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Tag: Madam Justice Gray

$115,000 Non-Pecuniary Assessment for Chronic Disabling Mechanical Back Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling injury following a vehicle collision.
In the recent case (Carver v. Or) the Plaintiff was involved in a 2011 collision which the Defendants were found liable for.  The crash resulted in chronic and disabling mechanical back pain.  In assessing non-pecuniary damages at $115,000 Madam Justice Gray provided the following reasons:

[191]     I would summarize the significant factors regarding Mr. Carver as follows:

a)         Mr. Carver was 56 years old at the time of the Accident, and 62 years old at the time of the trial;

b)         The Accident caused Mr. Carver to suffer injury to the tissues of his spinal column which has resulted in chronic disabling mechanical lower back pain;

c)          Mr. Carver’s pain has disabled him from working in any capacity, has reduced his ability to care for himself, and has significantly reduced the quality of his life;

d)         Mr. Carver is completely disabled from working and his walking is impaired;

e)         Mr. Carver has suffered emotionally from the loss of his ability to work and care for himself and from chronic pain;

f)           Mr. Carver’s life has been impaired by his loss of function and the presence of pain;

g)         Mr. Carver’s injuries have impaired his ability to spend time with his daughters in activities like camping and fishing and watching them play sports, and diminished his pleasure in life because of the loss of such activities and other activities like gardening;

h)         Mr. Carver’s ability to walk, sit, stand, and twist have been reduced by the injuries he suffered in the Accident;

i)            Mr. Carver’s factors relating to loss of lifestyle are described above, but fortunately have not made it impossible for him to continue to live by himself; and

j)           Mr. Carver has been stoic. He tried for over a year to return to full-time work, and engaged extensively in physiotherapy, exercise therapy, and pool therapy.

[192]     If the Accident had not occurred, it is most likely that Mr. Carver would have simply suffered periodic waxing and waning of his lower back pain and radiation into his legs, without progression and without loss of the ability to walk, sit, and stand comfortably or the loss of the ability to work. There was a small risk that his pre-Accident condition might have worsened, but it would not likely have affected his function or resulted in significant pain until he was over 70 years old.

[193]     I have taken into account the fact that Mr. Carver suffered pneumonia, with a two month hospitalization in February through April 2015, which was not a result of the Accident.

[194]     If Mr. Carver had not suffered back pain prior to the Accident, an appropriate award would have been in the range of $130,000. Considering that there was a risk his pre-Accident condition might have worsened, a reduction of about 10% is appropriate. Mr. Carver is entitled to an award of $115,000 for his non-pecuniary damages resulting from the Accident.


$120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.
In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011.  ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;

c)     Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.


Slip and Fall Claim Dismissed Due To Lack of Proof of Hazard

As previously discussed, slipping and falling in and of itself does no lead to a successful lawsuit for damages.  There needs to be evidence of negligence or a breach of the Occupier’s Liability Act for such a claim to succeed.  Absent proof of a hazard causative of the fall claims fail at trial.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.
In this week’s case  (Fulber v. Browns Social House Ltd.) the Plaintiff was a customer at the Defendant’s restaurant.  She was “wearing high-heeled shoes with a stiletto heel four and a half inches high“.  As she was walking in the restaurant she slipped and fell on the hard wood floor.   .  She did not notice anything on her shoes or her clothes “and did not feel any dampness on her bare skin“.  The Court noted that although the Plaintiff deposed “that she slipped on something” she could not identify the hazard she fell on her belief was based on inferences which she has drawn “essentially on the fact that she fell”.  The Court noted that this was not sufficient to prove wrongdoing by the Defendant and dismissed the claim.  In doing so Madam Justice Gray provided the following reasons:
[48]         The evidence does not establish that there was any hazard on the floor that caused Ms. Fulber to fall, whether it was a liquid or another foreign substance. Neither does the evidence give rise to a reasonable inference that there was liquid or another foreign substance on the place that Ms. Fulber fell.
[49]         While the place that she fell was relatively close to the bar, it was a matter of feet from the serving area. It is highly unlikely that a drink would slosh all the way from the serving area to that area on the floor. While it may be possible that there have been times that some liquid has fallen in the place where Ms. Fulber fell, on all the evidence I must conclude that there was not a hazard in the place where Ms. Fulber fell.
[50]         As a result, I must allow Rumpel’s application. I find that Ms. Fulber has failed to establish that Rumpel is liable for the injuries from the fall and I must dismiss her claim.
[51]         Rumpel is entitled to its costs.

Its Important to Know The Low End of the Range

When valuing a case for non-pecuniary damages its easy to cherry pick a few cases with similar facts and focus on the high end of potential damage awards.  While it is useful to be familiar with such authorities it is equally important to know the low end of potential damages as injuries are sometimes valued accordingly.  Knowing both ends of the risk spectrum helps make a more informed decision when valuing an injury claim.
With this in mind, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages on a very modest basis following a motor vehicle collision.
In last week’s case (Lee v. Dueck) the Plaintiff was involved in a 2009 so-called ‘low velocity impact’.  The Plaintiff was injured and some of her injuries lingered to the time of trial.  Madam Justice Gray found that the Plaintiff was “a straighforward witness who did not exaggerate“.  Despite this positive finding the Court concluded that the injuries were minor and that their consequences were not particularly significant.  In assessing non-pecuniary damages at $5,000 Madam Justice Gray provided the following reasons:

[35] In summary, Ms. Lee suffered minor soft tissue injuries in the accident. It was a relatively low velocity accident, but in Dr. Le Nobel’s opinion, Ms. Lee was at increased risk for more severe musculoskeletal consequences from physical trauma because she had increased ligamentous laxity in her joints. I accept that she suffered the injuries she has described. While she did not know whether her continuing problems were the result of the accident, I accept Dr. Le Nobel’s opinion that the injuries were likely caused by the accident.

[36] Ms. Lee suffered pain in her left ankle which resolved after about 10 days. She suffered pain in her right wrist which gradually improved and was gone by about seven months after the accident, except for flares of pain. The injuries caused her to substantially modify her cooking and housework for less than a month after the accident. She was a homemaker and her substantial modification to her work in the home was similar to a person who would take a couple of weeks entirely off work, and then gradually increase work.

[37] Since the accident, Ms. Lee has modified her activities to avoid heavy lifting and repeated twisting. Ms. Lee was essentially pain-free for about a year from the summer of 2010 to the summer of 2011, and after that she has suffered minor, brief flare?ups of pain with heavy lifting or frequent use of her wrist. She does not have pain or limitation of function on a daily basis. She is at risk for future flares of pain…

[51] In this case, Ms. Lee was 37 at the time of the injuries. The ankle resolved after about 10 days, and the wrist substantially resolved after about seven months. Ms. Lee has been left with chronic intermittent short?lived pain, which is triggered by heavy lifting and repeated twisting, but which she is able to avoid by modifying her activities to avoid those actions. This has not significantly affected her ability to work as a homemaker or in work or other activities that she is likely to pursue.

[52] In all the circumstances, a fair award for Ms. Lee’s non?pecuniary damages is $5,000.

$50,000 Non-Pecuniary Assessment for "Myofascial Pain Syndrome"; Rule 15 Soft Cap Exceeded

Adding to this site’s expanding database for BC soft-tissue injury assessments, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries with a poor prognosis.
In last week’s case (Bissonnette v. Horn) the Plaintiff was involved in a 2007 collision.  Fault was admitted focusing the trial on damages.  The Court found that the Plaintiff suffered various soft tissue injuries involving her beck, back hip and leg.  The injuries continued to cause difficulties to the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $50,000 Madam Justice Gray provided the following reasons:

[74] I accept the evidence of Dr. Frankel that Ms. Horn continues to suffer with left hip, neck, left leg, and lower back pain, disturbed sleep patterns, headaches, anxiety, and weight gain as a result of her motor vehicle related injuries. I also accept his opinion that, as these symptoms have continued for over four years since the accident, her prognosis for full recovery is guarded. Dr. Chu testified that the prognosis was fairly good for Ms. Horn’s widespread myofascial pain syndrome and that it usually responds to active exercise and treating sleep or mood disturbances. I accept this evidence as well….

[76] Ms. Horn’s continuing pain has diminished since the accident, but remains significant enough to affect her work, recreation, and sleep. She suffered other symptoms closer to the accident, including severe headaches, a broken tooth, and a finger injury.

Global damages of just over $100,000 were awarded demonstrating the soft cap in action set out for fast track trials in Rule 15.  This is not the first time this has happened since the new rules came into force and also confirms the disjunctive nature of Rule 15 allowing for the prosecution of claims over the $100,000 damage cap.

Secret Tape Recording Deemed Admissible in BC Civil Lawsuit

From time to time BC Courts struggle with the issue of whether evidence obtained through secret tape recording is admissible in a civil trial.  Reasons for judgement were published yesterday by the BC Supreme Court, Vancouver Registry, addressing this topic.
In yesterday’s case (Lam v. Chiu) the Plaintiff sued the Defendant for damages based on unjust enrichment.  Prior to trial the Plaintiff had a conversation with the Defendant that he secretly recorded.  In the course of the discussion the Defendant arguably acknowledged the alleged debt.
The Plaintiff sought to introduce the secret recording at trial.  The Defendant opposed arguing secretly recorded evidence is too prejudicial to be admitted at trial.  After thoroughly canvassing several authorities addressing this area of the law Madam Justice Gray found the evidence should be admitted.  In doing so the Court provided the following reasons:

[25] So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.

[26] The case before me is not a family case. It is not a case where custody is in issue and it is not a case where the recording took place in the household of a family. The recording, in fact, took place primarily on the street outside Ms. Chiu’s workplace. It is not a case where there is an ongoing relationship of trust between parents.

[27] This is a situation where the relationship between Mr. Lam and Ms. Chiu has broken down, and there is no need for them to have an ongoing relationship except to resolve the lawsuit before me. It is not a case of a large volume of material. It is a case of one recording. It is not a case where the recording is being put forward to show a general practice of how someone interacts with their children as in the Seddon case. It is a case where there is an allegation about a narrow point, that is, discussion about the existence of a loan.

[28] I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.”  There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.

[29] I also consider the probative value in contrast with what the situation would be if the recording is not admitted. Mr. Lam could testify that he met with Ms. Chiu, demanded the payment of the loan, that she did not deny that it was owing, and she said she had no intention of repaying it. That summary might well be accurate, but it would not give the full flavour of the conversation which is available from considering the recording and the transcript. So there is some probative value to having the full conversation reported as accurately as it can be.

[30] In terms of prejudice, there clearly is unfairness when one party knows that a conversation is being tape-recorded and the other party does not. That is clear on the evidence and can be taken into account on considering what, if any, weight the evidence ought to be given. Mr. McMillan argued that the context was prejudicial. However, Ms. Chiu can supply any more evidence she chooses about the context of the discussion including any other background and any other concerns about the language.

[31] The matter which gave me the greatest concern was the question of the impact on the administration of justice of permitting the admission into evidence of a surreptitious recording. I am not sure that I can characterize this surreptitious recording as odious. That was a term used by Mr. Justice Thackray and embraced by other judges, but when they were referring to recordings in a home with an ongoing parental relationship and, as I have said, that does not apply here. Whether it is odious or not, the recording was certainly unfair. It is not criminal because Mr. Lam knew the recording was being made. As I have said, the recording was staged and therefore unfair, but that is apparent from the recording.

[32] This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.

[33] So my ruling on the voir dire is that the recording is admissible.

Plaintiff Struck by Fleeing Shoplifter Found Faultless for Collision

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a crash when a Plaintiff was struck by a fleeing shoplifter.
In last week’s case (Bhadlawala v. Baxter) the Plaintiff was involved in a 2008 collision.  At the time he was 64 years old and was a long time employee at Zellers.  He observed an individual shoplifting and followed him into the parking lot.  The shoplifter entered a van.  The Plaintiff stood behind the van, about one vehicle length away, and attempted to write down the licence plate.  The vehicle then suddenly backed up and struck the Plaintiff causing injury.
ICBC argued the Plaintiff should be found 25% at fault for placing himself in harm’s way.  Madam Justice Gray rejected this argument and found the motorist fully at fault.  In doing so the Court provided the following reasons:
[85] Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was negligent in placing himself behind the van in the parking lot, and that he thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to have known that the van was going to back up, and should not have stood behind it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent for the 2008 accident, and that his damages award should be reduced accordingly…

[93] The defence argued that Mr. Bhadlawala should not have pursued the shoplifter. However, the accident was not the result of pursuing the shoplifter. It was the result of the van striking Mr. Bhadlawala in the parking lot.

[94] The shoplifter was in the van. The evidence did not establish whether the shoplifter was the driver or a passenger in the van. The driver of the van probably wanted to avoid anyone noting the van’s license number. It was reasonable for Mr. Bhadlawala to have anticipated that the van might have backed up.

[95] However, the risk of being caught shoplifting is far less significant than the risk of being caught striking a pedestrian with a vehicle.

[96] It was not reasonably foreseeable that the driver of the van would reverse so quickly that Mr. Bhadlawala could not move out of the way in time to avoid being struck. Mr. Bhadlawala was standing over a van length behind the van, which would have given him ample time to get out of the way if the van had moved at a reasonable speed…

[101] As a result, Mr. Robert is entirely responsible for the 2008 accident.

Another useful case addressing this issue can be found here where the BC Court of Appeal found ICBC’s arguments in a similar situation were ‘doomed to failure‘.

Employer Paid Wage Replacement Benefits Non-Deductible in Hit and Run Claims

Section 106 of the Insurance (Vehicle) Regulation permits ICBC to reduce compensation by any amount paid by another “insured claim” in claims for injuries caused by unidentified motorists or uninsured motorists under section 24 and section 20 of the Insurance (Vehicle) Act .  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing whether wage loss benefits paid by an employer are an ‘insured claim‘.  In short the Court held that they are not.
In last week’s case (Loeppky v. ICBC) the Plaintiff, a police officer, was injured in a hit and run collision.  ICBC accepted the crash was caused through the fault of an unidentified motorist.  The Plaintiff sought compensation for his damages including past wage loss.  During his time away from work his employer paid him wage replacement benefits.  ICBC argued these payments were an ‘insured claim‘ and therefore had to be deducted from his ICBC claim.  Madam Justice Grey disagreed and refused to make the deduction.  The Court provided the following reasons:

[83] In my view, Mr. Loeppky’s wage replacement benefits do not constitute an “insured claim” under s. 106 of the Regulation, and therefore may not be deducted from Mr. Loeppky’s award.

[84] In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277 (B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum of money advanced by an employer to an employee that had to be repaid in the event of any recovery did not qualify as a benefit under the predecessor of s. 106.

[85] More generally, in Lopez v. Insurance Corporation of British Columbia (1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the court at para. 21, held that an “insured claim” for the purposes of the Regulations must still import at least some element of insurance. He went on conclude that payments made by reason of a contract of employment, without some evidence that they originate from an insurer, do not possess such an element of insurance.

[86] The sum of $6,804.77 was paid to Mr. Loeppky under the collective agreement between the Vancouver Police Union and the Vancouver Police Board. Under the terms of that agreement Mr. Loeppky must repay that amount if he recovers it in this action. There is no evidence that the payments originated from an insurer. Thus, it is not an insured claim under s. 106 and the defendant is not entitled to deduct it from any award.

$70,000 Non-Pecuniary Damage Assessment for Subligamentous Disc Herniation

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing fault and damages stemming from a 2006 motor vehicle collision.
In last week’s case (Power v. Carswell) the Plaintiff was involved in a two vehicle collision in Kamloops, BC.   The Defendant blew a red light while attempting a left hand turn and collided with the Plaintiff’s vehicle.  Although he denied liability the Court found him fully at fault.
The Plaintiff suffered various injuries in this collision the most serious of which was a subligamentous disc herniation at L4-L5.

She was expected to have chronic lower back pain as a result of this injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Gray provided the following reasons:

[178] Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.

[179] Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.

[180] As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.

[181] As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies…

[188] In all the circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.

Pre-Trial "Borrowing" Not Relevant in Costs Assessment

Section 3 of BC’s Negligence Act reduces a Plaintiff’s entitlement to costs recovery to the same proportion as a Plaintiff’s degree of fault following a collision.   Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the factors a Court can consider in deviating from this typical result and further finding that pre-trial borrowing is irrelevant to the Court’s analysis.
In last month’s case (Gowler v. Ngo) the Plaintiff was injured in two motor vehicle collisions.  Following a 13 day trial a Jury found the Plaintiff 50% at fault for the first of the collisions.  Damages of $250,000 were assessed and these were cut in half to take the Plaintiff’s degree of fault into consideration.  The Plaintiff’s costs for proceeding to trial were over $100,000.   Neither party beat their pre-trial settlement offer leaving the Court to apply section 3 of the Negligence Act.
Madam Justice Gray found it would be unfair to strip the Plaintiff of 50% of his costs given their magnitude and instead reduced the Plaintiff’s entitlement by 35%.  In doing so the Court provided the following reasons:

[14] The factors to take into account in considering the court’s discretion are discussed in my decision in Moses v. Kim, 2007 BCSC 1820. I will talk about the Court of Appeal decision in a moment, but I will ask that the reasons for judgment, if they are reproduced, will now include paragraph 13 of the Moses v. Kim decision.

[13]   The authorities demonstrate many factors the court has considered in exercising this discretion. Among them are the following:

(a)  the seriousness of the plaintiff’s injuries;

(b)  the difficulties facing the plaintiff in establishing liability;

(c)  the fact that in settlement negotiations the amount offered was substantially below the ultimate amount;

(d)  whether the plaintiff was forced to go to trial to obtain recovery;

(e)  the costs of getting to trial;

(f)  the difficulty and length of the trial;

(g)  whether the costs recovery available to the plaintiff, if costs are apportioned according to liability, will bear any reasonable relationship to the party’s costs in obtaining the results achieved;

(h)  the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances;

(i)  whether the defendants made any settlement offers;

(j)  the ultimate result of the trial; and

(k)  whether the plaintiff achieved substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence Act…

[35] In my view, in this case the most important factors are the costs of proving damages for an injury of this type, the fact that there is a very significant claim for disbursements, and the fact that the amount of the award is $125,000 and the costs claimed are about $104,000.

[36] Mr. Mussio asked me to take into account some borrowing that Mr. Gowler did prior to the trial. In my view, that is not a factor I can take into account, nor can I take into account the legal fees, based on the decision of the Court of Appeal in the Moses v. Kim case.

[37] Looking at all the applicable factors, in my view it would be unjust to award the plaintiff only 50 percent of his costs. That is because his award would be so diluted by the need to pay his disbursements that he would not have a sufficient recovery. However, it is not a case where Mr. Gowler’s damages were so significant as in the Moses case.

[38] Looking at the cases and all the applicable factors, in my view, the appropriate award is that the plaintiff should recover 65 percent of his costs.