Tag: Madam Justice Russell

$42,500 Non-Pecuniary Damages for Aggravation of SI Joint Injury

Adding to this site’s archives for non-pecuniary damages for sacroiliac joint injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an injury with pre-existing contribution.
In last week’s case (Fuchser v. Wilson) the Plaintiff was involved in a 2008 collision.  Fault was admitted.   The Plaintiff suffered from various pre-existing injuries including sacroiliac joint pain.  The collision aggravated the Plaintiff’s pre-existing injuries and also caused some new injuries.  The injuries made meaningful recovery in the first year following the collision but continued to bother her at the time of trial.  Madam Justice Russell valued the the Plaintiff’s non-pecuniary damages at $50,000 then reduced this award by 15% to reflect the Plaintiff’s pre-existing condition.  In arriving at this figure the Court provided the following reasons:

[129]   Ms. Fuchser’s medical records show continuing issues with her sacroiliac joint and upper and lower back over several years. In fact, if Dr. Hershler had indeed reviewed the plaintiff’s medical records, he would have found that she had suffered from both upper and lower back pain and on-going pain in her right sacroiliac joint and right upper back as recently as three days before the accident. She reported these issues on a visit to her osteopath on December 4, 2008.

[130]   It is simply not accurate to say that Ms. Fuchser’s symptoms essentially began following the accident. It may be accurate to say that they became worse, based on her reports, but certainly she had suffered from the same or similar symptoms on and off over several years…

[169]   It is my view that the plaintiff in this case suffered from pre-existing conditions, namely scoliosis, pelvic malalignment and sacroiliac joint pain, all associated, which were active and unpredictable. In addition, she suffered right sided pain in her upper back, which was part of her overall condition, but was exacerbated by stress.

[170]   The accident of December 7, 2008 caused an exacerbation of her conditions and she suffered from increased pain which in turn affected the ways in which the pre-existing conditions manifested themselves. She again suffered sleeplessness as she had when her sacroiliac pain had been acute in the past. Her right upper back became stiff and painful, similar to how she had reacted to stress and lower back pain in the past. The headaches were a new manifestation, but no doubt related to the cervical strain she suffered in the accident.

[171]   There can be no doubt that she lived with increased pain over a period of about a year before she began to show improvement…

[173]   I find that there was a measurable risk that the degenerative changes would have become symptomatic without the accident. Dr. Klein agreed that the earlier low back problems she had had came on without any precipitating cause and that the scoliosis and disc protrusion could have explained those problems. He also agreed that tightness in the muscles (as in her right upper back) can be caused by stress…

[193]   I have carefully considered the cases on damages set out in both the plaintiff’s and the defendants’ brief of authorities. I award $50,000 in non-pecuniary damages to be subject to deduction for the pre-existing condition.

Pedestrian Found 30% At fault For Crash for "Cutting the Corner"

(Update February 5, 2012 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing fault between a vehicle and a pedestrian.
In last week’s case (Anderson v. Kozniuk) the Plaintiff was crossing a street in an unmarked crossing.  In the course of crossing he “cut the corner” and walked away from the intersection.  He was walking “briskly“.   At the same time the Defendant motorist was travelling south on 12th Street, she “went through the intersection and hit (the Plaintiff)“.

Madam Justice Russell found both parties at fault with the driver shouldering 70% of the blame.  In coming to this conclusion the Court provided the following reasons:

[69]When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed. The very presence of the marked crosswalk should have been an indication to her of the possible presence of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is possible she would have seen the plaintiff before the last second, when it was too late to avoid him.

[70]Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.

[71]Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. Had he crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it is possible Ms. Kozniuk would have seen him. As well, had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. By angling across towards the bus stop, as he did, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.

[72]By leaving the crosswalk, the plaintiff was also entering a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him. He failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12th. His awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of checking its proximity to him…

[75]I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.

[76]The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident…

[78]In reviewing the cases put before me by counsel, including Karran v. Anderson, 2009 BCSC 1105, Beauchamp v. Shand, 2004 BCSC 272, Wong-Lai v. Ong, 2011 BCSC 1260, I have determined that the relative degrees of blameworthiness should be as follows: 30% to the plaintiff and 70% to the defendant.

$70,000 Non-Pecuniary Assessment for Mandibular Fracture


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mandibular fracture.
In this week’s case (Besic v. Kerenyi) the Plaintiff alleged he was assaulted by the defendant.  After being ‘punched from behind’ the Plaintiff was briefly knocked unconscious.  He suffered a mandibular fracture which needed to be wired shut.  He also lost two teeth.   He went on to suffer permanent nerve damage to his trigeminal nerve which caused numbness and drooling.
In assessing non-pecuniary damages at $70,000 Madam Justice Russell provided the following reasons:

[13] There is no doubt that Mr. Besic’s life has been altered by this incident.  He had to undergo surgery to repair the fracture and his jaw was wired shut for over a month.  He was placed on a liquid-only diet and, consequently, experienced some short-term weight loss.

[14] The long-term consequences have been more severe.  Two of Mr. Besic’s left molars were knocked out.  He has not had the recommended dental repair performed so the gaps in his mouth are still there, eight years later.  He either has to undergo surgery, risking further nerve damage, or live without these two teeth for the remainder of his life.

[15] The mandibular fracture caused permanent damage to the trigeminal nerve. As a result, Mr. Besic experiences numbness in his chin, lips and jaw.  This causes him to drool while he eats and is a source of embarrassment.  He does not notice if food has dripped, or become stuck, on his face because he cannot feel it.  He finds himself constantly wiping his face in an attempt to ensure no food is lingering there.

[16] The nerve damage has caused a prickling pain in his face and jaw.  Both this and the numbness are unlikely to improve.  There is also a possibility that a future facial injury could cause the numbness to worsen.

[17] Since the incident, Mr. Besic finds that he has issues with his speech.  Occasionally, he will slur his words or mumble, particularly when he becomes tired or is out in the cold.  He believes that this is as a result of the numbness, although his neurologist, Dr. Frank Kemble, has questioned whether that is, in fact, the cause.

[18] The mumbling is also a source of social awkwardness, especially at his work at the North Fraser Pre-Trial Center in Surrey, where he is a correctional officer.

[19] Mr. Besic still experiences pain in his jaw joints and muscles, as well as neuropathic pain.  His jaw is often stiff, particularly in the morning.  His temporomandibular joint clicks and pops, especially when he eats.  This results in discomfort and headaches. Mr. Besic also suffers extreme ear pain when he flies…

[34] I find $70,000 to be an appropriate amount for Mr. Besic’s injuries.  While Mr. Besic does not suffer from a deformity of the jaw or dramatic weight loss, like the plaintiff in Pete, he does suffer from some similar injuries, such as numbness in the face and jaw, as well as jaw pain.  He also experiences the resulting social embarrassment these injuries cause.

More on Part 7 Medical Exams Barring Tort Exams

As previously discussedICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an insured applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.
In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision.  In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon.  In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon.  The Plaintiff opposed this.  ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam.  In dismissing the Application Master McCallum provided the following reasons:
[8]  The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it.  It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report.   Dr. Dommisse did not have access to the pre-accident clinical records.  However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…
[10]  Dr. Dommisse went through the examination and gave his opinion.  His opinion is not qualified in any way.  He does not suggest that there is more information he needs.  He makes no recommendaiton for treatment.  There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.
[11]  The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for.  The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing.  Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…
[15]  In those circumstances the defendant’s application is dismissed.
In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.
The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.

Plaintiff's "Disadvantaged" Financial Circumstances Disentitle ICBC to Costs


There have been many cases dealing with “the relative financial circumstances of the parties” focussing on whether a Defendant is insured in deciding the costs consequences after trials with formal settlement offers. (The BC Court of Appeal weighed in on this issue earlier this year deciding insurance can in fact be considered).  There have not, however, been many cases dealing with the Plaintiff’s finances (or lack thereof) as a compelling circumstance.  This overdue issue was addressed earlier this week by the BC Supreme Court, Victoria Registry.
In today’s case (Dickson v. ICBC) the Plaintiff was injured in a bicycle accident involving an unknown motorist.  He sued ICBC under s. 24 of the Insurance (Vehicle) Act.  ICBC denied fault on behalf of the unknown driver.  Prior to trial ICBC offered to settle the issue of fault on a 50/50 basis.  The plaintiff rejected this offer and went to trial where Madam Justice Russell found both parties equally at fault.
Typically, when ICBC matches or beats their formal offer at trial, ICBC becomes entitled to post offer costs.  Madam Justice Russell refused to follow this usual course, however, noting that the Plaintiff’s financial circumstances put the plaintiff at a ‘serious disadvantage‘.  In awarding the Plaintiff costs to the time of the offer and depriving both parties of post offer costs Madam Justice Russell held as follows:

[13]    It is my view that the plaintiff’s position is one of serious disadvantage as a result of the accident.  I recall that he was unable to work for a long period of time as a result of his injury and was still unable to return to work by the time of the hearing.

[14]    The plaintiff is the sole support of his family and either had run out of disability benefits or was close to the end of those benefits by the time of the summary trial…

[17]    I view the financial circumstances of the plaintiff as compelling on the issue of whether double costs should be awarded.

[18]    In Osooli-Talesh v. Emami, 2008 BCSC 1749, the offer to settle matched the judgment achieved and Sigurdson, J. concluded that the court may award payment of double costs where an offer to settle matches the results at trial.  However, he went on to consider all the factors listed in Rule 37B.  He determined that the parties had divided success and should therefore bear their own costs.

[19]    I am guided by that decision and consider it apposite to the circumstances of this case.

[20]    I award costs of this case to the plaintiff to the date of the receipt of the defendants’ offer to settle and order both parties to bear their own costs thereafter.

$75,000 Non-Pecuniary Damages for Chronic Shoulder Injury


Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff just over $137,000 in damages as a result of a BC car crash.
In today’s case (Moussa v. Awwad) the Plaintiff was injured in a roll over accident.  She was a passenger at the time.   The driver lost control of the vehicle and “swerved across the two eastbound lanes, then off the highway and into the ditch separating the east and westbound lanes of traffic, flipping at least once, landing on the roof, and flipping back onto its wheels, this time facing west. By the time the defendant’s vehicle came to a rest, the roof was crushed and the car windows were shattered.
ICBC admitted fault on behalf of the driver focusing the trial on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries which improved.  His most serious injury was shoulder pain which caused restrictions and was not expected to recover.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000 Madam Justice Russell provide the following analysis:

I find that the plaintiff sustained injuries to his neck, left shoulder and left arm as a result of the Accident. While most of the injuries have resolved, the plaintiff continues to suffer pain and limitations with respect to his left shoulder. Various areas of the left shoulder have been implicated, including the AC joint, rotator cuff, and coracoid process. Although there was great confusion in the medical evidence about the mechanics of the injury to the plaintiff’s shoulder, whatever the mechanism of the injury, and in light of my finding that there was no intervening event, I am satisfied on a balance of probabilities that the ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004 Accident.

[154] None of the medical experts gave a positive prognosis of recovery or even improvement, and none could suggest further intervention or treatment that could contribute to a better prognosis for recovery. The plaintiff will, therefore, continue to face limitations and disabling symptoms related to pain in his left shoulder as a result of the Accident…

[160] The purpose of non-pecuniary damages is to compensate the plaintiff for losses such as pain, suffering, disability, inconvenience and loss of enjoyment of life from the time of the Accident for as long as such losses will likely continue. In Stapley v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19, the majority of the Court of Appeal emphasized that:

… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. … An award will vary in each case ‘to meet the specific circumstances of the individual case’.

[161] The Accident has impacted the plaintiff’s life profoundly. In the months immediately following the Accident, the plaintiff experienced flashbacks, intense pain and had difficulty sleeping. After the acute pain passed, the plaintiff continued to suffer from increases in pain when working and difficulty sleeping. To try to redress this, he underwent surgery, which was frightening for him, and required further rehabilitation. However, in the long run the surgery was not successful, his pain continued, and his prognosis for recovery is not good.

[162] Aside from pain, the plaintiff has experienced a loss of enjoyment of life. The plaintiff does not travel because it is difficult to carry or manage his luggage, he no longer engages in many of his recreational activities, he has experienced a great deal of emotional difficulty and he continues to restrict situations in which he may find himself a passenger in another vehicle.

[163] The plaintiff’s most significant limitation is related to work because he remains unable to work consistently and for extended periods of time at a computer and his discomfort and disability are directly proportional to the amount of time that he spends at the computer or operating a video camera. The plaintiff enjoyed his work and his career was a source of pride for him. Now his enjoyment of his work is undermined by his ongoing pain and disability…

166] In light of the injuries sustained by the plaintiff in the Accident and the negative prognoses contained in the medical evidence, I find the plaintiff is entitled to an award of $75,000 for general damages.

You can click here to access my archived summary of other recent BC Claims dealing with shoulder injuries.

BC Supreme Court Discusses Pedestrian Visibility in Negligence Claims


Reasons for judgement were released yesterday by the BC Supreme Court considering whether a pedestrian involved in a collision was at fault for not being visible enough to the motorist.
In yesterday’s case (Smaill v. Williams) the pedestrian was struck by a minivan while he was walking on a dirt road in dusk conditions.  When he heard the vehicle approaching he “took a few quick steps to the side out of the travelled path of the road”.  Unfortunately he could not get out of the way and was “thrown up onto the hood, striking his back and shoulders, and then was thrown to the ground on his hands and knees“.
The Defendant argued that the Plaintiff was partially at fault for the accident for wearing dark clothing, not having a flashlight and not wearing a reflective traffic vest.  Madam Justice Russell rejected this argument and in doing so provided the following reasons:

[68] I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.

[69] I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.

[70] I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.

[71] I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.

[72] I find no contributory negligence on the part of the plaintiff.

The Plaintiff suffered some serious injuries to his spine which were expected to cause some permanent restrictions.  In valuing the non-pecuniary damages at $100,000 the Court summarized the injuries and their effect on the Plaintiff’s life as follows:

[62] I accept the evidence of Dr. McKenzie.  I found him to be a careful and persuasive witness.  I accept his medical finding that the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an injury to the sacroiliac joint and that formerly asymptomatic disc bulges and protrusions became symptomatic as a result of his injuries.  I accept that the plaintiff has proved on a balance of probabilities that the symptoms, including non-specific back pain that he currently suffers from, including disc protrusion, were caused by the first accident and the pain from those injuries was aggravated by the second accident.

[63] While none of the doctors could say with certainty that the disc problems were caused by the accident, this is not the standard required.  Dr. McKenzie testified, and I accept, that it is more probable than not that they were caused by the injury.  This is supported by the evidence of Dr. Dercksen who noted the injuries were more than normal degeneration for someone of the plaintiff’s age.

[64] Therefore, I agree with the plaintiff that, on a balance of probabilities, but for the negligence of the defendants, the plaintiff would not have sustained the injuries that he did, and  the plaintiff has met the test for causation:  Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 18-28, [2007] 1 S.C.R. 333. ..

[87] As a result of these accidents, the plaintiff sustained significant injuries and suffered from a great deal of pain, for which he is entitled to recover damages.  However, while I have the greatest sympathy for the plaintiff’s emotional suffering, there is evidence before this Court that this is a pre-existing condition from which the plaintiff had already been suffering and therefore this is not a ‘thin-skull’ situation.  The defendants are not liable to compensate the plaintiff for a condition which was already manifest at the time of the accident.

[88] In light of the plaintiff’s suffering, and taking into consideration his pre-exisiting condition and its contribution to his chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.

Gaps in Medical Treatment in ICBC Injury Claims


If you are involved in an ICBC Injury Claim and have significant gaps in your medical treatment will that reduce the value of compensation you are entitled to?  The answer is not necessarily.  If the gaps in medical treatment are unreasonable and the evidence demonstrates that more frequent medical intervention would have improved the course of recovery then the claim can be reduced for “failure to mitigate“.  However, a gap in medical treatment in and of itself will not reduce a claim for damages and reasons for judgement were released yesterday by the BC Supreme Court demonstrating this.
In yesterday’s case (Sidhu v. Liang) the Plaintiff was injured in 2 BC Car Crashes, the first in 2004 and the second in 2008.  He was not at fault for either crash.  He sued as a result of both accidents and the trials were heard at the same time.  The Court was asked to deal with the value of these ICBC Claims.  In the years from the first collision to the time of trial there were some significant gaps in accident related medical appointments.  One such gap was over 25 months.  The Defence Lawyer argued that the Plaintiff’s injuries were minor and healed quickly as evidenced by the significant gap in treatments.
Madam Justice Russell rejected this argument and held “I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants’ negligence.  I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.”
The Court went on to award the Plaintiff $36,000 in Non-Pecuniary Damages.   In doing so Madam Justice Russell summarized the accident related injuries and their effect on the Plaintiff as follows:

67] The plaintiff’s position, which I accept, is that the medical evidence establishes that the first accident caused musculoligamentous injuries to his neck, back, hips, and elbows, resulting in chronic, persistent pain which continues to restrict his vocational, social and recreational activities.  Furthermore, the second accident caused a minor aggravation of the musculoligamentous injury to his neck.

[68] As a result of the injuries he sustained, the plaintiff has experienced functional limitations due to ongoing symptoms in his neck and left upper back, as well as residual symptoms in the elbows, and mid to low back.  These injuries interfere with his work ability as well as his ability to do chores and participate in his family construction project.  His wife and father have had to take on the physical household chores.  His wife testified that he became less physically active and has decreased his participation in family activities.  The plaintiff’s wife also testified that his pain has caused him to be moody and he also claims to have experienced emotional difficulties in the form of increased stress as a result of the accident.  Because of his modified work ability, the jobs he can take require him to work longer hours for less money and therefore he is facing increasing financial pressures, has less free time and therefore has decreased his social activities, all of which he asserts leads to his stress…

[71] While I have concluded that, according to the medical evidence, the accidents were the cause of the injuries, these injuries are improving, albeit slowly.  Dr. Gandham has estimated that the plaintiff will recover within two years and Dr. Heshler gives a similar guarded prognosis.  Dr. Connell is also optimistic.  Given that the plaintiff is young and healthy with a good prognosis for recovery, I am convinced that he will make a full recovery and thus assess his damages at 80% of the amount put forward by counsel, as I note the amount suggested is the upper range for these types of injuries.

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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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