Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries.
In yesterday’s case (Pichugina v. Matula) the Plaintiff was involved in a T-bone type collision in 2010. The Defendant admitted fault. The Plaintiff had pre-existing symptoms in her neck, shoulder and back. The collision aggravated these and her increased symptoms continued to the time of trial and were expected to linger on for several more years. In assessing non-pecuniary damages at $45,000 Mr. Justice Cohen provided the following reasons:
 On the totality of the evidence before me, I find that, as a result of the accident, the plaintiff sustained aggravation to her already symptomatic neck, right shoulder, and low back and sustained aggravation to her pre-existing headaches. In my opinion, there is no evidence to support a conclusion that the accident caused the minimal winging of the plaintiff’s right scapula. Although the plaintiff returned to work full-time by the end of two months following the accident, and experienced much improvement in her condition by the spring of 2011, she cannot take advantage of a flexible work schedule, and, while she remains physically active, some activities are no longer comfortable for her.
 According to Dr. Vorobeychik, the plaintiff’s symptoms have improved, but she still experiences migraine headaches and problems with her right shoulder, neck, and back when she is active or upon exertion. The overall medical evidence, and that of the plaintiff, is that there has been gradual improvement in her condition post-accident, and she appears to be handling her headaches better. According to Dr. Robinson, the plaintiff will probably continue to have gradual improvement over the next three to five years, but she remains at risk for persisting neck and right shoulder pain, which would act as an aggravator to her migraine predisposition.
 Upon my consideration of the whole of the evidence, the parties’ submissions, and the authorities relied upon by them, I find that a fair and reasonable award to the plaintiff for general damages is $45,000.
Tag: Mr. Justice Cohen
Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision. The Defendant admitted fault for the collision. The crash caused a disc herniation which required a bilateral disectomy. The Plaintiff was left with chronic pain accompanied with depressive symptoms. In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
 Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop. Following the accident, he was a very different person.
 There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
 In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement. He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
 Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions. She also opined that he has mechanical lower back pain. She reported, “Unless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.” She also concluded in her prognosis, “It is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor. It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.”
 Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff’s major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression. Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
 When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.
In a case involving a comedy of mishaps leading up to a motor vehicle incident, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing whether it is negligent to ride in a vehicle that is being towed.
In last week’s case (Tabor v. Bridge) the Plaintiffs were involved in a series of mishaps which ultimately led to them having their vehicle towed. Despite the prohibition of riding in a vehicle that is being towed the Defendant tow truck driver allowed the Plaintiff’s to ride in their own vehicle. In the course of the trip the tow truck’s dolly system broke causing the towed vehicle to sway back and forth causing injuries to the Plaintiff’s. The Defendant was found negligent for failing to properly assemble the dolly system. The Court went on to find that the Plaintiffs were also contributorily negligent for riding in a vehicle that was being towed. In finding them 25% at fault for this decision Mr. Justice Cohen provided the following reasons:
 Section 7.07(6) of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 provides that no person shall tow a motor vehicle if there is a person in or on the towed motor vehicle. There is no doubt that provision was breached in this case. However, the law provides that mere breach of a statute, standing alone, does not constitute negligence per se: see Van Tent v. Abbotsford (City) 2013 BCCA 236…
 In the case at bar, I find that the plaintiffs appreciated the risk associated with them riding together with their children as passengers in the Ford Explorer while it was being towed. I also find that they accepted the risk not only because of the assurance they received from the defendant driver as to their safety, but also because they considered this option in all of the circumstances to be more convenient than waiting at the BMW site for a cab to take them home, especially because once they were back at the terminal they could ask the superintendent to arrange a cab to drive them to Surrey at no cost to them.
 In my opinion, regardless of what the plaintiffs were told by the defendant driver about their safety, or for that matter the fact that the police observed the situation and did nothing to stop it, they nevertheless had an obligation to assess the risk and act reasonably. The fact that the defendant driver told them it was a safe option did not mean that the risk associated with the situation they accepted was unforeseeable. Thus, I am satisfied that to some degree the plaintiffs were to blame, but I find that the defendant driver was at fault to a much greater degree.
 I find that the defendant driver knew full well that it was against the law to permit persons to ride in a vehicle being towed. His responsibility in this regard was not removed by the fact that he believed the police would not penalize him in the circumstances. In addition, he was completely in control of the situation in terms of allowing the plaintiffs and their children to ride in the Ford Explorer while it was being towed. He could have easily refused them this option or have offered to take two of them at a time back to the terminal in his tow truck.
 When I balance the relative degrees of fault, I find that liability should be apportioned 25% to the plaintiffs and 75% to the defendant driver.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a long term soft tissue injury.
In the recent case (Sahota v. Ho) the Plaintiff was injured in a 2001 collision. He was 9 years old at the time. He suffered soft tissue injuries which continued to be symptomatic. Although the Court rejected the Plaintiff’s characterization as to the severity of his symptoms the Court accepted they were on-going and would continue indefinitely In assessing non-pecuniary damages at $40,000 Mr. Justice Cohen made the following findings:
 Thus, I find as follows:
(1) the plaintiff sustained injuries to his head, abdomen and neck as a result of the accident on September 29, 2001. The plaintiff’s injury to his head and abdomen resolved shortly after the accident. The plaintiff continued to experience occasional headaches, but this symptom has also since resolved. The plaintiff’s neck pain is on-going and will likely continue indefinitely;
(2) the plaintiff’s injury to his neck was a mild, soft tissue injury. The evidence from the clinical records of Dr. Chua is that from both a subjective and objective point of view, he noted “mild” with respect to what the plaintiff reported to him and what he found upon examination. He also conceded in cross-examination that he did not ever use the terms “moderate” or “severe” in his clinical records. In my opinion, the plaintiff’s complaints regarding his neck pain were not as severe as described by the plaintiff and his father in their testimony. I do not agree with the plaintiff’s position that the plaintiff’s neck is appropriately characterized as a “moderately severe cervical strain” as stated by Dr. Chua in his August 2007 report; and
(3) the neck pain experienced by the plaintiff was intermittent, rather than every day or “constant” as the plaintiff and his father insisted. If the plaintiff or his father had reported to Dr. Chua that the plaintiff experienced neck pain every day, or that the plaintiff’s neck pain was “constant”, then Dr. Chua would have written this description in his clinical records. Instead, Dr. Chua recorded that the pain was “on and off” or “recurrent”, terms which are not synonymous with the word “constant”. Furthermore, those terms were used elsewhere in Dr. Chua’s clinical records in reference to other symptoms that do not support such an interpretation. I also prefer the testimony of Ms. Porter to that of the plaintiff’s father regarding whether the plaintiff experienced improvements in his condition over the period of time following the accident. Her testimony is in keeping with the evidence of Dr. Chua who mentioned in his report of August 2002 that the plaintiff had improved from his injuries…
 I am mindful that the plaintiff continues to be symptomatic and that his neck pain is likely to continue in the foreseeable future. However, given my findings on the chronicity and severity of the plaintiff’s pain, in the context of the evidence regarding the extent of the suffering and inconvenience experienced by the plaintiff following the accident, I find that a fair award to him for general damages is $40,000.
One of the exceptions to BC’s general rule that ‘costs follow the event‘ is that a party can be ordered to pay their opponents costs relating to a distinct issue at trial. This was demonstrated in reasons for judgement released last week in the context of an ICBC claim.
In last week’s case (Garcha v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision. Following trial the Plaintiff’s damages were assessed at just over $30,000. The Plaintiff had sought damages for loss of income although this portion of his claim was largely unsuccessful. The Defendant applied to be paid a portion of the trial costs. Mr. Justice Cohen agreed that the Defendant was entitled to this relief as the wage loss claim was “the most contentious item during the litigation“. In ordering the Plaintiff to pay 30% of the costs the Court provided the following reasons:
 I find that the defendant is entitled to an order for an apportionment of costs.
 The test for whether or not an apportionment of costs should occur is set out in Sutherland v. The Attorney General of Canada, 2008 BCCA 27:
 The test for the apportionment of costs under Rule 57(15) can be set out as follows:
(1) the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;
(2) there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;
(3) it must be shown that apportionment would effect a just result.
 First, I am satisfied that the issue of past income loss is a discrete issue. I am further satisfied that an apportionment of costs of 70% to the plaintiff and 30% to the defendant, as submitted by the defendant, is fair in the circumstances of this case, given the amount for past income loss awarded to the plaintiff, when compared with his claimed amount; the fact that the plaintiff abandoned his claim for future income loss at the commencement of the trial; and, the inordinate amount of time which had to be spent by the defence prior to the trial to secure proper disclosure of the plaintiff’s business records. There is no doubt from the chronology of the events preceding the trial that the plaintiff’s failure to provide full and timely document production of his business records had a large impact on the conduct of the proceedings leading up to and during the trial.
I’ve previously written about the important role Part 7 Benefits play in ICBC Injury Claims. In short if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these the Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received.
This argument can be made by a Defendant in a lawsuit even if the injured person applied for the benefits and ICBC refused to pay them. Reasons for judgement were released this week by the BC Supreme Court showing this principle of BC Injury Law in action.
In this week’s case (Sauer v. Scales) the Plaintiff was injured in a 2004 BC Car Crash and successfully sued the at fault motorist and was awarded damages of over $300,000 (click here to read my post discussing the trial judgement)
After reasons were pronounced the Defendant’s lawyer brought a motion to reduce a portion of the award as it covered damages for benefits that the Plaintiff could have received from ICBC under his own policy of insurance. Specifically the motion was brought relying on Section 83 of the Insurance (Vehicle) Act which holds in part that “A person who has a claim for damages…who…is entitled to receive benefits respecting the loss on which the claim is based is deemed to have released the claim to the extent of the benefits”
The Plaintiff argued that this application was an abuse of process because he applied to have the benefits paid from ICBC directly but the adjuster cut him off claiming that “the accident did not cause the injuries“.
As with most ICBC Injury Claims I presume the same adjuster that told this to the Plaintiff was also responsible for the defence of the Plaintiff’s lawsuit against the at fault motorist (click here to read more about this conflict of interest). The Plaintiff argued that ” the onus is on the defendant to establish that a deduction should be made under s. 83(5) of the Act. …the defendant chose to interpret Part 7 of the Regulation in a manner which initially severely restricted the plaintiff’s claim, and subsequently interpreted his entitlement to include virtually all of the damages for cost of future care awarded to him by the Court. In addition, the plaintiff says that ICBC ignored requests for particulars in the plaintiff’s Part 7 action, and directed the plaintiff to include Part 7 items in his tort claim. The plaintiff submits that this is a case where ICBC took an extreme position on the plaintiff’s entitlement to Part 7 benefits, and then resiled from that position for the purpose of seeking a deduction from the judgment equalling the plaintiff’s cost of future care award.”
Ultimately Mr. Justice Cohen agreed with the Defendant and held that ICBC’s refusal to pay for requested Part 7 Benefits under the Plaintiff’s policy of insurance does not prevent the ICBC appointed Defence Lawyer in the tort claim to argue that the benefits should have been paid. The Court went on to reduce the judgement by $25,000 for monies that could have been received from ICBC as No Fault Benefits. Mr. Justice Cohen provides a comprehensive summary of this area of law at paragraphs 11-18 of the decision that are worth reviewing in full.
This case goes to show that Part 7 benefits need to be pursued vigorously otherwise one can limit the amount of damages and benefits available after a BC Car Crash.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry that are worth reviewing for anyone involved in an ICBC Claim for damages for accident related Thoracic Outlet Syndrome.
In today’s case (Sauer v. Scales) liability was denied but Mr. Justice Cohen found the defendant 100% at fault for the collision. In valuing the Plaintiff’s non-pecuniary damages at $135,000 Mr. Justice Cohen found as follows with respect to the severity of the accident related injuries:
I find that the plaintiff’s medical experts not only established the plaintiff’s diagnosis that he suffered from thoracic outlet syndrome, but also that of a multiple crush syndrome… he sustained a serious TMJ injury as a result of the accident, and that he should undertake dental reconstruction to treat this disorder…
 In the result, I find, on the whole of the evidence, that the plaintiff has proven to the requisite standard that as a result of the accident he sustained moderate to severe injuries to his eyes, teeth, jaw, neck and back. I accept Dr. Fry’s opinion, confirmed by the other experts for the plaintiff who opined on this issue, that as a result of the accident the plaintiff has significant musculoskeletal and neurological symptoms with respect to his left arm and that the diagnosis is one of multiple crush syndrome, where he has evidence of cervical spine compression, of neurogenic thoracic outlet syndrome, of cubital tunnel syndrome and of carpal tunnel syndrome.
 I also find that the injuries he sustained in the accident and the requirement to take therapy and medication on a continuing basis since the accident to treat those injuries has had a significant impact on the quality of the plaintiff’s life, including sleeping, eating and physical fitness, as well as upon his social and personal relationships.
 I am mindful of the evidence that since the accident the plaintiff has experienced varying degrees of improvement in his overall symptoms; that to some limited extent he has been able to return to physical pursuits such as tennis, jogging and skiing; that he has been able to travel on family vacations; and, that during the time he was involved with the affairs of Global Synfrac he frequently commuted to Calgary to attend Board meetings. I am also mindful of the evidence that his prognosis remains poor with regard to his TMJ disorder and thoracic outlet syndrome, and there remains the possibility of him having to undergo further surgical procedures to address these conditions. Moreover, he will have to continue taking therapy and medications to treat his ongoing symptoms.
 Taking all of the above factors into account, I find that $135,000 is a fair and reasonable sum to award the plaintiff for general damages.
Paragraphs 233-236 of this case will be of particular interest to anyone who has undergone an ‘independent medical exam‘ with Dr. A.I Munro. Dr. Munro has conducted many of these exams on behalf of ICBC and often disagrees with the diagnosis of Thoracic Outlet Syndrome. Mr. Justice Cohen held that “no weight should be given to the opinions of Dr. Munro on this issue (the Plaintiff’s Thoracic Outlet Syndrome)”. In reaching this conclusion extensive portions of Dr. Munro’s cross examination were reproduced which I set out below:
 In the report of Dr. A.I. Munro, a specialist in thoracic and cardiac surgery, dated March 9, 2006, he concluded that as a result of the accident the plaintiff sustained a mild soft tissue injury of the neck and that he did not have thoracic outlet syndrome. He also concluded that the plaintiff had a left ulnar entrapment syndrome which was causing his disability, and that the bilateral carpal tunnel syndrome had recovered, stating that, “only one hand was on the steering wheel so it cannot be due to the MVA.” He also said that the plaintiff’s disability is associated with numbness and weakness caused by a left ulnar entrapment syndrome plus cervical nerve root pains. However, despite his experience as a thoracic surgeon, Dr. Munro testified that he may have done one thoracic outlet syndrome surgery between the years 1994 to 2001. He said that he may have done one at St. Paul’s Hospital, but he was not sure, and otherwise a previous one would have been done at UBC Hospital. He also testified:
Q — at VGH? Mm-hm. And what type of surgeries were you performing over that period from ’68 to 1990, if I have the years roughly correct.
A General thoracic surgery and cardiac surgery, both closed and open heart surgery.
Q Okay. And of the — I take it there were other surgeons who performed a similar practice to yours?
A I suppose all the surgeons had slight variations in their practices.
Q Mm-hm. Were any of these surgeons –
A Some of them were purely thoracic, some of them were purely cardiac, and some were mixed.
Q Okay. Were any of the ones that were purely thoracic involved with thoracic outlet syndrome and surgeries on that condition?
A Early on, no. Probably I saw most of them until probably Dr. Fry, Dr. Nelems came on staff, and they saw most of the thoracic outlet surgery after that.
Q And when would that be?
A I’m not sure of the actual dates.
Q Was it shortly after –
A Probably in the — my guess would be the early ’80s, —
Q And prior to 2001 when you were at VGH after Dr. Fry and the other physician you mentioned began to specialize, those cases would be — TOS cases would be sent to them for –
Q — assessment at surgery; correct?
A The second aspect is looking at a specific five-year period and analyzing what cases I had seen during that five-year period.
Q And what five-year period is this?
A That was 2002, 3, 4, 5 and 6.
Q Mm-hm. Mm-hm. And — and that — that is where you were giving me these approximate numbers?
Q Okay. So during that period, there were somewhere between 25 to 30 per cent that were involving non-severe neck injuries that — where — that could have been, in your opinion, thoracic outlet syndrome issues?
A No. There was a fair percentage of people who had such bizarre symptoms and signs that you couldn’t fit them into any logical medical diagnosis, —
A — often associated with psychiatric disease.
Q Mm-hm. But other specialists had assessed them as thoracic outlet syndromes?
A These were all people who had been sent to me to consider this diagnosis.
Q Mm-hm. Now, going back to my question in terms of your — oh, maybe I’ll finish. In that five-year period, I take it, Doctor, there were people who you did concur with the other physician that the diagnosis was thoracic –
A In that particular –
Q — outlet syndrome?
A — five-year period, no. In the previous five years, yes.
Q Okay. And how many occasions was that, do you recall?
A In the previous five years, —
A — I think it was two, but I cannot tell you for sure.
Q Two of approximately 30 per year? Thirty reports a year?
A Probably at that time I was seeing less than 30 per year.
A I do not have the exact figures –
A — for that previous –
A — five-year period.
Q So — but in the last 10 years it would be reports in the order of several hundred reports, and of those several hundred reports you concurred with the other specialists on two occasions that you can recall?
The short answer is yes and reasons for judgment were released today demonstrating this.
In today’s case (Karran v. Anderson) the Plaintiff was seriously injured when she was struck by the Defendant’s vehicle while she was jogging “against the light in a marked crosswalk“. As a consequence of the impact the Plaintiff “was thrown fifty-seven feet in the air and landed in the south crosswalk…She suffered an occipital hematoma, a fractured left femur, a dislocated right knee…back and neck injuries as well as extensive bruises and abrasions.”
At the time of the accident the Defendant had a green light and he was not speeding. The Plaintiff, on the other hand, was jaywalking. Nonetheless Mr. Justice Cohen of the BC Supreme Court found that the Defendant was partially at fault for this crash. How can this be? The reason is the determination of fault in BC Personal Injury Claims (with the exception of intentional torts) is governed under the common law of Negligence. A person can be found negligent even if they did not brake any statutory law during an accident. Mr. Justice Cohen summarized this principle concisely stating that ” the authorities establish that the common law duty of care exists notwithstanding statutory rights of way and that a breach of a statutory right of way merely provides evidence in support of a finding of a negligent breach of the common law duty of care”
In today’s case the court made the following findings of fact about how the collision occurred:
I find that the plaintiff jogged across Howe Street against the light in the north crosswalk in front of vehicles that were stopped in the two middle southbound lanes; that the southbound vehicles that were stopped when the plaintiff passed in front of them had the green light; that just before the plaintiff was struck by the truck she glanced to her left looking north up Howe street in the east curb lane; that there was heavy rush hour traffic; that the east curb lane on Howe street was open to southbound traffic; that some of the westbound traffic travelling on Smithe Street had failed to clear the intersection thereby preventing other westbound vehicles from entering the intersection; that the defendant’s speed reached 50 km/h; and, that the defendant braked his vehicle just prior to the collision.
The court found that the Defendant was 25% to blame for this collision because he failed “to take any steps to avoid the accident“. In coming to this conclusion Mr. Justice Cohen highlighted the following facts:
 Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident. In my opinion, he did. I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street…
 The defendant was proceeding on a green light and thus had the right of way. However, I find that the defendant did not keep a proper lookout. He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street. I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.
 Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff…
 The defendant accelerated from the intersection at the intersection of Howe and Robson Streets to reach 50 km/h and he maintained this speed to virtually the point of impact with the plaintiff. I agree with the plaintiff that driving at the speed limit in the east curb lane while the vehicles in the middle two lanes were stopped on a green light was not reasonable nor prudent given the traffic conditions at the intersection.
This case contains a lengthy and thorough discussion of the law regarding the duties of motorists and pedestrians in crosswalk accidents and is worth reviewing in full for anyone researching or involved in a liability case dealing with the same.