Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland.
I am still in trial still and only have time for bare bones reporting. In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome. The court’s key analysis of injuries is set out below:
[73] I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.
[74] Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory. There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome. Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.
[75] That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.
[76] Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition. He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period. I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.
[77] Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy. I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy. There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept. In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.
[78] I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome. This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features. None of the pre-accident investigations demonstrated any facet joint issues.
[79] I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur. There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.
[80] That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence. This brings me to the issue of his credibility. In general, I found the plaintiff to be a believable witness. I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.
[81] As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf. Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability. There were no non-organic findings. I found Ms. Fischer to be a compelling witness.
[82] In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.
[83] There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident. Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point. I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future. There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself. As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind. No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.
Damages were assessed as follows:
D. CONCLUSION
[127] I find the defendant 100% liable for the plaintiff’s damages. Those damages are assessed as follows:
non-pecuniary damages: $70,000.00
past loss of income: $67,500.00
loss of income earning capacity: $120,000.00
future care costs: $17,317.00
special damages: $1,687.46
Total: $276,504.46
