Tag: Mr. Justice Rogers

$90,000 Non-Pecuniary Damage Assessment for Headaches and PTSD


Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:
[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…




[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.





This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:
[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

$80,000 Non-Pecuniary Damages Assessment for L4-5 Disc Injury


Reasons for judgement were released yesterday by the BC Supreme Court, assessing damges for non-pecuniary loss (pain and suffering and loss of enjoyment of life) for an L4-5 disk herniation.
In yesterday’s case (Doho v. Melnikova) the Plaintiff was involved in two seperate collisions.  Fault was admitted in both actions leaving the Court to assess damages.  The first collision caused a disk injury at the 4-5 level of the Plaintiff’s lower spine.  The second collision resulted in a minor aggravation of this.
The prognosis for recovery was poor and the Plaintiff was expected to experience ongoing pain and discomfort in his lower back as a result of the first collision.  In assessing non-pecuniary damages at $80,000 for the first collision Mr. Justice Rogers provided the following reasons:

[38] The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.

[39] I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.

This case is also worth reviewing for the Court’s discussion of the principle of ‘failure to mitigate‘ at 49-53.

$45,000 Non-Pecuniary Damages Awarded for Chronic Mild-Moderate Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.
In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.
Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft?tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non?pecuniary damages in this case is $45,000.

ICBC Wage Loss Benefits – Definition of "Employed Person" Discussed


If a person insured with ICBC is disabled as a result of a motor vehicle collision they may qualify for disability benefits from ICBC under their own policy of insurance.  These are often referred to as Part 7 TTD benefits or Part 7 Wage Loss Benefits.
One necessary condition for these benefits is that the injured person needs to be an “employed person“.  If a person is not employed at the time of the accident they may still qualify for disability benefits from ICBC if they were  ‘employed or actively engaged in an occupation for wages or profit for any 6 months during the period of 12 months immediately preceding the date of the accident.’  Reasons for judgement were released today discussing this definition of ‘employed person‘.
In today’s case (Pavlovich v. ICBC) the Plaintiff was injured in a rollover accident.  The medical evidence was uncontradicted that his accident related injuries “temporarily totally disabled him from his regular employment as a journeyman carpenter (for about 6 months) from the date of the accident“.
The Plaintiff was not actively working at the time of the crash but had worked about 1,100 hours in the year before the accident.  He argued that in these circumstances he is an ’employed person’ entitled to disability benefits from ICBC.  ICBC refused to pay the wage loss benefit arguing the Plaintiff did not meet the definition of employed person under Part 7 of the Insurance (Vehicle) Regulation.
Mr. Justice Rogers was asked to resolve this dispute.  The Court agreed with ICBC and in doing so made the following useful comments about the definition of ‘employed person‘ for the purpose of receiving ICBC Part 7 disability benefits:

[8] For the purpose of entitlement to temporary total disability benefits under Part 7 of the Insurance (Vehicle) Regulation of the Insurance (Vehicle) Act, the claimant must be an “employed person”. An “employed person” is defined by s. 78 of the Regulation and means a person:

(a) who, on the date of an accident for which a claim is made, is employed or actively engaged in an occupation for wages or profit, or

(b) who…

(ii)        for any 6 months during the period of 12 months immediately preceding the date of an accident for which a claim is made is employed or actively engaged in an occupation for wages or profit.

[9] As noted, the parties agreed that the plaintiff was not employed on the date of the accident. Accordingly, if the plaintiff is to qualify for temporary total disability benefits, it must be on the basis of his being an “employed person” within the meaning of subsection (b) of the definition….

[17] The plaintiff’s interpretation of the Regulation suffers several flaws. One such is the fact that in practice it would result in absurdities of its own. For example, if the plaintiff has it right that under subsection (b) “employed person” status may be achieved by working more than 1,000 hours in the 12 months preceding an injury, one person might accumulate all the necessary hours by working intensely for only 2 or 3 months, while another person might never qualify because of his part?time employment and work for only a few hours every week. The part?timer might work for, say, 11.9 months immediately before his injury and be laid off the day before his accident; yet, because of his part?time status, he may not have accumulated the 1,000 hours the plaintiff’s interpretation would require of him before he could be an “employed person” under subsection (b). This would lead to the absurd result of a part?time person working up to the day before an accident not being employed for the purposes of the Regulation, while a person who worked like the devil over only 2 months would qualify for benefits. This result would be directly contrary to the plain meaning of the words of the Regulation.

[18] Another flaw in the plaintiff’s interpretation is its reliance on counting hours to qualify as an employed person. This might theoretically work if everyone toiled, as the plaintiff did, for an hourly wage. That is not, however, the way things are. Some people are paid by the task, as in a seamstress’s piece?work, some are paid a salary and no account is kept of the hours they work, some are paid on pure commission and the hours they work may bear no relation at all to their income and so the number of hours they work are irrelevant. Counting hours of work is simply not a practical way to fashion the broad?based and universal test for qualification for disability benefits under the Regulation.

[19] A much more sensible and practical interpretation, and the interpretation that is consistent with the Regulation’s plain language, is the interpretation that the defendant propounds. The Regulation stipulates that to be an employed person the claimant must have been employed for 6 of the 12 months immediately preceding the injury. It is the being employed, not the amount of work done, during those 6 months that counts. Put another way, a person who works part?time for 6 months is, for the purposes of the Regulation, no less employed that the person who works 18 hours a day for the same period.

[20] I find that whether one excludes or includes the plaintiff’s house renovation work, the arithmetic of the plaintiff’s situation does not yield enough weeks of work for him to be said to have been employed for 6 of the 12 months before the accident.

A Caution to BC Vehicle Owners – Take Care in Who You Lend Your Vehicle To


Reasons for judgement were published this week by the BC Court of Appeal revealing a valuable lesson to registered owners of vehicles.  Owners must take care in choosing who they lend their vehicle to as they can be found personally liable if such a person carelessly injures others while driving or operating the vehicle.
In today’s case (Robert v. Forster) Mr. Forster (the owner of a vehicle) allowed his daughter to use it.  He had rules restricting the scope of this permission, and these were that she “was not to drink and drive” and that “no one other than (the daughter) was to drive the vehicle“.
On June 2004 Mr. Forster’s daughter took the Jeep out.  She has been drinking at a bar.  After leaving the bar the daughter followed the first rule and did not drink and drive, however she broke her father’s second rule and let a friend drive the vehicle.  As the friend was driving the daughter “wrenched the steering wheel to the right” and caused the vehicle to flip into a ditch resulting in injuries to the occupants.
Various lawsuits were brought.  At trial the daughter, despite being a passenger, was found to be “driving” the vehicle.  She was found to be careless in grabbing the steering wheel with a finding that “t]he only conclusion I can come to on the evidence adduced at trial is that (the daughter’s) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel”  The Court went on to find that not only was she liable for the occupants injuries but so was the father as a result of s. 86 of the BC Motor Vehicle Act which holds as follows:
In an action to recover loss or damage sustained by a person by reason of a motor vehicle on a highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor vehicle, is deemed to be the agent or servant of that owner and employed as such, and is deemed to be driving and operating the motor vehicle in the course of his or her employment.
The father appealed arguing he should not be held liable because the daughter was a passenger at the time and therefore could not have been “driving” the vehicle.
The BC Court of Appeal disagreed and dismissed the appeal.  In doing so the BC Court of Appeal made it clear that s. 86 of the BC Motor Vehicle Act is to be given a broad interpretation because it is intended to “expand the availability of compensation to injured plaintiffs).”  Specifically the BC High Court held as follows:

[21] This Court considered the purposes of s. 86 in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, 269 D.L.R. (4th) 727, affirmed 2007 SCC 45. After reviewing the history and context of the section, Madam Justice Newbury commented as follows:

[38] …  the purposes of s. 86 are, I would suggest … to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.

The Court concluded in that case that a proper interpretation of s. 86 created vicarious liability on lessors of motor vehicles whose drivers are negligent in their operation if the drivers are in possession of the vehicle with the consent of the lessors.

[22] In my opinion, the conclusion that Ms. Forster was driving the Jeep is in accord with the grammatical and ordinary meaning of the language of s. 86 and the object and intention of the Legislature in enacting it. The decision in R. v. Bélanger establishes that a person sitting in the passenger seat of a vehicle can be regarded to be driving the vehicle if he or she controls the direction of the vehicle by turning its steering wheel. It is consistent with the first purpose of s. 86 articulated in Yeung v. Au to conclude that the Legislature intended an owner of a vehicle to be vicariously liable if a person, in possession of the vehicle with the consent of the owner, commits a deliberate, but negligent, act affecting the direction of the vehicle that causes injuries to another person.

[23] I therefore agree with the conclusion of the trial judge that Ms. Forster was driving the Jeep for the purpose of s. 86.

  • Implied Consent

Another interesting point of this judgement was the Court’s discussion of whether the Father consented to the daughter’s friend driving the vehicle.   You will recall that one of the clear rules was that only the daughter was allowed to drive, not her friends.  At trial Mr. Justice Rogers held that the father nonetheless consented to the friend operating the vehicle and provided the following reasons:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The BC Court of Appeal was asked to overturn this ruling but they refused to do so.  The BC High Court held that, since the driver of the vehicle was not careless (and therefore not responsible for any of the passengers injuries) the issue of whether or not there was consent “is moot and need not be decided on this appeal

You can click here to read my 2008 article discussing the trial judgement.

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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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