As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.
Sections 148.1 – 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims. When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit. The law requires all UMP decisions from 2007 onward to be published on ICBC’s website. These cases, unfortunately, are published in PDF Format and they are not search friendly. To remedy this I’ve decided to include UMP case summaries on this blog. With that in mind here is the first in a series of UMP cases summaries.
The first UMP judgement published was RAH v. ICBC. In RAH the Claimant was injured in a 2002 motor vehicle collision. Fault was admitted. It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.
The Claimant suffered a comminuted fracture of the left medial and tibial plateaus. These required surgical correction. Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“. The prognosis was for gradual worsening with a likelihood of a total knee replacement. It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded. In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons: The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee. He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware. He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later. He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done. He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion. He cannot return to his former occupation as industrial nurse/medic. He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain. He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain. He continues to use a cane. Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required. The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping. These activities except in a most limited and superficial manner, are now foreclosed to him… …I assess the non-pecuniary damages at $95,000.
I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.
Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years. Often times these parents intend to return to work after their children attend school on a full time basis.
When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action? The answer is yes provided there is evidence establishing a likelihood of returning to employment absent the accident related disability. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision. The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.
The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash. She spent these years working as a home-maker and raising her children. She undertook some modest employment as a house cleaner shortly prior to the crash. Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.
The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash. The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial. She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries. The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.”
Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss. In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:
 I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.
 The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.
 Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.
 I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.
 While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.
 Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.
This case is also worth reviewing for the Court’s discussion of non-pecuniary damages. The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain. In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:
125] Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.
 I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.
 Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.
Reasons for judgement were released this week by the BC Supreme Court, Port Alberni Registry, awarding a Plaintiff just over $220,000 in total damages for injuries and loss sustained as a result of a 2007 BC motor vehicle collision.
In this week’s case (Haley v. Gust) the Plaintiff was operating her motorcycle when she was struck by a left-turning motorist. The Defendant admitted full fault for the crash. The trial focused on the extent of and value of the Plaintiff’s injuries.
The Plaintiff’s most serious injury was a tear to her posterior cruciate ligament in her left knee. The injury was expected to lead to long term pain and limitations with the possibility of a total knee replacement in the years to come. In awarding the Plaintiff $75,000 for her non-pecuniary damages Madam Justice Dardi made the following findings about the extent of the injury and it’s interference with the Plaintiff’s life:  In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…  She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….
60] While she attempts to remain as active as possible (she now participates in “quadding”), she remains limited when compared to her pre-accident activities. Since the accident, she has become very cautious about any activity that might injure her knee. She is no longer able to participate in mini-triathlons and dirt-biking with her family. She cannot ski or participate in water sports. It is likely she will continue to be restricted for the rest of her life to some degree in respect of the scope of the activities she would have enjoyed but for the accident.
 I have also considered as a factor in my assessment the adverse emotional impact of Ms. Haley’s inability to pursue a line of work which she clearly enjoyed…
 Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Haley’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $75,000.
(Illustrations provided courtesy of Artery Studios Ltd.)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.
Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) . The Defendant was operating a pick-up truck. The Plaintiff was operating a dirt bike. The vehicles approached each other from opposite directions. Both motorists gave evidence that the other was on the wrong side of the road as they approached. Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other. The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck. The Defendant was found 90% at fault for the crash.
The Plaintiff suffered serious injuries including a fractured right ankle and right wrist. Both of these required surgery. The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries. Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff. In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:
 The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.
 The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.
 He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.
 I assess non-pecuniary damages in the amount of $135,000.00.
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding a Plaintiff just over $10,000 for injuries and losses sustained in a cross-walk collision.
In today’s case (Furness v. Guest) the Plaintiff pedestrian was struck by the Defendant’s vehicle as he was trying to cross Nicol Street in Nanaimo, BC. When the Plaintiff stepped off the curb to cross the street the “don’t walk” signal was flashing but he was not aware of this. The Defendant was stopped in a tractor-trailer waiting for a green signal. As the Plaintiff walked in front of the Defendant’s vehicle an advance green arrow illuminated permitting the Defendant to start driving. The Defendant did not see the Plaintiff and struck him with his vehicle.
Both liability (fault) and quantum (value) were at issue in this trial. Mr. Justice Halfyard held that the Defendant driver was careless for failing “to keep a proper lookout” and for failing to see the Plaintiff who was “there to be seen“.
The Plaintiff acknowledged that he was also partially at fault. The Court was asked to determine how much each party was to blame. Mr. Justice Halfyard found that the Plaintiff was more at fault and apportioned his blame at 75%. In reaching this distribution of fault the Court reasoned as follows:
 I find that the plaintiff’s degree of fault for the accident is considerably greater than the degree of fault of Mr. Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr. Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.) and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.
 In my opinion, liability should be apportioned as to 25% against Mr. Guest, and 75% as against Mr. Furness, and I so order.
The Court then dealt with the value (quantum) of the Plaintiff’s claim. The Plaintiff’s injuries and their course of recovery were summarized as follows:
 Most of the injuries sustained by the plaintiff are not in dispute and I find them to be the following:
a) undisplaced fracture of the posterior aspect of the medial femoral condyle of the right knee;
b) tiny fracture of the very lateral aspect of the lateral tibial plateau, which was undisplaced;
c) injury to the soft tissues in and around the right knee joint including a tear of the posterior horn of the medial meniscus;
d) other minor contusions and abrasions.
 The plaintiff complained of ongoing pain in his right ankle, which he attributes to the accident of February 13, 2007. ..
I find that, by the time of trial, the plaintiff had substantially recovered from the injuries he sustained in the accident of February 13, 2007. There is no medical opinion evidence which causally connects the plaintiff’s present complaints to his injuries of February 13, 2007. Nor is there any evidence of objective medical findings that confirm the plaintiff’s ongoing complaints of pain in his knee. In these circumstances, I am not satisfied that the necessary causal connection between the accident and the plaintiff’s present complaints of physical pain has been proved. However, I do accept that the plaintiff is still experiencing some intermittent psychological effects from the accident, in the form of nightmares and fear of crossing the street. I find that these psychological effects are diminishing, and should not persist for much longer. The evidence does not establish a real and substantial possibility that these psychological symptoms will persist well into the future.
Mr. Justice Halfyard valued the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000. The Court then reduced this award by 75% to take into account the Plaintiff’s own blame for his injuries.
Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.
In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued. All three trials were heard together. His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed. This left the court to deal with the Plaintiff’s motor vehicle accident claims.
The first motor vehicle collision happened in 2003. The Plaintiff was 15 at the time. He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk. The issue of fault was admitted. The Plaintiff suffered a knee injury and eventually had arthroscopic surgery. Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury. In arriving at this figure the Court highlighted the following facts: 86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident. He suffered discomfort and a restriction in his activities. In the first three weeks after the Second Accident, Evan missed six full days of school. He found it difficult to crouch or kneel and felt that the knee was unstable. He was not able to carry out his part-time job as a football referee. He used crutches for a month or two and then used a cane. He found it difficult to use the crutches because this caused additional pain in his right wrist. His parents rented a wheelchair for him to use at home. He was unable to take part in part-time work over the Christmas holidays…
 There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee. The structural injury was mild. If there was damage to the ACL, it was not significant and healed quickly. As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury. All of the doctors accept that there was a severe strain to the right knee. The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.
 The experts also agree that Evan should have been symptom free sometime after June 2006. However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms. The question that remains is whether Evan falls within that small subset. If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau. This question raises the issue of Evan’s credibility….
I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents. There are simply too many inconsistencies in his case to accept his assertions at face value…
 In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident. There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident. I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints. I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status. In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort. Specifically, I find that the symptoms persisted for four or five years…
 Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.
The second accident was a rear-end car crash. Fault was admitted. The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury. In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:
 On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine. In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered. While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill. Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant. By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…
 Given my findings, the cases referred to by the plaintiff are of little assistance. In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur. Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation. In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.
In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility. In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role. Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence. Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“. This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.
A common issue courts have to address in injury litigation is the effect of trauma on pre-existing asymptomatic arthritis. Often times after people are injured X-rays and other diagnostic tests reveal arthritic changes in joints which produced no pain prior to the trauma. Often times accidents cause these pre-existing conditions to become painful. A theme which usually comes up in these types of cases is whether the degeneration would have become painful at some point in time without the trauma. Reasons for judgement were released today by the BC Supreme Court dealing with such an injury to the knees.
In today’s case (Michal v. Begg) the Plaintiff was injured in a 2003 motor vehicle accident. The driver of the Plaintiff’s vehicle lost control and hit a concrete highway divider. The crash was significant destroying the vehicle on impact.
The plaintiff sustained various injuries including the onset of pain in his knees. The Plaintiff did not have pre-existing knee pain but on examination arthritic changes which would have pre-dated the accident were noted. The accepted medical evidence was that even if the Plaintiff did not have the accident he would have likely eventually experienced pain in his knees but the trauma accelerated this. Mr. Justice Curtis assessed the Plaintiff’s non-pecuniary damages at $75,000. In arriving at this figure the court noted the following about the extent and effect of the accident related injuries:
 In summary, I find it proven on the balance of probabilities that as a result of the December 18, 2003 collision, Miroslav Michal suffered a whiplash injury aggravating a pre-existent mild recurrent neck pain, which is now continuing on about the same course as it would have had the 2003 accident not occurred, injuries to his head, right shoulder, right and left wrists, fingers and elbow strains, rib injury and a buttock contusion, all of which has resolved fairly quickly, and injuries which have produced symptoms persisting to the present time, namely to his right ankle, right foot and left and right knees.
 The right knee was clearly injured in the collision as is demonstrated by the immediate appearance of pain, swelling and stiffness. That knee had pre-existing degenerative changes which were not symptomatic prior to the collision, but were clearly made symptomatic following it.
 There is no immediate medical record of Mr. Michal complaining about left knee problems. That knee also had pre-existing degenerative changes which were not symptomatic prior to the accident. I am satisfied, however, that the collision did aggravate the condition of the left knee and caused it to become symptomatic afterwards. Mr. Michal has testified that was the case and his testimony is supported by the observations of Mr. Begg and his Aikido instructor. Mr. Michal is clearly not a complainer and I accept that early left knee symptoms were simply overlooked in dealing with more urgent matters.
 Both knees were showing pre-existing signs of degeneration in all three compartments. The outlook for his knees was that the degeneration could continue and would have at some point become symptomatic even if there had not been any December 18 injuries. It is likely his knees would have got bad enough to affect his function even if he had not been injured. How long that would have taken is not clear – Dr. Anton offers the opinion that “The pre-existing changes would probably have become symptomatic absent the accident but that could have taken five years or longer.” Dr. Sovio in his report of March 6, 2006 was of the opinion that:
He, in all likelihood, had pre-existent degeneration which predisposed him to this problem and regardless he would have had some difficulties with his knees in the future. It is difficult to say when this would have shown up but it would likely have presented itself in the relative near future.
 On the evidence, I find it reasonable to attribute Mr. Michal’s knee symptoms to the date of his surgery in January and April of 2007 to the collision, but I find that, while the collision injuries remained a contributing factor, his failure to recover as expected from his knee surgery and his worsening condition from September 2007 onward was attributable to the fact that he had degenerative knees as well as the fact that they had been made worse by the collision induced injuries. It is probable that Mr. Michal would have ended up having arthroscopic surgery to his knees even without his 2003 injuries but that surgery was probably significantly sooner because of the December 2003 injuries.
 The plantar fasciitis in his right foot has become chronic but the medical opinion is that it should be cured. His right ankle does not show evidence of significant injury. I accept that these have troubled him as he has described to the date of his trial, but I find that they remain treatable and should not pose a significant problem for him in the future.
 Considering the pain and suffering Mr. Michal has had from his injuries, and the significant loss of enjoyment of life they have caused him, in particular forcing him to forego his long time interest in martial arts, I assess Mr. Michal’s claim for general damages at $75,000.
(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care. The BC Court of Appeal judgement can be found here)
Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.
The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC. The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.
The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months. His knee, however, sustained long term injury. Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.” Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.
In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:  Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home. Pain is, of course, inherently subjective. Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention. Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression. Both are of the view that he would benefit from psychiatric intervention. That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…  As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual. It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance. Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life. It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels. The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise. However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception. My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.
 Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians. I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act. I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct. Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.
 The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner. According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain. Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms. Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise. I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective. It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression. Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:
With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.
 Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.
Adding to this “pain and suffering case-law database” reasons for judgement were released today dealing with damages for a knee injury and soft tissue injuries sustained in a BC Car Crash.
In today’s case (Hill v. Durham), the Plaintiff was involved in a 2005 rear end accident. The Plaintiff was a passenger at the time and the issue of liability (fault) was admitted at trial. The trial focused on the extent of the Plaintiff’s accident related injuries and their value. In total, damages of just over $77,000 were awarded including an award of $40,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In arriving at this figure Mr. Justice Barrow summarized the Plaintiff’s accident related injuries and prognosis for these as follows: Dr. McKenzie saw Ms. Hill in early October 2006. In his consultation report of October 12, 2006 he wrote that Ms. Hill’s problem seemed to be localized to a particular tendon in the knee and he thought that it may be the “result of trauma during the motor vehicle accident”. He prescribed exercises and ordered some further diagnostic imaging. An MRI was performed in January 2007 and it revealed two things: thinning of the patellar cartilage in the knee joint and greater than normal water content in one of the bones, a condition technically described as subchondrial bone marrow edema. Dr. McKenzie testified that edema such as that found in Ms. Hill’s knee is caused by one of two things: trauma or excessive wear and tear. When it is caused by excessive wear and tear it is accompanied by other findings visible on x-ray. Those other findings were not present in Ms. Hill’s knee, and as a result Dr. McKenzie concluded that the edema she is experiencing is as a result of trauma. He noted that Ms. Hill’s left knee has neither of the conditions. He testified that the degree of trauma necessary to cause this condition would “not be trivial”. He said that the problems are consistent with the kind of trauma that might be sustained by hitting a knee on the dash in motor vehicle accident…
25] To a degree the resolution of this issue and other issues turns on the reliability and credibility of Ms. Hill. In general I found Ms. Hill to be a careful and credible witness. She testified that she had experienced bumps, bruises and injuries of various kinds over the course of her life. She said that she had always recovered reasonably quickly and completely from these events. She expected to do likewise following this accident. In general she impressed me as someone not prone to dwell on or overstate her physical problems. I accept that she now believes she struck her knee in the collision, although she has reached that conclusion not because she specifically remembers doing so but rather on the basis of the circumstantial evidence. She testified almost in passing that at one of her first yoga classes, within a month of the motor vehicle accident, she told her teacher that she was experiencing difficulties with her right knee. I accept her evidence on that point, and accept that she became aware of the discomfort in her knee reasonably shortly after the accident. Further, I am satisfied that she did not strike her knee after the accident in a manner that would give rise to the condition Dr. McKenzie found. I think it more likely than not that, as Dr. McKenzie noted, Ms. Hill was experiencing a number of more significant pains in the immediate aftermath of the collision and it was only as those pains subsided and her activity level increased that she became aware of the difficulty in her right knee.
 I am satisfied that Ms. Hill’s right knee problems are caused by the motor vehicle accident.
 The prognosis for this injury is guarded. Dr. McKenzie’s opinion is that the condition is often chronic. In February 2007 he prescribed a knee brace for use when exercising in a way that strains the knee. In his opinion, Ms. Hill may require renewals of that brace as well as periodic support from physiotherapists and medications for pain and inflammation. Ms. Hill reported to Dr. Dodek in October 2008 that her knee symptoms were improving.
 Ms. Hill’s other injury is to the soft tissues of her back. She has headaches secondary to that injury. In his October 28, 2008 report, Dr. Dodek expressed the view that her “long term prognosis for recovery…remains good” notwithstanding that almost three years had passed since the accident. Dr. Travlos, in his November 1, 2007 report, wrote that Ms. Hill’s headaches would continue to reduce in frequency and would likely return to their pre?accident level. As to her right mid and low back difficulties, he expressed no opinion on future prognosis. He did, however, encourage Ms. Hill to add cycling to her exercise program and to reduce her reliance on physiotherapy. He also thought that her consumption of over-the-counter analgesics could and should be reduced. Dr. Apel, in her September 12, 2008 report, concluded that the prognosis for complete recovery is guarded however the prognosis for significant symptom reduction is fair to good. In her view, Ms. Hill’s current exercise program is insufficient and with appropriate changes, including increased focus on stretching, she will experience further symptom reduction…
 Turning to the authorities, the injuries sustained by the plaintiffs in Menhinick, Wery, and Houghton (Litigation Guardian of), are generally similar to those suffered by Ms. Hill. The prognosis for each of those plaintiffs, however, was more guarded than I find is the case for Ms. Hill. The injuries sustained by the plaintiffs in the other authorities cited by counsel for Ms. Hill are all significantly more serious. On the other hand, I am satisfied that Ms. Hill’s injuries are more significant than those suffered by the plaintiffs in Krogh and Job.
 In summary, Ms. Hill suffered a moderate soft tissue injury to her back. That injury remains problematic almost four years after the accident. I am satisfied that it will continue to improve. Her knee injury is less painful but is likely to last longer, if not indefinitely. Based on all of the evidence and a consideration of all of the authorities cited by counsel, I find that the appropriate award for non-pecuniary damages is $40,000. Although not asked to, I would allocate that award $25,000 to the back injury and $15,000 to the knee injury. I have not reduced the award to account for Ms. Hill’s pre?existing knee problems because I am satisfied they would not interfere in any significant way with her recreational and other activities.
Reasons for judgment were released yesterday by the BC Supreme Court, Vancouver Registry (Cabrera v. Sandhu), awarding a Plaintiff close to $350,000 in total damages for injuries and loss as a result of a 2003 BC Car Crash including an award of non-pecuniary damages of $60,000.
The collision occurred in Coquitlam, BC. It was a near head on collision for which the Defendant admitted fault. The issue at trial was quantum of damages (value of the Plaintiff’s claim).
The Plaintiff suffered various injuries including a “medial meniscus tear” which was stabalized through arthroscopic surgery. The Plaintiff also had a ‘partial tear of her ACL which had scarred back to her PCL” which required a second surgery to correct. The Plaintiff did not fully recover from these knee injuries by the time of trial and it was accepted that she was plateaued and “left with a significant and permanent disability.” It was also found to be probable that the Plaintiff would need further knee surgery in the future.
One of the key issues at trial was weather the knee injury was related to the collision because the Plaintiff’s knee complaints did not come until sometime after the crash. In accepting that the knee injuries were related to the crash Mr. Justice Rice accepted the evidence of the Plaintiff’s surgeon, Dr. Guy, who gave evidence that “it is common that passengers seated in the front of a car sustain knee injuries after having their foot braced against the pedal or floor board at the time of an accident. In that position, injuries occur as a result of hyper extension of the knee during the collision”
In addition to the knee injury Mr. Justice Rice found that the Plaintiff suffered from various soft tissue injuries described as a “mysofacial pain of the neck, upper and low back regions“. These injuries had ‘resolved somewhat” by the time of trial but caused occasional pain to the Plaintiff. The Plaintiff’s non-pecuniary loss was valued at $60,000 for these injuries.
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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