Tag: Madam Justice Wedge

$60,000 Non-Pecuniary Assessment For Moderately Severe Tinnitus


Tinnitus, a subjective perception of non-existant sound, is a consequence sometimes seen following a motor vehicle collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such a condition.
In this week’s case (Yang v. Chan) the plaintiff was struck as a pedestrian in a marked crosswalk in 2007.  Fault was admitted for the crash.  The Plaintiff sufferd various soft tissue injuries but these largely settled down in the months following the crash.  What persisted was moderately severe tinnitus, a symptom that was expected to linger indefinatley.  The Court accepted this and assessed non-pecuniary damages at $60,000.  In arriving at this assessment Madam Justice Wedge provided the following reasons:
[62]         I accept the evidence of Dr. Longridge that Mr. Yang’s tinnitus was caused by the accident. According to Dr. Longridge, given the proximity of the onset of the condition to the accident, it is most unlikely that there is any other cause. Further, the tinnitus is moderately severe which, Dr. Longridge testified, is capable of significantly diminishing one’s enjoyment of life. It is a condition Mr. Yang will likely have to live with for the rest of his life.
[63]         Taking into account the pain and disruption suffered by Mr. Yang due to his soft tissue injuries in the first six months after the accident, together with the ongoing tinnitus condition which is unlikely to resolve and will continue to interfere with his enjoyment of life, I have concluded that an appropriate award of damages for non-pecuniary loss is $60,000.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.

Government Housing Loan Potentially Leads to Private Law Duty of Care in Brain Injury Case


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether a government home improvement loan can create a private law duty of care.
In last month’s case (Benoit v. Banfield) the Plaintiff suffered a serious brain injury when falling from a staircase built by the Defendant. The Defendant reportedly built the stair case “without handrails or guards“.
The construction was financed in part by a forgivable loan provided by the Canada Mortgage and Housing Corporation (“CMHC”). The loan was part of a program called the Canadian Home Renovation Plan. The money was to be advanced “upon satisfactory completion of the work” by the homeowner and CMHC was to conduct two inspections to ensure the work was “completed satisfactorily“.
The Plaintiff sued the homeowner and also the CMHC. The CMHC applied to dismiss the lawsuit arguing that their limited relationship to the plaintiff did not create a private law duty of care. Madam Justice Wedge disagreed and allowed the lawsuit to proceed. In doing so the Court provided the following reasons:

[39] In the present case, CMHC offered grants of up to $3,000 per applicant for a one-year period. The pool of funds from which to draw was limited in the amount of $30 million. Thus, even were one to consider the possibility of a duty of care to all loan recipients, the number of persons is not indeterminate. In the context of the present case, liability extends only to the class of persons who might reasonably be foreseen as users of the defective staircase in question.

[40] Thus, I conclude that on the facts as pleaded by the infant plaintiff, there is a reasonable prospect of successfully establishing proximity. The plaintiff’s claim is grounded in allegations of specific conduct by CMHC concerning the creation of the defective staircase and its negligent inspections.

[41] As noted by the Supreme Court of Canada in Imperial Tobacco at para. 47:

… where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis.

[42] This case falls squarely within the circumstances described in that passage, and accordingly the motion to strike is dismissed.

Advance Payment Orders and Your ICBC Injury Claim


While Defendants in lawsuits are generally not obliged to make any advance payments to a Plaintiff, in unique circumstances the BC Supreme Court can compel a Defendant to pay an advance.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this judicial power and the circumstances when it should be exercised.
In last week’s case (Gill v. West) the Plaintiff was involved in 10 motor vehicle accidents for which he was suing for damages.  Liability was admitted in some of the actions.  The Plaintiff alleged that the various crashes caused indivisible injuries and he was disabled as a result.  He applied for various orders including an order that he be advanced “$150,000 forthwith on account of damages“.   Madam Justice Wedge dismissed the Plaintiff’s request and in doing so provided the following comments on this area of the law:

[8] The plaintiff is frank to admit that it seeks the order concerning liability in the one action, and the order to have the fourth action heard with the other three, for the express purpose of obtaining the advance payment order. The plaintiff acknowledged he cannot obtain an order for advance payment of damages unless it is granted in conjunction with another order.

[9] In the case of Lines v. Gordon (2009), 90 B.C.L.R. (4th) 52 (C.A.), our Court of Appeal made it clear that the Rules of Court do not give this Court jurisdiction to make a stand alone order for an advance payment of damages, nor does this Court have inherent jurisdiction to do so.

[10] In the Lines decision, the Court referred to the wording of then Rule 1(12), now Rule 13-1(19), which states as follows:  “When making an order under these Rules, the court may impose terms and conditions and give directions as it thinks just.”  Based on that wording — and specifically the words “when making an order under these Rules,” — the Court in Lines stated that there must be a temporal connection between an order for an advance payment and another order…

[17] I will now turn to the law governing this application. While Lines v. Gordon states that there must be a temporal connection between the order for advance payment of damages and the granting of another order, temporal proximity is only one factor. More broadly, the order for advance payment must be a just one in all of the circumstances:  Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.).

[18] The question is always whether the circumstances of the primary order, in conjunction with which the advance payment order is sought, are sufficiently compelling to justify an advance payment of damages. The authorities make clear that a payment of damages in advance of trial is only to be made in exceptional circumstances arising from the making of the primary order. For example, where the defendant applies for an adjournment of a personal injury trial and the plaintiff’s circumstances are financially tenuous, it may be just in the circumstances to order an advance payment of damages in conjunction with the order for an adjournment. However, such an advance payment order will not be made unless the judge is completely satisfied there is no possibility the assessment of damages at trial will be less than the amount of the advance payment:  Serban v. Casselman. Further, the court will exercise its discretion to order an advance payment only where liability is not an issue:  Andruschak v. Helina (1993), 89 B.C.L.R. (2d) 320 (S.C.); Wilkinson v. Martin, 2010 BCSC 113.

[19] In the present case, there is no substantive connection between the orders sought and the order for advance payment. The trial was recently adjourned, but that was at the behest of the plaintiff, not the defendant. The application for an order that the fourth action be heard with the other three was not necessary, as the defendants consented to the order before the application was brought. I note as well that the adding of the fourth action did not necessitate the adjournment of the trial.

[20] Further, the application for the finding of liability in one action is not of itself a proper basis for an advance payment order. There is nothing in the circumstances of a formal finding of liability in the one action that would make an order for an advance payment just or necessary in the circumstances of this case. In short, there is simply no substantive trigger for an advance payment.

[21] In addition, with seven of the ten defendants denying liability, I am not persuaded it would be just in the circumstances to order that the defendants in all actions be jointly and severally liable for the advance payment of damages. Whether there ought to be joint and several liability on the part of the defendants is an issue that must be determined at trial and should not be determined on an application for advance payment.

[22] For all of these reasons, and despite the able and forceful submissions of plaintiff’s counsel, the plaintiff has not satisfied me that the orders sought ought to be granted, with the exception of the first order that all four actions be heard together, which will go by consent. The application for the remaining orders is dismissed.

$50,000 Non-Pecuniary Damages for Chronic Whiplash Injury

Adding to this ever-growing BC “Pain and Suffering” Caselaw Database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff close to $90,000 in total damages as a result of injuries and losses sustained in a 2006 car crash.
In today’s case (Cabral v. Brice) the Plaintiff was in a pick up truck which was rear-ended by a commercial truck driven by the Defendant.  The issue of fault was admitted leaving the Court to determine the value of the Plaintiff’s injury claim.
The Plaintiff had a pre-existing problem from a herniated disc at C6-7 but this made a complete pain free recovery in the years before the crash.  This previous injury did, however, make the Plaintiff more susceptible to being injured in a motor vehicle collision.  The crash caused a soft tissue injury to the Plaintiff’s neck which resulted in mechanical neck pain.  Although there was some improvement in his symptoms by the time of trial he continued to have ongoing intermittent symptoms which increased with activity.  In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Wedge noted the following:

[63] In Unger v. Singh, 2000 BCCA 94, [2000] B.C.J. No. 246, Proudfoot J.A. observed the following at para. 32 concerning the quantum of general damages in soft-tissue injury cases:

After analyzing the many cases cited by both counsel (I will limit my comments to relevant material) I find that the range of damages is indeed wide. Cases involving primarily soft-tissue injury with some emotional problems including sleep disruption, nervousness, depression, seem to be from a low $35,000 to a high of $125,000. However, I caution though that these numbers are only guides.

[64] In Stapley v. Hejslet, 2006 BCCA 34, [2006] B.C.J. No. 128, Kirkpatrick J.A. (writing for the majority) outlined (at para. 46) the factors a trial judge should consider when assessing general damages:

The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff:  Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[69] Mr. Cabral performed light duties at work for one month following the accident, and then returned to his full duties. He undertook a three-month course of physiotherapy, and was participating in all of his pre-accident sports activities by the summer of 2006. He received several further physiotherapy treatments between October 2006 and February 2007. Thereafter, he again underwent treatment for his neck pain in December 2008.

[70] The medical evidence established that Mr. Cabral suffered a significant neck sprain in the accident which, while it does not prevent him from working full-time in his job and participating in his sports activities, continues to cause intermittent pain which increases his fatigue and stress at work and limits some of his activities at home. The evidence established that Mr. Cabral’s recovery has reached a plateau. The evidence further established that his condition will not worsen over time.

[71] Mr. Cabral’s medical condition is not as severe as those suffered by the plaintiffs in the decisions cited by his counsel, although it does share some of the features of those decisions. The medical evidence suggests that his neck pain may now be chronic in nature.

[72] Each personal injury case possesses its own unique facts, and Mr. Cabral’s is no different…

[73] I have concluded that an appropriate award for Mr. Cabral’s non-pecuniary loss is $50,000.

The Art of Valuing Pain and Suffering in ICBC Injury Claims

Today reasons for judgment were released by the Vancouver Registry of the BC Supreme Court in 2 separate Injury Claims where Pain and Suffering was valued.  In each case the Plaintiffs suffered different injuries which affected their respective lives to different degrees.  Yet both Plaintiffs were awarded exactly $55,000 for their non-pecuniary damages.  How can this be?  The answer is that valuing claims for pain and suffering is an art, not an exact science.
When asking a personal injury lawyer how much a claim for pain and suffering is worth it is difficult  if not impossible to value a claim at an exact dollar figure.  The only accurate answer is “whatever the judge or jury gives you“.  Instead of attaching an exact dollar figure to any claim personal injury lawyers learn that claims can best be valued within an approximate range of damages.  One judge can award a plaintiff $50,000 for a disc herniation and another can award a plaintiff with the exact same injuries $80,000 and there is nothing wrong in law with this so long as the award falls within the accepted range of damages for similar injuries.
Today’s cases demonstrate this quite well.  In the first case (Morrison v. Gauthier) the Plaintiff was injured in a 2006 BC Car crash.  Her vehicle was rear-ended in Coquitlam BC.  The Defendant was fully at fault for the crash.
The Plaintiff suffered fairly severe injuries which included an L4-5 disc herniation which from time to time “puts pressure on the L4 nerve root and that the result for the plaintiff is not just pain in the low back – which is always her lot – but intense pain that, amongst other things, travels down the back of her leg“.  In addition to this the Plaintiff suffered soft tissue injuries and a concussion in the collision.
Mr. Justice Stewart found that the effects of the Plaintiff’s back injuries were likely permanent and had a rather profound impact on her.  He stated that “the effect…on the Plaintiff’s life was dramatic…her capacity to (keep her work and home environment in order) has been severely reduced . ”  He went on to find that the Plaintiff was incredibly athletic before the collision and “was a woman who on the basis of the evidence placed before me, I can only describe as a dynamo” and as a result of the car crash “she became…ornery.  She withdrew from her friends.  She became moody and – stunning for her – one who sat idly watching television and gaining unwelcome weight.  To some extent she became – utterly new to her – a chronic complainer.”  Lastly he stated that (the defendant) “managed to reduce a woman operating at an athletic level undreamt of by 99% of the population to a woman who must now, often, be helped out of a chair.  (the Plaintiff’s) compensable loss if overwhelming“.
Mr. Justice Stewart awarded the Plaintiff $55,000 for her non-pecuniary damages.,
In the second case (O’Rourke v. Kenworthy) released today by the BC Supreme Court the Plaintiff was involved in a 2004 BC Car Crash.  The Defendant was 100% at fault.  Madam Justice Wedge found that the Plaintiff was injured in the crash.  Specifically the court found that the Plaintiff suffered from neck and back pain which was “severe for several months, which then alleviated considerably over the next year or so.”  The Plaintiff curtailed many of the physical activities which she enjoyed by after about a year she “resumed most of these activities despite continuing ot experience pain“.   By the time of trial she “continued to have pain in her neck and back, but it is not disabling.  She has been able to work, and she is currently able to work.  She participates in numerous sporting activities and continues to hike, which is her first love.  She has continued to travel extensively.   No medical professional offered the opinion that (the Plaintiff’s) pain is chronic in nature, or that it is caused by anything other than soft tissue injuries.  They all agreed that her symptoms are expected to improve and will likely resolve gradually over time…At most (the Plaintiff) is at risk of suffering exacerbation’s of her pain if she engages in certain rigorous activities.”
Scrutinizing the facts of the above two cases the first Plaintiff appears to have suffered more severe injuries which had a more profound effect on her life.  Yet both were awarded the exact same figure for pain and suffering.  This does not necessarily mean that either award was wrong in law, rather the difference can readily be explained by the fact that pain and suffering awards are assessed within rather large ranges of acceptable damages.  A more severe injury valued on the lower end of its respective range of damages can equal a more minor injury valued on the generous end of its range.
In the end, cases like this speak to the art of assessing pain and suffering in BC Injury Claims.  As with any art ‘feel‘ becomes important and this is gained through time and experience.  The more cases you read, the better you will get at the art of valuing non-pecuniary damages and determining the potential value of any given BC Injury Claim.

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If you would like further information or require assistance, please get in touch.

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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