Tag: indivisible injury

$160,000 Non-Pecuniary Damage Assessment for L4-5 Disc Herniation


(UPDATE August 8, 2012 The below judgement was modified in reasons for judgement released today by the BC Court of Appeal.  In short, the Court held the 40% damage reduction was not justified by the evidence and substituted a 20% damage reduction.  The BCCA’s reasons can be found here).
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.
In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.  Fault for the crash was admitted focussing the trial on assessing damages.
Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.
The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome.  The Court accepted that the Plaintiff would likely not work in his profession again.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:
[117]     I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….
[155]     The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.
This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.
Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle.  Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records.  The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called.  The Defence asked the Court to draw an adverse inference.  Mr. Justice Pearlman refused to do so and provided the following helpful reasons:
[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.

BC Court of Appeal: Previous Settlements to be Deducted from Indivisible Injury Awards

Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
In this case the Plaintiff was injured in 2 separate car accidents. She was not at fault for either. The injuries in both were found to be ‘indivisible’ meaning that the injuries were ’caused or materially contributed to’ by both events.
The Plaintiff claimed damages for both crashes. She settled one claim for $315,000. She succeeded in her lawsuit against the other driver and had her injuries valued at about $400,000. The trial judge then went on to order that the settlement proceeds from the second accident ($315,000) must be subtracted from the $400,000 awarded at trial. This was so because the injury was ‘indivisible’.
Today the BC Court of Appeal upheld this approach. In particular the court made (or confirmed) several important findings:
If two torts were necessary causes of the injuries, liability for the loss resulting from those injuries may be apportioned based on fault, but each tortfeasor is responsible for the entire damage to which their tort materially contributed beyond the de minimus range ( I would imagine this does not hold true, however, in cases of contributory negligence)
Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
A “divisible injury” is one that has ‘no causal connection’ to a certain tort
An ‘indivisble injury’ is one that was ’caused or materially contributed to by a tort’
“concurrent torts” occur when their negligence combine to cause one injury and its consequential loss at the same time
“consecutive torts” occur when injury occurs from 2 torts which occurred at different times.
There is no valid policy reason to treat concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.
When dealing with ‘consecutive torts’ causing an ‘ indivisible injury’ the two causes of action are not separate: they are linked by the indivisible injury. That link brings into play not only joint and several liability but also the rule against double recovery.
The bottom line is that if you sue for an ‘indivisible injury’ and have already been partially or wholly compensated by one ‘tortfeasor’ for that injury, a subsequent tortfeasor can subtract the compensation amount from what he/she has to pay.

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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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