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Tag: Mr. Justice Bernard

$35,000 Non-Pecuniary Damages for "Temporary Aggravation of Pre-Existing Conditions"

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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Regisry, assessing damages for the temporary aggravation of a pre-existing condition following a vehicle collision.
In the recent case (Vintila v. Kirkwood) the Plaintiff “suffered from long-term and disabling chronic pain and depression” although she was enjoying improvement in this condition for 16 months until she was involved in a 2011 rear-end collision caused by the Defendant.  The collision aggravated her pre-existing injuries and set back the progress she enjoyed in the months prior to the collision.
In assessing non-pecuniary damages at $35,000 Mr. Justice Bernard provided the following reasons:
42]         I am in agreement with the foregoing submission. At the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her completely disabled from work and eligible for CPP disability benefits since 2005, and for similar private insurance benefits since 2002. While Ms. Vintila enjoyed some improvement in the management of her chronic pain in the MonaVie period, there is no evidence or suggestion that her underlying chronic and debilitating conditions had resolved. Ms. Vintila became slightly more physically active and inclined to attempt some physical activities previously eschewed; she was, nevertheless, always in the shadow of her chronic and disabling conditions, wary of flare-ups, and unable to cease collecting of disability benefits. ..
[46]         In light of the foregoing, I find that Ms. Vintila is a crumbling skull plaintiff. The evidence that Ms. Vintila’s pre-existing conditions were manifest and disabling at the time of the accident is convincing; moreover, the evidence is clear that her conditions were severe, chronic, long-term, and disabling from work. A relatively short pre-accident period of improvement in her pain symptoms is, in all the circumstances, insufficient to categorize Ms. Vintila as a “thin-skulled” plaintiff…

[53]         In the case at bar, the defendants’ negligence brought Ms. Vintila’s temporary improvement in her chronic pain symptomology to an abrupt and disheartening end. Ms. Vintila suffered from pre-existing chronic, long-term, deteriorating conditions that had almost completely disabled her in the past and were destined to do so in the future; nonetheless, at the time of accident she was experiencing a period of some relief from very debilitating pain. This window of respite was closed by the accident, and the evidence suggests that it is most unlikely to be re-opened. The pain from the aggravation of Ms. Vintila’s pre-existing conditions caused her to return to taking narcotic medications and to cease activities that improved both her physical and mental well-being and her overall enjoyment of life.

[54]          Given Ms. Vintila’s age, physicality, history, and rather grim long-term prognoses, I am satisfied that it was most unlikely that the aforementioned window would have been open for very long. In one sense, this accentuates the degree of loss to Ms. Vintila. The relief she lost was precious because it was most unlikely to endure for many years. In another sense, however, it necessarily limits the award for non-pecuniary losses.

[55]         Having regard for the factors in Stapley v.Hejslet, supra, the defendant’s negligence temporarily aggravated Ms. Vintila’s pre-existing conditions, increased her pain levels, and marked the end of Ms. Vintila’s relief from depression and the enjoyment she found in some social interaction, in performing simple household tasks, in interactions with her sons, and in making gift baskets. Ms. Vintila lost a sense of optimism she had for her future.

[56]         Of the two cases cited by ICBC, I am satisfied that Johal is much more similar to the case at bar. While each case and plaintiff is unique, Johal offers useful guidance in the assessment of a fitting award for Ms. Vintila’s non-pecuniary losses, which I assess at $35,000.

$30,000 Non-Pecuniary Assessment for Meralgia Paresthetica With Good Prognosis

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for right leg numbness following a motor vehicle collision.
In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was involved in a 2011 rear end collision.  The Plaintiff suffered soft tissue injuries which recovered within 10 weeks.  Several weeks later the Plaintiff started experiencing numbness in his right leg which was diagnosed as meralgia paresthetica.  Given the time lapse of onset of symptoms the trial largely focused on whether these were related to the crash and ultimately the Court concluded they were.   The symptoms had a favorable prognosis for full recovery and in assessing non-pecuniary damages at $30,000 Mr. Justice Bernard provided the following reasons:
[56]         Mr. Saopaseuth is a 50-year old single man, with no dependents, who, immediately following the MVA, suffered from acute pain and discomfort in his chest, neck and back. He responded well to physiotherapy and these injuries resolved within eight-to-ten weeks. In this relatively short period he took time away from work and managed his household with some assistance from his friends. Mr. Saopaseuth leads a relatively simple and quiet life.  There is no evidence that these injuries caused great personal suffering or had a dramatically negative impact upon his lifestyle and relationships.
[57]         Mr. Saopaseuth began to suffer from MP in his right leg in or about early May 2011; since then it has persisted. The MP has been an irritant and a worry in this protracted period; however, there is no evidence that it has significantly affected his lifestyle or his relationships.
[58]         Significantly, since early 2014 Mr. Saopaseuth has experienced considerable amelioration of his MP, and Dr. Armstrong was pleased to learn of it. It is consistent with Dr. Armstrong’s opinion that Mr. Saopaseuth’s condition is treatable with rehabilitative therapy, although Mr. Saopaseuth has yet to be treated specifically for SPRD…
[60]         Each of the aforementioned cases is, in material aspects, distinguishable from the instant case; nonetheless, they offer a helpful guideline for the assessment of Mr. Saopaseuth’s damages. Taking into account the nature and duration of Mr. Saopaseuth’s various injuries, the relatively modest impact they have had upon him, his relationships, and his lifestyle, and his very favourable prospects for either significant improvement or full recovery from his MP, I assess his non-pecuniary damages at $30,000.
 

Principled Exception to the Hearsay Rule Fails to Save Mystery Witness Statement

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.
In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006.  His motorcycle struck the pup trailer of a dump truck.  This resulted in profound injuries which required an above knee amputation for the Plaintiff.
The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision.  In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events.  In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it:
 [61]         Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility…
[64]         Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists.
[65]         In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her.
[66]          Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others.
[67]         The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events. 
[68]         The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror.
[69]         Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle.
[70]         For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.
 

Cyclist Fully at Fault For Collission Following Careless Lane Change; No Adverse Inference From Defendant Failing to Tesitfy

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Interesting reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff’s claim following a bicycle/vehicle collision.
In last week’s case (Miles v. Kumar) the Plaintiff was cycling Eastbound along Grandview Highway in Vancouver when he moved from the right into the left lane in preparation for a left turn at an upcoming intersection.  The Defendant was travelling in this lane and a collision occurred shortly after the lane change.  Mr. Justice Bernard found the plaintiff fully at fault an in doing so reached the following conclusions:
[62]         In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.
[63]         In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).
Interestingly the Defendant never testified at trial despite fault being disputed.   The Court was asked to draw an adverse inference but Mr. Justice Bernard refused to do so. The Court provided the following comments on this issue:
[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.
[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.
[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged. In support they cite McIlvenna v. Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in McIlvenna stated:
[70]      The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in Halsbury’s Laws of Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure, and Evidence headings, respectively, as follows:
It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.
…
There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party’s failure to call a witness whose testimony would be expected to assist the party’s case.
[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.
[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.

Vicarious Liability Claim Dismissed In School-Ground Assault Lawsuit

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Adding to this site’s archived posts addressing claims of vicarious liability,  reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, considering a claim seeking to hold a School District liable for a school-ground assault.
In this week’s case (Jackson v. School District No. 53) the Plaintiff sustained a traumatic brain injury after being punched by another student.  The Plaintiff sued the School District arguing the assailant was involved in a previous assault several months earlier and the School District failed to impose adequate discipline which “emboldened (the assailant) by lack of proper discipline“.
Mr. Justice Bernard rejected this argument and dismissed the Plaintiff’s claim finding that even if the school was not harsh enough in their prior discipline there is no chain of causation.  In dismissing the claim the Court provided the following reasons:
[42]         Even if, however, significantly harsher disciplinary measures than those taken ought to have been employed for the March 2 incident, I am unable to conclude that the plaintiff has established the requisite nexus between that failure and the subsequent assault upon him. In this regard, it is noteworthy that seven uneventful months transpired between the two incidents; that the incidents occurred in separate school years and at a time when children and their behaviours are changing rapidly; that it makes little sense that Tylor’s state of mind about Makwalla would have turned on his awareness of the discipline imposed on Makwalla rather than of the details of the incident itself; and, that it would require considerable speculation to conclude either that Makwalla would have been sufficiently deterred or rehabilitated such that the assault upon Tylor would probably not have occurred, or that the assault occurred because Makwalla was emboldened by the inadequacy of the discipline.

The Dangers of Passing Vehicles Near Intersections

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When a driver proceeds into the on-coming lane of travel to overtake another vehicle care must be taken.  This is particularly so near intersections.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver, Registry, addressing fault for a collision arising in such circumstances.
In yesterday’s case (Johel v. ICBC) the Plaintiff stopped at a stop sign.  She intended to make a left hand turn.  The vehicle approaching from her left was slowing and signalling intending to make a right hand turn.  The Plaintiff felt it was safe to proceed with her turn and entered the intersection.  At the same time the Defendant’s vehicle chose to pass the third party by entering the on-coming lane of travel.  A collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
The Defendant fled leaving the Plaintiff with the remedy of suing ICBC under section 24 of the Insurance (Vehicle) Act.  Ultimately Mr. Justice Bernard found the unidentified vehicle fully at fault for the crash.  In doing so the Court provided the following reasons for judgement:

[13] In the circumstances of the case at bar, the obligations of the plaintiff under the Act are found in ss. 165(2), 186, and 175(1).

[14] Section 165(2) applies to drivers making left turns at intersections where traffic is permitted to move in both directions on each highway entering the intersection. The provision sets out the obligations of a driver in such a situation. Section 186 obliges a driver approaching a stop sign to stop at the marked stop line. There is no evidence or suggestion that Ms Johel failed to comply with these rules of the road.

[15] Section 175(1) sets forth the obligations of a driver entering a through highway from a stop sign. The defendants say the plaintiff failed to yield, as required by this provision. Section 175(1) reads as follows:

175(1). If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b) having yielded, the driver may proceed with caution.

[16] The statutory obligations of the defendants are found in ss. 155(1)(c), 157(1), 159, 160, and 175(2) of the Act.

[17] Section 155(1)(c) obliges a driver to drive to the right of a single line, broken or solid, except only when passing an overtaken vehicle. There is no evidence or suggestion that the defendant driver drove to the left of the solid yellow line except for the purpose of overtaking Mr. Lam.

[18] Section 157(1) sets forth the obligations of the overtaking vehicle vis-à-vis the overtaken vehicle. There is, again, no evidence or suggestion that the defendant driver did not comply with this rule.

[19] Sections 159 and 160 set forth the obligations of drivers passing on the left. They state as follows:

159. A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

160. A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances.

[20] Section 175(2) obliges a driver on a through highway to yield to a vehicle which has entered the highway in compliance with s. 175(1). The plaintiff says the defendant driver of the white car failed to yield, as required by this provision. Section 175(2) states as follows:

175(2). If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway….

[29] Having regard to all the evidence and the positions of the parties, I find: (a) that Ms Johel was attentive and observant while stopped at the stop sign; (b) that Ms Johel proceeded with caution into the intersection and, at the time, the only traffic in her view was the car of Mr. Lam; (c) that the defendants’ white car was, at the time, to the left of Mr. Lam and, thus, hidden from Ms Johel’s view; and, (d) that at the time of collision, the white car was straddling the centre line and Ms Johel’s car was crossing it and heading slightly eastward.

[39] Having regard to all the foregoing, I conclude: (a) that when the defendant driver overtook Mr. Lam he or she did so in breach of ss. 159 and 160 of the Act; (b) that the defendant driver failed to meet the requisite standard of care; and (c) that the defendants are solely at fault for the collision.

Fibromyalgia Claim Fails, $6,000 Awarded for 3 Month Soft Tissue Injury

Written by admin on . Posted in ICBC Fibromyalgia Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 61 Comments on Fibromyalgia Claim Fails, $6,000 Awarded for 3 Month Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with the connection between Fibromyalgia and a motor-vehicle collision.
In today’s case (Anderson v. Minhas) the Plaintiff was involved in a 2007 rear-end collision in Surrey, BC.  The Plaintiff was injured in this crash and she ultimately was diagnosed with Fibromyalgia.  She claimed this troubling condition was caused by the collision and sued for damages.  Mr. Justice Bernard ruled that the Plaintiff failed to prove that the accident was a cause of her Fibromyalgia and dismissed most of her claimed damages.
The Court found that the crash caused a whiplash injury of 3 months duration and assessed non-pecuniary damages at $6,000.  In dismissing the fibromyalgia claim and valuing non-pecuniary damages Mr. Justice Bernard provided the following reasons:

[74]         Applying, then, the “but for” test, I conclude that the evidence falls far short of proving, on a balance of probabilities, that but for the negligence of the defendant, Ms Anderson would not have developed fibromyalgia. In reaching this conclusion I take into account, inter alia, the absence of convincing medical opinion in this regard, the minor nature of the collision, the absence of credible evidence of a temporal nexus between the collision and the onset of symptoms, the reliable evidence of the plaintiff’s return to her pre-collision state within two months of the collision, the chronic and acute pre-collision health complaints of the plaintiff, and the significant hiatus in doctor visits in a critical post-collision period.

[75]         The plaintiff suffered a whiplash injury in the collision. The evidence suggests that it was most likely an exacerbation of an existing complaint. Shortly after the injury she began a course of physiotherapy. Reliable evidence in this regard shows that she responded well to treatment and was substantially recovered within six weeks. The defendant submits that the injuries, or any exacerbation of a pre-existing injury, attributable to the defendant were fully resolved within three months, at most. I agree. A generous view of the evidence establishes, at most, a three-month period to full recovery to Ms Anderson’s pre-collision state. The plaintiff’s losses must be assessed accordingly….

[78]         In assessing the non-pecuniary damages for Ms Anderson, I am unable to distinguish her losses from the ordinary sort of losses most suffer from a minor whiplash injury. I am, however, satisfied that the plaintiff was more fragile than many others would have been at the time of the collision and that, therefore, her post-collision aches and pains may well have been greater than those experienced by an otherwise strong and healthy person. I am satisfied that Ms Anderson’s life was negatively affected by the injury, or re-injury, and that during the three-month recovery period her relationships suffered to some degree, she endured some pain and discomfort, she lost some sleep, she opted out of some leisure and sport activities, and she was put to various inconveniences. For this three-month period of pain and suffering, with due regard to the cases cited, I assess her damages at $6,000. Any lost homemaking capacity in this period is subsumed into this award.

"Functional Assessment Biomechanical System" Permitted for First Time in BC Injury Trial

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The Functional Assessment Biomechanical System (“FAB”) is a motion capture system that tracks and measures body movements and biomechanical forces.  It has been used in recent years during work capacity evaluations.
Last year the inventor of the FAB attempted to have the system’s measurements introduced in two separate personal injury trials (you can click here and here to read my summaries of those cases).  Both times the trial Judges refused to let the evidence in finding that the inventor was not candid about his financial interests associated with system and further that the system did not meet the judicially required threshold of reliability.
More recently, in the trial of Carr v. Simpson the FAB’s inventor took a third kick at the can and attempted to have his system’s measurements introduced at trial.  This time he was forthright about his financial interest in the product.  This change in candour seemed to make all the difference with Mr. Justice Bernard allowing the FAB’s measurements to be introduced at trial.  Mr. Justice Bernard gave the following reasons permitting FAB measurements into evidence:

[11]         In the case at bar, Mr. McNeil testified with knowledge of the rulings in Rizzolo and Forstved, and the plaintiff has endeavoured to have Mr. McNeil address the evidentiary problems and shortcomings which were identified in these earlier cases. I am satisfied that in his present testimony Mr. McNeil has been more forthright about his role as inventor of FAB and of his financial interest in it. It seems that in both Rizzolo and Forstved it was Mr. McNeil’s lack of candour, rather than his inventor/owner status per se, which was particularly troubling to the court. I am not persuaded that the now more candid Mr. McNeil should be precluded from giving expert testimony merely because he has a financial interest in FAB, in the absence of other evidence which might call into question his independence.

[12]         In relation to the reliability of FAB and proof thereof, the evidence establishes that it is a measuring tool, albeit a technologically-advanced one, rather than a diagnostic instrument per se. The distinction is, in my view, important.

[13]         The science about which Mr. McNeil testified is the assessment of the human body’s functional capacity. This science is well-recognized by the courts, and its application generates findings which may be of assistance to the court and which could not likely be made without such evidence. It is not a novel science. The introduction of a novel measuring instrument in the application of a science does not make the science, itself, novel. For example, the advent of MRIs did not make orthopaedic medicine a novel science; accordingly, I am not persuaded that the cautious approach to admissibility (as suggested in R. v. J.-L.J. [R. v. J.J.], 2000 SCC 51, [2000] 2 S.C.R. 600, and adopted in Forstved), including the threshold burden imposed upon the tendering party, obtains. This is particularly so in non-jury trials in which the judge’s “gate-keeper” function has much reduced significance.

[14]         I do not mean to suggest by any of the foregoing that the reliability of the tools employed by experts may not be challenged in an attempt to undermine the factual underpinnings of a diagnosis or assessment; however, unless the undermining renders the opinion virtually valueless, it will go to the weight of the opinion and not to its admissibility. In the instant case, I am not satisfied that the evidence elicited from Mr. McNeil in cross-examination so weakened his opinion as to render it of no value and, therefore, inadmissible. As already noted, only Mr. McNeil testified in the voir dire, and the defendant elected to call no evidence on the issue of the reliability of FAB.

[15]         In summary, I am satisfied that the evidence tendered in this case relating to: (a) the reliability of FAB, and (b) Mr. McNeil’s financial interest in FAB, falls far short of establishing a reasonable basis for excluding the opinion evidence of Mr. McNeil. It remains open to the defendant to argue that these factors, to the extent that they are established by the evidence, affect the weight to be attached to Mr. McNeil’s opinion.

Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Hand Injury Cases, ICBC Headache Cases, ICBC Knee Injury Cases, ICBC Psychological Injury Cases, ICBC Thoracic Outlet Syndrome Cases, ICBC Wage Loss, ICBC Wrist Injury Cases, Uncategorized. 1 Comment on Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce


Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.
When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.
The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.
The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.”
Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.

$60,000 Non-Pecuniary Damages for Whiplash and likely Zygapohyseal Joint Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of a BC car crash resulting in whiplash claim with a likely zygapophyseal joint injury.
Zygapophyseal joints (also known as facet joints) are the interconnecting joints joining vertebral bodies to one another and it is not uncommon for injury to occur to these joints in motor vehicle collisions.

In this week’s case (Lamont v. Stead) the Plaintiff was involved in a rear end collision caused by the Defendant in Burnaby, BC.  Fault was admitted leaving the Court to deal with the extent and value of the injury claim.   The Defendant accepted he injured the Plaintiff however argued that these injuries substantially resolved within 9 months.  The Plaintiff disagreed giving evidence that her neck injury symptoms were ongoing through trial.
In support of her case the Plaintiff advanced evidence from Dr. Rhonda Shuckett, a well respected BC rheumatologist.  Dr. Shuckett testified that the Plaintiff likely had permanent injuries explaining as follows:

I suspect her left neck injury since the MVA is mainly attributable to soft tissue and perhaps zygapophyseal joint injury…It is already approaching two years since the subject MVA and she remains symptomatic. I think there is a good chance that she is going to continue with her current level of pain. She is not disabled but is impaired to some degree…

Mr. Justice Bernard accepted this evidence and awarded the Plaintiff damages accordingly.  In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering and loss of enjoyment of life) at $60,000 the Court made the following findings:

[30] The evidence establishes that the plaintiff’s prospects for any significant improvement in her neck pain are poor. As a consequence, she faces a considerably altered future; particularly as it relates to her life outside the workplace. Her chronic pain deprives her of much of the enjoyment she found in being physically active, in attending to her family, and in participating in family activities…

[35] In summary, I am satisfied that the plaintiff’s pain is chronic, partially disabling, and likely permanent. Similarly, I am satisfied that the evidence establishes that the plaintiff’s neck pain was caused by the defendant’s negligence, in the sense that it directly caused or materially contributed to it. There is a substantial connection between the plaintiff’s chronic neck pain and the collision, and the plaintiff has shown, on a balance of probabilities, that but for the negligence of the defendant, she would not have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[40]        The loss of enjoyment of life due to chronic neck pain is undoubtedly greater for Ms. Lamont than it would be for a person who has led a more sedentary lifestyle. Ms. Lamont has been actively engaged in strenuous sport throughout her adult life, and this has been a significant feature of life with her husband and children. It is, understandably, a source of great frustration and sadness to her that she has been deprived of the capacity to engage in most of the activities she loved, and to experience them with her family.

[41]        Given the relatively profound nature of the loss to this plaintiff (including compromised household management and parenting), the chronic pain which she must endure, the age of the plaintiff, and the very poor prospects for significant improvement, and, having regard to the similarities between the cases cited by the parties and the case at bar, I assess the non-pecuniary losses of the plaintiff at $60,000.

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