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Tag: ICBC claim

$35,000 Pain and Suffering Awarded to Injured Cyclist

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

In reasons for judgement released today, Madam Justice Boyd of the BC Supreme Court awarded a 53 year old paramedic $35,000 non-pecuniary damages (pain and suffering) as compensatory damages for a shoulder injury.
The Plaintiff was injured in Surrey, BC when his bicycle struck an SUV that turned left in front of the Plaintiff as he tried to clear an intersection. The collision was significant in that the bicycle struck the right front passenger side wheel area of the SUV, causing the plaintiff to fly over the hood of the vehicle and land some distance away.
Both Liability (fault) and quantum (value of loss) were at issue in this ICBC claim that proceeded to trial.
The court held that the driver of the SUV was 100% responsible for this BC motor vehicle accident.
The court found that “the plaintiff was an experienced trained cyclist, very much familiar with the challenges of urban vehicular travel.” The court summarized the findings of fault at paragraph 35 of the judgement where it was held that :
[35] Thus, in all of the circumstances, I find that the plaintiff was travelling lawfully along 140th Street at Laurel Drive when the defendant turned into his path. The defendant negligently failed to ensure he could complete his left hand turn without first ensuring before doing so that there was no traffic approaching so closely as to constitute an immediate hazard, thus breaching s. 174 of the Act. By the same token I find the plaintiff had no opportunity to avoid the collision and that accordingly he was not contributorily negligent.
The Plaintiff’s injuries were quite significant but he fortunately went on to make a ‘remarkable’ recovery. The most serious injury was to the Plaintiff’s right shoulder. The court held that
“Relying on Dr. Boyle’s report, I am satisfied that the plaintiff’s shoulder injury has not resolved entirely and that he faces the likelihood of chronic recurring discomfort. Further, there is a risk of his symptoms progressing, perhaps some day necessitating arthroscopic surgery. Based on the last paragraph above, I conclude that while the progression of the symptoms is not likely to occur within the next 2-3 years, there is indeed a possibility this progression of symptoms may occur during the plaintiff’s retirement years, exposing him to a period of reduced capacity and perhaps ultimately to surgery. “
The court awarded damages as follows:
1. Non-pecuniary damages: $35,000
2. Loss of income: $8,750.36
3. Special damages: $809.33
Do you have questions about an ICBC injury claim involving injuries to a cyclist or questions about the icbc settlement process? If so click here to arrange a free consultation with icbc claims lawyer Erik Magraken.

Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 62 Comments on Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.
The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.
A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.
Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.
With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.
The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:
Athey v. Leonati
Resurfice Corp. v. Hanke
The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.
The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.
For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”
For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.
The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).
If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.
Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.

BC Supreme Court Awards $16,324 For Soft Tissue Injuries in an LVI Accident

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.
The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.
The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.
The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.
This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.
The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.
In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”
Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.
The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.
In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.
Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

BC Court of Appeal Orders New Trial in Left Hand Turn Accident Case

Written by admin on . Posted in ICBC Liability (fault) Cases, Jury Trials, Uncategorized. 66 Comments on BC Court of Appeal Orders New Trial in Left Hand Turn Accident Case

Today the BC Court of Appeal overturned a jury verdict finding a left hand turning motorist completely at fault for a motor vehicle collision and awarding the injured Plaintiff over $1.2 Million in compensation for serious injuries.
The car accident happend in 2000 in Coquitlam BC. The Plaintiff was travelling southbound in the right hand lane on North Road. There was stopped traffic in the two southbound lanes to his left. The Defendant was travelling North on North Road and attempted to make a left hand turn into the Lougheed Mall parking lot. At this time he collided with the Plaintiff’s vehicle.
The jury found the left-hand driver 100% at fault for this collision.
The jury went on to award damages as follows:
Non-pecuniary damages (pain and suffering) $300,000
Past Loss of Income: $275,000
Loss of Future Earning Capacity: $650,000
Cost of Future Care: $15,000
At trial the defence lawyer asked the judge to instruct the jury on the provisions of s. 158 of the Motor Vehicle Act. This section prohibits a driver from overtaking and passing a vehicle on the right when the movement cannot be made safely. The trial judge chose not to instruct the jury about this section.
The BC Court of Appeal held that it was an error in law not to do so, specifically that:

[11] In my opinion it was, in the circumstances of this case, a serious non- direction, amounting to a misdirection, to fail to draw the provisions of s. 158 to the attention of the jury. Section 158(2)(a) prohibits a driver from overtaking and passing another vehicle on the right when the movement cannot be made in safety. The jury could not have had a proper understanding of the parties’ relative obligations, and the standard of care each was to observe, without an instruction on the meaning and application of that section.

[12] I do not think this Court could properly decide how, if at all, fault should be apportioned. That question requires an appreciation of all the evidence, as well as a consideration of the credibility of the two drivers and the other witnesses.

[13] In my opinion, there must be a new trial on the issue of contributory negligence.

The Court ordered that the jury’s judgement be set aside and that the proceeding be generally returned to the BC Supreme Court for a new trial.
The result is, over 8 years after a very serious accident with serious injuries, If the Plaintiff is not able to come to a settlement of his ICBC Claim he will have to be involved in a second trial to address the allegations that he was partially at fault for his injuries and to prove the value of his losses all over again.
Section 158 of the BC Motor Vehicle Act is a rarely cited section but one of significant importance. Simply because you are in a through lane and are not governed by a stop sign or stop light does not mean you always have the right of way. If vehicles in your direction of travel have stopped and it is not clear why they have stopped it may not be safe to proceed. In this case it appears that vehicles may have stopped to permit the Defendant to turn left and the Plaintiff continued on. This case illustrates the potential use Section 158 of the Motor Vehicle Act may have for left hand turning motorists involved in a collision.
Do you have questions about this case or fault for an accident involving a left-turning vehicle that you wish to discuss with an ICBC Claims Lawyer? Click here to arrange a free consultation with ICBC Claims lawyer Erik Magraken.

Supreme Court of Canada Clarifies Law Relating to "Forseeability"

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 142 Comments on Supreme Court of Canada Clarifies Law Relating to "Forseeability"

In reasons for judgement released today, the Supreme Court of Canada dismissed the appeal of a very peculiar case. In doing so they clarified the law regarding ‘forseeability of injury’ which is a necessary ingredient to prove in negligence cases.
While this case does not involve an ICBC claim, this case is important because ‘forseeability’ must be proven in all negligence cases, and this includes ICBC car accident tort claims.
The facts of this case are unusual. The Plaintiff allegedly sustained a psychiactric injury as a result of seeing dead flies in a bottle of water supplied by Culligan. He had used Culligan’s services for many years. As a result of this “he became obsessed with the event and its revolting implications for the health of his family”. He went on to develop a major depressive disorder with associated phobia and anxiety.
At trial he was awarded over $300,000 in compensation. The Ontario Court of Appeal overturned the verdict and thus this case was brought to the Supreme Court of Canada.
When suing for negligence (and this is the case in most ICBC car accident claims) a Plaintiff must prove 4 things:
1. That the defendant owed the Plaintiff a duty of care
2. That the defedant’s behaviour breached the standard of care
3. That the Plaintiff sustained damages
4. That the damages were caused, in fact and in law, by the Defenant’s breach.
The Supreme Court of Canada held that the Plaintiff met the first three tests to succeed in his action. It is the 4th test that the Plaintiff failed on and in explaining why the Supreme Court of Canada added some clarity to this area of law. The important portion of the judgement can be found at paragraphs 11- 18 which read as follow:

[11] The fourth and final question to address in a negligence claim is whether the defendant’s breach caused the plaintiff’s harm in fact and in law. The evidence before the trial judge establishes that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury. We are not asked to revisit this conclusion. The remaining question is whether that breach also caused the plaintiff’s damages in law or whether they are too remote to warrant recovery.

[12] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).

[13] Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendant … and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617, at p. 643).

[14] The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”

[15] As the Court of Appeal found, at para. 49, the requirement that a mental injury would occur in a person of ordinary fortitude, set out in Vanek, at paras. 59-61, is inherent in the notion of foreseeability. This is true whether one considers foreseeability at the remoteness or at the duty of care stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317, [2002] HCA 35, per Gleeson C.J., this “is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm” (para. 16). To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

[16] To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damages, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damages at law.

[17] I add this. In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant. In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha’s particular sensibilities.

[18] It follows that in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do. The only evidence was about his own reactions, which were described by the medical experts as “highly unusual” and “very individual” (C.A. judgment, at para. 52). There is no evidence that a person of ordinary fortitude would have suffered injury from seeing the flies in the bottle; indeed the expert witnesses were not asked this question. Instead of asking whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude, the trial judge applied a subjective standard, taking into account Mr. Mustapha’s “previous history” and “particular circumstances” (para. 227), including a number of “cultural factors” such as his unusual concern over cleanliness, and the health and well-being of his family. This was an error. Mr. Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.

If you are advancing and ICBC tort claim (a claim for damages against an at fault motorist insured by ICBC) you will have to keep the ‘forseeabilty’ test in mind and know the law as set out in this judgement.
The court also made an interesting comment about how the law views physical as compared to psychological injuries. At Paragraph 8 of the judgement, the court adopted the reasons from a 1996 case from the House of Lords which stated that “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.”
It is good to know that the Supreme Court of Canada does not separate physical injuries from phychological injuries and treats both as real and compensable.
Do you have questions about this judgement or an ICBC injury claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC Claims lawyer Erik Magraken for a free consultation.

PTSD and Chronic Pain Claims Dismissed, $36,260 Awarded for Soft Tissue Inuries and Anxiety

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

BC Courts have heard many ICBC claims involving PTSD and Chronic Pain Syndrome. In reasons for judgement released this week Mr. Justice Cullen heard and dismissed a PTSD claim and Chronic Pain Syndrome claim as a result of a motor vehicle collision.
In 2004 the Plaintiff, who was a passenger in her boyfriend’s vehicle, was involved in a collision where her vehicle rear-ended the vehicle in front of her. The accident occurred on Nanaimo Street in Vancouver, BC. She advanced a tort claim against her boyfriend who was deemed to be the at-fault driver (a tort claim is the legal term used to describe a civil action, such as an ICBC claim for damages against an at fault driver).
ICBC, on the boyfriend’s behalf, admitted fault but disputed the alleged injuries. The Plaintiff claimed to suffer from soft tissue injuries to her neck and back, a myofacial pain syndrome and/or a pain disorder and post-traumatic stress disorder.
As in alsmost all ICBC claims involving alleged chronic pain, the court heard from a number of expert witnesses including the Plaintiff’s family doctor, a physiotherapist, a physiatrist (rehabilitaiton specialist) a psychologist and an orthopaedic surgeon. The orthopaedic surgeon was a defence witness who conducted an ‘independent medical exam’ of the Plaintiff pursuant to the BC Rules of Court.
In the Plaintiff’s case evidence was led that she suffered from a ‘myofacial pain syndrome’ which was described as ‘a central nervous system disorder with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points…areas in the muscles that are rich in nerve endings’.
A psychologist testified that the Plaintiff suffered from a Post Traumatic Pain Disorder (PTSD) and also that she suffered from ‘many symptoms of a pain disorder’.
The orthopaedic surgeon, who is often used by ICBC, testified that the Plaintiff suffered from soft tissue injuries to her neck, upper back and shoulders, along with some cuts and bruises. He dismissed the connection of the Plaintiff’s low back complaints to the accident by stating “There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA”. He then testified that his physical examination of the Plaintiff was ‘completely normal’ and he regarded any soft tissue injuries sustained by the Plaintiff as resolved.
In the end the court rejected the Plaintiff’s claim for PTSD and Chronic Pain Disorder and found that the Plaintiff suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder. The court also found that the Plaintiff’s low back symptoms which developed 3 months post accident were causally connected to the accident either through compensatory back pain of through myofacial pain syndrome. The court also found that the Plaintiff suffered from anxiety as a result of the accident and awarded $35,000 for pain and suffering, $560 for past out of pocket expenses and a further $700 to permit the Plaintiff to attend further counselling sessions with her pscyhologist to treat her anxiety.
This judgement is worth a quick read if you are advancing an ICBC claim involving chronic pain or PTSD to see some of the factors courts look at when weighing competing medical evidence. The judgement seems to be a compromise between the competing evidence accepting that the Plaintiff’s injuries, while not PTSD or Chronic Pain Syndrome, were not resolved by the time of trial. When considering settling an ICBC claim it is good to become familiar with how courts treat similar injuries and what the various outcomes at trial can be.
Do you have questions about an ICBC claim involving PTSD or Chronic Pain that you want to discuss with an ICBC Claims Lawyer? If so, click here to contact ICBC Claims Lawyer Erik Magraken for a free consultation.

$1.065 Million Awarded to Brain Injured Plaintiff

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

In highly anticipated reasons for judgement released today, following a 4 week trial in late 2007, Mr. Justice Maczko awarded a severely injured Plaintiff over $1,000,000 in compensation as a result of a motor vehicle accident.
The issues to be decided at trial were liability (who was at fault) and quantum (the value of the injuries) as a result of a significant accident which occurred in West Vancouver, BC in 2004.
The Plaintiff, who was 26 years old at the time, was standing in a roadway in West Vancouver when he was struck by a Hummer SUV driven by the Defendant. The Plaintiff sustained serious injuries including a traumatic brain injury, scalp wound, bilateral wrist and jaw fractures, the loss of several teeth, and soft tissue injuries to the neck and back. The traumatic brain injury was the most significant of these in terms of the Plaintiff’s employability and need for future medical care.
In the end the court found the Defendant entirely at fault an awarded over $1,000,000 in damages to the Plaintiff.
Addressing the issue of liability at paragraph of 127 of the judgement, the court held as follows:

[127] The Hummer travelled too quickly for the existing conditions. Mr. Samieian was negligent in moving his vehicle too quickly and travelling around the cube van when his view of his path was obscured. It is more likely that the accident arose from driver error than from a complete failure of all controls on the Hummer. It is unlikely that steering, braking and acceleration all malfunctioned at once, and without leaving anything detectable on inspection after the accident.

[128] As a result, the defendants are entirely responsible for the accident and for the losses it caused Mr. Dikey.

As is often the case in ICBC claims involving brain injuries, the court heard from numerous expert physicians including neurologists, a neuropsychologist, and a Physiatrist (physical medicine and rehabilitation specialist).
In the end the court made the following findings regarding the Plaintiff’s injuries:

[109] In summary, Mr. Dikey suffered many injuries as a result of the accident. The most significant injury in terms of functioning was the traumatic brain injury. The preponderance of evidence suggests that the injury was moderate when it occurred, but this is of little assistance in determining the long-term impact of the injury.

[110] Mr. Dikey’s continuing cognitive problems include significant limitations with memory, planning, organizing, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations. He forgets to eat and take his medications regularly, and forgets appointments. He also suffers depression, isolation and limited social support and interactions. He has minimal initiation and motivation.

[111] Mr. Dikey suffered serious head and jaw injuries. Dr. Goldstein recommends investigating jaw reconstruction, likely requiring refracturing the jaw on both sides, and tooth replacement. Mr. Dikey and his family were undecided for several years about whether to pursue that treatment, owing to the risk of damage to a facial nerve. The evidence suggests that the risk is small and any damage that might occur would probably be temporary.

[112] Mr. Dikey suffered two broken wrists. His left wrist healed appropriately, but the right wrist did not. He does not have pain-free full range of motion of his right wrist owing to the way the fracture healed. The suggested surgery will give him a very good chance of increased range of motion without pain.

[113] Mr. Dikey suffered injury to his right knee. The recommended surgery for his right knee would have a good likelihood of relieving his right knee pain.

[114] Mr. Dikey has continuing pain from his soft tissue injury to his neck and back. His cuts and bruises have healed, but he has a visible scar on his forehead and in his scalp. His primary complaint is of headaches, which can be so bad at times that they lead to vomiting. They are his most frequent and significant cause of pain.

The court summarized the profound effects of the injuries as follows:
[142] Mr. Dikey’s life has changed profoundly as a consequence of the accident. He is unlikely to work, and has lost the self-esteem, enjoyment and income that is available from work. While he retains the ability to walk and talk and engage in the activities of daily living, his cognitive problems are such that he will require some assistance for the rest of his life. His most significant loss is the loss of cognitive abilities. He also suffers severe headaches. He has chronic pain in the neck. His pain and the lost function of his right wrist are likely to improve following surgery. He will likely have on-going problems with his neck and back.
In the end damages were assessed as follows:
$215,000 for non-pecuniary damages (pain and suffering)
$500,000 for lost future earning capacity
$350,000 for cost of future care
If you have questions about an ICBC claim or a brain injury claim that you would like to discuss with an ICBC claims lawyer feel free to contact Erik Magraken for a free consultation.

BC Supreme Court awards $229,890 for Concussion and Chronic Back Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

In written reasons for judgement released today, a Plaintiff who was injured in a 2003 single vehicle accident was awarded a total of $229,890 for his injuries and losses.
The Plaintiff, who was 18 at the time, was the centre passenger in a pick-up truck that lost control. The accident was significant. The truck “crossed a cattle guard and then hit loose gravel. The Driver lost control and the truck slid off the embankment. It rolled a number of times and apparently flipped end over end once. In ended up lying on its right side.”
For a time, the Plaintiff lost consciousness. He suffered a concussion and for a while suffered symptoms of headaches, light headedness, imbalance and tinnitus (ringing in the ears.) These symptoms resolved by the time of trial. He also had a neck injury which largely resolved and a shoulder injury which fully resolved by the time of trial.
The Plaintiff’s main injury by the time of trial was chronic low back pain.
4 doctors testified on the Plaintiff’s behalf. His family doctor painted a positive picture of the Plaintiff.
A specialist in physical medicine and rehabilitation (physiatrist) testified that the Plaintiff suffered from a soft tissue injuries to the cervical and lumbar spine (neck and low back).
A rheumatologist testified that the Plaintiff suffered from chronic back pain and that this pain “would have a significant negative influence upon his ability to compete in the workforce in the area of strenuous laboring jobs.”
A specialist in occupational medicine testified that the Plaintiff had not recovered from the soft tissue injuries to his back and that “it is unlikely the Plaintiff will have full resolution of his back injuries“.
The defence had the Plaintiff assessed by an orthopaedic surgeon. This is a common choice of ICBC for their ‘independent medical exams” when dealing with soft tissue injuries. The doctor hired by the defence testified that one of the factors leading to the Plaintiff’s ongoing complaints was ‘psychosocial factors‘ and that he would ‘strongly recommend that the plaintiff be assessed by a psychiatrist“.
The court preferred the evidence of the Plaintiff’s physicians and stated that “I conclude there is little, if anything, in (the defence doctors) report that would detract from the evidence from the other medical personnel or the lay witness evidence with respect to the Plaintiff’s present condition“.
In the end, damages were assessed as follows:

Non-Pecuniary Damages

$ 85,000

Past Wage Loss

$ 23,000

Future Wage Loss

$120,000

Cost of Future Care

$ 1,890

Total:

$229,890

3 Car Accidents Found to Have Little Effect on MS

Written by admin on . Posted in ICBC Head Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

In lenghty reasons for judgement released today, Mr. Justice Metzger found that injuries sustained in 3 seperate motor vehicle collisions had little impact on the Plaintiff’s functioning having regard to her MS related difficulties.
The only issue at trial was the value of the Plaintiff;s damages, fault for the accidents was admitted by the various defendants. The Plaintiff was diagnosed with MS about 5 months after the first of these 3 car accidents.
The Plaintiff sought a total of $223,550 in damages as a result of the collisions. The Plaintiff did not allege that the collisions played a role in the causation or aggravation of MS, rather that the impact of the accident related injuries on her functioning having regard to her MS was significant.
After over 3 weeks of evidence the trial judge concluded that the collisions caused soft tissue injuries (also referred to as connective tissue injuries) and that these were not particulalry significant.
Addressing the first collision the court concluded as follows:
The evidence is that the plaintiff’s injuries from accident #1 healed in their natural course and their effects were eventually overwhelmed or subsumed by the plaintiff’s unrelated progressive MS symptoms and disability. I am satisfied that the plaintiff’s pain and suffering decreased over a five-month period, ending in August 2003.

The plaintiff did not adduce evidence of a compounding or synergistic effect between her MS and her accident related soft tissue injuries.

On a review of the usual contradictory cases presented by opposing parties, I am satisfied the plaintiff is entitled to $8,500 in non-pecuniary damages for accident #1

Addressing the second collision the court found that

I find that the maximum duration the soft tissue injuries could be reasonably attributed to the motor vehicle accident of January 25, 2005 is from that date until May 3, 2006, when the MS relapse overwhelmed all other concerns. After that point, even if there were residual symptoms, their significance was “miniscule” or unrelated and not attributable to the negligence of the defendant.
From April 1, 2005 to May 3, 2006, the plaintiff’s function was quite high as she was able to maintain a satisfactory level of performance at Royal Roads University. As the plaintiff’s friend Tiffany Young testified, the plaintiff was able to meet with her for coffee, to play scrabble and go on walks, even though she had ongoing low back or other soft tissue injury symptoms. Other friends confirmed Ms. Jacobs’ attendance at dinners, movies and concerts.

It is not clear how many of the plaintiff’s MS symptoms were confused with the soft tissue injury symptoms. The lay witnesses were not in a position to distinguish between the pre-existing symptoms and those that came after accident #2. None of the lay witnesses suggested that the plaintiff did not have an energetic and high degree of function at least until the May 3, 2006 MS relapse. Each described what could reasonably be expected to accompany mild, nagging soft tissue injuries. The plaintiff coped despite these nagging and disruptive symptoms.

Having considered the collection of competing authorities with respect to appropriate non-pecuniary damages, I am satisfied the plaintiff is entitled to $23,500 as a result of the January 25, 2005 collision.

Lastly, the court found that there was “no objective evidence of injury” as a result of the third collision. THe court awarded $1,500 for pain and suffering as a result of that collision.

The Plaintiff’s total award was $36,116. Addressing the central issue in the case the court found that

There is no evidence of a compounding or synergistic effect between the accidents and the MS beyond the temporary and minor reference made by Dr. Devonshire while the plaintiff was undergoing a period of chemotherapy. The plaintiff remained employed and active at all material times until the disabling MS relapse.

Damages are therefore segregated on the basis of three separate accidents with no overlapping injuries and no interplay between the MS and the motor vehicle accidents.

Do you have questions about this case or a similar ICBC case that you would like to discuss with an ICBC claims lawyer? If so feel free to contact the author.

BC Supreme Court Awards $58,000 for Soft Tissue Injuries and Depression

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

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.