Tag: bc personal injury lawyer

"Moderate to Severe" Soft Tissue Injury Non-Pecuniary Damages Assessed at $55,000

Written by admin on September 4, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff approximately $85,000 in total damages from a 2004 BC Car Crash.
This case (BMM v. MLV) contains lengthy reasons that largely deal with the Plaintiff’s pre and post accident psychological difficulties. Ultimately the Court rejected the Plaintiff’s claim that her pre-existing depression was affected by the accident. Madam Justice Ballance concluded that “the evidence does not show that the Plaintiff’s pain and discomfort from her physical injuries caused by the Accident, exacerbated, compounded or intensified her Depression.” Paragraphs 159-190 contain the Court’s reasoning behind this conclusion and are worth reviewing for anyone interested in seeing how BC Courts can deal with a claim that pre-existing psychological injuries are aggravated by a collision.
The Court did find, however, that the Plaintiff suffered “moderate to severe” soft tissue injuries and assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000. In reaching this figure Madam Justice Ballance summarized her findings and engaged in the following analysis:
[199] The plaintiff experienced moderate to severe soft tissue injuries to her neck and back as a result of the Accident. Although her shoulders were also implicated and she had initial sleep disturbance and was plagued with low-grade headaches that occasionally developed into migraine-like discomfort, the primary area of injury was her low back and her related left hip discomfort. I accept that during their acute phase, these injuries caused persistent and sometimes severe discomfort and pain to the plaintiff, and disabled her from attending work. Following her leave from work in 2005 and her intensive physiotherapy program, her symptoms improved significantly. She continued to be susceptible to flare-ups of her symptoms throughout the summer of 2005. Her discomfort prompted the plaintiff to attend a program at the CBI which she found considerably beneficial in improving her soft tissue injuries.
[200] I find that by the end of 2005, the plaintiff’s physical symptoms had largely settled, but had not resolved entirely. She was not restored to her pre-Accident condition at that time. I am satisfied that after that stage, the plaintiff experienced intermittent low back symptoms and associated pain throughout 2006 and continuing forward. Those episodes were infrequent but sufficiently bothersome to prompt her to obtain treatment from Dr. Weiss in late 2007 and endure two excruciating injections. I think that the plaintiff will probably experience intermittent bouts of low back discomfort caused by the Accident into the foreseeable future. The evidence indicates that those episodes will continue to be infrequent and rather mild in nature.
[201] I accept that the physical symptoms caused by the Accident brought about unwelcome and disruptive changes to the plaintiff’s enjoyment and quality of her life, especially during the first twelve months after the Accident. She was no longer the fun-loving and enthusiastic person familiar to her son, sister and co-workers. In time, she was able to gradually reintroduce and enjoy certain pursuits such as walking and some gardening, and bike-riding using her electric bike. I have found it challenging to attempt to parse out the changes in the plaintiff’s personality and life which can be said to be attributable to her physical injuries from the Accident, from those associated with her ongoing and severe bouts of Depression, which adversely affected her life but are unconnected to the Accident. I conclude that the enjoyment of certain of her activities was negatively affected at times by her low mood. Even the plaintiff agreed that her gardening could be affected by her mood. While I accept that in the first year or so following the Accident, the plaintiff’s physical symptoms made it uncomfortable for her to attend the usual family functions and pursue her normal community and political interests, I find that her sustained withdrawal from those endeavours and detachment from her sister and other extended family, are due to the plaintiff’s psychological state unrelated to the Accident….
204] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to the plaintiff’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $55,000. A deduction of 5% is to be taken to reflect the measurable risk that her low back symptoms would have manifested without the Accident.

$35,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Back Injury

Written by admin on August 9, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgment were released Friday awarding a Plaintiff just over $69,000 in total damages for injuries and losses sustained as a result of a 2006 BC Car Crash.
In Friday’s case (Dermody v. Gassier) the Plaintiff was injured when his vehicle was rear-ended in South Surrey. Fault was admitted leaving the court to deal with the sole issue of damages (value of the claim).
Mr. Justice Williams found that while the Plaintiff “embellished his description of the way things were before the accident” the Plaintiff nonetheless was injured and had a pre-existing condition worsened as a consequence of this collision.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Williams summarized the Plaintiff’s injuries as follows:

[92] The plaintiff sustained soft tissue injuries in the motor vehicle accident. Some of them were relatively transitory in nature; others were more serious and he says they have continued to impact him in a significant way.

[93] The bruising and such injury abated within a short period of time, that is, within two or three weeks. The headaches continued, albeit on a diminished basis, for a period of time in the order of 12 months. The neck pain was initially a serious problem but I conclude resolved substantially within 12 to 16 months. The driving apprehension, again, resolved within a fairly short period of time and did not meaningfully impact in any long-term way upon the plaintiff.

[94] There is the matter of the sensation loss in the plaintiff’s feet. None of the medical experts have been able to understand what causes that, and Dr. Sovio was quite sceptical of it. Nevertheless, there appears to be no reason to find that it is not an actual condition; its onset was concurrent with the accident. I, therefore, find that it is a consequence, albeit a relatively minor one, of the incident and that it is a continuing condition.

[95] The most serious and sustained injury was that to the plaintiff’s back. I accept that it caused him significant pain and discomfort. Based on the medical evidence, I accept as well that there will be some residual back pain going forward….

[103] To clarify, I find that, at the time of the motor vehicle accident, the plaintiff’s back condition was not asymptomatic. He was having back pain with certain attendant limitations. Whether that was from the incidents at the courier job, whether it was because of degenerative conditions, or whether it was some combination, I am not able to say.

[104] However, I am satisfied that his back was symptomatic at the time of the accident, and, in accordance with the crumbling skull principle, he is only entitled to recover damages that reflect the difference between his post-accident condition and his pre-accident condition….

I conclude that there were weaknesses in this plaintiff’s pre-accident condition that were not symptomatic at the time of the accident injury, but which would have the effect of making the plaintiff likely to experience greater consequences from the insult of the accident. Injuries that result where such a situation is present are compensable…

[115] On the particular facts of the matter at hand, it is my conclusion that a fit and appropriate award of non-pecuniary damages in this case is $35,000.

In addition to the discussion addressing the award for non-pecuniary damages, this case contains a useful discussion of the “thin skull” and “crumbling skull” legal principles which is worth reviewing for anyone interested in how BC courts deal with pre-existing conditions and their interplay with traumatic injuries in BC tort claims.

Special Costs Awarded for 'Reprehensible' Behaviour by Law Firm

Written by admin on March 4, 2009. Posted in Uncategorized. 61 Comments on Special Costs Awarded for 'Reprehensible' Behaviour by Law Firm

In reasons for judgement released today (Chudy v. Merchant Law Group) the BC Court of Appeal upheld a trial judge’s award for special costs.
The Plaintiff was involved in a serious motor vehicle collision in 1995. The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.
A fee dispute arose after this settlement and litigation ensued. At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm. This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.
The lawfirm appealed for various grounds. In a split decision handed down several months ago, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.
Today’s appeal provided supplemental reasons dealing with the narrow issue of whether the trial judge was correct in awarding special costs against the law firm. In upholding the award, the Court of Appeal said the following with respect to the law of ‘special costs’ and to the behaviour of the Defendant Law Firm:

[6] The trial judge discussed the claim for special costs at some length at paras. 216 to 261 of his reasons for judgment which are indexed as 2007 BCSC 279. It is not disputed that he correctly stated the applicable law:

[255] In Garcia v. Cresbrook Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.) [Garcia], the Court of Appeal considered the type of conduct required for an award of special costs under the Rules of Court, B.C. Reg. 221/90. After reviewing decided cases and the relationship of “special costs” to the concept of “solicitor-and-client costs”, Lambert J.A. (for the Court) stated at ¶ 17:

Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui, and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leung in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”. As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

[7] Davies J. stated his conclusion on the costs issue thus:

[257] I am satisfied that the conduct of the Merchant Law Group in this case was reprehensible within the meaning attributed in Garcia. The conduct and actions of the Merchant Law Group would be deserving of rebuke in an ordinary commercial transaction. In the context of litigation involving its own clients and the integrity which the Court and the public are entitled to expect from those who are privileged to be members of the legal profession, it was both outrageous and scandalous.

[258] I order that the plaintiffs recover special costs from the Merchant Law Group from the commencement of this litigation and throughout, including all costs related to the third party proceedings brought against Mr. Shaw. Those proceedings were, in my view, not only devoid of evidentiary substance but also unnecessarily added to the length of these proceedings.

[259] Any costs that were paid to the plaintiffs pursuant to previous orders of the Court shall, of course, be deductible from the award of special costs.

[8] Before stating the above conclusion, the judge described the conduct of the appellant law firm. In the court’s view, the bad conduct began with a pre-litigation letter from Mr. Merchant to the Law Society of British Columbia dated 2 December 2003 in which he falsely claimed for the appellant a solicitor’s lien on the Chudy file. He also prepared a fictitious fee account to the Chudys. This “foreshadowed the way in which the Merchant Law Group was prepared to defend against the plaintiffs’ claims” (para. 251). In our opinion, this did not amount to a colouration of the judge’s assessment of litigation conduct. It was properly seen as an attempt by the appellant to put a chill on the appellant’s unsophisticated former clients. This conduct was not a factor in the assessment of punitive damages. Rather, the award of punitive damages was based on an earlier breach of fiduciary duty. In these circumstances, an improper attempt by a legal professional to discourage a claim against that professional, although done before commencement of the action, is properly taken into account when considering litigation conduct. The trial judge’s conclusion at para. 225 that Mr. Merchant’s evidence about the draft account and an accompanying letter to the respondents “was a disingenuous attempt to cover up the fact that he did not want the plaintiffs to have the file and that he was prepared to go to unethical lengths to avoid delivering it to them” is unassailable. It was bad enough that Mr. Merchant improperly claimed the lien. But he exacerbated that conduct by offering an explanation at trial that was contrived. That was litigation conduct properly considered on the claim for special costs.

[9] The appellant has not demonstrated error on the part of the trial judge in his conclusion that the conduct of the appellant during this litigation, both pre-trial and during the trial, was reprehensible as that term is used in Garcia. The evidence abundantly supports the conclusion. The appellant brought pre-trial motions that were without merit; it brought a specious application, based in part on false evidence, challenging the jurisdiction of the court to try the matter; it avoided a peremptory trial date by adding Mr. Shaw as a third party but did not require him to file a defence, did not examine him for discovery, did not cross examine him at trial with respect to its allegations against him, and in a lengthy written submission at the end of the trial, did not refer to its claim over against Mr. Shaw (the trial judge tersely dismissed the third party claim); it brought a motion (returnable on the date scheduled for the hearing of a R. 18A application for a summary trial brought by the respondents) for removal of the respondents’ counsel on ridiculous grounds, a tactic which the trial judge at para. 236 stated, with the benefit of his unique perspective of the appellant’s entire conduct, “was not only without merit but was calculated to prevent the Rule 18A application from proceeding as ordered”; on the hearing of the respondents’ R. 18A motion, Mr. Merchant produced a large number of documents, not previously disclosed and not sworn to, in support of his position that the action could not be determined on a summary basis; and, finally but of most significance, Mr. Merchant offered evidence at trial that the trial judge determined was false and misleading.

[10] As to the final point, the respondents refer to Brown v. Lowe, 2002 BCCA 7, in which Southin J.A. said (at para. 149): “To give false evidence relating to the matters in question at any stage of the proceedings is a grave matter. By “false”, I do not mean “erroneous”; I mean knowingly untrue.” The falsity of Mr. Merchant’s evidence is commented on by the trial judge at several points in his judgment and is referenced by the majority judgment in this court. There is no need to particularize it here.

[11] The evidence as a whole clearly supports the conclusion of the trial judge that the legal basis for the awarding of special costs was established in this case.

I wish I knew that before I settled my ICBC Injury Claim…

Written by admin on February 25, 2009. Posted in Uncategorized. 109 Comments on I wish I knew that before I settled my ICBC Injury Claim…

You are injured through the fault of another motorist in BC. You miss time from work. You go into debt paying for therapies and medications. You experience pain and your typical lifestyle is interfered with. Then, as your injuries are slowly getting better you are approached by your ICBC adjuster to settle your claim. The offer seems low but you are sick of dealing with the aftermath of your ICBC Injury Claim and you accept the offer.
Time goes by and your injuries linger. You had hoped that you would get better but unfortunately things didn’t turn out as optimistically as you had planned. You’re still missing time from work. Your therapy expenses are ongoing and your doctor is running out of ideas. Your actual expenses and wage loss soon exceed your ICBC settlement. You regret settling your claim and then you call an ICBC Injury Claims Lawyer. The Lawyer tells you the offer was unfair, your claim was likely worth several times more than what you settled for. You eagerly ask if the lawyer will take your case and he/she responds “sorry, you signed a contract with ICBC saying you can no longer sue as a result of this crash, you can’t reopen your claim.”
As an ICBC Injury Claims Lawyer this is a scenario I unfortunately see all too often. People often contact me after they’ve settled their claim. Except in exceptional cases (for example where a settlement is obtained through fraud or by duress) ICBC Claims Settlements usually can’t be set aside. I hate breaking this news to people if they’ve clearly been short changed by their settlement.
So, if I can impress one fact on anyone with an ICBC Injury Claim, it is this: get legal advice before you settle your claim. It doesn’t have to be from me. It can be from any lawyer experienced handling ICBC Claims. Shop around, find a lawyer who you can connect with and get a free ICBC Claims consultation. BC has many very well qualified personal injury lawyers and many of them provide initial consultations free both of charge and obligation. I’ve seen many experienced ICBC Injury Claims Lawyers spend many hours giving people free initial consultations, even in circumstances where the lawyer was not interested in taking the case.
Getting anything of value for free is rare so why do ICBC Injury Claims Lawyers give Free Consultations? It’s simply a matter of economics. This is a competitive business and giving free consultations is almost a requirement for ICBC Injury Claims Lawyers wishing to stay competitive. It’s a simple formula of supply and demand and the result is the availability of free consultations for you, the consumer.
So take advantage. Get a free consultation before you settle your ICBC Injury Claim and help yourself make an informed choice before saying yes or no to ICBC’s settlement offer.

ICBC Claims, Breach of Insurance and Costs

Written by admin on October 6, 2008. Posted in ICBC Chronic Pain Cases, Uncategorized.

I’ve previously blogged about the financial consequences of being in breach of ICBC insurance.
Today reasons for judgemenet were delivered showing some of these consequences in action.
In 2002 the Plaintiff was involved in a car accident. He was at fault for the accident. He was in breach of his insurance at the time (he was driving with a suspended licence). And he injured the occupants of one of the vehicles involved in the collision.
The injured parties advanced an ICBC claim and eventually ICBC settled paying out a total of $19,067.38.
ICBC then came after the ‘breached’ Plaintiff to have the money paid back. ICBC also exercises its statutory right and refused to re-issue a license to the Plaintiff.
Today’s judgement dealt with how much money was owed to ICBC. The court found that ICBC was entitled to $19,320.38 from the ‘breached’ driver.
This case is worth bringing to the attention of anyone who is thinking of driving in breach of their contract with ICBC. Doing so can result in significant financial consequences.

A Busy Day – 3 Car Crash Cases Released by BC Supreme Court

Written by admin on October 2, 2008. Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases, Uncategorized.

There is a lot to blog about today so I will have to keep these case summaries short. The BC Supreme Court released 3 cases today that may be of interest to people advancing ICBC claims.
The first deals with the choice of forum of where to sue. The Plaintiff was in a collision with a tractor trailer in 2007. The crash happened in Alberta. The Plaintiff lived in BC and the owner of the tractor trailer had a registered business office in BC. The Plaintiff started the lawsuit in BC and the Defendant brought a motion that the case should be dismissed or stayed because the lawsuit should have been started in Alberta.
After summarizing the applicable law the court sided largely with the Defendants finding that:

[27] The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.

[28] I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.

[29] I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.

[30] In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.

________________________________________________________________________________

The second case released today dealt with Court Costs. Typically when a case succeeds in Supreme Court the winner is entitled to court ‘costs’. In theory this is to compensate the winner for having to trigger the judicial process to get whats fair.
After an 11 day trial as a result of a car accident the Plaintiff was awarded $81,694 in damages for injuries and loss. In the trial the Plaintiff’s claim for past wage loss and cost of future care were dismissed.
The Defendant brought a motion asking the court to award the defendant ‘costs and disbursements for that portion of the proceedings ralted to the cloaims fr past income loss and cost of future care’ amongst other relief. The motion was brought further to Rules 57(9) which states

Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

And rule 57(15) which states

The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.

The court granted the motion stating that:

Analysis and Decision

[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated. I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial. I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.

[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful. I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss. In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity. I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial. In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.

Conclusion

[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson. In addition, the defendant is awarded his costs and disbursements for two days of trial.

________________________________________________________________________________________
The third case of interest released today dealt with a car accident from 2003 which allegedly caused severe psychological injuries.
The crash occurred at an intersection in Surrey. The Plaintiff was turning left on a green light. The defendant entered the intersection approaching from the Plaintiff’s left. The Defendant had a red light. The accident then occurred. The Defendant was found 90% at fault and the Plaintiff was found 10% at fault for failing the see the defendant’s vehicle which was ‘there to be seen’
The most contentious alleged injuries were brain injury and Dissociative Identity Disorder (DID). The plaintiff did seem to suffer from DID, the question was whether the car crash caused this.
The court made the following findings with respect to injuries:

[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness. The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life. At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future. In the aftermath of the accident, her life has been devastated. She can no longer look after herself or her children. She lives in an assisted living facility. She is separated from her husband. Her future prospects are grim.

[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident. The accident clearly terrified her. Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do. She was told that she had suffered a serious brain injury. This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral. Her tinnitus and dizziness are likely permanent. The prognoses for her TMJ problems are guarded. There is some optimism that her pain disorder will improve given her recent change in medication. Similarly, over time her depression should respond to treatment. Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission. Absent her DID, the plaintiff would now be on the road to recovery. DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.

$150,000 was awarded for non-pecuniary damages (pain and suffering and loss of enjoyment of life)

Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Written by admin on October 1, 2008. Posted in ICBC Brain Injury Cases, ICBC Dizziness Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, Uncategorized. 59 Comments on Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck. The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’. The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted. The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)	General damages – non-pecuniary	$200,000.00
(ii)	Past loss of income	$171,250.00
(iii)	Future loss of income earning capacity	$400,000.00
(iv)	Loss of opportunity	$10,000.00
(v)	Special damages	$26,955.75
(vi)	Costs of future care	$77,449.00
(vii)	Management and Tax Gross up	(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury. Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006. He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs. As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination. The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering. As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression. Indeed the literature presented to Dr. Sovio at trial echoed that warning. In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation. He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding. Isolated signs should not be overinterpreted. Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered. …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity. They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment. Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed. I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected. However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

$40,000 Pain and Suffering for Neck, Back and Shoulder Soft Tissue Injuries

Written by admin on September 29, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $90,000 in damages as a result of a 2005 collision.
The Plaintiff was 25 at the time of the BC car crash. He was not at fault for the crash and the trial focussed exclusively on the issue of damages.
The court heard from a variety of experts. The court also viewed surveillance footage of the Plaintiff playing hockey and doing other physical activities. Such surveillance footage often comes to light at the trial of ICBC claims, particularly those inovlving on-going soft tissue injuries.
In awarding $40,000 for non-pecuniary damages (pain and suffering) the court made the following findings:

[15] I am persuaded by the evidence to conclude on the balance of probabilities that (the Plaintiff) suffered a flexion extension injury to the soft tissues of his neck, back and shoulder. Considering the persistent difficulty that he has had with his lower back, the injury is fairly described as moderate in nature. (the Plaintiff) had back trouble related to his rugby injury and on occasion his extremely heavy work load prior to his injury for which he sought treatment, but I accept his evidence that his previous back problems were intermittent and less severe before the accident. (the Plaintiff) had already given up rugby and snowboarding prior to his injury. His ability to play in-line hockey demonstrates that he does not have a functional disability, his problem is that demanding activities can cause the onset of significant pain.

[16] I accept Dr. Travlos’ opinion that:

He will likely still experience intermittent pain flare ups, but should be capable of reasonable physical activity. He will learn to avoid certain recreational activities and certain types of work activities in order to manage his pains and by doing so should have reasonable pain control.

As I have noted earlier, (the Plaintiff) had pain in his back prior to the collision and would have had it in the future if the collision had not occurred, but his motor vehicle injuries have increased his susceptibility to back pain and made that back pain worse when it occurs. I assess (the Plaintiff’s) claim for general damages for pain and suffering which has been and will be caused by his motor vehicle injuries above and beyond that which he would have had had he not been so injured at $40,000.

Supreme Court of BC and Trial Costs

Written by admin on September 23, 2008. Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 103 Comments on Supreme Court of BC and Trial Costs

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office. Clients are coming soon so I have to keep this short.
The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less. When suing for damages as a result of a BC car accident you have to decide which court you will sue in.
When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.
When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs? The answer is sometimes.
Rule 57(10) of the BC Supreme Court rules states that
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?
Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000. At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced. At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work. I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency. Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him. (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for. She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial. Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced. Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel. She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred. It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play. Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

Why Can ICBC Claims Take a Long Time to Settle?

Written by admin on September 19, 2008. Posted in Uncategorized. 59 Comments on Why Can ICBC Claims Take a Long Time to Settle?

1. The medical system is slow
2. The Court system is slow
Personal injury cases depend on both the medical system and the court system. When you add these 2 systems together it is easy to see why it can take a very long time to fairly settle an ICBC injury claim.
In cases of minor injuries that quickly heal there is no reason for the settlement of the ICBC tort claim to take a long time. Once the injuries fully heal your losses can be valued, out of pocket expenses can be added up and a fair range for pain and suffering can be negotiated.
In cases of serious injury it is not that simple. Serious injuries can take a long time to heal. Sometimes they don’t fully heal, instead they plateau at what’s known as a point of ‘maximum medical improvement’. In cases of serious injury it is imprortant to learn what their long term consequences will be prior to settling with ICBC. The following are some of the questions that should be answered prior to settling:
1. Will the injuries fully heal?
2. If so, when will they fully heal?
3. If not, when will they reach the point of maximum medical improvement?
4. Will the injuries get worse with time? (such as the on-set of post-traumatic arthritis)
5. What effect will the injuries have in the long term on one’s ability to work?
6. What future care needs will be necessary to compensate for the long term injuries?
It is very difficult to fairly value an ICBC injury claim involving serious injuries if the answers to the above questions are not known. These questions often can’t be answered quickly. The medical system is slow. It can take a long time to get properly investigated (wait lists for specialists, who then order tests, wait lists for tests, wait lists to see the specialist again….)
Once the full long term impact of injuries is known they can be valued. Settling prematurely can be financially devastating if the long term reality of injuries is worse than anticipated at the time of settlement. As a personal injury lawyer I often find myself speaking with people who settled their cases prematurely for amounts that significantly short change their injuries. It is only in rare circumstances that such settlements can be set aside.
Keep limitation periods in mind and know that time is on your side when it comes to settling an ICBC injury claim. The desire for quick settlement should never over-ride the desire for a fair settlement.