Tag: Mr. Justice GP Weatherill

$120,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury


Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In this week’s case (Hanson v. Yu) the Plaintiff was involved in a 2010 intersection collision which the Defendant was found 100% responsible for.  The Plaintiff was 43 years old and worked as a contract sales representative.  The collision caused a chronic rotator cuff injury which required two surgeries at the time of trial and was expected to have long term and deteriorating function in the future.  In assessing non-pecuniary damages at $120,000 Mr. Justice G.P. Weatherill provided the following reasons:
[4]             The plaintiff’s neck, upper back and headache symptoms settled in approximately four months. The most significant and far more serious injury was to his right shoulder, his dominant arm.
[5]             The plaintiff underwent two surgeries to correct the shoulder injury. Neither surgery was effective. He also had approximately six cortisone injections that provided some temporary relief, and he underwent nearly two years of physiotherapy treatments.
[6]             He has permanent pain and restricted function in his right shoulder. His ability to do physical tasks at work and at home is limited, and he relies on prescription pain medication to manage…
[170]     In this case, the plaintiff has a permanent and progressively deteriorating injury to the shoulder of his dominant arm. He is likely to face surgeries in the future that will have an uncertain outcome. Has chronic pain and is managing to function through the use of pain medication that he is now addicted to. Having considered the cases, counsel have referred to, the evidence , the permanent nature of the plaintiff right shoulder injury and the possibility that it will deteriorate in the future and require shoulder replacement and considering the principles that must be considered in awarding of general damages, I award $120,000 under this head.

Realtor Fee Recovery Discussed Following Collision Related Change of Residence

If you are injured in a collision and sell your house for more suitable accommodations can the realtor commission fees be claimed as damages?  Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry addressing this.
In this week’s case (Brown v Bevan) the Plaintiff was injured in a 2009 intersection collision.  The Defendant was found fully at fault.  The Plaintiff suffered various injuries which continued to impact her at the time of trial.  She ultimately sold her multilevel townhouse and moved into a one level apartment.  The Plaintiff moved in part because she struggled walking up and down the stairs in her former residence.  She sought damages for the realtor’s commission charged in the sale arguing that this expense was incurred due to the collision.  In refusing these damages Mr. Justice Weatherill provided the following reasons:
[180]      The largest and only disputed item is the claim for $33,801.79 representing the net commissions on the sale of the plaintiff’s Gilford Street town home ($20,680), storage ($599.55), costs associated with purchasing the Homer Street property including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16).
[181]     The issue is whether the costs related to moving are reasonable expenses that can be claimed. But for her injuries and resultant difficulty she had negotiating the stairs inside and outside of home, the plaintiff argues she would never have sold, moved and incurred those expenses. She relies on Rodger v. McDowell, [1994] B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189…
[185]     In Rodger, an award for commission expenses was made in similar circumstances where a plaintiff moved from a two level home to a one level home. The basis of the award is unclear. It apparently was based on defence submissions that “Ms. Rodgers would be adequately and appropriately compensated if she is reimbursed for real estate commission and moving expenses.”
[186]     In Piper, a claim for real estate commissions, moving costs and taxes related to changing residences was dismissed because the plaintiff’s low back injury was not proven to have been caused by the motor vehicle accident.
[187]     In this case, the plaintiff argues the expenses associated with changing residences are directly attributable to the collision and the plaintiff’s prolonged distress from having to use multiple stairs in the Gilford residence on a daily basis. She could not manage them and a move to a single level home was necessary.
[188]     In my view, these expenses are not recoverable from the defendant because:
a.       the principles of compensatory damages in tort require the plaintiff to be compensated for all reasonably foreseeable losses directly or indirectly caused by the tort (BG Checo International Ltd. at para 47);  
b.       the plaintiff is not to be placed in a position better than his or her original one. The court must determine the plaintiff’s “original position” before the tort and her “injured position” after the tort. It is the difference between these two positions that is the plaintiff’s loss (Athey at para 32).
[189]     While the accident indirectly caused the plaintiff’s left heel pain and that moving residences was a foreseeable risk, on the Athey test, the plaintiff’s claim under this head must fail. I find that the plaintiff would have moved residences to a one story home in the future in any event. These expenses would have been incurred regardless, albeit sooner (perhaps a year or two) than otherwise expected. In other words, these expenses were not incurred “but for” the collision.

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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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