Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.
In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs. The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000. The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future. In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:
Adding to this site’s archives of expert witnesses being judicially criticized for advocacy, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, expressing reservations about the reliability of an ICBC retained expert who “became somewhat combative during cross-examination” downplayed the Plaintiff’s subjective reports of pain and showed a “lack of an open mind“.
In today’s case (Luck v. Shack) the plaintiff was injured in a 2014 collision that the Defendant accepted fault for. The crash resulted in chronic soft tissue injuries and myofascial pain syndrome. In the course of the lawsuit the Defendant retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and their relationship to the crash. In concluding that “little weight” should be given to this doctor’s opinion Madam Justice MacDonald provided the following comments:
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and likely permanent back pain arising from a vehicle collision.
In today’s case (Domijan v. Jeon) the Plaintiff was involved in a 2012 collision the Defendant accepted fault for. The crash caused an L4-5 intervertebral disc injury with central disc herniation. The prognosis for recovery was poor and the Plaintiff was expected to have some degree of back pain for the rest of his life. In assessing non-pecuniary damages at $100,000 Madam Justice MacDonald provided the following reasons:
 I am not convinced that the plaintiff’s issue is simply pain relating to lumbar facet joint syndrome as put forward by Dr. Rickards. In fairness to Dr. Rickards, he stated this diagnosis in guarded terms using the word “possibly” numerous times. I prefer the testimony of Dr. Nikolakis and Dr. Appleby, that the plaintiff has a disc protrusion, specifically an L4-5 intervertebral disc injury with central disc herniation. This is based on the onset of pain being temporally related to the accident and the objective findings in the scans. As Dr. Nikolakis reported:
I was able to view the images from this diagnostic study [the March 3, 2014 MRI scan]… This investigation reveals desiccation of the L4-5 intervertebral disc along with a central disc herniation posteriorly and bulging of the intervertebral disc and anteriorly as well. There is a loss of disc height, which is significantly different relative to the healthy disc above and below this level….
 I accept Dr. Nikolakis’ and Dr. Appleby’s evidence regarding diagnosis and am satisfied on the balance of probabilities that Mr. Domijan’s pain is due to an L4-5 disc protrusion in his lower back, which was caused by the motor vehicle accident. It is more likely than not that the plaintiff will have ongoing, albeit partially resolved, back pain for the remainder of his life…
 Here there was no evidence that the plaintiff suffered from psychiatric issues, such as depression, from the accident. He has demonstrated success post-accident despite the demanding physical labour of his work. He works through the pain, although he often suffers. He is certainly not completely disabled. It is clear that the plaintiff is not a complainer, he keeps his pain largely to himself, and overall presents as a stoic young man.
 It would be improper to penalize Mr. Domijan for his stoicism, a factor that should not, generally speaking, be held against a plaintiff: Stapley at para. 46; Clark v. Kouba, 2014 BCCA 50; and Giang v. Clayton, 2005 BCCA 54 at para. 54.
 I note that the plaintiff was a relatively young man at the time of the accident and now faces his adult life with chronic pain, although his pain has diminished since he changed his career to that of a railway conductor.
 I do not give much weight to the defendant’s submissions that participation in sport typically decreases with ageas career and family obligations increase, or that the plaintiff never intended to pursue soccer professionally, in my assessment of non-pecuniary damages. The evidence suggests that Mr. Domijan was an avid soccer player and would have continued to play regularly but for the accident.
 In all the circumstances, I consider an appropriate award of non-pecuniary damages to be $100,000. This amount recognizes the plaintiff’s ongoing pain, loss of enjoyment of life, especially his inability to participate in sports, and the longevity of his claim.
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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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