Tag: Mr. Justice Skolrood

$9,076,854 Judgement For Plaintiff With Catastrophic Brain Injury Following Tractor Trailer Collision

Written by ERIK MAGRAKEN on September 4, 2020. Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages at over $9 million for a Plaintiff who sustained life altering injuries following a tractor trailer collision.

In today’s case (Uy v. Dhillon) the Plaintiff’s vehicle was struck by a tractor trailer while driving on the Coquihalla highway in British Columbia’ interior. The Defendant denied fault but was found liable at trial with that finding being confirmed by the BC Court of Appeal.

This resulted in “a serious brain injury in the Accident that has resulted in a significant degree of cognitive impairment” for the Plaintiff. The brain injury rendered him totally unemployable with deficits so profound that he required “24-hour care and supervision for the rest of his life. “.

Upper limit non-pecuniary damages of $388,177 were awarded. The bulk of the judgement centered around the cost of 24 hour lifetime care which the Court assessed at over $7 million. In finding the injuries warranted non pecuniary damages at the rough upper limit Mr. Justice Skolrood provided the following reasons:

Single Minister’s Certificate Sufficient Under the Health Care Costs Recovery Act

Written by ERIK MAGRAKEN on January 16, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the needed form and contents of a Minster’s certificate to recover health care costs in a Plaintiff’s tort action.

In this week’s case (Woo v. Creme De La Crumb Bakeshop & Catering Ltd).the plaintiff fell from a ladder while working at premises leased by the defendant, resulting in “catastrophic injuries”. At trial the Plaintiff’s damages were assessed at $340,000 but then reduced by 50% to reflect an equal apportionment of liability between the plaintiff and the defendant.

The Plaintiff also sought to recovery Ministry expenses pursuant to the Health Care Costs Recovery Act but the Defendant objected arguing that the Minister’s certificate presented to the court was deficient suggesting that the legislation requires separate certificates to address the types of health care costs being claimed and their costs. In rejecting this argument and finding a single certificate is sufficient under the legislation Mr. Justice Skolrood provided the following reasons:

Insurer Hit With $30,000 in Damages for “Mental Distress” For Wrongfully Denying Insurance Benefits

Written by ERIK MAGRAKEN on July 30, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding an insurance company in breach of contract and ordering them to pay, in addition to wrongfully withheld benefits, damages for “mental distress”.

In today’s case (Gascoigne v. Desjardins Financial Security Life Assurance Company) the Plaintiff was insured with the Defendant. She became disabled in her own occupation and sought benefits. The Defendant initially approved the plaintiff’s claim and paid LTD benefits for a short period but later took “the position that the plaintiff is not disabled and it has refused to pay further benefits.“.

The Plaintiff produced medical evidence in support of her claim. The Defendant did not have any independent medical exams contradicting this evidence and instead relied on a medical consultant whose evidence the Court criticized as amounting “to little more than generic opinions unsupported by the evidence”.

In ordering that the Defendant pay damages for ‘mental distress’ for wrongfully denying insurance benefits Mr. Justice Skolrood provided the following reasons:

$75,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries

Written by ERIK MAGRAKEN on May 2, 2019. Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing non-pecuniary damages at $75,000 for persistent soft tissue injuries.

In today’s case (Stapleton v. Andrew) the Plaintiff was involved in a 2015 intersection collision. The Defendant accepted fault. The crash caused soft tissue injuries which lingered to the time of trial and were not expected to experience significant improvement in the future. In assessing non-pecuniary damages at $75,000 Mr. Justice Skolrood provided the following reasons:

$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

Written by admin on December 12, 2016. Posted in ICBC Brain Injury Cases, ICBC Pelvis Injury Cases, ICBC Psychological Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.
In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision. Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries. In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179] The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180] Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181] With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182] On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183] Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184] Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185] Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186] I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192] Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.

BC Supreme Court Criticizes Defense Doctor Who "Crosses the Line"

Written by admin on December 21, 2015. Posted in Uncategorized.

In what is not the first time, a psychiatrist who is frequently retained in the defense of personal injury lawsuits was criticized by the BC Supreme Court for crossing the line from impartial opinion to prohibited ‘advocacy‘.
In today’s case (Bricker v. Danyk) the Plaintiff was involved in a 2011 collision and sustained physical injuries with psychological repercussions. The Defense hired a doctor who minimized the connection of the Plaintiff’s psychological difficulties to the collision. In rejecting this evidence and finding the defense doctor ‘crosses the line‘ Mr. Justice Skolrood provided the following critical comments –

[118] It is useful at this point to address Ms. Bricker’s submission that the court should place little weight on Dr. Levin’s opinion which she submits constitutes advocacy rather than expert opinion. She points in particular to numerous places in Dr. Levin’s report where he appears to editorialize about answers given by Ms. Bricker during his interview of her in a manner that suggests a pre-determined outcome.

[119] Much of the editorializing complained of by Ms. Bricker is directed at questioning whether Ms. Bricker’s complaints are sufficiently serious to meet the diagnostic criteria for PTSD and Major Depressive Disorder and, in this regard, Dr. Levin raises valid issues. However, I agree with Ms. Bricker that the overall focus and tenor of his report, as well as his evidence at trial, crosses the line of what is proper for an expert witness and strays into advocacy.

[120] Without going into great detail about his evidence, some excerpts from his report are illustrative:

a) at p. 4 Dr. Levin suggests that Ms. Bricker has not reported any neurobehavioral or neurocognitive symptoms that “would even remotely be suggestive of any underlying concussive brain injury”;

b) at p. 4 of Appendix A, where he records the results of his interview of Ms. Bricker, Dr. Levin refers to the “significant discrepancy” between her report to him and chiropractic records of past treatments;

c) at p. 5 of Appendix A, he editorializes that the fact that Ms. Bricker enjoys watching National Geographic television programs involving sharks is inconsistent with someone complaining of anxiety; and

d) at p. 5 of Appendix A, he again editorializes that Ms. Bricker’s description of her range of interests is “clearly not suggestive” of someone suffering from a major depressive disorder or PTSD.

[121] While these are but a few examples, they reflect the argumentative nature of his report. I agree with Ms. Bricker that Dr. Levin’s evidence in its entirety lacks the degree of objectivity expected of an expert witness. For that reason, I attach no weight to his report.

$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

Written by admin on July 24, 2015. Posted in ICBC Pelvis Injury Cases, Uncategorized.

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.
In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation. The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation. The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later). In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146] There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147] I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150] I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151] Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.

$160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

Written by admin on January 16, 2015. Posted in ICBC Psychological Injury Cases. 50 Comments on $160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological issues following a collision.
In today’s case (Cornish v. Khunkhun) the plaintiff was involved in an intersection collision in 2010. Both the Plaintiff and Defendant were found equally to blame for the crash. The Plaintiff suffered from a major depressive disorder and somatic symptom disorder following the collision. Her non-pecuniary damages were assessed at $160,000 and in reaching this figure, prior to factoring in the liability split, Mr. Justice Skolrood provided the following reasons:

[131] The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

[132] I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person…

[139] The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

[140] In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

[141] The cause of Ms. Cornish’s confusion and memory loss is less clear as there is no neurological evidence addressing these symptoms. However, I accept Dr. Riley’s opinion that her condition is related to her depressive disorder which I have found was caused by the accident…

[146] Given the ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

"Wholly Inadequate" Stop Sign Placement Leads to Liability for Collision

Written by admin on September 23, 2014. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a construction company largely at fault for the ‘wholly inadequate‘ placement of a temporary stop sign in a construction zone.
This week’s case (Richmond v. Channa) involved a two vehicle collision where the Channa vehicle failed to stop at a stop sign controlled intersection and collided with the Richmond vehicle. While the Court found Channa 25% to blame for the crash the Court held the lion’s share of fault rested with a construction company who blocked visibility to the intersection’s stop sign and placed an inadequate temporary sign in its place. In reaching this apportionment Mr. Justice Skolrood provided the following reasons:

[110] In the case at bar, I find that Tien Sher bears primary responsibility for the accident. It is clear from the evidence that the temporary stop sign, which again was in fact a flag person’s paddle, was placed on the construction fence at a point where the line of the fence had already started to curve to the right or to the north. As such, it was not visible to vehicles travelling west on 107A Avenue until just before those vehicles actually enter the intersection with Ring Road.

[111] Further, the size and placement of the temporary stop sign was wholly inadequate. As noted, it was much smaller than a normal or permanent stop sign. Moreover, its placement on the fence at an awkward downward pointing angle would not necessarily signal to drivers that it was intended to function as a regular stop sign and to control west bound traffic on 107A Avenue.

[112] It is particularly telling that Mr. Pereira and Mr. Mossey, employees of the City, both identified the temporary stop sign as a safety hazard.

[113] Tien Sher’s failure to ensure proper placement and size of the temporary stop sign was compounded by its failure to provide drivers with advance warning of the sign. Such advance warning would have been a reasonable and prudent measure in the circumstances, given that the temporary sign was located well away from where the permanent stop sign was situated and, again, was obscured to drivers.

[114] In the circumstances, I find that Tien Sher’s conduct created an objectively unreasonable risk of harm to drivers of vehicles proceeding west on 107A Avenue towards the intersection (Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 28). I find further that Tien Sher’s negligence caused the accident in that but for its conduct, the accident would not have occurred (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14; Resurfice Corp. v. Hanke, [2007] 1. S.C.R. 333 at paras. 21 – 23 and Clements v. Clements, [2012] 2 S.C.R. 181 at para. 8). In this regard, I accept Ms. Channa’s evidence that had she seen a stop sign, she would have stopped before entering the intersection…

[124] I have already found that Tien Sher bears primary responsibility for the accident. It’s failure to comply with the minimum standards set out in the Manual, due in large measure to the fact that its designated safety officer did not even know of the Manual’s existence, its failure to erect adequate, or any, warning signs, and its wholly inadequate placement and sizing of the temporary stop sign demonstrates a disregard for the safety of drivers using 107A Avenue and constitutes conduct that is significantly more blameworthy than that of Ms. Channa.

[125] I apportion liability 75% against Tien Sher and 25% against Ms. Channa.

$48,000 Non-Pecuniary Assessment For Soft Tissue Injuries With Tinnitus

Written by admin on May 29, 2014. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered soft tissue injuries with associated tinnitus.
In today’s case (Pichugin v. Stoian) the Plaintiff was involved in a modest rear end collision in 2010. Fault was admitted. The Plaintiff was uninjured at the scene but shortly thereafter started to experience neck and back pain. These symptoms largely recovered by 2012. In addition to the soft tissue injuries the Plaintiff suffered from tinnitus which was caused secondary to his whiplash injury. In assessing non-pecuniary damages at $48,000 Mr. Justice Skolrood provided the following reasons:
[66]         I find on the evidence that Mr. Pichugin suffered soft tissue injuries to his neck and back as a result of the accident. Those injuries caused him pain and discomfort for approximately one and a half years after the accident but he improved steadily and his symptoms were largely resolved by the fall of 2012. However, I accept that he continues to experience periodic pain and discomfort in his neck and back, of relatively minor severity, largely related to physical activity…

[71]         I am satisfied that Mr. Pichugin’s tinnitus was caused by the accident. Dr. Longridge’s opinion to this effect is supported by the scientific literature as reflected in the Folmer and Greist paper. Even absent the findings in that paper, Dr. Longridge noted again that physicians have long recognized that whiplash can cause tinnitus. The defendant has not established any other likely, or even possible, cause that would serve to undermine Dr. Longridge’s opinion.
[72]         In terms of the impact of his condition on his activities and lifestyle, Mr. Pichugin testified that he is less able to help his wife with things like vacuuming and grocery shopping. However, it was also clear from the evidence that overall Mr. Pichugin is more active than he was prior to the accident as he has increased his activity level following his heart attack.
[73]         With respect to the tinnitus, he testified that while it sometimes causes him difficulty in getting to sleep, once he is asleep it does not interfere with the quality of his sleep. Moreover, he was unable to say with any degree of certainty how much sleep he loses as a result of the condition. Apart from some disruption while reading, there was no evidence that the condition otherwise interferes with his work or his recreational activities…
85]         In my view, the severity and effects of Mr. Pichugin’s tinnitus are less than what was experienced by the plaintiff in Yang and more in line with the condition suffered by the plaintiff in Maddex. However, Mr. Pichugin’s soft tissue injuries were more severe than those of the plaintiff in Maddex. Taking all of the circumstances into account, I find that an appropriate award of non-pecuniary damages is $48,000.