]             The defendant says that Dr. Moll’s report is restricted to neurological functions, and is not a complete answer or a complete response, if it were looked at in that way, to what Dr. Noel had to say. The defendant says that can only be accomplished by an examination by Dr. Bell.
[9]             In this case the defendant has had the opportunity the authorities require to essentially balance the playing field. Counsel are agreed that the authorities I have been cited are to that effect. The court’s job is to ensure that there is a so-called level playing field or that the parties have the opportunity to deal with the case fairly on the merits.
[10]         The plaintiff here has, as is always the case, the opportunity to visit various specialists and get various reports. The defendant’s opportunity is limited to reports necessary to ensure that a fair trial can be obtained on the merits. In this case it is too fine a distinction to make to say that Dr. Moll, who made a comprehensive examination and gave a comprehensive report on the plaintiff’s balance complaints, can be distinguished from what Dr. Bell might or might not do as an otolaryngologist. There is no evidence to say that Dr. Moll was unable to make the report he did, that if he had had more information he might have made a different report, or indeed that if he had seen Dr. Noel’s report that he might have come to a different conclusion. None of that is the case. The plaintiff has disclosed its reports to date. The defendant has had a fair opportunity to respond to those reports. Dr. Moll’s report is indeed a complete response to Dr. Noel’s report. The plaintiff’s own report from Dr. Noel does not suggest that there is an underlying otolaryngological cause to the plaintiff’s symptoms. He says that the ENG test was normal except for one abnormality that he says is most likely due to other causes. Dr. Noel says the symptoms were multifactorial, not related to one issue. That is at odds with what Dr. Moll has to say, but that is what the jury will have to decide when the case comes to trial.
[11]         This is not a case where the defendant has made out the burden on him to demonstrate that this application is necessary. The application is dismissed. Costs should go as costs in the cause. There is no reason to depart from the usual rule.

Motorist With Right of Way Found 25% at fault for Speeding and Failing to Keep a Proper Lookout

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 57 Comments on Motorist With Right of Way Found 2557 at fault for Speeding and Failing to Keep a Proper Lookout

The below decision was upheld in reasons for judgement released in February 2014 by the BC Court of Appeal
_________________________________
As previously discussed, having the right of way is not always enough to escape fault (or partial fault) for a collision.  If a dominant motorist fails to react reasonably in the face of an obvious hazard liability can follow despite having the right of way.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Currie v. Taylor) the Defendant was travelling down highway 97 near Vernon, BC.  The Plaintiff, approaching from the Defendant’s right, left his stop sign attempting a left hand turn.

The Defendant had the right of way and the Plaintiff’s actions were found to be negligent.  The Defendant, however, was also found at fault for speeding and failing to react reasonably to the obvious hazard that the Plaintiff created.  In assessing the Defendant 25% at fault Mr. Justice Armstrong provided the following reasons:
[48]         The defendant Sharp’s evidence is confusing. He saw the Taxi moving away from the stop line but he did not take any evasive steps during the 10 seconds the Taxi was travelling across Highway 97. He looked into his rear view mirror but he had no time to avoid the accident. He confirmed that his vehicle did not decelerate significantly when he took his foot off the brake before impact; there was no reason that he could not have gone into the right lane before reaching the Intersection…
[128]     The defendant Sharp, travelling 33 km/h over the posted limit, would have reduced the time available to take evasive action or stop and would not have collided with the plaintiff in any event. It seems to me that the defendant Sharp, having seen the plaintiff start before he left the stop line and after, neglected to keep a proper lookout for the emergency that was developing in front of him…
[131]     Neither the defendant Sharp nor Mr. Tuckey had any difficulty in identifying the bright yellow Taxi as it was stopped on Meadowlark Road. The defendant Sharp’s discovery evidence was equivocal as to what he saw before impact. He first testified that he saw the Taxi leaving the stop line and followed it across his path, but then he indicated he had not seen the Taxi after it left the stop line. At that juncture he ought to have been aware the plaintiff might cross over into his lane…
[150]     It is clear that if the defendant Sharp’s speed had been as little as 110 km/h, the plaintiff would have cleared the Intersection without incident. Although speed, in itself, is not necessarily a breach of the standard of care I have concluded that the defendant Sharp’s speed was more than one third higher than the posted limit and his speed that interfered with his ability to take evasive steps. He would have had more time to react to the hazard and could have avoided the accident by steering and/or braking. In the circumstances he could otherwise have performed those manoeuvres which a reasonably careful and skilled driver might have taken. I have concluded that his lack of attention to the Taxi after it left the stop line, coupled with his excessive and unsafe speed, were a breach of his duty of care to the plaintiff…
[183]     In my view the plaintiff was obliged to yield the right-of-way and failed to do so, likely because he did not see the Van which was clearly visible. The defendant Sharp travelled at a speed more than one third above the limit and failed to take any timely measures to avoid the collision. The defendant Sharp also failed to keep a proper lookout and that, combined with his speed, deprived him of the opportunity to avoid the collision. In the end, when he realised that the Taxi was moving in front of him he looked to the right to attempt a lane change but was travelling too fast to be able to change lanes. I conclude that the plaintiff was more blameworthy. I apportion the liability for this collision 75% to the plaintiff and 25% to the defendants.

Catastrophically Injured Infant Ordered to Pay Public Trustee $79,000 in legal fees for legal fee review

Written by admin on . Posted in BC Supreme Court Costs Cases. 103 Comments on Catastrophically Injured Infant Ordered to Pay Public Trustee $79,000 in legal fees for legal fee review

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing the circumstances when BC’s Public Guardian and Trustee can recover legal fees for their involvement in the scrutiny of the settlement of an injury claim involving an infant.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional ”shaken baby” assault.  The incident led to profound lifelong disability requiring a lifetime of care needs.  A $13,000,000 settlement was ultimately reached and judicially approved.   The lawfirm involved sought contingency fess of over $3,000,000.  The Public Trustee, who was required by statute to weigh in on the matter, intervened and submitted that fees of $2,000,o00 were appropriate .  Ultimately the Court approved fees of $2.4 million.
The Public trustee incurred legal fees of over $79,000 in the process of intervening in the fee approval process.  They sought, pursuant to Section 10 of the Infants Act, to recover this from the infant’s lawyers or, in the alternative, from the infant’s estate.  Mr. Jutice Macaulay held that while the Public Trustee’s legal fees were “clearly high” they were ultimately reasonable.
The Court went on to hold that while section 10 of the Infants Act would technically allow for these fees to be payable from the Infants lawyers, absent ‘reprehensible conduct‘ by the lawfirm such an order would be inappropriate   The Court held that the infant’s estate was liable to pay the Public Trustee’s costs.  In finding that the fees should not be levied against the Plaintiff’s counsel the Court provided the following reasons:
[21]         I now turn to whether the Firm can be held partially responsible for this sum. As was noted earlier, indemnification of the PGT is governed by s. 10 of the Infants Act, which allows the court to direct that the PGT’s costs be paid out of either the estate of the infant or by “any other person who is a party to the proceeding.”
[22]         On its face, s. 10 does not appear to contemplate that the infant’s lawyer could be responsible for the PGT’s costs. However, returning to the analysis in Harrington, the Firm is properly characterized as a party in this proceeding. In Harrington, the Court of Appeal awarded special costs against the lawyer on the basis of that determination. The logical conclusion is that I have jurisdiction to make an award of ordinary costs against the Firm, although I am not aware of the court ever making such an award.
[23]         This case differs from Harrington in that there are no grounds here for an award of special costs. The Firm did not engage in reprehensible conduct deserving of rebuke (Garcia v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740). In my view, the Firm took a position on time spent that was unreasonable, but I would not characterize it as reprehensible based on the continuum of behaviour discussed in Garcia and other cases. As such, the only remaining possibility is that the Firm be liable for an award of ordinary costs.
[24]         I have already discussed the potential dangers of shoehorning the traditional analysis for an award of costs to the present proceeding. I am not convinced that there is any “successful” party with regard to fee approval.
[25]         The process mandated by the Infants Act is intended to ensure that the amount of the fee is in the infant’s best interests. The PGT, on behalf of the infant, does not take an adversarial role against the infant’s lawyer. The Firm has an obvious self-interest in the outcome but is not opposing the best interests of the infant.
[26]         Absent any basis to award special costs, I decline to award costs against the Firm.

Non-Pecuniary Assessments for Athletically Active Individuals Discussed

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


A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision.   Fault was admitted by the Defendant focussing the case on an assessment of damages.   The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“.  Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events.  The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“.  In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:
[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…
[54]         Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.