Tag: Moukhine v. Collins

$90,000 Non-Pecuniary Damages For Visual Vestibular Mismatch

Visual Vestibular Mismatch is a medical condition which can result in dizziness, imbalance and nausea.  The consequences of these symptoms can be severe and disabling.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing a claim for damages arising from VVM resulting from a motor vehicle collision.
In last week’s case (Moukhine v. Collins) the Plaintiff was injured in a 2007 rear-end collision in Vancouver, BC.  Fault was admitted by the rear motorist.   The Court heard competing medical evidence as the consequences of the collision and ultimately accepted that the Plaintiff suffered from a visual vestibular mismatch as a result of the crash.
The prognosis was poor with the symptoms expected to plague the Plaintiff indefinitely.  The Plaintiff worked as a senior application developer and following the collision was never able to resume full time hours.  In assessing non-pecuniary damages at $90,000 Mr. Justice Watchuk provided the following reasons:
[195] I find Mr. Moukhine to be a credible witness. I accept that his descriptions of heaviness or fog or, sometimes, mist in the head describe what is to the doctors a form of dizziness. I accept that this feeling and the inability to concentrate or “think through” prevents him from working at his job as a computer programmer for more time than he describes that he is now able to work…

[225] I conclude on the evidence as a whole that the Mr. Moukhine has proven that as a result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which has not resolved.

[226] I accept Dr. Longridge’s opinion that it is unlikely that there will be further significant improvements to Mr. Moukhine’s condition or symptoms.

[227] As has been described above, this injury has had a significant effect on Mr. Moukhine.  It has resulted in continuing dizziness, primarily when he works on the computer.  He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.

[228] Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.

[229] The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.

[230] I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.

[231] At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating…

[233] Each case is to be assessed on its particular facts. Considering all of the circumstances in this case including Mr. Moukhine’s age, the effects of the injuries sustained in the accident and Dr. Longridge’s opinion that the vestibular injury is likely permanent, I assess non-pecuniary damages at $90,000.

BC Injury Claims and Production of Pre Accident Medical Records


Further to my previous post discussing this topic reasons for judgement were released today dealing with the extent of pre-accident record disclosure ICBC (or other defendants) are entitled to when a Plaintiff sues for damages for personal injuries in the BC Supreme Court.
In today’s case (Moukhine v. Collins) the Plaintiff was involved in a 2007 BC car crash.  The Plaintiff sued for damages.  In the Statement of Defence the lawyer plead that the injuries are not the result of an accident, but are were in fact pre-existing conditions.  (This is a rather ‘boilerplate’ pleading raised by the defence in almost every ICBC injury claim).  The defence lawyer then asked that the Plaintiff provide medical records which pre-date the accident by as much as 15 years.
The Court was asked to decide  “whether a mere allegation in a pleading that a plaintiff’s injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of pre-accident medical records“.
Mr. Justice Harris went on to hold that in personal injury cases, the mere allegation by the Defence lawyer of a pre-existing condition may be enough to compel the disclosure of pre-accident records.  Specifically the Court reasoned as follows:

[18] In my opinion, nothing in Dufault is authority for the proposition that pleadings alone are insufficient to make an order under Rule 26(11) or that evidence is always necessary. Similarly, Dhaliwal does not address the relevance of pleadings as a basis for making a Rule 26(11) order. There is no reference in the judgment  to the issues pleaded in the action and whether pleadings  would have affected the outcome. The case deals only with the sufficiency of the evidence that was before the court. I do not draw from the case the proposition that pleadings standing alone and defining the issues in the action are never a sufficient basis to satisfy the court to make a Rule 26(11) order.

[19] In Marsh v. Parker, 2000 BCSC 1605 at para. 9, Master Horn concluded that Dhaliwal stood for the proposition that “there must be something either by way of evidence or by way of the pleadings which raises the plaintiff’s pre-injury state of health as an issue.”  I agree. Indeed, in Creed v. Dorio, [1998] B.C.J. No. 2479, Mr. Justice Edwards, at paragraph 13, rejected the proposition that “some evidence”  was necessary to establish relevance….

[22] In an appropriate case pleadings  are a sufficient basis on which to exercise a discretion to order production of at least some documents. In some cases it is reasonably obvious that records  may contain relevant (in the sense that term is used in Peruvian Guano) information and should be produced, subject to production following a Jones orHalliday format. Evidence may be required in order to resist a production order. That does not mean, however, that an order will always go on the basis of pleadings alone and it may be premature in some circumstances  to make such an order before discovery (see, for example, Mehdipour v. Shingler (18 March 2009), Vancouver M080517 (S.C.)). Merely pleading pre-existing conditions does not deprive the court of its discretion to refuse to make the order sought when, for example, there is no air of reality about the alleged connection between the documents sought and the issues in the action. Evidence may therefore, on occasion,  be required to establish the relevant connection to overcome the conclusion that the documents are  irrelevant to the claim.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.

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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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