Skip to main content

Tag: bc injury law

$40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Written by admin on . Posted in ICBC Hip Injury Cases, Uncategorized. 48 Comments on $40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial.  Reasons from the BC Court of Appeal can be found here.
____________________________________________________________________
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.
In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign.  Fault was admitted.   The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement.  Following this the Plaintiff developed trochanteric bursitis.

He continued to have problems due to this and other complications of his pre-existing condition.
The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries.  The court found that this aggravation ran its course by mid 2011.  The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable.  In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:

[74]The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.

[75]The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…

[82]Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).

$20,000 Non-Pecuniary Assessment For 3 Year Soft Tissue Injuries With Good Prognosis

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

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for fairly modest injuries caused by a motor vehicle incident.
In the recent case (Ward v. Zhu) the Plaintiff was a passenger on a bus that stopped suddenly throwing her to the ground.  This occurred as the driver was avoiding a collision with another motorist.  Fault was admitted by the other motorist.  The Plaintiff suffered soft tissue injuries and although these remained symptomatic at the time of trial (over three years following the incident) they did not significantly impair the Plaintiff.  In assessing non-pecuniary damages at $20,000 Mr. Justice Goepel provided the following reasons:

[30] In this case, there is limited evidence that supports Ms. Ward’s claim for loss of enjoyment of life and loss of amenities. Ms. Ward missed no time from work as a result of her injuries. Within two months of her injuries, she was trying out for a soccer team. The only amenities referenced in her evidence concerned reductions in running and walking and difficulty in 2011 sitting through a concert. On the evidence that has been led at this trial, I cannot find that Ms. Ward’s enjoyment of life has been significantly compromised by this accident.

[31] There is also limited evidence in relation to pain and suffering. Ms. Ward abandoned physical therapy and chiropractic treatments shortly after the accident. She went long periods of time without seeking any medical advice concerning her injuries. She did not say anything to her family doctor concerning these injuries until January 2011. The defendant submits that the lack of complaints to medical practitioners supports his submission that Ms. Ward substantially recovered within weeks of the accident.

[32] I do not accept that conclusion. In 2009, Ms. Ward had other difficulties in her life which explain why she did not actively seek treatment for these injuries. I accept her evidence that she did not aggressively seek medical treatment because she mistakenly believed the injuries would resolve without medical assistance.

[33] I find that Ms. Ward did suffer an injury in the fall on the bus. I accept that those injuries have impacted her for more than three years. Her decision not to actively treat her injuries immediately following the accident has undoubtedly prolonged her recovery. When Ms. Ward finally started an active regime of chiropractic and massage treatments her condition improved. Dr. Dyment testified that Ms. Ward’s injuries are now slowly resolving. The evidence does not allow me to conclude that her injuries are permanent.

[34] While Ms. Ward’s recovery has been prolonged, the impact on her life is considerably less than the plaintiffs in Deiter and Parker, although somewhat greater than the plaintiffs in the cases cited on behalf of the defendant. While the cases provide a general range of appropriate damages, all cases ultimately must be decided on their own facts.

[35] I award $20,000 in non-pecuniary damages. This award includes an allowance for the difficulty that Ms. Ward has had or will continue to have in performing her usual household tasks with less efficiency and comfort than she did before the accident: Helgason v. Bosa, 2010 BCSC 1756 at para. 160.

Practice Direction 36 – Trial Management Conferences Allowed to Be Waived by Consent

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure.

(UPDATE – August 31, 2012 – PD 36 has been repealed and replaced with PD 37)
Addressing concerns that mandatory Trial Management Conferences add unnecessary time and expense to litigation, Practice Direction 36 comes into force on September 4 which will allow parties to BC Supreme Court Civil and Family matters to apply to waive TMC’s.
The waiver of TMC’s is limited to Vancouver Registry trials 9 days or less in duration with no self-represented litigants involved.  Hopefully this directive will be expanded Province wide.

$75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

Written by admin on . Posted in ICBC Whiplash Cases, Uncategorized. 64 Comments on $75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

As previously discussed, a common pattern following a motor vehicle collision is the onset of pain in a pre-existing but otherwise asymptomatic degenerative condition.  Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In the recent case (Culos v. Chretien) the Plaintiff was involved in a 2006 pedestrian collision.  The Defendant motorist was found fully at fault.  The collision caused an aggravation of pre-existing low back pain and further caused chronic neck pain problems.  The latter problems were found to be due to pre-existing degeneration which became symptomatic as a result of the impact.  In assessing non-pecuniary damages at $75,000 Mr. Justice Rogers provided the following reasons:

[51] I find that the plaintiff accurately described his injuries and the symptoms he experienced after the accident. The fact that his left hip was sore when he went to see his physician several days after the accident and that his left thigh just above the knee was not bruised tell me that the defendant’s car hit him on his left hip, not his left thigh. I find that the impact gave the plaintiff a severe body-wide jolt. The impact caused the pre-existing but asymptomatic degenerative disease in his neck to become symptomatic. Absent the accident, the plaintiff may have lived out his entire life without any neck symptoms. The accident caused his neck to be painful, and the pain has persisted to this day. I accept Dr. Vallentyne’s opinion that the plaintiff’s neck symptoms are permanent.

[52] I find that the plaintiff’s memory of his pre-accident back function is faulty. The symptoms of pain that he felt in his lower back in the approximately one year before the accident must have been significant. I find that is so because the plaintiff is clearly not one to go running for medical treatment for minor or transitory complaints – the fact that he held off for five days after the accident before seeking medical help supports that proposition. For that reason, I accept Dr. Vallentyne’s opinion that even if the accident had not happened the plaintiff’s periodically symptomatic low back pain and his pre-existing degenerative disease in that region would have, as Dr. Vallentyne said, required him to “minimize heavy lifting/carrying as well as repetitive bending/twisting”. That said, I find that the accident accelerated and worsened the plaintiff’s low back symptoms; “accelerated” in the sense of causing the pain to be constant rather than periodic, and “worsened” in the sense that the low back pain prevented the plaintiff from participating in his usual activities to a much greater degree than before.

[53] I cannot accept Dr. Grypma’s opinion that the plaintiff’s present symptoms are not related to or caused by the accident. I find that the flaw in Dr. Grypma’s opinion is his dismissal without discussion of the indisputable temporal connection between the onset of the plaintiff’s neck and back symptoms immediately after the accident and his continuing symptoms throughout of pain in exactly those same regions. The link is, of course, the fact that those symptoms have persisted from then until now. The physicians agree that the accident did not accelerate the degeneration of the plaintiff’s neck and back – it follows that the plaintiff’s pains are not a result of increased degeneration. If the symptoms occurred after the accident, it is reasonable to conclude that they were caused by the accident, and the doctors agree on that as well. What Dr. Grypma does not explain is how it is that the plaintiff’s symptoms transitioned from pains caused by the accident to pains caused by his degenerative disease, and how it is that even without the accident, the plaintiff would nevertheless now be suffering from those symptoms. I find that there is a causal link between the accident, the onset of the plaintiff’s neck pain and the worsening of his low back symptoms, and the persistence of those symptoms through to the present day.

[54] Currently the plaintiff’s neck and back symptoms are present on a daily basis. They flare up when the plaintiff does anything strenuous. The symptoms aggravate, frustrate and tire the plaintiff out. They have reduced his enjoyment of recreational activities. The symptoms are a permanent feature of the plaintiff’s life. After discounting the plaintiff’s claim to account for the fact that absent the accident his lower back would have troubled the plaintiff periodically, I find that the proper award for non-pecuniary damages in this case is $75,000.

$60,000 Non-Pecuniary Assessment for Chronic Back Soft Tissue Injury

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

Reasons for judgement were released last month by the BC Supreme Court, Kamloops Registry, assessing damages for a chronic soft tissue injury following a collision.
In the recent case (Cartwright v. Cartwright) the 15 year old plaintiff was injured as a passenger in a single vehicle collision.  The driver admitted liability.  The Plaintiff suffered a soft tissue injury to her back which resulted in chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Fisher provided the following reasons:
[20] There is no question that Ms. Cartwright suffered soft tissue injuries to her neck and back in the motor vehicle accident on June 17, 2007, which resulted in ongoing pain symptoms. She had pain immediately following the accident and has continued to have pain throughout her back since that time. The issue is the extent to which this ongoing pain has affected and will continue to affect her life…

[22] I found Ms. Cartwright to be a credible witness but a poor historian about the nature and intensity of her pain symptoms and how they affected her life and her work. I agree with the defendant that she provided little detail about her symptoms. At the time of the accident, she said that her neck and shoulders were “sore” and her back was “just stiff”. She said it was painful working in that she had to rely on others to do things like move tables and chairs and carry pallets of cutlery. Other than that, she described things as being “difficult” or “painful”, and said that she was not able to work because of “back pain.”  Surprisingly, she said nothing about the effect of her pregnancy on her back pain. She said that she can get headaches two to three times a week and migraines “at least a couple a month”, but said nothing about how intense they are or how they affect her. She said that she went to a counsellor “a few times for anxiety about the accident” and she still has anxiety “towards vehicles” without describing in any way the anxiety and how it affects her.

[23] This lack of any detail makes it difficult to assess the nature and severity of Ms. Cartwright’s ongoing pain. However, I am satisfied that her evidence, along with the medical evidence, establishes that she suffered strain to the muscles and ligaments of the thoracic and lumbar regions and strain to the muscles of the cervical region as a result of the accident. I accept Dr. Farren’s description of Ms. Cartwright’s back pain as “moderate in severity and chronic in nature”. There is no evidence about the severity and nature of her headaches or the nature and extent of the anxiety she experienced as a result of the accident.

[24] These injuries have caused her ongoing and chronic symptoms of myofascial back pain, some tension headaches and a modest exacerbation of a pre-existing tendency towards migraines. The chronic back pain will likely continue but there is a substantial possibility that it will diminish with proper rehabilitation that includes a regular exercise program…

[48] Ms. Cartwright has been moderately affected by her chronic back pain and will continue to be affected by it in the future, but there is a substantial possibility that the pain will diminish and be quite manageable with proper rehabilitation and regular exercise. Given the evidence and relevant factors in this case, it is my view that a fair award of non-pecuniary damages is $60,000.

Commercial Copy Rates Not Helpful When Addressing Reasonable Photocopy Disbursements

Written by admin on . Posted in Uncategorized.

A decision was recently publshed by the BC Supreme Court website addressing reasonable photocopy disbursements in an ICBC Claim.  Although it is a 2006 decision decided under the old rules, the Court’s comments remain relevant finding that commercial photocopy charges are not helpful when deciding a reasonable rate to charge for photocopy disbursements due to litigant privacy concerns.
In the recently published case (Kind v. Leung) Master Caldwell provided the following observation:

5] There is also information in here about photocopying through commercial endeavours.  There are privacy concerns related there and I take counsel’s point, but again the physical cost of copying in those facilities seems to run between five cents and 10 or 11 cents per page.

[6] Making allowance for in-house copying at a reasonable rate to meet the obligations of privacy and confidentiality, given the costs as I seem to have limited information here in the material relating to equipment, I am not able to indicate or to determine on the material provided by the plaintiff that their costs exceed 30 cents a page.  The rate set will be 30 cents per page.

You can click here to access more recent caselaw addressing photocopy disbursements.

Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 1 Comment on Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope of expert witness file disclosure requirements under Rule 11-6(8).  In short the court held documents created after the preparation of the expert opinion need not be disclosed.
In today’s case (First Majestic Silver Corp. v. Davila) the Plaintiff made a mid-trial application requesting “notes made by the Defendants’ experts during the course of the trial when the Plaintiffs experts were testifying“.  The Defendant opposed arguing the new rules of court did not require production of such records.   Mr. Justice Myers agreed and provided the following comments:

[8]      While the plaintiffs referred to Rule 11-6(8) at the outset of their argument, the main thrust of their submission was based on the common law prior to the new rules.  I will elaborate that after I summarise the defendants’ position.

[9]      The defendants argued that the Rule replaced the common law.  They submitted that the rule limits production to what was clearly stated in the rule, namely the “contents of the expert’s file relating to the preparation of the opinion” [emphasis added].  Since their experts had already delivered their reports and therefore formulated their opinions (beyond which they were not entitled to go when giving evidence) the notes made during trial could not relate to that.

[10]    In reply, the plaintiffs argued that the only thing the rule does is to push back the time at which the expert’s file must be disclosed.  Under the prior case law, this was when (and only if) the expert takes the stand, and then the whole file need be disclosed.  They argue that the rule requires the same disclosure to be made, but in advance.  Relying on Lax Kw’alaams, they submit that there is no distinction between the different capacities of an expert when generating the file materials.  Rather, the whole file relates to an expert’s credibility once he or she takes the stand and must be produced.

[11]    On the plain wording of the rule, I do not agree that it only modified the timing for the disclosure.  The words “relating to the preparation of the opinion” must be given some meaning.  In effect the rule settles the gray area dealt with in the decisions cited above.  I therefore decline to order the notes made during the course of the trial.

$100,000 Non-Pecuniary Assessment for C6-C7 Disc Herniation Requiring Surgery

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

Following a fairly unique collision involving a downed utility pole, reasons for judgement were published last week by the BC Supreme Court, Kamloops Registry, assessing damages for a C5-C6 disc injury requiring surgical intervention.

In last week’s case (Baxter v. Morrison) the Defendant tractor trailer operator struck overhead power lines with his vehicle causing the power pole attached to the wires to break into pieces falling on the plaintiff’s vehicle causing a severe neck injury.
Although fault was disputed Mr. Justice Ehrcke found the defendant fully liable for the incident.  The plaintiff’s neck injury required surgery which largely, but not entirely, improved his symptoms leaving the plaintiff with some permanent symptoms.  In assessing non-pecuniary damages at $100,000 the Court provided the following reasons:

[55] Here, the plaintiff, who was 47 at the time of the accident and who enjoyed an active lifestyle both at home and at work, suffered injuries to his neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain was caused by a disc herniation resulting from the accident. He performed an operation on his neck to remove the disc, and this relieved about 70% of the pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter has a “mild degree of permanent disability as a result of his ongoing neck pain.” This discomfort continues to affect Mr. Baxter both at home and at work.

[56] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Taking account of all of the factors mentioned in Stapley v. Hejslet, I would assess general damages in this case at $100,000.

$80,000 Non-Pecuniary Assessment for Chronic Myogenic Thoracic Outlet Syndrome

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

Adding to this site’s database of caselaw addressing non-pecuniary damages for TOS, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In this week’s case (Small v. Upshaw) the Plaintiff  was involved in three collisions; the first in 2006, the second in 2008 and the last in 2010.  The Defendants admitted liability for these and it was agreed to have damages addressed globally.
The plaintiff suffered various soft tissue injuries and a left sided myogenic Thoracic Outlet Syndrome.
(Image by  Nicholas Zarosky via Wikimedia)
His limitations continued to the time of trial and were expected to be permanent.  The plaintiff worked as a journeyman auto mechanic and although he could continue to work with his injuries these limited his capacity.  In assessing non-pecuniary damages at $80,000 Mr. Justice Rogers provided the following comments:
[21] The three medical professionals who testified at the trial, Drs. Scheffler, Vallentyne and Coghlan, all opined that the plaintiff’s present symptoms arise from and were caused by the accidents. They all felt that the plaintiff’s symptoms are likely to be permanent….

23] I was impressed by the plaintiff. I found him to be a credible and reliable witness. The few discrepancies between his evidence at trial and in discovery were not, in my view, significant and did not impair his testimony. I accept that the plaintiff’s left arm was intermittently symptomatic shortly after the accident. I find that his main complaints then, though, had to do with his neck and back. Those pains were constant and debilitating. His arm symptoms appeared from time to time and were never genuinely disabling. For those reasons, the plaintiff’s left arm complaints merited and received less attention during the months following the second accident.

[24] It follows that I find that the second accident did cause the plaintiff to suffer left-sided myogenic thoracic outlet syndrome. This condition is self-limiting – if the plaintiff keeps the amount of reaching he does to a minimum, the less he will be bothered by its symptoms. He is bothered by the symptoms once or twice a week…

[34] As noted above, the plaintiff impressed me as a credible and reliable witness. I find that the plaintiff is plagued daily by pains in his neck, left shoulder, and upper and mid-back, and that from time to time his left arm develops a feeling of numbness and tingling. When those arm symptoms occur, they last until the following morning. All of these symptoms were caused by the motor vehicle accidents for which the defendants have admitted liability. Of the three accidents, the second caused the plaintiff the most harm.

[35] The plaintiff’s pain symptoms are not intermittent. He does not have “good days and bad days”. His symptoms are aggravated by activity, particularly by working with his hands and arms over his head, while stooping over an engine bay, or pretzeled beneath a dashboard. By the end of a typical workday, the plaintiff is stiff and sore. He has little or no energy for recreation or socializing. He takes pain relief and muscle relaxing medication daily. These facts distinguish the plaintiff’s case from the circumstances of the cases cited by the defendant and in which the court made general damage awards of less than $50,000.

[36] In my view, the plaintiff’s circumstances merit an award for non-pecuniary loss of $80,000.

Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 65 Comments on Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, addressing costs consequences following a trial where a Plaintiff bested his formal settlement offer.
In the recent case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured after a RCMP officer ran a red light resulting in a collision.  The officer was found negligent at trial and damages of just over $330,000 were assessed.
Prior to trial the Plaintiff provided a formal settlement offer of $175,000.  The Plaintiff sought double costs for besting the offer.  In finding it appropriate to award double costs Madam Justice Gropper provided the following reasons:

Consideration of the factors

Was the offer one that ought reasonably to have been accepted?

[6] At the time the offer was made, the parties were approximately two weeks to trial. They had exchanged all the documents, the examinations for discoveries were complete and all the medical reports were exchanged.

[7] The defendants’ response is that the case reflected complex causation issues involving indivisible injuries.

[8] I consider this factor to favour the plaintiff’s position. While causation was a significant issue, it was addressed by the plaintiff’s physicians in their medical legal reports. The defendants did not tender any medical legal reports. The defendants had the plaintiff’s medical legal reports at the time the offer was made and was therefore in a position to evaluate the offer in spite of its consistent position in respect of causation.

Relationship of Offer and Judgment

[9] The plaintiff asserts that the offer of November 15, 2011 contained a meaningful element of compromise. He also argues that the assessment of damages significantly exceeded the compromise of settlement which the plaintiff offered two weeks before the trial. The defendants state no position in respect of this factor. This factor supports the plaintiff’s position.

Relative financial circumstances

[10] This factor is self evident: the plaintiff is an individual and the defendants have significant resources available. This factor supports the plaintiff’s position.

Other factors

[11] The plaintiff raises the defendants’ contact, particularly in regard to the question of liability.

[12] While I have found that the defendants were entirely liable for the accident, I do not consider that this constitutes a basis for awarding double costs to the plaintiff.

[13] Based upon the application of the factors referred to in Rule 9-1(6), I find that the plaintiff is entitled to his costs at Scale B up to November 14, 2011, and double costs thereafter. The plaintiff is entitled to his assessable disbursements. The double costs rule does not apply to disbursements.