While there is no ‘one size fits all‘ answer to the question of whether a personal injury settlement is a family asset in divorce proceedings, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting circumstances where it is not.
In this week’s case (Shen v. Tong) the parties ‘lived in a marriage-like relationship‘ since 2004 and were married in 2008. In 2004 the Respondent was injured in a collision and she subsequently settled her ICBC claim in 2006. The funds were invested and still available at the time of the Divorce and the Claimant sought an order declaring this money as a family asset. Madam Justice Stromberg-Stein refused and provided the following reasons:  Ms. Tong’s position is her ICBC settlement is not a family asset. It was largely for general damages and of the $13,564 for past wage, about half this time was before their relationship started. Ms. Tong invested the settlement proceeds and never used them for a family purpose. She maintained she wanted to save the award for her recovery but she did not have to use it for that purpose as she had Mr. Shen’s benefits. She sent the invested proceeds, now $60,000, to her parents in China in January 2012.  The ICBC settlement is not a family asset. Ms. Tong does not have to account for what amounts to a negligible wage loss claim.
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with damages for minor soft tissue injuries following a so-called ‘low velocity impact‘ collision.
In the recent case (Wallner v. Uppal) the Plaintiff was involved in a 2008 rear-end collision. Fault was admitted. The collision was relatively minor causing just under $450 worth of vehicle damage. Despite this the Plaintiff suffered a soft tissue injury to her neck and shoulder. Her symptoms were “mild” but were expected to linger into the future. In assessing non-pecuniary damages at $20,000 Madam Justice Stromberg-Stein provided the following reasons:  The plaintiff’s claim is for damages for a permanent partial disability relating to her intermittent ongoing neck, upper back and shoulder pain and left arm pain, and numbness and tingling she says is caused by the accident. The plaintiff acknowledges her condition is relatively mild but maintains it is persistent and likely permanent. She claims she experiences pain and discomfort while commuting to work, at work, doing household work, and during recreational activity. She complains of intermittent weakness and lack of sensitivity in her left hand. She claims she is unable to predict when she will be symptomatic.  In this case, in addition to minimal cosmetic damage to the vehicles, the plaintiff’s subjective complaints were not objectively verifiable, and in any event her injuries were minor and of minimal impact on her life. The plaintiff has not missed any work and has no claim for past wage loss or for loss of future earning capacity despite maintaining a permanent partial disability. The evidence establishes the plaintiff suffered soft tissue injuries of a minor nature, with continued minor, intermittent numbness and tingling in her left arm and fingers, which injuries have had and will have minimal impact on her life.  In the result, based on an assessment of the evidence and considering the authorities relied on by counsel, the plaintiff is awarded general damages in the amount of $20,000. In addition, she is awarded special damages in the amount of $283, with court order interest. With the agreement of counsel, costs are set pursuant to Supreme Court Civil Rules, R.15-1(15)(c) at $11,000 and disbursements.
UPDATE June 18, 2012 – The decision from the below hearing was released today. You can access Madam Justice MacKenzie’s dismissing Ms. Askin’s Petition here.
____________________________________________________________________________________ The on-going tension between the BC Government and the Courts may be further fanned as the BC Supreme Court is asked to weigh in on the qualifications of Shirley Bond to act as Attorney General. Earlier this year Lesslie Askin filed a complaint with the Law Society of BC arguing that Shirley Bond, a non-lawyer, was unlawfully practicing law when she was appointed as Attorney General of BC. After seeking legal advice on the issue the Law Society rejected the complaint finding that the Premier had unfettered discretion with respect to this post and was not required to appoint a lawyer to BC’s highest legal office.
Ms. Askin, disagreeing with the result, filed a petition with the BC Supreme Court seeking Judicial Review of the Law Society’s decision. The Petition is scheduled to be heard today and tomorrow in Courtroom 46 before Madam Justice Stromberg-Stein.
When asked about her lack of legal training, Minister Bond told the Georgia Straight that “I believe that non-lawyers serving as Attorney General bring a common sense approach that most British Columbians can appreciate,”. Despite Ms. Askin being self represented, the Government does not appear to be treating this matter lightly, bringing some leading constitutional litigators to defend their position. It will be of interest to see how the Court deals with this potentially charged issue in the face of current tensions.
A copy of the Petition can be found here, the Government’s Response here and the Law Society’s here.
As previously discussed, frequent doctor visits in and of themselves add no value to a personal injury claim. Seeing a doctor simply to ‘paper’ a personal injury claim really does nothing to add to the amount of compensation a claimant is entitled to receive not to mention that it creates a costly and unnecessary burden on the medical system. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that medical visits to address ‘inconsequential‘ matters with a view to assisting a personal injury claim are frowned upon.
In this week’s case (Hough v. Wyatt) the Plaintiff was involved in a 2009 collision. He sued seeking over $350,000 in damages. The Court largely rejected the Plaintiff’s claim finding that while the collision did cause some injuries these were little more than a ‘minor degree‘ of aggravation of pre-existing injuries. Non-Pecuniary damages of $15,000 were assessed.
In the course of the judgement Madam Justice Stromberg-Stein had provided the following critical comments: Mr. Hough was a very difficult witness. He is a poor historian, which is understandable given his extensive medical history. However, he bears the burden of proof. He was argumentative, abrasive, sometimes rude, often unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly demonstrates an attitude of entitlement to insurance benefits, at one point indicating he doesn’t understand the problem here, it is only insurance money. He reports everything, no matter how inconsequential, even a broken fingernail, so if there is a problem in the future, he can get compensation. The trouble for Mr. Hough is he was a medical disaster before the accident, and the defendant is not obliged to pay for all that ails him or ailed him. Mr. Hough’s pre-existing medical condition, his original position, as outlined in the evidence of Dr. Waiz, and what Mr. Hough can recall, would have manifested debilitating effects in any event, regardless of the accident. His original condition would have detrimentally affected him even absent the defendant’s negligence. The defendant is not required to compensate him for debilitating effects not caused by the accident…. Dr. Waiz’s evidence is unsatisfactory on many levels, not the least of which his manner in which he managed Mr. Hough’s care with increasing doses of narcotics. His records are unreliable. He blames computer programs and computer generated forms. He has been willing to fill out reports to benefit Mr. Hough, for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough could be compensated, and claiming a wrist fracture was a WCB injury due to ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough now claims was caused by the accident for the same reason. Where it has suited Mr. Hough, Dr. Waiz has reported to WCB Mr. Hough is unable to work in any capacity. Now he was reporting to this court that, because of the accident, Mr. Hough cannot work. The concern is he is parroting what Mr. Hough wants him to say.
While it is true that serious injuries warrant higher damage awards than minor injuries and that serious injuries typically result in more medical appointments, the mere number of doctor’s visits in and of themselves do not assist in valuing a personal injury claim. You can click here for a short discussion addressing the factors Court’s often consider when assessing non-pecuniary damages (money for pain and suffering) in a BC personal injury lawsuit.
As I’ve recently written, a Plaintiff has a duty to mitigate their losses after being injured otherwise the damages they are entitled to can be reduced.
The most common example of the ‘failure to mitigate’ defence comes up in personal injury claims where defence lawyers argue that a Plaintiff would have recovered more quickly and more completely had they followed through with the suggestions of their medical practitioners. If evidence supporting such an argument is accepted then a Plaintiff’s award can be reduced. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this defence in action in an ICBC claim.
In today’s case (Cripps v. Overend) the Plaintiff was involved in a 2006 “t-bone” collision. The Defendant came through a stop sign at high speed and was responsible for the crash. Fault was admitted and the trial focused on the value of the claim. The Plaintiff’s injuries totally disabled him for two months and continued to partially disable him by the time of trial.
Madam Justice Stromberg-Stein assessed the Plaintiff’s damages at just over $141,000 then reduced the award by 25% to account for the Plaintiff’s failure to mitigate. Specifically the Court found the Plaintiff unreasonably failed to follow his physician’s recommendation to undertake an exercise program and had he done so his injuries would have had a better course of recovery. In reaching this conclusion the Court provided the following reasons:
 There is evidence to satisfy the onus in this case. Mr. Cripps failed in his duty to mitigate his loss by exercising consistently and getting active. Mr. Schneider provided exercises in 2006. He had abandoned these by the time he saw Dr. Adrian in 2007. Dr. Adrian recommended reconditioning in 2007. There is no proof of any impediment to exercise other than Mr. Cripps felt sorry for himself. Dr. Smith highly recommends vigorous exercise to elevate mood.
 The court must reduce damages based on its assessment of the consequences that flow from the failure to mitigate: Tayler v. Loney, 2009 BCSC 742.
 The defendants seek a significant reduction of damages in the range of 25% to 40%: Middleton v. Morcke, 2007 BCSC 804; Latuszek v. Bel-Air Taxi (1992), Limited2009 BCSC 798.
 The benefits of exercise were proven when Mr. Cripps began to go to the gym in 2009. Once Mr. Cripps started this exercise program he was a different person. Had Mr. Cripps started and maintained an exercise program as his doctors and physiotherapist urged him to do, it is probable his prognosis would be more favorable. The failure to mitigate implicates not only his physical injuries, but any emotional ones, including irritability that may have contributed to his marriage breakdown.
 There will be a reduction of damages of 25% for failure to mitigate.
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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