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:
 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.
 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.
 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.
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.
I’ve written about this before and reasons for judgement were released today by the BC Supreme Court demonstrating this principle in action.
In today’s case (Latuszek v. Bel-Air Taxi 1992 Ltd.) the Plaintiff was involved in a serious intersection crash in the lower mainland. The Defendant died in the collision and the Plaintiff suffered serious injuries.
These injuries included Depression, PTSD and Chronic Pain. The Court valued the non-pecuniary damages (pain and suffering) for these injuries at $100,000 but then reduced the award by $40,000 due to the plaintiff’s failure to mitigate.
Madam Justice Stromberg-Stein summarized and applied the law as follows:
 Prior to setting non-pecuniary damages, I will address the duty to mitigate.
 There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended. Because of the nature of the plaintiff’s work, as a professional driver transporting fuel, he has limited his medication to Tylenol Extra Strength or Tylenol 8 Hour. Dr. Jaworski recommended exercises in the pool and gym and brisk walking. Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking. Dr. Jaworski suggested that brisk walking may be contraindicated now that he knows that Mr. Latuszek has a torn medial meniscus. Mr. Latuszek does very little regular exercise of any kind, except once or twice a week. He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist. He has not taken holidays in the past two years to try the anti?depressant medication, yet he understands that such medication as well as exercise, may improve, if not cure, his symptoms. The plaintiff has not prioritized his recovery.
 In light of the authorities presented by the parties, I conclude that general damages, having regard to the injuries suffered by Mr. Latuszek and the continued problems in that regard, including depression, PTSD, and chronic pain, should be set at $100,000. There will be a reduction of $40,000 for failure to mitigate. Therefore, I award $60,000 as general damages.
On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision. In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:
 The trial occurred about five years following the accident. Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities. He is stoic and is inclined to push through pain until it becomes intolerable. He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers. He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.
 The evidence demonstrated on a balance of probabilities that these problems were caused by the accident. Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods. All the problems had resolved prior to the accident. The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.
A highlight of this decision for me was the court’s discussion of credibility. One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff. That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:
 The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain. I quote portions of pages 397-399 of those reasons for judgment:
The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.
Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …
In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:
I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.
Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.
The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC. The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome. Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue. The Plaintiff was found 60% at fault for the collision.
In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:
 I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back. Further, I am satisfied that she developed and continues to suffer chronic pain as a result. I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.
 I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:
…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.
 Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail. He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.
The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC. The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches. In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:
 The issue of causation in this case is determined by applying the factors in Athey. Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event. I disagree. I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident. Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35.
 Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation. In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch. The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future. The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication. Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004. I accept that he has tried every mode in an effort to alleviate his symptoms. In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help. I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.
 Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness. These are frustrating and to some extent debilitating. He also has jaw, or temporal mandibular joint arthralgia and myofascial pain. He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue.
 It is understandable that these conditions have affected him emotionally. The opinion of Mr. Koch corroborates the plaintiff’s evidence. I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms.
I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims. As always, I welcome any feedback from all my visitors.
In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome. The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome. In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million. Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses. The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal. In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff
(a) Confronting the Plaintiff
 The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties. The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70). The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.
 The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges. This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada. In this country, we have an adversarial system, not an inquisitorial one.
 Such a rule would be unworkable with respect to judges in our system. Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses. They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.
 The rule in Browne v. Dunn is not suited for application to judges. The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation. What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible. That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.
 In addition, the rule in Browne v. Dunn has not been treated as an absolute rule. Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence. This feature of the rule is not adaptable to judges.
 The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations. The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14). In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case. It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25). Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.
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:
 The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.
 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.
 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.
 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
 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.
 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.
 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.
 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:
 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.
 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)
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:
General damages – non-pecuniary
Past loss of income
Future loss of income earning capacity
Loss of opportunity
Costs of future care
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:
 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.
 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.
In a judgement released today by Madam Justice Humphries, a total of $58,000 was awarded to a 37 year old plaintiff as a result of a 2004 motor vehicle accident in Vancouver, BC.
The Plaintiff suffered soft tissue injuries in her neck, shoulder and low back. The accident also caused depression which was, according to the court, at least as debilitating as the physical injuries. The court found that the physical and psychological injuries were inter-connected.
The Plaintiff did suffer from pre-existing injuries in all of the above areas as a result of a 1996 motor vehicle accident. Evidence was presented that she was largely recovered from her pre-existing soft tissue injuries and depression by the time of the 2004 accident.
The court summarized her injuries as follows:
“From all the medical reports and from her own evidence, (the Plaintiff) appears to have recovered from the physical effects of this accident by late 2005 or early 2006 in the sense that she had ceased experiencing daily and ongoing pain. However, she continues to have and can expect to have bouts of pain depending on her activities. This is somewhat similar to the same state she was in prior to the accident, when she could work long hours, attending physiotherapy once in awhile if she was experiencing discomfort caused by her job. However, I accept that the effects of over-exertion and work-related activities since the second accident are more limiting than they were just prior to it “
In the end the court awarded $45,000 for pain and suffering (non-pecuniary damages), $3,000 for past wage loss and $10,000 for loss of earning capacity.
If you have an ICBC claim and have suffered from pre-existing injuries that were re-injured or aggravated by a subsequent car accident this case is worth reading to see some of the factors courts consider in these circumstances.
Also of interest is the courts reasoning in awarding some money for past wage loss despite the “flimsy” evidence that was advanced in support of an income loss claim. The Plaintiff was a self-employed photographer and there was no hard evidence of lost income. The court, at paragraph 40, held as follows:
It is only common sense that a self-employed person whose work depends on dealing with the public, persuading people to hire her, and being able to carry heavy cameras and position herself quickly in order to take pictures must be able to rely on physical agility and a pleasant personality in order to work to her full capacity. I accept that (the Plaintiff) was putting in many hours building her contacts and working on various facets of her business just prior to the accident, and due to her temporary physical limitations and some periods of depression, she was able to work less after the accident for a period of time. However, the amount of the loss is not amenable to a calculation, and many of the hours she put in were not necessarily hours for which she would be able to bill a client. As well, her earnings in the years prior to the accident were very low; in fact, she made more in 2004 than she did in 2002 and 2003. I assess an amount of $3,000 for past wage loss based on the plaintiff’s evidence of the restrictions she faced in carrying on with her existing business and the delay in her plans to expand her baby/pet photography.
If you are having difficulty agreeing to settlement of an ICBC claim because of pre-existing injuries or because of a disputed claim for past-loss of income from a self-employed business this case is worth a read to see how our courts sometimes deal with these issues.
Do you have any questions about this case? If so feel free to contact the author.
After a trial that lasted over 20 days, A Plaintiff who was struck in a cross-walk in Whistler, BC was awarded $718,331 for his losses and injuries.
The accident was significant. The circumstances are canvassed at paragraph 2 of the judgement where it was held that “The Plaintiff was struck on his left side. He flew over the hood of the Defendant’s vehicle. His face smashed into the windshield. He then was thrown off the car landing on the pavement. ”
The Plaintiff suffered serious injuries including facial lacerations, a fractured nose, soft tissue injuries to the left knee, neck and back, a mild traumatic brain injury (also known as a concussion), dental and TMJ injuries, permanent facial scarring, depression, insomnia, fatigue, anxiety, panic attacks, chronic pain disorder and most significantly cognitive defecits due to his injuries.
As is often the case in ICBC claims involving chronic pain and head injury, the court had to deal with a mountain of medical expert witness testimony both for the Plaintiff and for the Defence.
In addition to obtaining opposing medical evidence, ICBC hired investigators to video the Plaintiff surreptitiously. As stated in my last blog, video surveillance is a common ICBC lawyer defence tactic. While ICBC lawyers defending claims don’t hire private investigators in every case, a safe general rule is that the more serious a Plaintiff’s injuries, the more likely the chance that ICBC defence lawyers have hired a private investigator.
Mr. Justice Williamson made an interesting comment regarding surveillance at paragraph 114 of his judgement where he held that “(the occupational therapist hired by ICBC) testified that there was a sense that (the Plaintiff) did not trust her and that (the Plaintiff) considered her as somehow or other a spy for ICBC. I note that the Plaintiff’ concern that ICBC was spying on him was accurate. The corporation hired investigators to video the plaintiff surreptitiously.”
After weighing all the evidence, the trial judge found that the Plaintiff “suffers from chronic pain syndrome, depression and continuing cognitive defecits.”
$135,000 was awarded for pain and suffering. The other damages awarded were as follows:
$450,000 for Loss of Earning Capacity (commonly referred to as future wage loss)
$101,436 for Past Wage Loss
$31,895 for Cost of Future Care
In reasons for judgment released today, the Honourable Madam Justice Loo stated that the jury’s verdict in a case involving serious injuries including concussion, neck and back injuries, depression and a chronic pain disorder, was ‘inordinately low’ and not supported by the evidene.
The plaintiff was a 28 year old corrections officer who sustained serious injuries in an October, 2003 motor vehicle collision when his vehicle was struck by a semi-tractor trailer that ran a red light.
The jury heard 10 days of evidence. During this time a series of unusual developments occurred (the details of which could be found in Madame Justice Loo’s judgment at paragraphs 12-16) which include a juror getting discharged as a result of an anxiety attack, a juror getting discharged for unusual behaviour which caused him to be hospitalized and the jury discussing the case prematruely and against an express caution from the trial judge not to do so.
After hearing all the evidence the jury awarded $32,550 for past income loss, $17,673.86 for special damages, $30,000 for pain and suffering and loss of enjoyment of life, $75,000 for future loss of earning capacity and $28,205 for future care costs.
Madame Justice Loo felt compelled to take the unusual step of commenting on the jury’s verdict and did so in detail. This was apparently done with a view towards assisting the British Columbia Court of Appeal in a judgment that very likely will be appealed. After pointing out that this jury spent no more than 2.5 hours in deliberations, Madame Justice Loo held that ‘no jury reviewing all of the evidence as a whole could have reached such a verdict’.