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Tag: Daitol v. Chan

ICBC "User Fees" and Receipted Special Damages

ICBC typically covers only a portion of physiotherapy expenses under an individuals own plan of insurance.  Treatment expenses over and above ICBC’s insured amounts typically are referred to as ‘user fees‘.  Provided that such therapies are reasonably incurred following a collision the fees associated with them are usually recoverable as ‘special damages‘ in a tort claim against the at-fault motorist.
As with most special damages, however, it is important to document these expenses.  Failure to do so can result in the claimed expenses being denied.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Daitol v. Chan) the Plaintiff was injured in a motor vehicle collision.  At trial the Plaintiff sought recovery of $1,500 of estimated user fees as special damages.  The Plaintiff unfortunately did not have receipts to prove she incurred these expenses.  Madam Justice Griffin denied this portion of the Plaintiff’s claim and in doing so provided the following reasons reminding Plaintiff’s the importance of documenting their damages:

[63] Ms. Daitol advances a claim for the user fees she was required to pay for her physiotherapy sessions.  She estimates that she paid in the range of $1,500-$1,900 in fees out of her own pocket.  She therefore advances a claim for special damages of $1,500.

[64] Unfortunately, Ms. Daitol, who was not represented by her current counsel at the time, did not keep track of her physiotherapy expenses and has no corroborating evidence regarding the number of treatments or the exact cost of them.  At best, her evidence as to her total out-of-pocket cost was a guess.  While I do not believe that Ms. Daitol would in any way attempt to mislead the court, nevertheless, her evidence as to her physiotherapy expenses is inherently unreliable due to the fact that she did not in any way keep track of her sessions or the cost of them.  As such, I do not award her any amount in respect of this claim.

$60,000 Non-Pecuniary Assessment for Medial Meniscal Tear and TMJ Injury

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic knee and jaw injury sustained in a motor vehicle collision.
In this yesterday’s case (Daitol v. Chan) the Plaintiff was involved in a “serious” collision when the defendant dozed off and crashed into the Plaintiff’s vehicle.  Fault was admitted by the Defendant at the start of trial.
The Plaintiff suffered various injuries, the most serious of which was a meniscal tear in her left knee.  The Plaintiff’s family doctor summarized the following collision related injuries which the Court accepted:

[35] It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol during the motor vehicle accident were:

· New-onset neck-, mid-and-upper back, lower back, right shoulder and right hip area pain: soft tissue (muscular and connective tissue).  Pain in this area is largely resolved with some intermittent neck and back pain.

· Bilateral TMJ (jaw) pain, right side more than left.

· Pre-patellar bursitis of the left knee due to direct trauma to the knee.  This explained the initial swelling of the left knee patellar area, which resolved after a few months.

· Left knee PFS (patellofemoral syndrome) which is a condition of direct damage to the kneecap cartilage, causing pain with squatting, deep knee bending and climbing stairs.

· Left knee medial meniscus tear. This is consistent with the mechanism of injury of the MVA (direct knee impact), supported by direct pain upon palpation of the joint line, the MRI findings and the longstanding duration of symptoms.  This is still symptomatic today.

In assessing non-pecuniary damages at $60,000 Madam Justice Griffin provided the following reasons:

[53] In considering all of the medical evidence, and Ms. Daitol’s testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol is likely to have long-term continuing TMJ problems and left knee pain problems, as well as some right knee problems well into the future, and that these injuries were caused by the accident. ..

[67] I find as a fact that Ms. Daitol’s greatest discomfort in the years since the accident, and likely in the future, and greatest interference with her enjoyment of life, is due and will continue to be due to the pain in her left knee.  She continuously is required to use a left knee brace.  For a lengthy period of time, she was on crutches.  She limits her physical movements and hence her recreational activities due to the limits of her left knee as she does not want to set herself back…

[69] I find that she has suffered severe restrictions in walking and will continue to do so in the future and likely for the rest of her life.  I conclude that there is no readily apparent alternative exercise for Ms. Daitol at this stage of her life, other than walking.  As a 36 year old woman, the permanent impairment of her ability to walk any measurable distance or for any measureable period of time, without suffering extreme pain, is a significant loss.  While she still will have plenty of enjoyment in life, she will frequently suffer pain, both in her recreational pursuits and at work when she is required to move around to retrieve files or do other light tasks. ..

[74] In this case, I find it very significant that the one physical activity Ms. Daitol used to enjoy, walking, has essentially been lost to her.  While she can still walk somewhat, it is clear that she is no longer going to enjoy it, it is going to very limited in duration, and she is always going to fear and suffer the aftermath of increased pain.  Walking is essential to most of daily life, and is not a luxury that if lost, will not be missed.  For someone who has never had a natural inclination to pursue a range of physical activities, this is an even more significant loss as she is unlikely to have the natural athletic ability that will allow her to generate some other replacement activity.  While I find that the range suggested by the plaintiff may be high in these circumstances, I find the range suggested by the defendant to be far too low.

[75] I find that an appropriate award for general damages in the circumstances of this case, taking into account the left knee damage, the fact that it is causing some problems with the right knee, and the ongoing TMJ complaints, all caused by the accident, is $60,000.