Tag: madam justice baker

Defendant Awarded Trial Costs for Beating Formal Settlement Offer in ICBC Claim

While Rule 37B is still being shaped in its application one pattern that is relatively well established is that if a Plaintiff is awarded less at trial than ICBC’s formal settlement offer the Plaintiff will likely be deprived of their trial costs and be ordered to pay a portion of the Defendant’s costs.  Reasons for judgement were released this week by the BC Supreme Court, Courtenay Registry, demonstrating such a result.
In this week’s case (Berry v. LaBelle) the Plaintiff was injured in a motor vehicle collision.  He sued for damages.  The month before trial ICBC made a formal settlement offer to resolve the claim for $46,000.  This offer was rejected.  At trial the Plaintiff was awarded $30,000 in total damages by the BC Supreme Court (you can click here to read my article summarizing the trial judgement).
ICBC brought a motion under Rule 37B to be awarded double costs for all steps taken in the lawsuit after the formal offer was delivered.  Madam Justice Baker refused to award double costs, however the Court did deprive the Plaintiff of costs following the formal offer and ordered that the Plaintiff pay the Defendant’s costs from the week after the offer was made through to trial.
The Court recognized that such an order would significantly reduce the amount of damages the Plaintiff would receive.  Madam Justice Baker provided the following reasons justifying this result:
[13] Counsel for the defendant submits, and I agree, that the plaintiff did set his sights very high at trial.  In oral submissions at the end of trial, counsel for the plaintiff argued that the appropriate award for non-pecuniary damages was between $150,000 to $200,000; that the plaintiff should receive an award of $45,000 to $60,000 for past loss of income; and that the court should award $400,000 for loss of the capacity to earn income in future.  The submissions about income loss were particularly ambitious given that the plaintiff provided no documentary evidence whatsoever about income earned by the plaintiff before or after the accident…

[15]        I consider that the offer made by the defendant was one that ought reasonably to have been accepted, although the plaintiff would, in my view, have reasonably needed some time to consider his position and seek his counsel’s advice.

[16]        As stated earlier, the plaintiff ought to have anticipated significant difficulty in maintaining a loss of income claim without the ability, or willingness, to provide documentary evidence about his earnings before or after the accident.

[17]        By the date of the defendant’s offer, the plaintiff had available to him the medical opinion evidence on which he relied at trial.  Given that the medical evidence ruled out neurological injury; plaintiff’s counsel would have had plenty of precedents available to assist in assessing the likely range of quantum of non-pecuniary damages…

[19]        Certainly the effect of the costs order the defendant is seeking would be to deprive the plaintiff of the greater part of the compensation to which I concluded he is entitled by reason of the defendant’s negligence and the plaintiff’s injury…

[21] In all of the circumstances, I am satisfied that it would be inequitable to make an award of double costs in favour of the defendant.  The defendant having elected to proceed under Rule 66, I am satisfied that the defendant’s entitlement to costs should be governed by Rule 66.  I award the plaintiff his costs, on Scale B, not to exceed $6,600, up to and including April 21, 2009, plus disbursements incurred to that date.  In respect of proceedings after that date, the defendant shall have her costs, but also limited to $6,600 pursuant to Rule 66(29); and her disbursements from and after April 22, 2009.   There shall be no order for double costs.

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

You can click here to access my archived posts discussing other Rule 37B cases.

More on ICBC Claims and the "Failure to Mitigate" Defence

When advancing an ICBC tort claim Plaintiffs have a duty to take reasonable steps to limit their loss.  If a plaintiff does not do so the value of their claim can be reduced .  This legal defence is known as “failure to mitigate“.  (You can click here to read my previous posts discussing this topic).
In the personal injury context, it is not unusual for defendants to argue that plaintiffs failed to mitigate their damages.  A common argument is that a Plaintiff failed to follow medical advice.
While failing to follow medical advice can result in reduction of the value of a claim, this fact in and of itself is not enough.  To succeed the Defendant will have to prove not only that the Plaintiff failed to follow medical advice but that had the Plaintiff done so it would have improved the course of their injuries.  Reasons for judgement were released today demonstrating this principle.
In today’s case (Singh v. Shergill) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted.  The Plaintiff’s injuries included soft tissue damage to his low back.  The Defendant argued that the Plaintiff “did not follow his doctor’s recommendations” and that the Court should reduce the value of the claim for failure to mitigate.  Madam Justice Baker agreed that the Plaintiff “did not follow his doctor’s recommendations” but did not reduce the value of the Plaintiff’s claim.  Specifically the Court held as follows:

[45] The defendant submits that Mr. Singh would have recovered more quickly, and would experience less discomfort and impairment if he had followed Dr. Ng’s recommendation to undergo physiotherapy for a period longer than he did, and to engage in an active program of physical exercise to strengthen his core muscles, in particular, his abdominal muscles.

[46] I agree with the defendant that Mr. Singh did not follow his doctor’s recommendations.  I am not persuaded, however, that the evidence is sufficient to permit me to conclude that Mr. Singh would have recovered more fully, or more quickly, if he had done as Dr. Ng recommended.  Mr. Singh testified that although the five physiotherapy treatments he did have in 2006 resolved the problems in his neck and shoulders, he experienced no relief in relation to the lower back symptoms.

[47] I expect that Dr. Ng was hopeful that the treatment he was recommending would be of benefit to Mr. Singh, but he has not testified that it is probable that Mr. Singh would be in better condition today if he had continued physiotherapy.  Dr. Ng has pointed out, and the evidence establishes, that the job Mr. Singh does five days a week involves considerable physical labour, and therefore Mr. Singh does get physical exercise.

[48] I conclude the defendant has failed to prove a failure to mitigate.

The lesson to be learned is that the Defendant has the burden of proving failure to mitigate in a personal injury lawsuit.

If this defense is raised it needs to be determined what difference would have been made if the Plaintiff did what the Defendant alleges the Plaintiff should have done.  Usually expert opinion evidence would be necessary to discharge this burden and Plaintiffs faced with this defence would be wise to scrutinize the evidence Defendants have in support of their arguments when gauging whether their settlement should be affected for failure to mitigate.

Non-Pecuniary Damages Discussed for Neck Soft Tissue Injury, Significant Low Back STI

2 cases were released today by the BC Supreme Court dealing with non-pecuniary damages in auto-accident cases which I summarize below to add to this ever-growing free online  pain and suffering caselaw database.  The first case dealt with a soft tissue neck injury; the second with a ‘significant’ low back soft tissue injury.
In the first case (Berry v. LaBelle), the Plaintiff was injured in a 2006 rear-end crash.  Fault was admitted leaving the Court to deal with the value of the claim.
The Plaintiff was a 42 year old drywaller at the time of the accident.  He sued for various damages including past loss of income and diminished earning capacity.  At trial he asked for some $600,000 in total damages for his injuries and losses.  He alleged that he suffered from left handed weakness as a result of the collision which negatively affected his ability to work.  After 4 days of trial, however, his claim proved largely unsuccessful being awarded $0 for his loss of income / diminished earning capacity claims.  The Court did find that the Plaintiff suffered a compensable injury and awarded the Plaintiff damages for non-pecuniary loss (money for pain and suffering and loss of enjoyment of life).
Specifically Madam Justice Baker found that “the only injury resulting from the motor vehicle accident…is a strain to the soft tissues on the left side of the neck“.  In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court noted the following:

[51] Nevertheless, I am satisfied that the strain to the soft tissues on the left side of Mr. Berry’s neck did cause him discomfort for several months after the accident, although it appears that injury did not actually impair range of motion in the neck.  Mr. Berry had full range of motion in his neck the day after the accident; Dr. Fehlau described the range of motion as “good” when Mr. Berry was seen at her clinic on August 17, 2006.  Massage therapy alleviated the discomfort but only temporarily; physiotherapy had more lasting benefits.  The pain did not incapacitate Mr. Berry at work, although he modified some of his tasks to accommodate the injury.

[52] By no later than October 2006 – seven months after the accident, Mr. Berry had returned to his favourite recreational activity – dirt-biking.  According to Mr. Berry’s description, and those of his friend Mr. Van Lingen, cross-country dirt-biking is a very strenuous and even hazardous recreational activity.  Mr. Berry told Dr. Fehlau on October 24, 2006 that his neck became sore after one-half hour of dirt-biking.   I accept that Mr. Berry initially moderated the intensity of his dirt-bike excursions.  However, Mr. Van Lingen testified that before the bike accident in September 2008, Mr. Berry was back to riding as he had before the March 2006 motor vehicle accident.

[53] Mr. Berry and his wife both testified that the neck discomfort had a negative effect on their sexual relationship.  They testified that before the accident, they had sexual intercourse two or three times every day, but that the frequency diminished after the accident because Mr. Berry experienced neck pain during intercourse, particularly when certain positions were attempted.  Mr. Berry and his wife both testified that Mr. Berry was less patient and more irritable when his neck was sore.

[54] Mr. Berry testified that he has given up river kayaking and golfing because of his injuries but I am not persuaded this is true.  Mr. Berry has not made a serious attempt to engage in either of these activities since the accident.  He testified he had gone kayaking once on a lake, and had not attempted river kayaking.  He had not attempted to play golf.  Given that Mr. Berry has been able to continue to do very heavy physical labour at work, and resumed cross-country dirt-biking within seven months after the accident, I do not accept that he is incapacitated from playing a few games of golf annually, or kayaking on a river.  I think it more likely that Mr. Berry has changed his recreational focus to activities he can enjoy with his wife and young son, and to a new interest – on-line computer games – which Ms. Schroeder testified that Mr. Berry plays for hours at a time.

[55] I am satisfied that Mr. Berry has recovered from the injuries caused by the accident.  I consider that an award of $30,000 to be adequate compensation for the temporary impact Mr. Berry’s neck injury has had on his enjoyment of life and, in particular, the discomfort he has experienced when lifting heavy materials at work; while engaging in strenuous recreational activities; and during intimate relations with his spouse.

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The second case released today (Demarzo v. Michaud) considered the onset of pain in a pre-existing but asymptomtic condition, namely a degenerative spine.

The Plaintiff was involved in a March, 2005 rear end collision.  Fault was admitted.  The Court heard evidence that the Plaintiff suffered from relatively severe back pain following this collision.  The parties differed on whether the Defendant was legally responsible for this.  The Defendant argued that he was not stating that the accident related injuries were minor and that a ‘pre-existing degenerative spine‘ and a subsequent event (an incident where the Plaintiff was lifting weights and aggravated her back pain) were responsible for the symptoms. The Defendant argued that the Plaintiff would have experienced her back pain as a matter of course even without the rear-end crash.  (note: this type of a ‘causation’ argument is often advanced at trial in personal injury lawsuits involving plaintiff’s with degenerative changes in their spine).

Mr. Justice Brown largely agreed with the Plaintiff and awarded just over $350,000 in total damages including $85,000 for her non-pecuniary damages.  Specifically he found that the Plaintiff suffered from a “significant soft tissue injury to her lower back” which resulted in chronic symptoms.   In navigating through the Defenses raised and awarding damages Mr. Justice Brown noted the following:

[51] I find that the plaintiff sustained a significant soft tissue injury to her lower back but it is not possible to unravel the plaintiff’s clinical history in such a way that allows a conclusive evidentiary finding on the specific medical legal question of when the plaintiff sustained her annular tear.

[52] The plaintiff’s lower back symptoms have become chronic and I accept Dr. Leete, Dr. Filbey’s medical opinions that she will continue to experience intermittent lower back complaints, especially related to certain activities. This is far from what she was able to do before the accident.

[53] As for the defendant’s contention that the plaintiff’s landscaping activities produced her degenerated spine and that this is the ultimate cause of her symptoms, I prefer the opinions of Dr. Leete and Dr. Filbey that there is no sound medical basis for the proposition that because someone over the years has been active in sports and worked as a landscaper, they are necessarily predisposed to development of degenerative changes in the spine or that such changes are associated with back pain. I understood from the evidence of Dr. Leete and Dr. Filbey that one patient may present with images of a markedly degenerated spine and have no history of symptoms, while another patient may present with marked symptoms, and have images of a perfectly normal spine. I also find that there is no sound medical basis for concluding that the plaintiff would have suffered the symptoms and limitations that she has experienced or that her degenerative spine would have inevitably become symptomatic, absent inducement of symptoms by the trauma of the motor vehicle accident.

[54] The plaintiff’s position is that when she lifted the dumbbells, she experienced immediate onset of pain in the same area she injured in the accident; that this was an exacerbation of the plaintiff’s unresolved injuries; and that there is no evidence to show that she would have experienced her continuing symptoms but for the injuries she sustained in the accident. On the balance of probabilities, I agree with the plaintiff’s position. I find that but for the accident the plaintiff would not have suffered the pain and disability she experienced after accident, including the exacerbation of her injuries on May 29, 2005 and acute flare-up with neurological symptoms in November 2005…

[57] The plaintiff has never returned to her former work as a landscaper or to any of her former recreational activities, at least not with any degree of intensity. She is still unable to play volleyball, cannot run long distances, although she did try running in the last month but at a far lower level than before. She no longer exercises at the gym. She does not enjoy movies in theatres because she finds sitting for long periods very uncomfortable. She explained that the last time she went out with friends, she felt very uncomfortable, but suffered through it as she was too embarrassed to leave. Given her enjoyment of sports and active lifestyle shared with her husband, as well as the loss of her former capacity to be active, this represents a substantial loss for the plaintiff as a person and a spouse. Although the plaintiff will likely improve somewhat in the future, I accept that she will not ever be able return to her former level of participation in recreational activities or regain her former physical capacities; and will continue to experience varying degrees of chronic back pain that will necessitate alteration of her lifestyle.

[58] The accident depressed the plaintiff’s mood, leading to a marriage separation in early spring 2007. Mr. Saliken testified that the plaintiff became depressed, unhappy about living with him in Nanaimo, impatient and angry. Making matters worse was the apparent mindset of Mr. Saliken’s family, who were impatient with the pace of the plaintiff’s recovery and kept asking why she could not work. The plaintiff’s feelings of frustration, augmented by her feelings of diminishment in the eyes of her husband’s family, who she did not yet know well and who had “never seen how hard she could work”, and her feeling that she had become a drain on the household combined with other aggravating factors, ultimately led to arguments and her two months separation from her husband. Fortunately, their bond and commitment to one another were strong enough to allow the plaintiff and Mr. Saliken to weather these adverse emotional affects of the accident and they reconciled. Nonetheless, the plaintiff’s separation from her husband and her emotional distress are emblematic of the degree of suffering and loss of enjoyment of life the plaintiff has experienced. She is entitled to a substantial award for pain and suffering and loss of the enjoyment of life. Bearing in mind that while she will receive compensation for her loss of earning capacity, she has still lost the enjoyment and satisfaction she experienced in her chosen career. I award the plaintiff $85,000 for non pecuniary damages.

Self Represented Litigant Awarded $30,000 Non-Pecuniary Damages for Neck and Back Soft Tissue Injuries

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just under $50,000 in total damages for injuries and loss from a 1999 motor vehicle collision.
In today’s case (Foo v. Masardijian) the Plaintiff was involved in a rear-end crash on April 27, 1999.  Fault was admitted by the rear motorist.  The trial involved an assessment of damages.
The Plaintiff represented himself.  He was seeking “an award of one-half to one million dollars“.  He sought this figure apparently on the basis that his accident related injuries were ongoing by the time of trial.  This was rejected by the Court which held that some of the Plaintiff’s perceptions about his injuries were “completely mistaken“.
Madam Justice Baker had issues with respect to the Plaintiff’s reliability as a witness as he testified to a series of post accident events which were “sufficiently bizarre and inherently improbably to cast doubt on the accuracy of (the Plaintiff’s) perceptions.”
Ultimately Madam Justice Baker awarded the Plaintiff $18,000 for past loss of income and $30,000 for his non-pecuniary damages.  In justifying this figure the Court summarize the Plaintiff’s accident related injuries as follows:

54] Mr. Foo did experience pain and discomfort, particularly in the first 18 months following the accident and some intermittent neck and lower back pain after that time.  Although I am not persuaded that the disability perceived by Mr. Foo after September 2000 can fairly be attributed to the accident injuries, Mr. Foo did experience discomfort and some degree of disability for a period of about 18 months with some lingering intermittent symptoms after that time.

[55] It does not appear that Mr. Foo engaged in many recreational activities before the motor vehicle accident as he was working 7 days a week in his restaurant.  He did testify that driving long distances caused some discomfort and this applied to driving to Seattle on some Saturday afternoons to attend a Buddhist temple there.  Mr. Foo eventually began attending a temple in the Lower Mainland where he now volunteers at least one day a week as a cook.

[56] This case does have some unique aspects, as Mr. Foo has developed certain perceptions about his injuries and about certain treatment he has received that I am persuaded are completely mistaken.  I am not satisfied that the defendant can be held to be responsible for these mistaken perceptions and therefore include no compensation for the injuries or slights Mr. Foo believes were visited upon him by the defendant’s insurer.

[57] Considering all of the circumstances, I award Mr. Foo the sum of $30,000 for damages for pain, discomfort and loss of enjoyment of life.

$40,000 Non-Pecuniary Damages Awarded for Moderate Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westinster Registry (Lehtonen v. Johnston), awarding a Plaintiff just over $60,000 in total damages as a result of a 2005 BC Car Crash.
The car crash was a rear-end collision.  The issue of liability (fault) was admitted and the trial focused on quantum of damages (value of the Plaintiff’s injuries).
The accident was found to be a “very minor” one and appears to fit ICBC’s Low Velocity Impact program as the Plaintiff’s vehicle sustained only $780 in damages.  Notwithstanding the minor amount of vehicle damage the Plaintiff alleged she suffered from serious injuries including a right hip misalignment.
Madam Justice Baker found that many of the Plaintiff’s complaints were not caused from the crash, however, despite the minor nature of this crash the Court found that the Plaintiff did suffer various injuries.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Madam Justice Baker summarized the accident related injuries as follows:

[83] Having considered the evidence as a whole, with particular reference to the medical opinion evidence, I conclude that Ms. Lehtonen sustained a mild injury to the soft tissues of her neck and upper back and a mild to moderate injury to the soft tissues of her lower back as a result of the motor vehicle accident on July 30, 2005.

[84] While the injuries caused discomfort, Ms. Lehtonen did not lose or quickly recovered full range of motion in the affected areas. The neck and upper back symptoms improved significantly within the first six weeks after the accident, although the symptoms recurred from time to time, exacerbated by physical exertion.  The lower back symptoms caused by the accident persisted for about a year but after the first several months have not been proved to be disabling.  Ms. Lehtonen testified that her physical injuries improved steadily over the first six months after the accident and that she did not have an exacerbation of her anxiety or depression related to the accident during that period…

[86] I accept that Ms. Lehtonen continues to have a subjective perception of a variety of symptoms, but I consider it more probable than not that the symptoms she has experienced from the second half of 2006 to present are not caused by the relatively mild soft tissue injuries resulting from the motor vehicle accident and are the result of a complex interplay of social, psychological and emotional factors unrelated to the motor vehicle accident; and fibromyalgia…

[90] I am satisfied that the discomfort from Ms. Lehtonen’s injuries likely did contribute to Ms. Lehtonen’s pre-existing depression and anxiety, although she denied this during the first six months post-accident.  I am also satisfied, however, that Ms. Lehtonen would have had depression even if the accident had not happened, and that any exacerbation of her mental health problems was temporary and minor.  The depression is, in my view, a chronic condition, that waxes and wanes….

[92] I am satisfied that Ms. Lehtonen had recovered from her physical injuries within a year following the accident. I accept that after that time she has continued to experience episodes of lower back discomfort from time to time.  However, her experience of other symptoms after that date is more probably caused by her complex pre-existing and ongoing psychiatric condition; in particular, depression and anxiety, exacerbated by adverse reactions to and, at times, abuse of medications prescribed to treat the depression and anxiety.  I also conclude that Ms. Lehtonen’s later and current subjective symptoms of soft tissue and joint pain are more probably the result of Ms. Lehtonen’s fibromyalgia than any sequelae of the motor vehicle accident injuries…

[94] As Chief Justice McEachern stated in Price v. Kostryba, [1982] B.C.J. No. 1518:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

[95] I might add that the same caution must be exercised when a plaintiff’s recovery not only deviates significantly from the normal course of recovery, but where a plaintiff develops new, different, unusual and more serious subjective complaints long after the event said to be the cause of those complaints.

[96] In saying this, I have not concluded that Ms. Lehtonen has fabricated these symptoms.  I accept that she subjectively perceives these things to be true.  I do not consider her perception of these symptoms to be reliable, however.  I consider it more probable than not that they are subjective physical manifestations of a complex interplay of emotional, physical and psychological factors unrelated to the motor vehicle accident.  Ms. Lehtonen’s statement to Dr. Riar that even the pain from a mosquito bite persists for months indicates that while these symptoms are real to her, they cannot be accepted on any objective evaluation.

[97] I am not persuaded that any symptoms that Ms. Lehtonen continued to experience subjectively more than 12 months after the accident, except for episodic and non-disabling muscle tightness and discomfort in her lower back, were caused by the motor vehicle accident.

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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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