Skip to main content

Tag: icbc injury claims

$40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 63 Comments on $40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Adding to this “pain and suffering case-law database” reasons for judgement were released today dealing with damages for a knee injury and soft tissue injuries sustained in a BC Car Crash.
In today’s case (Hill v. Durham), the Plaintiff was involved in a 2005 rear end accident.  The Plaintiff was a passenger at the time and the issue of liability (fault) was admitted at trial.  The trial focused on the extent of the Plaintiff’s accident related injuries and their value.  In total, damages of just over $77,000 were awarded including an award of $40,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In arriving at this figure Mr. Justice Barrow summarized the Plaintiff’s accident related injuries and prognosis for these as follows:
[22] Dr. McKenzie saw Ms. Hill in early October 2006. In his consultation report of October 12, 2006 he wrote that Ms. Hill’s problem seemed to be localized to a particular tendon in the knee and he thought that it may be the “result of trauma during the motor vehicle accident”. He prescribed exercises and ordered some further diagnostic imaging. An MRI was performed in January 2007 and it revealed two things:  thinning of the patellar cartilage in the knee joint and greater than normal water content in one of the bones, a condition technically described as subchondrial bone marrow edema. Dr. McKenzie testified that edema such as that found in Ms. Hill’s knee is caused by one of two things:  trauma or excessive wear and tear. When it is caused by excessive wear and tear it is accompanied by other findings visible on x-ray. Those other findings were not present in Ms. Hill’s knee, and as a result Dr. McKenzie concluded that the edema she is experiencing is as a result of trauma. He noted that Ms. Hill’s left knee has neither of the conditions. He testified that the degree of trauma necessary to cause this condition would “not be trivial”. He said that the problems are consistent with the kind of trauma that might be sustained by hitting a knee on the dash in motor vehicle accident…

25]         To a degree the resolution of this issue and other issues turns on the reliability and credibility of Ms. Hill. In general I found Ms. Hill to be a careful and credible witness. She testified that she had experienced bumps, bruises and injuries of various kinds over the course of her life. She said that she had always recovered reasonably quickly and completely from these events. She expected to do likewise following this accident. In general she impressed me as someone not prone to dwell on or overstate her physical problems. I accept that she now believes she struck her knee in the collision, although she has reached that conclusion not because she specifically remembers doing so but rather on the basis of the circumstantial evidence. She testified almost in passing that at one of her first yoga classes, within a month of the motor vehicle accident, she told her teacher that she was experiencing difficulties with her right knee. I accept her evidence on that point, and accept that she became aware of the discomfort in her knee reasonably shortly after the accident. Further, I am satisfied that she did not strike her knee after the accident in a manner that would give rise to the condition Dr. McKenzie found. I think it more likely than not that, as Dr. McKenzie noted, Ms. Hill was experiencing a number of more significant pains in the immediate aftermath of the collision and it was only as those pains subsided and her activity level increased that she became aware of the difficulty in her right knee.

[26]         I am satisfied that Ms. Hill’s right knee problems are caused by the motor vehicle accident.

[27]         The prognosis for this injury is guarded. Dr. McKenzie’s opinion is that the condition is often chronic. In February 2007 he prescribed a knee brace for use when exercising in a way that strains the knee. In his opinion, Ms. Hill may require renewals of that brace as well as periodic support from physiotherapists and medications for pain and inflammation. Ms. Hill reported to Dr. Dodek in October 2008 that her knee symptoms were improving.

[28]         Ms. Hill’s other injury is to the soft tissues of her back. She has headaches secondary to that injury. In his October 28, 2008 report, Dr. Dodek expressed the view that her “long term prognosis for recovery…remains good” notwithstanding that almost three years had passed since the accident. Dr. Travlos, in his November 1, 2007 report, wrote that Ms. Hill’s headaches would continue to reduce in frequency and would likely return to their pre?accident level. As to her right mid and low back difficulties, he expressed no opinion on future prognosis. He did, however, encourage Ms. Hill to add cycling to her exercise program and to reduce her reliance on physiotherapy. He also thought that her consumption of over-the-counter analgesics could and should be reduced. Dr. Apel, in her September 12, 2008 report, concluded that the prognosis for complete recovery is guarded however the prognosis for significant symptom reduction is fair to good. In her view, Ms. Hill’s current exercise program is insufficient and with appropriate changes, including increased focus on stretching, she will experience further symptom reduction…

[34]         Turning to the authorities, the injuries sustained by the plaintiffs in Menhinick, Wery, and Houghton (Litigation Guardian of), are generally similar to those suffered by Ms. Hill. The prognosis for each of those plaintiffs, however, was more guarded than I find is the case for Ms. Hill. The injuries sustained by the plaintiffs in the other authorities cited by counsel for Ms. Hill are all significantly more serious. On the other hand, I am satisfied that Ms. Hill’s injuries are more significant than those suffered by the plaintiffs in Krogh and Job.

[35]         In summary, Ms. Hill suffered a moderate soft tissue injury to her back. That injury remains problematic almost four years after the accident. I am satisfied that it will continue to improve. Her knee injury is less painful but is likely to last longer, if not indefinitely. Based on all of the evidence and a consideration of all of the authorities cited by counsel, I find that the appropriate award for non-pecuniary damages is $40,000. Although not asked to, I would allocate that award $25,000 to the back injury and $15,000 to the knee injury. I have not reduced the award to account for Ms. Hill’s pre?existing knee problems because I am satisfied they would not interfere in any significant way with her recreational and other activities.

$95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 53 Comments on $95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Reasons for judgement were released yesterday dealing with an appropriate award of damages for soft tissue injuries and chronic pain lasting for over 6 years.
In yesterday’s case (Gosal v. Singh) the Plaintiff was involved in 2 BC Car Crashes.  The first in 2003, the second in 2005. The first crash was a rear end collision.  Fault was admitted.  As the Plaintiff was recovering from her injuries from the first collision she was involved in the second collision.
The second crash happened when the Defendant, who was parked, pulled out in front of the Plaintiff’s lane of travel.  Fault was not admitted but Madam Justice Loo held that the defendant was 100% at fault finding that he “moved his vehicle from a parked position without first determining that he could do so safely, and that (the Plaintiff) had no opportunity to avoid the collision.”
The Plaintiff suffered from various soft tissue injuries and chronic pain which lasted for over 6 years and still bothered the Plaintiff by the time of trial.  In valuing the Plaintiff’s non-pecuniary damages (pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Loo made the following findings:

[49] Ms. Gosal suffered mild to moderate soft tissue injuries to her neck, upper back, shoulders, and mid and lower back, which caused severe headaches. She was treated with physiotherapy, massage, and chiropractic treatments, but her recovery took longer because of her depression and anxiety. She was recovering when the second accident exacerbated her injuries, including her depression and anxiety.

[50] Dr. Khunkhun states that Ms. Gosal’s long-term prognosis is guarded because her symptoms have not resolved after such a long period of time since the accidents. She does not consider Ms. Gosal to be at an increased risk of any long-term sequelae such as osteoarthritis. She believes Ms. Gosal would continue to benefit from body conditioning and strengthening exercises. She observed that in the past Ms. Gosal benefitted from regular exercise and when she stops exercising regularly, her mood deteriorates and her pain increases.

[51] Dr. Manchanda last saw Ms. Gosal on September 24, 2008. She told him that she had pain on about four or five days a week, and no pain on about two days a week. She was still looking for employment in counselling. At that time, Dr. Manchanda felt that Ms. Gosal could work in a job that was sedentary or involved light physical duties. He also felt that Ms. Gosal could complete the majority of her household chores, but that she might require a break or assistance with the heavier chores, such as vacuuming or carrying heavy laundry.

[52] Dr. Manchanda’s prognosis has thus far proved to be accurate. Ms. Gosal has worked full-time since October 6, 2008 in a job that is fairly sedentary and involves only light physical duties. There is no evidence that she has taken time off work because of symptoms arising from the accidents…

[67] I prefer Dr. Sandhu’s opinion that Ms. Gosal is not seeking secondary gains. She was looking after the household and her children’s needs as best she could, and doing her best to continue with her studies. Having observed Ms. Gosal, and on all the evidence, I conclude that she is not malingering and that her complaints of pain and depression are genuine.

[68] She continues to improve, albeit slowly. I find that there are two to three days a week when she is not in pain. Full-time employment has assisted her both physically and emotionally. Though it is now more than six years since the first accident, and more than four years since the second accident, she still suffers from depression and pain. I anticipate that over the next few years, with a regular daily exercise program, her physical pain and depression will continue to improve but may not resolve completely.

[71] I find that circumstances of Ms. Gosal’s injuries are similar to those in Foran v. Nguyen, 2006 BCSC 605, 149 A.C.W.S. (3d) 419, where the award for non-pecuniary damages was $90,000, and Jackson v. Lai, 2007 BCSC 1023, 160 A.C.W.S. (3d) 276, where the award was $100,000.

[72] I consider an award of $95,000 for non-pecuniary damages to be appropriate.

In addition to this case’s value as a precedent for valuing non-pecuniary damages for chronic pain, this case is worth reviewing for the Court’s criticism of the expert witness called by the defense.

I’ve previously written about the duty of experts to the court and highlighted judicial criticism when experts ignore this duty.  In today’s case the court made critical findings with respect to Dr. Hymie Davis, a psychiatrist who billed over $290,000 to ICBC in 2008.  Specifically Madam Justice Loo found that Dr. Davis “was presenting a case for the defence rather than providing an impartial expert opinion.  Dr. Davis’ argument that (the Plaintiff’s) injuries should have healed and that she is seeking secondary gains or malingering, is at odds with his article “The Whiplash Injury“.

ICBC Injury Claims and Your Privacy: The Implied Undertaking of Confidentiality

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues. 46 Comments on ICBC Injury Claims and Your Privacy: The Implied Undertaking of Confidentiality

When you sue for damages in the BC Supreme Court in an ICBC Injury Claim you are subject to certain rules of compelled disclosure.  These rules require you to give verbal, documentary and even physical discovery (independent medical exams).
When ICBC gets access to this private information in the lawsuit process it is subject to an “implied undertaking of confidentiality“.  What this means is this information is not to be used by ICBC for purposes outside of the lawsuit.
If you have a further ICBC Claim involving similar injuries making the previous records relevant, can ICBC provide these records to their lawyer to be used against you in a subsequent claim?  Reasons for judgement were released today addressing this issue and the answer is no, at least not without your consent or a court order.
In today’s case (Chonn v. DCRS Canada Corp dba Mercedez-Benz Credit Canada) the Plaintiff had a history of ICBC Injury Claims.  In the most recent claim the Defence Lawyer gathered documents from the previous claims and intended to use them in the current lawsuit.  The Plaintiff objected to this.  A motion was brought before the BC Supreme Court and Mr. Justice Voith was asked to decide whether “the Insurance Corporation of British Columbia (“ICBC”), which, by operation of statute, had conduct of the defence of each of the Earlier Actions and has conduct of the Current Action, can list the documents it obtained from the plaintiff in the Earlier Actions without first obtaining the plaintiff’s consent or leave of the court.”
In answering this question Mr. Justice Voith summarized the law behind the “implied undertaking of confidentiality” and set out the limits of ICBC’s use of records in subsequent claims.  The highlights of the decisions are set out below:

[25] A party who has documents from earlier litigation that are impressed with the implied undertaking simply cannot make use of those documents without the concurrence of the party from whom they were obtained or leave of the court. The implied undertaking protects documents or oral discovery obtained in earlier litigation from being used for any purpose “collateral” to that litigation. Thus, the documents cannot be used for internal strategic review in subsequent litigation. They cannot be used for the purposes of drafting pleadings. They cannot be sent to counsel for the purposes of obtaining an opinion in new litigation. All of these obligations bound the named defendants in the Current Action as well as ICBC in its conduct of that litigation.

[39] Once one recognizes that a central focus of the implied undertaking rule is to prevent the use of documents in subsequent litigation without consent or leave of the court, it is not sound to assert that Rule 26 displaces the application of the implied undertaking rule. Rule 26 is a rule of broad application and it governs virtually all civil actions. There are like provisions in most other jurisdictions. The result advanced by the defendants would significantly curtail the efficacy and ambit of the rule.

[40] The submission of the defendants would also significantly erode both policy objectives underlying the rule. It would impair the privacy interests of the party to the earlier action who made disclosure and gave discovery evidence. It would also subvert the policy objective of encouraging parties to “provide a more complete and candid discovery” referred to inJuman at para. 26.

[41] The intended purview of the “statutory exceptions” rule which is referenced by the Court in Juman, is limited to specific legislation which compels disclosure and which expressly overrides the privilege and/or confidentiality concerns of the holder of the information. Rule 26 does not achieve these objects. Though it requires disclosure from parties to litigation, both Rule 26(2) and the structure of Form 93 recognize the ongoing entitlement of a party to maintain a claim for privilege. While documents covered by an implied undertaking are not, strictly speaking, privileged, I believe that it would be appropriate for a party, from whom document disclosure is sought, to list those documents in its possession which are subject to an implied undertaking under part 3 of its list of documents.

This case also addressed the remedies available when there is a breach of an implied undertaking and these are worth reviewing for anyone interested in BC Privacy Law.

ICBC Injury Claims and Effective Cross Examination

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released today showing how an effective cross examination of a Defendant can make all the difference in the prosecution of an ICBC Injury Claim.
In today’s case (Mclaren v. Rice) the Plaintiff was involved in a single vehicle accident in February, 2005.  The Plaintiff was a passenger.  The Defendant lost control of the vehicle and left the roadway.  The Plaintiff was injured in this collision.  There were no witnesses to the crash itself and the Plaintiff’s injuries were so severe ( a closed head injury and a fractured skull) that he had no memory of the accident.  The Defendant denied that he was at fault for losing control of the vehicle.
Just because a driver loses control of a vehicle does not automatically make him at fault for the accident.  The Plaintiff still has to prove his/her case on a ‘balance of probabilities‘.   So how then, can a plaintiff with no memory of what happened, with no witnesses and with a defendant who denies wrongdoing prove his case?  Some of the tools that can be used are pre-trial discovery and cross examination.  Today’s case demonstrates that the lawyer involved effectively used these tools to prove that the Driver was responsible for losing control.

Mr. Justice Brooke found that the Defendant driver was at fault.  In reaching this conclusion the Court highlighted serious damage done to the Defendant’s position through cross-examination.  The Plaintiff’s lawyer was able to pick apart the Defendant’s in court evidence and the effect of this was a winning case for the Plaintiff.  Following the Defendant’s cross examination Mr. Justice Brooke reached the below conclusions about his credibility:

[24] There are significant inconsistencies and contradictions between the evidence given by Jacob Rice at trial and prior unsworn statements given by him and prior evidence given under oath. It is, of course, the evidence given at trial that I must assess, and those prior inconsistent statements go to the credibility of Mr. Jacob Rice. I find that Jacob Rice is an unreliable witness and that the inconsistencies and contradictions diminish such weight as his evidence might have had. I find that the events immediately preceding the accident are not clear in Jacob Rice’s mind because he was either asleep or inattentive as the truck proceeded across the oncoming lanes of traffic. There were no brake marks or any indication that evasive action was taken until the truck “hit the ditch”. I find that what Jacob Rice told ICBC in his statement taken on March 8, 2005, is likely what happened:

It was a pull to the left and then, I just hit the ditch and as we hit the ditch, I tried pulling it to the right and it lost control and, and spinning and from there, it just lost control.

(Emphasis Added)

[25] I find that Jacob Rice failed to apply the brakes in a timely fashion and that he failed to divert the course of the truck so as to avoid the accident which occurred. Whether he fell asleep or was merely momentarily inattentive, his conduct was negligent.

BC Personal Injury Law Round Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 50 Comments on BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act. …

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

___________________________________________________________________________________________

The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

____________________________________________________________________________________________

In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

_______________________________________________________________________________________

The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

ICBC Injury Claims and Your Driving History

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

When you are involved in a suit for damages in an ICBC injury claim can you access the opposing parties driving history?  Reasons for judgement were recently brought to my attention making just such an order.
In the recent case (Rothenbusch v. Van Boeyen) the Plaintiff claimed damages against the Defendant.  Liability (fault for the car crash) was at issue.  During the examination for discovery the Plaintiff’s lawyer asked the Defendant how many speeding tickets he had.  He could not recall exactly and indicated “one or two“.   The lawyer then asked for him to produce his driving history and he refused.
In the application for production of the Defendant’s driving history Master Caldwell of the BC Supreme Court held that “(the Defendant) was unable to provide an actual firm answer (as to how many speeding tickets he had)…The defence says that the driving pattern is not particularly relevant, unlike defence requests for previous medical records and that type of thing.  She indicates that this is a highly invasive application with respect to the privacy of the Defendant, and that unlike a plaintiff who opens their life up to investigation when they commence an action, the same cannot be said of the defence.  I am not really satisfied that that is necessarily the case, particularly in a situation where liability is at issue as it is here.  I am satisfied based on the questions asked and answered  and the form of the answers contained in the discovery transcript, that this record as sought may be producible.”
Despite ordering production of this record the Court went on to note that the same may not be admissible at trial.  Specifically Master Caldwell held that “Whether or not (the driving record) is relevant and passes the test of admissibility of trial will be up to the trial judge…I will order that the Defendant provide a copy of his driving record for a period of three years prior to the …accident”.

The Use of Clinical Records in ICBC Injury Trials

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

ICBC Injury Claims can be record intensive.  Every time you see your doctor, chiropractor, massage therapist, or other medical specialist they keep clinical records.  These records often take down your subjective complaints, the physician’s objective observations, the physician’s assessment of the problem and the plan or treatment prescribed.   These records, if addressing accident related injuries, are relevant and usually are produced to the Plaintiff and Defence lawyer in the course of litigation.
So what use can be made of these records at trial?  Can a Plaintiff corroborate in court testimony with these previously recorded out of court statements?  Reasons for judgement were released today thoroughly canvassing this area of the law.
In today’s case (Smith v. Wirachowsky) the Plaintiff was involved in a 2007 car crash in Nanaimo, BC.  It was a rear-end crash and the Plaintiff suffered various “mild to moderate” soft tissue injuries which were largely but not entirely resolved by the time of trial.  It was expected that the injuries would eventually resolve and damages of $35,978.66 were awarded which included an award of $30,000 for non-pecuniary loss (pain and suffering).
During the course of the trial the Plaintiff attempted to introduce clinical records from the Plaintiff’s physiotherapist which recorded the Plaintiff’s complaints of pain.  Mr. Justice Halfyard ruled that the records were not admissible for that purpose and summarized the law relating to the use of clinical records at trial as follows:
[14] It was common ground that the clinical records qualified as “business records” within s. 42 of the Evidence Act.  It was also agreed that the plaintiff’s statements in the clinical records, if admitted, could not be used to prove the truth of their contents or to bolster the credibility of the plaintiff’s trial testimony. …

[22] In my opinion, the authorities and the rules of evidence establish that the fact that a plaintiff made a particular statement to a doctor or therapist can be relevant to the following issues (where such issues exist):

a) In cross examination of the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or a damaging admission);

b) In re-examination of the plaintiff, to rebut the suggestion (by defence counsel) of recent fabrication or failure to complain;

c) In cross examination of a doctor who examined or treated the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or damaging admission), where the plaintiff denied or did not admit making the statement;

d) Where a doctor’s or therapist’s particular recommendation for the plaintiff’s treatment is challenged, and the plaintiff’s statement is relevant to explain why that treatment was prescribed or administered; and

e) In cross examination of a medical expert witness called by either party, where it is alleged that the expert relied on a particular statement made by the plaintiff to him or her; or where it is alleged that the expert disregarded or failed to consider a particular statement made by the plaintiff.

[23] It should be noted that there are at least two ways in which a plaintiff’s statements recorded in clinical records may become admissible as proof of their truth.  The first way is where the plaintiff admits making a particular statement to a doctor or therapist which appears to be inconsistent with the plaintiff’s trial testimony, but then adopts the previous statement as being true (and rejects the conflicting trial testimony).  In that situation, the previous statement can be used as proof of its truth, if the trier of fact accepts the plaintiff’s testimony on this point.  More frequently, the plaintiff will reject the previous statement as being false and give an explanation for making it (such as mistake).  In that case, as is well known, the previous statement, if inconsistent, can only be used to assess the credibility of the plaintiff’s trial testimony.

[24] The second way is where the plaintiff admits making (or is shown to have made) a previous statement recorded in the clinical records which if true, would constitute an admission against interest.  In that situation, the plaintiff’s previous statement can be used by the trier of fact as proof of its truth (even if the plaintiff denies that his or her previous admission was true).

[25] Conclusion

[26] In the present case, the statements of the plaintiff to her physicians and therapists were not relevant to any issue in the trial that could have made them admissible at the instance of the plaintiff.  A potential exception could occur in a case where a plaintiff had told her doctor that she had recovered from an injury, but on a subsequent date or dates attended a doctor again and complained that an injury continued to generate symptoms of pain and disability.  In that situation, the plaintiff’s subsequent complaints to her doctor would be admissible in re-examination, to rebut the suggestion that the plaintiff had made no further complaints of pain after a certain point in time.  But of course the complaints made subsequently by the plaintiff could not be admitted to prove their truth.  It was not shown that this situation occurred here.

Double Costs Awarded After Jury Dismisses ICBC Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Defendant double costs following a Jury dismissing a Plaintiff’s ICBC Injury Claim.
This is one of the first cases that I am aware of under Rule 37B where a defendant was awarded double costs.
In today’s case (Luzuka v. Chuang) the Plaintiff was involved in an intersection collision.  Both fault and value of the claim were at issue.  ICBC, through the defendant’s counsel, made a formal settlement offer in 2007 for $40,000.  This offer was rejected by the Plaintiff.  The claim proceeded to trial which lasted 9 days before a Judge and Jury.  The Jury dismissed the Plaintiff’s claim finding that she did not prove the Defendant was responsible for the collision.
The Defendant sought an award of costs up to the date of delivery of the offer and double costs from that point on.  The application was largely successful and Mr. Justice Harvey noted that the “deterrent functions” of punishing a party who refused to accept reasonable settlement offer should not be ignored in such applicaitons.  Specifically Mr. Justice Harvey found as follows:

[24] The offer to settle was one which ought to reasonably have been accepted by the plaintiff within seven days of the disclosure to counsel of the identity of the witness, Ms. Kapil, which occurred during examinations for discovery on November 27, 2007.

[25] By that date, the plaintiff’s medical condition was well defined and it ought to have been clear to the plaintiff that liability for the accident was seriously in dispute.

[26] As was noted by Hinkson J. in Bailey, at para. 39, a refusal to award double costs following the date determined that the offer of the defendants ought reasonably to have been accepted, “would completely ignore the important deterrent function of the Rules”.

[27] Therefore, the defendants are entitled to costs and disbursements of the action until December 4, 2007, pursuant to Rule 57(9). Thereafter, the defendants are entitled to double costs together with actual disbursements, pursuant to Rule 37B(5)(b).

While no mention of the amount is made, the costs and disbursements stemming from this order would likely be in the tens of thousands of dollars.  This ‘deterrent‘ effect is a real one and unfortunately needs to be accounted for when preparing for trial where a formal settlement offer is made under Rule 37B.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

$55,000 Non-Pecuniary Damages for Chronic and Pervasive Back Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry (Wilson v. Manzano), awarding a Plaintiff over $350,000 in total damages as a result of chronic soft tissue injuries sustained in a 2004 BC Car Crash.
The collision occurred at a relatively low speed with the Defendant accelerating from a stop on the mistaken belief that his light turned green.  He rear-ended the Plaintiff’s vehicle which was stopped in front of him.  The crash caused about $5,000 in damages to the Plaintiff’s vehicle.
The Plaintiff was injured despite the relatively low speed of the crash as she was in a vulnerable position at the moment of impact with her “head and upper body turned toward (a rear seat passenger).”
The Plaintiff’s GP gave evidence that she suffered from a ‘chronic myofacial pain in the upper lumbar area‘ as a result of this crash and that she went on to develop a ‘chronic pain syndrome in the back‘.  The medical evidence established that this injury was permanent and would likely continue to adversely effect the Plaintiff in the future including limiting the types of jobs she could take advantage of.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Bernard summarized the effect of these injuries on the Plaintiff’s life as follows:

[37] The collision in question was one of moderate impact. The significance of it in relation to injury is not the force of the impact, per se, but rather that the impact came without warning while Ms Wilson’s body was in a particularly vulnerable position in relation to the effect of the force upon her. Ms Wilson was seated in the driver’s seat, but not facing forward. Her head and body were twisted to the right so that she could converse face-to-face with her nephew who was seated in a rear passenger seat. Given these circumstances, it is not surprising that she might have sustained an injury qualitatively different than the usual “whiplash” and that her prognosis for recovery might also be quite different.

[38] I am satisfied that Ms Wilson is neither an idle complainer nor a hypochondriac. At the time of the collision she was a strong, healthy, active and vibrant woman who was happily employed in a relatively physically demanding job. Within hours after the collision, she was in tears and paralyzing pain from a spasm in her lower back. At 4:30 a.m. she took a hot shower to help alleviate the spasm. She attended her job site the next morning and was in so much pain by the end of the day that she stopped at a medical clinic en route to her home and received pain medication. Thereafter she saw her family physician and went through a physiotherapy program. She wants to recover from her injury and get on with her life as she knew it, but she has been able to make very little progress in that regard.

[39] Ms Wilson’s back pain, caused by the collision, has not abated. I am satisfied that there is no prevarication or exaggeration in relation to her symptoms. I also find that there were no intervening events which might reasonably account for the pain she now suffers. There were some medical issues subsequent to the collision; however, I am satisfied that none of these were related to the chronic back pain from which Ms Wilson suffers. There has been continuity of symptoms since the collision. There is no evidence of events inconsistent with Ms Wilson’s claims; to the contrary, her family, friends, and co-workers corroborate her continuous suffering and the significantly negative impact the injury from the collision has had upon her life. Ms Wilson’s frustration with the pain and the manifold ways it has affected her life is palpable. The evidence establishes that her chronic back pain has forced her to give up most, if not all, of her activities and pursuits, both in leisure and work, which she found enjoyable, fulfilling, and rewarding. The pain she suffers has made her very unhappy. It has robbed her of a rewarding career and fulfilling pastimes. It has jeopardized valued personal relationships.

[40] I am similarly satisfied that her pain symptoms are now chronic, with no reasonable prospect of amelioration except over the course of many years, if not decades. In this regard, I accept the diagnosis and prognosis of Dr. Mason. He presented as a very knowledgeable physician and a reasonable man who knows Ms Wilson, as his patient, well. His opinion is corroborated, in critical aspects, by Dr. Gouws…

[48] I accept that each of the cases cited bear some similarities to the case at bar and establish a range of damages from $40,000 to $100,000. These cases offer some guidance; however, each set of circumstances is unique, as is each plaintiff. I consider two compelling aspects of the case at bar to be: (a) the pervasiveness of the injury upon the plaintiff’s life, and (b) the reasonable prospect of some amelioration of her symptoms over time. In all the circumstances, and having regard to the cases cited, I set the award for non-pecuniary losses at $55,000.

ICBC Injury Claims, Lawyers and Trials

Written by admin on . Posted in Uncategorized.

Many people that are unhappy with an ICBC settlement offer seek the advice of a personal injury lawyer.  Often times, however, people don’t consult with a lawyer because of the mistaken belief that if they hire a lawyer they will have to go to trial to resolve their injury claim.  Some revealing statistics were released today showing just how few ICBC Injury Claims proceed to trial, even when claimants are represented by a lawyer.
Today the Office of the Information & Privacy Commissioner released their report into the Investigation Into Disclosure of Jurors’ Personal Information by ICBC.
In the body of the report statistics about the number of ICBC Claims settled in 2008 were revealed.  Specifically page 4 of the report noted that “An example of the number of claims handled by the division in a given year is available from 2008 when approximately 674,500 claims were settled.  Individuals were represented by lawyers in approximately 21,500 of settled claims.  Only 299 of the claims proceeded to trial and only 37 were jury trials.”
If you do some quick math on the above figures you will see that only 1% of the people that hired lawyers and resolved their ICBC claims in 2008 actually went to trial.  In other words, one in one hundred people who hired a lawyer for their ICBC Claim went to trial.
While there are many reasons why injury victims may choose not to consult with a lawyer these statistics show that the fear of an inevitable trial should not be one of them.