Tag: Madam Justice MacKenzie

$95,000 Non-Pecuniary Assessment for Chronic, Partly Disabling Headaches

Reasons for judgment were published today by the BC Supreme Court, Duncan Registry, assessing damages for chronic headaches following a collision.
In today’s case (Thomson v. Thiessen) the Plaintiff was injured in a 2012 collision.  The crash resulted in chronic neck pain and headaches which at time were severe enough to cause disability.  The prognosis for full recovery was poor.  In assessing non-pecuniary damages at $95,000 Madam Justice MacKenzie provided the following reasons:

[50]         While I am guided by these various authorities, every case is different and must be decided on its own particular circumstances. In the present case I accept that Mr. Thomson continues to suffer from mild to moderate, and on occasion, severe headaches as a result of the motor vehicle accident on November 3, 2012. I also accept that, depending on how much he exercises and how he conducts himself when working on his computer, his headaches will affect to a certain degree his enjoyment of life in the future, and according to the medical evidence, this could be long lasting. At the same time, as confirmed by Dr. Robinson, Mr. Thomson does not suffer from throbbing migraine headaches. In fact Mr. Thomson clearly stated that when he does have a headache or feels one is about to occur, he takes two Ibuprofen and sleeps for a couple of hours, feeling better in due course. While this is certainly a significant interruption to his enjoyment of life, relief is relatively straightforward, even though not long lasting, depending on his daily activities.

[51]         Considering the totality of the circumstances, all the factors outlined in Stapley, the positions advanced by both parties and the various authorities counsel have provided, I am satisfied that a reasonable and fair award for non-pecuniary damages is $95,000.

$50,000 Damage Advance Ordered As Term of Adjournment of Personal Injury Claim


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the Court’s power to order a damage advance to a Plaintiff as a term of an adjournment order.
In last week’s case (Wood Atkinson v. Murphy) the Plaintiff suffered bilateral wrist fractures in a 2006 collision.  The Defendant admitted full fault for the crash.  The matter was set for trial but ultimately had to be adjourned due to difficulties in obtaining the Plaintiff’s employment records.  As a term of adjournment the Court ordered that the Defendant pay the Plaintiff a $50,000 advance.  In doing so Associate Chief Justice MacKenzie provided the following reasons:

[42] Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed the jurisdiction of this Court to order advance payments on damages under former Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The advance must be just in all of the circumstances, and the judge making the order must be completely satisfied that there is no possibility the final assessment of damages would be less than the amount of the advance payments. There is no requirement that the cause of the adjournment be the fault of one party, see Serban, at paras. 9-11.

[43] Further guidance is found in the following excerpt from Master Barber’s decision in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:

With liability not being in issue, the plaintiff should be put in funds at the earliest possible time. That is a reasonable thing for the plaintiff to ask for. The only thing that is stopping her from getting this money is not a determination of whether she is entitled to it, but as to how much. When it has been conceded that the sum of $20,000 is probably going to be less than or at least one-half of what the future amount she will obtain of $40,000 plus is, I can see no reason not to give her at least $20,000 at this time. To keep her out of pocket means that, especially when need is shown, as it has been in her affidavit, would be a refusal of justice.

[44] In this case, liability has been admitted, and it will be almost seven years from the date of the accident to the conclusion of the trial. The plaintiff is employed, but has problems with chronic pain in her wrists. Counsel are in agreement that an advance is justified in these circumstances.  The remaining issue is the amount that would be just in the circumstances, ensuring that it not be in excess of the potential award for damages at trial.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

"Ill-Conceived" Dismissal Application Leads To Special Costs Award


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, punishing a Defendant in a personal injury lawsuit with a special costs order for bringing an “ill-conceived” motion to dismiss the Plaintiff’s lawsuit.
In yesterday’s case (Wood Atkinson v. Murphy) the Plaintiff suffered a bilateral wrist injury in a 2006 collision.  She sued for damages and the Defendant admitted fault for the crash.  In the course of the lawsuit the Defendant requested employment records relating to the Plaintiff.   The Plaintiff made reasonable efforts to obtain these but the Plaintiff’s employer “mistakenly failed to provide counsel with the Plaintiff’s complete employment file“.  The Court found that this failure was due “to repeated errors or internal miscommunication on the part of (the employer)“.
The Defendant obtained two Court Orders addressing the production of the sought records.  The Defendant then brought an application seeking the dismissal of the Plaintiff’s lawsuit for “material non-disclosure”.  In support of the application to dismiss the Defendant’s lawyer “swore an affidavit erroneously describing the orders“.
Associate Chief Justice MacKenzie dismissed the Defendant’s application and went on to award special costs for the “excessive and draconian” application.  In doing so the Court was critical of the Defendant’s erroneous summary of the disclosure court orders.   Madam Justice MacKenzie provided the following reasons:

[29] I have concluded in the circumstances that it is appropriate to award special costs to the plaintiff for the dismissal application.  It is the mechanism by which the Court expresses its disapproval of two aspects of defendants’ counsel’s conduct. The first aspect is his carelessness in erroneously deposing to the contents of the two orders in question and relying on them to make a very serious application to punish the plaintiff.  This error was a self-serving lack of attention to detail.

[30] Court orders are important. They give effect to the Rule of Law. Counsel cannot simply rely on their notes or fail to be accurate, especially after becoming aware of the disagreement or reservation of the other counsel. Although an application to the court is required to obtain a transcript of submissions at a CPC or TMC, the clerk’s notes are readily available. Indeed, plaintiff’s counsel obtained them to clarify the nature of the orders in question and provided them to defendants’ counsel.

[31] Secondly, it is clear that defendants’ counsel knew well before the hearing that the dismissal application was ill-conceived and was on notice that his version of the court orders was in question.  Nonetheless, he persisted with the application.

[32] An order dismissing a plaintiff’s claim for material non-disclosure is a very serious matter; the consequences for the plaintiff and her counsel would have been severe. This type of application requires a solid foundation of misconduct on the part of the plaintiff, especially considering that the defendants had already admitted liability for her injuries.

[33] The fact the defendants may have become aware of the file and the correct nature of the orders after defendants’ counsel had sworn his September 14, 2011 affidavit (for his application to dismiss filed the next day) is of no moment because he became aware of these matters well before the start of the hearing on September 26, 2011.  He pursued the application in any event.

[34] It is no answer to say that outside counsel was required nonetheless in order to address inconsistencies in counsels’ version of Ms. Tsang’s statements as to whether she had provided the complete file. Those hearsay issues are quite minor in the circumstances of all CBSA’s errors or miscommunications. Plaintiff’s counsel was put to a clearly unnecessary expense in the requirement to retain outside counsel to speak to plaintiff’s counsel’s affidavit. The application to dismiss the claim was misconceived and heavy handed.

[35] I have concluded it is appropriate to award the plaintiff special costs for the defendants’ application to dismiss her claim. The Court heard that application on the afternoon of September 26, 2011, the first of the three-day hearing. It is that day for which plaintiff’s counsel was obliged to retain outside counsel to speak to the affidavit that, amongst other things, corrected the errors in the defendants’ counsel’s version of the two orders.

$54,000 Non-Pecuniary Damages for Onset of Pain in Pre-Existing Wrist Arthritis


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff $54,000 in damages for a wrist injury.
In today’s case (Zigawe v. Rance) the Plaintiff was involved in a 2006 rear end car crash.  The issue of fault was admitted by ICBC leaving the court to decide the value of the Plaintiff’s injuries.
The Plaintiff suffered various soft tissue injuries which largely resolved by trial.  The main focus of the trial was the Plaintiff’s wrist injury.  The evidence established that the Plaintiff had pre-existing arthritis in her wrist but this was asymptomatic.  The crash caused this pre-existing condition to become painful.  The court valued the Plaintiff’s non-pecuniary damages at $60,000 then reduced this award by 10% for the contingency that the pain may have come on even without the car crash.
In coming to the above valuation Madam Justice MacKenzie reasoned as follows:

[107]     I find the plaintiff experienced neck pain for over three years, but it is almost resolved.  The headaches appeared to be associated with the neck pain and have resolved.

[108]     I also accept the plaintiff’s evidence that the plaintiff’s shoulder pain had mainly resolved six months post-accident but she had some pain in her left shoulder in May 2009, which is now resolved…

[110]     On the whole of the evidence, and in particular that of Dr. Shuckett who agreed the plaintiff’s current overall condition was “not inconsistent with” rheumatoid arthritis, I find it likely that the accident exacerbated pre-existing, but asymptomatic tenosynovitis related to rheumatoid arthritis in the plaintiff’s left wrist.  While it is an atypical presentation in that the condition is not mirrored in the right wrist, this finding makes the most sense.  It is proven on the balance of probabilities.

[111]     I do not accept the defendant’s submission that the rheumatoid arthritis in the left wrist arose independently of the accident.  In my view such a conclusion is not consistent with its temporal connection to the accident, and Dr. Shuckett’s evidence that the inflammation that accompanies this sub-acute condition can take weeks or months to develop…

[114]     Thus, on the totality of the evidence, the accident at least exacerbated the pre-existing tenosynovitis related to rheumatoid arthritis in the left wrist, given its history.

[115]     The swelling and significant, long standing pain has not improved since the accident.

[116]     Thus, I find the accident activated the plaintiff’s pre-existing condition in a wrist that was asymptomatic for some years before the accident.  The left wrist may indeed have remained asymptomatic of tenosynovitis related to rheumatoid arthritis for many years had the accident not intervened.  It may have not manifested into rheumatoid arthritis, given Dr. Shuckett’s evidence as to the nature of that condition.

[117]     The neck injury was caused by the accident and its recovery was probably prolonged as a result of her pre-existing but asymptomatic osteoarthritis.

[118]     The asymptomatic left wrist condition was triggered by the accident, resulting in significant pain and swelling that still has not resolved more than three years post-accident.  Hopefully, the scheduled injection of what is likely cortisone will greatly improve the wrist, but that is unknown, and the plaintiff may require surgery on that wrist.  But for the accident, the pre-existing asymptomatic condition in the left wrist may never have manifested…

[122]     In this case, I agree with the plaintiff that only a modest deduction is appropriate to account for the plaintiff’s pre-existing left wrist tenosynovitis related to rheumatoid arthritis.  It was asymptomatic before the accident.  It might never have resulted in symptoms but for the accident.  However, there remains a measurable risk that it would have detrimentally affected the plaintiff in the future given the plaintiff’s left wrist problem in 2001 as seen by Dr. Hollands.  He thought it might represent early onset of rheumatoid arthritis although I realize the signs and symptoms presented differently in the post-accident wrist tenosynovitis.

[123]     Therefore, in my view, a discount of 10 percent from non-pecuniary damages appropriately reflects the contingency of the condition developing in the future…

[126] In my view, having considered all the evidence and all the cases, non-pecuniary damages of $60,000 discounted by 10 percent, or $6,000, which amounts to $54,000 is appropriate in all the circumstances.

This case is also worth reviewing for the Court’s discussion of credibility.

The Court found that the Plaintiff was a “vague historian” and had a “poor memory“.  The Court also found that the Plaintiff “exaggerated the degree to which she could not use her left wrist.“.  The Plaintiff told her doctor that the wrist was “useless” and this was contradicted by video surveillance evidence obtained by ICBC.   This evidence seemed to negatively impact some of the plaintiff’s claims and the judgement is worth reviewing in full to see how the Plaintiff’s credibility was scrutinized at trial.

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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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