Tag: Kelowna ICBC Claims Lawyer

Self Represented Litigant Hit With $19,000 Costs Award After Injury Claims Fall Short

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, largely rejecting personal injury claims following two relatively modest collisions.
In today’s case (Ducharme v. Bradler) the Plaintiff was involved in two collisions in 2010.  The Defendants admitted fault. Prior to trial ICBC tabled two formal settlement offers, the first for $21,000 and the second for $40,000.   The Plaintiff rejected these and proceeded to trial.
At trial the Court raised concerns about the Plaintiff’s reliability and largely rejected her claims awarding global damages of $1,500 for both collisions.  After learning of the formal offers the Court went on to award $19,000 in costs against the plaintiff.  In reaching this decision Madam Justice Fitzpatrick provided the following reasons:

[45]        THE COURT: In the ordinary course, Ms. Ducharme would have been awarded her costs in both actions. In accordance with Rule 15-1(15)(b), the costs of this two day trial would be $9,500 plus disbursements. However, defence counsel has referred me to previously delivered offers to settle, which I have the discretion to consider: see Rule 15-1(16).

[46]         These actions were commenced in December 2011 and July 2012. Mr. Spinks has outlined the settlement offers that have been extant for some time. In January 2012, there was an offer in the amount of $21,000; and, in April 2014, there was an offer in the amount of $40,000. Clearly, those offers substantially exceed the result in this trial and, in my view, should reasonably have been accepted by Ms. Ducharme, particularly when it became apparent that she could not or would not marshal the medical evidence she needed in proving her claims. No submissions were made on the relative financial circumstances of the parties.

[47]        I accept the position of the defence in respect of the award of costs. In the circumstances, I am satisfied that a double costs award is appropriate: Gichuru v. Pallai, 2013 BCCA 60. Accordingly, costs are awarded in favour of the defendants in the sum of $19,000 plus reasonable disbursements.

$140,000 Non-Pecuniary Assessment for ACL Injury With Chronic Depression

Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.
In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010.  The Defendants were found fully liable.  The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution.  He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician.  In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:

[188]     There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident.  With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,

·                 the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;

·                 despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;

·                 as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;

·                 the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;

·                 there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;

·                 the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and

·                 the plaintiff will encounter significant future functional difficulties and related educational and employment disability.  

[189]     I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future.  I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking.  These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties.  All of this is attributable to the accident.

[190]     I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming).  While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…

[198]     I have read each of these cases and have noted both the similarities and dissimilarities with the present case.  Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.  

ICBC Doctor Found to be "More of An Advocate Than An Independent Professional"

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, with critical comments of an orthopaedic surgeon frequently hired by ICBC.
In today’s case (Hay v. Benzer) the Plaintiff was involved in a pedestrian/vehicle collision in 2008.  ICBC had the Plaintiff assessed by a orthopaedic surgeon who largely limited the connection between the collision and the Plaintiff’s symptoms.  The Court placed  “very little weight” on this evidence and in doing so Mr. Justice Cole provided the following comments:
[13]         At the request of ICBC she saw Dr. O’Farrell on July 28, 2009. He is an orthopaedic surgeon. He does a significant amount of work for ICBC and appeared to me to be more of an advocate than an independent professional. He found that the plaintiff would not have any long-term effects from the motor vehicle accident. He had documents only from a physiotherapist dated June 16, 2009. Dr. O’Farrell did admit that if pain was still present two and a half years after the accident that it would most likely be a long-term or permanent pain. Dr. O’Farrell did not produce any notes of his assessment claiming they were most likely in another file. I give Dr. O’Farrell’s evidence very little weight.
 

Disbursement Interest Claim Fails for Lack of Evidence Proving Necessity

While the law in BC presently does allow interest on disbursements to be recoverable in the right circumstances, a prerequisite for recovery is an evidentiary foundation proving that it was necessary to incur the interest claimed.  Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry (Babb v. Doell) rejecting such a claim due to a lack of evidence.  In reaching this decision Master McDiarmid provided the following reasons:
[11]         A claim for interest by a party entitled to costs might in some circumstances be characterized as necessary, for example, in a situation where the incurring of disbursements such as filing fees or daily hearing fees could only be done by obtaining some funding. Interest could also be a proper disbursement when it was reasonably incurred in the conduct of the proceeding even if, strictly speaking, avoidable. In Franzman, evidence was led which satisfied me that the disbursement interest which the plaintiff agreed to pay to her lawyers as part of a fee agreement was proper and I allowed, as a disbursement, the amount of interest calculated at 6%.
[12]         Most written retainer agreements contain provisions for payment of interest on unpaid accounts. Many retainer agreements contain provisions which are binding as between lawyer and client, for the payment of some disbursements at a rate higher than the rate allowed by registrars when assessing party/party costs. Even in contingency retainer agreements, plaintiffs often agree to and have the means to pay disbursements and do so.
[13]         Unlike in Franzman and in Chandi (Guardian ad litem) v. Atwell, 2013 BCSC 830, the decision relied on by the plaintiff, there is no evidence before me to assist in me establishing either the necessity or the propriety of the plaintiff’s claim for interest.
[14]         As noted above, the onus of proving either the necessity or propriety of disbursements is on the party claiming those disbursements. Absent such evidence, I am unable to make a determination that the interest claimed was either necessary or proper. Accordingly, the claim by the plaintiff for interest is denied.

Soft Tissue Injury Damages Round Up – The Kelowna Road Edition


As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements.  Sometimes, however, the volume of decisions coupled with time constraints makes this difficult.  After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.
In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted.    He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back.  His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment.  In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:
[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

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In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island.  Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

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(UPDATE March 19, 2014 – the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle.  The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)      the plaintiff’s “original position” immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

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In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained soft tissue injuries to his neck and back.   The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial.  In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.

Non-Pecuniary Damages Update – the Kelowna Road Edition


I’m writing today’s non-pecuniary damages case update in Kelowna, BC where I’m finishing up some work on a handful of ICBC claims.
Reasons for judgement were released earlier this week by the BC Supreme Court awarding non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for headaches and chronic pain following soft tissue and TMJ injuries.
In this week’s case (Ho v. Dosanjh), the Plaintiff was injured in a 2006 BC motor vehicle collision.   It was a rear-end crash and the Plaintiff’s vehicle sustained over $7,000 in damage.   The Plaintiff’s injuries continued to cause him problems by the time of trial (nearly 4 years after the collision).  Mr. Justice Silverman awarded the Plaintiff $75,000 for his non-pecuniary loss and in reaching this figure the Court noted the following about the extent and severity of the Plaintiff’s injuries:

[21]         As a result of the subject MVA, the plaintiff suffered pain in his neck, upper back, shoulder, jaw, numbness down the left arm, headaches, and insomnia.  He was on a variety of medications for a period of time and was unable to work.

[22]         The most serious and ongoing consequences of the MVA are the TMJ and the headaches, which leave him in constant pain.

[23]         Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw, teeth, and  related areas, and that he suffers from headaches as a result of the MVA.

[24]         He testified that these areas of concern had not improved significantly in the four years since the MVA and further recovery was unlikely; that the plaintiff will suffer long-term symptoms that impact on all aspects of his functioning; and that he should avoid any activities that involve jumping or jarring.  Dr. Mehta recommended conservative care, including continuation of various treatments which were already ongoing, such as physiotherapy and massage.

[25]         Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s capacity for recreational pursuits has been compromised and that this will continue for the foreseeable future.  He testified that, given the amount of time that has passed since the MVA, there is unlikely to be any further improvement.

[26]         Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ pain and that, in his opinion, “they will remain a long term issue.”  He noted that the plaintiff had a pre-existing degenerative condition, which made him more susceptible to injury from the MVA.

[27]         Dr. Gilbart provided an independent medical report and was called as a witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s pre-existing degenerative condition in his neck.  He opined that the “prognosis for significant further improvement in his symptoms at this point is guarded.”  He noted that the plaintiff was asymptomatic prior to the MVA and was functioning at a very high level in all aspects of his life.  Dr. Gilbart also noted that, despite the post-MVA pain complained of by the plaintiff, he still appeared to be functioning at a very high level.  Finally, he opined that, given the pre-existing condition of the plaintiff as well as his prior history, he likely would have had flare-ups in the future even if the MVA had not occurred.

[28]          With respect to the jaw pain and headaches, Dr. Gilbart deferred to the expertise of Dr. Mehta.

[29]         Presently, the plaintiff has not returned to most of his pre-MVA athletic activities.  He no longer is involved in volleyball, softball, aggressive hiking, or skiing.  He does still rollerblade, although not as aggressively as before, and he has recently begun to swim with the encouragement of his girlfriend, who is a physiotherapist’s assistant.

[30]         Various friends testified that the plaintiff’s personality has changed.  He is moody, irritable, withdrawn, quiet, rarely socializes, and not as pleasant to spend time with as he used to be.  It was clear to me, when watching the plaintiff in the gallery of the courtroom that he was distressed when he heard this testimony.  He subsequently testified that he had not actually heard these witnesses say this before…

76]         I am satisfied that the plaintiff has suffered neck, back, jaw, and shoulder pain, and that he continues to suffer on a daily basis, particularly from TMJ and headaches.

[77]         I am satisfied that it has affected his recreational and athletic activities, which were an important part of his life.

[78]         I am satisfied that there is unlikely to be much further improvement.

[79]         I am also satisfied that, while he is suffering pain, he is nevertheless able to function in a reasonably normal way.  He certainly appeared to be reasonably comfortable when giving evidence.  He also continued to work full-time after a period of months during which he was unable to work, although I accept that work is much less physically comfortable for him than it used to be.

[80]         While I accept the evidence that he might have suffered another flare-up even in the absence of the MVA, I am satisfied that the MVA was, and is, the primary cause of his current difficulties.

[81]         With respect to ongoing treatments for the rest of his life, I am satisfied that, while these might provide him with some periodic temporary relief, they are not likely to result in any improvement.  Consequently, what the plaintiff might perceive as the “need” for such ongoing treatments, will be reflected as an aspect of the non-pecuniary award.

[82]         In all the circumstances, I award $75,000 for non-pecuniary damages.

More ICBC Injury Claims Updates – The Kelowna Road Edition

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court.  Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.
4 cases worth noting were released today by the BC Supreme Court.  The first deals with the issue of fault and the others deal with damages (value of the the claims).
In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident.  She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.
The Plaintiff had a stop sign and was the ‘servient driver’.  The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so.    Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”
The court also found that the Defendant was speeding.  The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10th at between 83.5 and 86 km/h as he approached the Intersection.  He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street.  The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred.  I also find fault with Mr. Peck for failing to keep a proper look-out.  He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way.  That is why he did not see her pull into the Intersection when he was 62 to 65 metres away.  The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes.  To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him.  Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration.  The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres.  Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff.  This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.
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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.
In this case the Plaintiff was injured in a 2005 BC Car Crash.   In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:
88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages:   $45,000

Income Loss:  $8,771.97

Future Loss of Opportunity:  $30,000

Special Damages:  $12,045.96

Cost of Future Care:  $5,500

Loss of Houskeeeping Capacity:  $3,721

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The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“.   Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘.  Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do  to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms.  I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries.  I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi).  There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present.  Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found.  It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear.  However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal.  Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC.  Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision.  With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury.  She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling.  The Accident aggravated the existing condition of her spine.  The nature and extent of her symptoms changed.  The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004.  I accept Dr. Matishak’s opinion as the treating surgeon.  He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck.  He was cross-examined extensively on the issue.  He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident.  She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent.  She worked at physically demanding jobs without experiencing low back pain.  In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic.  She continued to experience pain from the date of the Accident onwards.  However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure.  Drs. Watt and Matishak were cross-examined on this issue.  Both maintained that this fact did not cause them to alter their opinions.  They both noted that there were symptoms of radiating leg pain shortly after the Accident.  Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case.  The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries.  I have found that the symptoms and back pain were caused by the Accident.  Those symptoms persisted and became chronic.  The conservative treatment attempted did not provide relief.  Consequently, Ms. Sanders chose surgery.  The fact that three surgeries were required was a direct result of the condition of her spine after the Accident.  In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.

Contact

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.

“Work hard, be kind and enjoy the ride!”
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