Tag: icbc injury lawyer

$40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.
The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.
Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.

ICBC Soft Tissue Injury Claims Round Up

As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court.  In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.
The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC.  This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.
All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages.  The Court made the following findings with respect to the Plaintiff’s injuries:

(a)        That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;

(b)        That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;

(c)        That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;

(d)        That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;

(e)        That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;

(f)        That when the trapezius muscles in the neck are overworked they become stiff and painful;

(g)        That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;

(h)        That torn ligaments do not spontaneously heal; and,

(i)         That prior to the collision Mr. Jacobsen did not suffer from neck pain.

In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:

[26]            In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.

[27]            Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days.  He is a fit and healthy senior citizen who clearly anticipates living many more years.  The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep.  He begins his days feeling weary and drained rather than rested and energetic.  This compromised start affects all aspects of his daily life.  It has taken the lustre off his so-called golden years.

[28]            In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.

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The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005.  The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:

[29]            At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back.  There are no objective findings with respect to her injuries.

[30]            I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination. 

[31]            While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location.  She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….

[33]            I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident.  The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program.  While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony. 

[34]            She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active.  While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing.  One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.

On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.

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The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005.   The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial.  The court summarized the injuries as follows:

[25]            I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back.  He has testified to these injuries and much of what he says is supported by other testimony.  Several practitioners found objective signs upon palpitation.  Two found his body type susceptible to such injuries.  I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery.  I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.  

[26]            I am satisfied that he is now able to perform the tasks necessary for a gas fitter.  I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic.  While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….

[34]            Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.

ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished.  Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy,  These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1.      The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.      The plaintiff is less marketable or attractive as an employee to potential employers;

3.      The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.      The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law.  In a thorough analysis Madam Justice Smith gave the following reasons:

[140]          While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating: 

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade.  The case turned on its facts and did not establish any new principle of law.  Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it.  I am satisfied that Steward has no application in the case at bar. 

[141]        In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident.  The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches.  The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”.  The assessment of damages was upheld on appeal.  Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made.  He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations.  Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations.  There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142]        MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42]  That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations.  Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143]        I conclude that the approach I should take to the assessment of lost earning capacity has not changed.  Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

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On another note, today’s case dealt with chronic soft tissue injuries and serious headaches.  In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113]        I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports.  Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions.  Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient.  Dr. Jung’s two examinations of the plaintiff were thorough and well-documented.  I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence.  I also accept the evidence of Dr. Blasberg.

[114]        Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back.  I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint.  There is no evidence that he suffered from these symptoms prior to the motor vehicle accident.  I do not find on the evidence that stress causes his symptoms, although it may exacerbate them.  I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to.  I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115]        The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night.  The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident.  As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment.  Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116]        Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better. 

A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims.  Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision.  The key findings of fact were as follows:

30]            Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do.  Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems.  Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before.  She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31]            I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip.  I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before.  I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches.  However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32]            Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits.  I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits.  Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future.  To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary.  The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:

$35,000.00

Special damages:

$8,500.00

Past loss of wages:

$12,000.00

Loss of capacity:

$20,000.00

TOTAL:

$75,500.00


 
In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.  
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints.  Damages were awarded as follows:

[109]        In summary, my conclusions are as follows:

(a)        The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b)        I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c)        Mr. Haag’s claim for past income loss is dismissed.

(d)        I award Mr. Haag $60,000 for loss of earning capacity.

(e)        Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only.  I will leave counsel to calculate the dollar amount.  The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f)        With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts. 

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC.   The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion.   Her syptmoms improved by about 80% by the time of trial.  The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

 

(a)

Non-Pecuniary Damages

$30,000

(b)

Loss of Income to Trial

$15,000

(c)

Loss of Earning Capacity

$15,000

(d)

Future Care

$     500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry.  This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident.   Damages were assessed as follows:

1.

Pain and suffering

$115,000

2.

Past wage loss (gross)

$75,000

3.

Impairment of earning capacity

$262,000

4.

Special damages

$47,400

5.

Future care

$75,000

Whew!  Now back to work.

Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland. 
I am still in trial still and only have time for bare bones reporting.  In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome.  The court’s key analysis of injuries is set out below:

[73]                  I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74]                  Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory.  There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome.  Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75]                  That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76]                  Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition.  He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period.  I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77]                  Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy.  I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy.  There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept.  In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78]                  I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome.  This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features.  None of the pre-accident investigations demonstrated any facet joint issues.

[79]                  I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur.  There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80]                  That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence.  This brings me to the issue of his credibility.  In general, I found the plaintiff to be a believable witness.  I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81]                  As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf.  Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability.  There were no non-organic findings.  I found Ms. Fischer to be a compelling witness.

[82]                  In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83]                  There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident.  Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point.  I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future.  There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself.  As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind.  No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D.        CONCLUSION

[127]              I find the defendant 100% liable for the plaintiff’s damages.  Those damages are assessed as follows:

non-pecuniary damages:                                   $70,000.00

past loss of income:                                          $67,500.00

loss of income earning capacity:                     $120,000.00

future care costs:                                               $17,317.00

special damages:                                                $1,687.46

Total:                                                               $276,504.46

 

More on ICBC Claims and Requests for Particulars

Reasons for judgement were released today addressing a request for particulars in a BC car crash case where the issue of fault was admitted.
The Defendants asked the Plaintiff to provide particulars for any claim for special damages and loss of earnings to date.  The Plaintiff refused and Defendant’s obtained a court order requiring the same.  The Plaintiff appealed and reasons from that appeal were released today.
Mr. Justice Walker dismissed the appeal and in so doing made a few findings addressing requests for particulars that should be of interest to ICBC injury claims lawyers:
First that ‘particulars can only be sought for the following purposes

(a)     to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(b)     to prevent the other side from being taken by surprise at the trial;

(c)     to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(d)     to limit the generality of the pleadings;

(e)     to limit and decide the issues to be tried, and as to which discovery is required; and,

(f)      to tie the hands of the party so that he cannot without leave go into any matters not included.

After canvassing several cases dealing with requests for particulars the court held that:

[32] In my view, providing particulars of the plaintiff’s wage loss and special damages’ claims in a case where liability has been admitted, particularly a routine bodily injury case, serves the purpose of the Rules of Court.

[33] This is a matter where the information sought has to be provided to the defendants at some point in time.  The documents relating to the claim for special damages should have been listed in the plaintiff’s list of documents.  They were not, and that is troubling.

[34] Delivery of the particulars sought may well shorten the time spent at examination for discovery, but most certainly failing to deliver them will prolong the discovery process.

[35] There is nothing in the Rules of Court stating that the particulars provided are meant to contain the final wage loss and special damages’ amounts.  The McLachlin and Taylor text states that particulars of special damages are to be provided as they become known; the textual commentary suggests to me that particulars of special damages should be delivered from time to time as they become known.  That makes good sense in a bodily injury case as special damages may only be known on an ongoing basis as the amounts are incurred.  Simply because some members of the Bar have fallen into the habit of providing particulars of special damages once, late in the day, is no answer to what the McLachlin and Taylor text says is good practice………

[44] I emphasize again that the information sought by the defendants has to be provided to the defendants sooner or later.  Here, the defendants seek that information at an early stage in the litigation.  The defendants admitted liability at the outset.  They wish to know the value of the claim.   The medical receipts should have been produced in the list of documents and were not.  Delivery of particulars may assist the defendants in their assessment and approach towards resolution of the claim.

Rule 68 and Expert Costs

Rule 68 of the BC Supreme Court Rules was introduced to deal with certain cases worth $25,000 – $100,000. For such cases this rule was implemented to help bring cases to trial more quickly and with less expense. In doing so certain limits were imposed on how a claim can be prosecuted. One of the most significant restrictions (as it relates to ICBC injury claims) is the restriction of Rule 68(33) which generally limits a party to only one expert witness. Specifically this subrule states that:

(33) Unless the court orders otherwise, a party to an expedited action is entitled, under Rule 40A, to tender the written statement of, or to call to give oral opinion evidence, not more than

(a) one expert of the party’s choosing, and

(b) if the expert referred to in paragraph (a) does not have the expertise necessary to respond to the other party’s expert, one expert to provide the required response.

As many ICBC injury claims lawyers know, it is often difficult to prepare a case for trial with only one expert witness. Often an injured Plaintiff has several treating physicians and it is important to hear from all of them. Similarly it is often a good idea to retain a highly qualified specialist to conduct an ‘independent medical exam’ to summarize all of the Plaintiffs injuries and provide a comprehensive opinion addressing injuries, causation prognosis and need for future treatment. All of this costs money. When a case is prosecuted under Rule 68, then, does the above subsection prevent a successful plaintiff from claiming the costs of hiring more than one expert? Reasons for judgement were released today which say no.
In this case the Plaintiff suffered various injuries in a car accident. The claim was prosecuted under Rule 68 and eventually settled for $25,000. In prosecuting the case the Plaintiff lawyer obtained reports from 5 experts. ICBC argued that Rule 68
restricts the plaintiff to claiming disbursements relating to one expert only, unless (the Plaintiff) has obtained a court order allowing more than one expert…. as the plaintiff did not seek leave from the court to introduce more than one expert report, the plaintiff ought to be limited to claiming for only one expert’s report as part of the disbursements in this action…..based on the principles of proportionality and the express limit on the number of reports permissible in such an action, it was not reasonable or proper to engage this number of experts.
The court rejected this argument and held that in this case it was reasonable to have the Plaintiff assessed by more than one expert. Specifically the court stated that:
in the circumstances of this particular action (where the plaintiff was clearly fragile) it was reasonable and necessary to engage a number of experts to assess the plaintiff. If that is the case, then does the application of Rule 68 still prevent the plaintiff from claiming disbursements for each of those experts? I think not. Rule 68 does not say that a party is restricted, on an assessment of costs, from claiming for the costs of more than one expert. It simply says that, without leave of the court, a party may not elicit testimony from more than one expert witness. (the Plaintiff’s lawyer) was, in my view, obliged as counsel to try and determine the extent of the plaintiff’s injuries and to understand the cause(s) of them. She would not have been able to do that without resort to the opinions of the various experts engaged.

ICBC Claims, Ruptured Discs and Causation

Reasons for judgment were released today involving a disc injury with 2 potential causes.
The Plaintiff was involved in 3 car accidents. This lawsuit involved the second accident. The Plaintiff was ultimatley diagnosed with a ruptured disc in her back. The issue at trial was whether the ruptured disc was caused by the first or second accident (apparently no-one blamed the third accident as a potential cause).
“Causation” is often a key issue at many ICBC claims and frequently ICBC takes the position at trial that while a Plaintiff is injured the injury would have existed even without the car accident as it was caused by previous or subsequent events.
In this case a physiatrist and a GP testified on behalf of the Plaintiff. No defence medical evidence was called, instead, the defence relied on their lawyer’s cross examination of the Plaintiff experts.
The Plaintiff had an MRI which showed a moderate sized diffuse disc bulge or protrusion at L-4/5 with associated disc desiccation or drying.
The court was not satisfied with the Plaintiff’s experts explanations linking the disc protrusion to the second car accident. The court instead found that it is more likely that the disc injury was caused by the first car accident and the second accident aggravated this injury for a period of time.
For the aggravation of this disc injury the court awarded general damages (pain and suffering and loss of enjoyment of life) of $30,000. The Plaintiff’s claim for loss of earning capacity and cost of future care were dismissed on the basis that the disc injury was not caused by the accident and any exacerbation of the injury caused by the accident ended in 2005.
This case shows that nothing should be taken for granted when taking an ICBC claim to trial.  Here both doctors seemed in agreement that the second car accident caused the disc injury and no medical experts disagreed with this finding.  After hearing this evidence first hand in court the trial judge did not agree with the Plaintiff’s experts and dismissed the allegation that the second car accident caused the disc injury.  Even where the medical evidence is not contradicted you cannot guarantee that a court will accept it!  This is the risk of trial and cross-examination.  Trial risks need to be accounted for when considering ICBC claim settlement and valuing fair payment for injuries.

Damages of $159,857 Awarded for Soft Tissue Injuries and Migraines

Reasons for judgment were released today by the BC Supreme Court compensating a Plaintiff for accident related injuries.
The trial concerned a 2001 BC car accident. Her vehicle was struck in a down-town Vancouver intersection by a left-turning van. Liability (fault) was admitted leaving only the issue of quantum (value) of injuries and losses.
The impact was reasonably significant causing the Plaintiff’s head to jerk to the right and hit the window, then snap back.
At the time of the accident the Plaintiff was a 38 year old operations manager at a Vancouver travel agency. As with many ICBC claims that head to trial the Plaintiff’s pre-accident health was explored at trial in some detail. The court found that, prior to the Vancouver car accident, the Plaintiff ‘continued to suffer regularly from migraine and tension headaches, and from neck and back pain due to stress and postural strain. (the Plaintiff’s) tension induced neck and shoulder pain sometimes precipitated migraines.’
The court concluded that despite these pre-accident problems, the Plaintiff ‘continued to funciton without significant compromise‘ prior to her Vancouver car accident.
As is often the case in ICBC injury claims, the court heard from various medical experts including a psychologist, a psychiatrist, an orthopaedic surgeon and an occupational therapist.
After hearing the competing evidence the court found that “the increase in (the Plaintiff’s) headaches and neck and shoulder pain is causally related to the soft tissue injuries she sustained in the accident. I find that her increased neck and shoulder pain sometimes leads to full-blown migraines. In addition, it is related to other painful headaches that she experiences from time to time.”
The court accepted the expert evidence of Dr. Robinson who is a highly-regarded BC neurologist who specialises in headache disorders. He testified in part that “when patients with a stable migraine disorder are exposed to neck trauma they sometimes suffer an indefinite aggravation of their headaches. Due to the neck pain caused by trauma such patients develop a new way to get headaches, which may or may not develop into full blown migraines“.
In terms of prognosis, the court found that ‘with treatment, (the Plaintiff’s) headaches will probably continue to improve over the course of the next five years.‘ and that ‘the low grade neck and shoulder pain caused by the accident will probably persist indefinitely. As a result some aggravation of (the Plaintiff’s) pre-existing headache condition will also persist‘.
The court awarded $65,000 for non-pecuniary damages (pain and suffering). In doing so the court noted that ‘non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties…for purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide‘.
Thanks to these reasons for judgment, British Colmbian’s now have one more rough guide to help assess the fair pain and suffering value for lingering soft tissue injuries, aggravation of pre-existing injuries and migraine headaches when considering ICBC claim settlement.
This case is also worth a quick read for anyone advancing a claim for loss of earning capacity (future wage loss) as the court does a good job summarizing some of the leading legal precedents in this area at paragraphs 151-155 of the judgment.
The court concluded that, as a result of the Vancouver car accident, the Plaintiff ‘is less able to complete the same high volume of computer based work she could before before the accident and it it sometimes obvious that she is exhasted. In these circumstances, it is apparent that her earning capacity, viewed as a capital asset, has been impaired.’ The court went on to award $75,000 for this loss.

ICBC Did Not Pay Enough For My Car! Don't Look To Court For Help…

While this blog is primarily concerned about ICBC injury claims against at-fault drivers (tort claims) written reasons for judgment were released today that are of interest to anyone caught up in a dispute with ICBC with respect to their own insurance coverage and the value of damage to their car.
Master Young of the BC Supreme Court clarified the fact that courts do not have jurisdiction to deal with an ICBC dispute regarding the value of vehicle loss.
In this case the Plaintiff’s vehicle was damaged in an accident. The vehicle was a write off. The Plaintiff had collision coverage with ICBC and asked for fair value. ICBC paid $18,000. The Plaintiff said the vehicle was worth $40,000 because it had a new engine and 2 extra large gas tanks installed prior to the accident and this had to be considered when determining fair value.
ICBC argued that the BC courts have no jurisdiction to deal with such a dispute. ICBC relied on section 142 of the Insurance (Motor Vehicle) Act and said this section requires such disputes to be dealt with by mandatory arbitration. For the sake of being accurate, I should point out that this section has since been repealed but been replaced with an almost identical section in the Insurance (Vehicle) Act.
The court held that, under s. 142, ‘the courts have no jurisdiction to deal with coverage disputes, given that there is mandatory arbitration set up by s. 142‘ In reaching this conclusion the Master cited a previous decision from a BC Supreme Court Judge where it was held that “the statute imposes a mandatory forum for the resolution of these disputes, and this Court is excluded from the process‘. Master Young also noted that the BC Supreme Court judge ‘goes on to caution that the claimant, if he wishes to pursue arbitration, must move quickly because he is statue barred two years after the date of loss‘.
The court concluded that this Plaintiff should have gone to mandatory arbitration. Given that the arbitration remedy was not exercised in 2 years the Plaintiff was out of luck, not being able to have the matter decided by a court or by arbitration.
This case serves of an example of the consequences people with ICBC claims can face if they do not comply with the limitations governing their claim. If you are in an ICBC dispute and don’t have a lawyer be sure to know your limitation periods! This is sometimes easier said than done as even Master Young acknowledged that in this case the legislation was ‘confusing‘.
The court obviously sympathized with the Plaintiff and said that she wished she could extend the deadline and if she could she made it pretty clear that she felt that ICBC’s materials showed ‘nothing..to indicate that (ICBC) gave any consideration to the fact that the vehicle had a new engine‘.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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