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Tag: Hill v. Murray

$120,000 Non-Pecuniary Assessment for Chronic Soft Tissue and Post Concussive Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages and fault following a motor vehicle collision.
In today’s case (Hill v. Murray) the Plaintiff was involved in “a very bad car accident” in 2009.  The Defendant was found fully at fault.  The Plaintiff’s injuries included chronic soft tissue injury and post concussive symptoms.  In assessing non-pecuniary damages at $120,000 Mr. Justice Macaulay provided the following reasons:
196]     On balance, I prefer the evidence of the plaintiff’s doctors where it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill received the following injuries as a result of the accident:
          1.       Soft tissue injuries to the left neck and shoulder, including AC joint, with cervicogenic headaches and some numbness and tingling down her left arm, now plateaued but not symptom free, particularly if she attempts to do too much;
          2.       Chronic intermittent pain;
          3.       Migraines (aural), under control;
          4.       Migraines unresolved and triggered differently than pre-accident migraines associated with pre-menstrual period;
          5.       PTSD (resolved by the time of trial);
          6.       Nightmares, transitory and resolved;
          7.       MTBI or post-concussion syndrome resulting in ongoing fatigue, memory, concentration, and balance problems;
          8.       Possible overlap of vestibular injury (trauma to utricle) causing or contributing to balance issues; and
          9.       Adjustment disorder, largely in remission.
I do not accept the sufficiency of the evidence respecting temporo-mandibular joint dysfunction.
[197]     It is now more than four years post-accident. Ms. Hill is unlikely to see further improvement. Instead, ongoing therapies will aim at pain management, assisting with balance issues and any further adaptions required respecting the effects of the MTBI or post-concussion syndrome. As she ages, the balance issues will likely elevate her risk of falling.
[198]     Ms. Hill’s injuries have significantly impacted her life and will continue to do so. She has lost the ability to participate in many of the sport and recreational activities that she enjoyed before the accident. Her physical interactions with the children are more limited than before. In social interactions, Ms. Hill is now easily overwhelmed or cannot recall the conversation thread. Her personality now appears different and less attractive to her family, friends and associates.
[199]     While Ms. Hill has been able to return to work at Butchart Gardens, she no longer takes the same degree of pleasure in her work and requires employer accommodations in order to do her job. It is unlikely that she will be able to fulfill the specific career aspirations that she had in mind before the accident and accordingly, she must adjust to that loss as well…
[212]     I reiterate that no two cases are truly alike when assessing non-pecuniary damages. I assess non-pecuniary damages at $120,000.
 

Assumed Future Fact Scenarios Are OK In Economic Expert Reports

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing the appropriateness of assumed future fact scenarios in an economists report.  In short the Court held that such assumptions could be laid out in the body of a report.
In the recent case (Hill v. Murray) Mr. Justice Macaulay provided the following comments on this topic:
[7] In Sacilloto v. Crossman (1990), 49 B.C.L.R. (2d) 375 (S.C.), the defence objected to an economist’s report that set out various possible scenarios for the expected earnings of the plaintiff, based on the assumption that he had not been injured in the accident, along with further scenarios for possible earnings after the accident.
[8] The court pointed out that many of the assumptions underpinning the report were at issue in the trial and, as a result, it would be impossible for counsel or the economist to rely on one assumption as to facts. The court considered the use of several scenarios to be in harmony with the fact that there were a number of live issues at trial. On admitting the report, the court stated:
(12) I am left with the impression that the author of the report has endeavoured … to tie the statistical data to the various possible scenarios that I may find or may not find applicable to the plaintiff. In doing so, he has endeavoured to mould the report to the likely evidence scenarios before the Court. That opinion evidence to me is useful evidence. It provides me with materials which, from my general experience both before and after coming to the Bench, I would not otherwise have.
(13) The case here is not a simple looking ahead for someone who has worked for many years and has established his working pattern in life. …
(14) Here, I am dealing with a young man who is embarking upon a working career, who on the evidence … was in a state of flux as to what he would do in the future … The type of evidence that has been put before me is such that I could not from my own experience pluck it out of my mind and arrive at reasonable estimates as to what might lie ahead depending on the findings of fact that I make.
Although this case suggests that admissibility may depend on the complexity of the calculations involved and the uncertainty of the future options for the plaintiff, the use of the scenarios does not in itself render the material inadmissible.
[9] Finally, the Court of Appeal implicitly improved the admission and use of such expert opinion material in Jurczak v. Mauro, 2013 BCCA 507. In that case, the economist provided an expert opinion on loss of earning capacity based on two sets of assumptions arising out of the plaintiff’s pre-accident work history and proffered scenarios in each case.
[10] Although the Court of Appeal overruled the trial judge’s approach to determining future loss of earning capacity, the court commented, “if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them.” A failure to do so may result in a wholly erroneous estimate of the damages (both at paragraph 37).
[11] In this regard, I am satisfied that the sections of the reports and tables to which the defendant objects in the present case are admissible.
To my knowledge these reasons for judgement have not yet been publicly published but, as always, I am happy to share a copy with anyone who contacts me and requests them.