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Tag: Mr. Justice Curtis

Plaintiff Ordered to Pay Defence Costs for Failing to Accept “Reasonable” Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In a fairly typical exercise of a Court’s discretion pursuant to Rule 9-1(5), reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to pay a Defendant’s trial costs for failing to accept a reasonable pre-trial formal settlement offer.
In last week’s case the Plaintiff sustained a fracture wrist in a motor vehicle collision.  The fracture went on to cause long term complications
The Plaintiff advanced damages over $500,000.  At trial the Plaintiff was awarded $121,000 in damages, $85,000 of which was for non-pecuniary loss.  Prior to trial the Defendant tabled a formal offer of $210,000.  It is noteworthy that this offer was tabled the last week before trial and was only open for acceptance for two days.  The Court found that in these circumstances the offer was reasonable and stripped the Plaintiff of post offer costs and further ordered the Plaintiff to pay the Defendant’s trial costs.  In doing so Mr. Justice Curtis provided the following reasons:
[8]             In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards.  It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial.  It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating.  Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.
[9]             The Rule relied upon by the defendant is clearly intended to encourage settlements on the basis of reasonable offers.  To be fair, of course, the offer must have been one which ought reasonably to have been accepted, and must have been presented in a reasonable manner and in sufficient time to be properly assessed.
[10]         Clearly, in this case, the plaintiff and her counsel were of the opinion that it was worth taking the chance that she would do better than the offer at trial.
[11]         In my opinion, on my analysis of the medical evidence put forward to support the claim for future care costs, there was little likelihood of an award of $400,000 for future care costs, however, the general damages could have been $100,000 and $15,000 was received for the in trust claim – which suggests the $210,000 new money offer was an offer of something like $100,000 for future care costs.
[12]         In my opinion, a rigorous analysis of the evidence for the claim for costs of future care at the time the offer was open would have lead to the conclusion that the offer was one that ought reasonably to have been accepted.  The recovery at trial, particularly for future care costs was markedly less than offered.
[13]         In the circumstances I find that a just result between the parties in this case is an order the Plaintiff recover the costs of her action up to Friday, March 16, at 4:00 p.m. when the offer expired and that the defendant recover costs thereafter, both to be assessed according to Scale “B”.

$85,000 Non-Pecuniary Assessment for Wrist Fracture With Post Traumatic Arthritis

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized. 47 Comments on $85,000 Non-Pecuniary Assessment for Wrist Fracture With Post Traumatic Arthritis

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a fractured wrist which resulted in post traumatic arthritis and permanent dysfunction.
In last week’s case the Plaintiff was struck by the Defendant’s vehicle as she was crossing the street.  Fault for the crash was admitted.  The Plaintiff suffered a comminuted fracture of her distal radius which required surgery.

The injury resulted in post traumatic arthritis developing which interfered with its function and was expected to cause limitations on a permanent basis.  In assessing non-pecuniary damages at $85,000 the Court highlighted the following medical evidence addressing prognsois and provided the following reasons:
[9] In his May 15 report, Dr. Somani states as follows:
…

Prognosis.

It is my opinion that the Plaintiff has plateaued with respect to function.  She continues to have discomfort of the right wrist. Clinical examination has demonstrated reduced range of motion and reduced grip strength. Recent x-rays have confirmed probable premature osteoarthritis which may be progressive.

The Plaintiff has impairment in the abilities to self-care, housecleaning, laundry, complex meal preparation and transportation as outlined by the occupational therapy assessment.

The Plaintiff will continue to require support services which may include cleaning, meal preparation, shopping, laundry and transportation.

The Plaintiff may require specialized bracing for her right wrist and possibly an orthopedic opinion should her osteoarthritis progress in the future.

The Plaintiff will continue to require analgesia for pain management and regular assessments of her home with respect of safety features including handrails etc….

[22] On March 8, 2010, the Plaintiff was an active, independent woman of 76 clearly taking great pleasure in her life.  After her injury, she was not able to look after herself and took a long while to even get back to walking.  Now she is left with a right hand of limited use because of pain, arthritis and de-conditioning, a fear of walking on her own and significant loss of function such that she can no longer cook as she once did, or do the heavier housework.  She continues to have pain and suffering and her enjoyment of life is markedly diminished.  For that loss, I award her general damages of $85,000.

$40,000 Non-Pecuniary Damage Assessment For Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Adding to this site’s archived BC soft tissue injury cases, reasons for judgement were released earlier this year by the BC Supreme Court, Victoria Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In the recent decision (Hammond v. Meeker) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.   The Plaintiff was 7 months pregnant at the time and the impact was “substantial“.
The Plaintiff suffered from soft tissue injuries to her neck and upper back which continued to produce symptoms including headaches and pain at the time of trial.  The symptoms were expected to continue “for an indefinite period of time“.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Mr. Justice Curtis provided the following reasons:
[20] I find on the evidence that the sum of $40,000 is reasonable and fair compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of life inflicted upon her by the February 9, 2008 collision.  She has suffered a soft tissue injury to her neck and upper back, the significant symptoms of which, particularly headaches and pain and stiffness in the neck, have not resolved in the four years since the collision, and will likely continue for an indefinite period of time in the future.  While the injury and symptoms do not actually prevent any particular activity, they make many activities painful and not enjoyable to the extent that she does not do them.  This has been particularly difficult for her given her position as a home maker with two small children and for a while three with B.T. as a foster child.  On the other hand, I accept Dr. Christie’s opinion that her injury will not require surgery, nor will it make osteoarthritis more likely.

$75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 98 Comments on $75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis


A common issue courts have to address in injury litigation is the effect of trauma on pre-existing asymptomatic arthritis.  Often times after people are injured X-rays and other diagnostic tests reveal arthritic changes in joints which produced no pain prior to the trauma.  Often times accidents cause these pre-existing conditions to become painful.  A theme which usually comes up in these types of cases is whether the degeneration would have become painful at some point in time without the trauma.  Reasons for judgement were released today by the BC Supreme Court dealing with such an injury to the knees.
In today’s case (Michal v. Begg) the Plaintiff was injured in a 2003 motor vehicle accident.  The driver of the Plaintiff’s vehicle lost control and hit a concrete highway divider.  The crash was significant destroying the vehicle on impact.
The plaintiff sustained various injuries including the onset of pain in his knees.  The Plaintiff did not have pre-existing knee pain but on examination arthritic changes which would have pre-dated the accident were noted.  The accepted medical evidence was that even if the Plaintiff did not have the accident he would have likely eventually experienced pain in his knees but the trauma accelerated this.  Mr. Justice Curtis assessed the Plaintiff’s non-pecuniary damages at $75,000.  In arriving at this figure the court noted the following about the extent and effect of the accident related injuries:

[26] In summary, I find it proven on the balance of probabilities that as a result of the December 18, 2003 collision, Miroslav Michal suffered a whiplash injury aggravating a pre-existent mild recurrent neck pain, which is now continuing on about the same course as it would have had the 2003 accident not occurred, injuries to his head, right shoulder, right and left wrists, fingers and elbow strains, rib injury and a buttock contusion, all of which has resolved fairly quickly, and injuries which have produced symptoms persisting to the present time, namely to his right ankle, right foot and left and right knees.

[27] The right knee was clearly injured in the collision as is demonstrated by the immediate appearance of pain, swelling and stiffness.  That knee had pre-existing degenerative changes which were not symptomatic prior to the collision, but were clearly made symptomatic following it.

[28] There is no immediate medical record of Mr. Michal complaining about left knee problems.  That knee also had pre-existing degenerative changes which were not symptomatic prior to the accident.  I am satisfied, however, that the collision did aggravate the condition of the left knee and caused it to become symptomatic afterwards.  Mr. Michal has testified that was the case and his testimony is supported by the observations of Mr. Begg and his Aikido instructor.  Mr. Michal is clearly not a complainer and I accept that early left knee symptoms were simply overlooked in dealing with more urgent matters.

[29] Both knees were showing pre-existing signs of degeneration in all three compartments.  The outlook for his knees was that the degeneration could continue and would have at some point become symptomatic even if there had not been any December 18 injuries.  It is likely his knees would have got bad enough to affect his function even if he had not been injured.  How long that would have taken is not clear – Dr. Anton offers the opinion that “The pre-existing changes would probably have become symptomatic absent the accident but that could have taken five years or longer.”  Dr. Sovio in his report of March 6, 2006 was of the opinion that:

He, in all likelihood, had pre-existent degeneration which predisposed him to this problem and regardless he would have had some difficulties with his knees in the future. It is difficult to say when this would have shown up but it would likely have presented itself in the relative near future.

[30] On the evidence, I find it reasonable to attribute Mr. Michal’s knee symptoms to the date of his surgery in January and April of 2007 to the collision, but I find that, while the collision injuries remained a contributing factor, his failure to recover as expected from his knee surgery and his worsening condition from September 2007 onward was attributable to the fact that he had degenerative knees as well as the fact that they had been made worse by the collision induced injuries.  It is probable that Mr. Michal would have ended up having arthroscopic surgery to his knees even without his 2003 injuries but that surgery was probably significantly sooner because of the December 2003 injuries.

[31] The plantar fasciitis in his right foot has become chronic but the medical opinion is that it should be cured.  His right ankle does not show evidence of significant injury.  I accept that these have troubled him as he has described to the date of his trial, but I find that they remain treatable and should not pose a significant problem for him in the future.

[32] Considering the pain and suffering Mr. Michal has had from his injuries, and the significant loss of enjoyment of life they have caused him, in particular forcing him to forego his long time interest in martial arts, I assess Mr. Michal’s claim for general damages at $75,000.