Tag: Mr. Justice Stewart

Part 7 Benefits Deductions and the "Two Hats" of ICBC


When a Plaintiff is awarded damages following a negligence claim from a BC motor vehicle collision, a Defendant can reduce the amount of damages they have to pay by the amount of no-fault benefits a Plaintiff can claim under their own policy of insurance from ICBC.  As recently discussed, this can result in a very harsh reduction.
The purpose for this deduction is so an accident victim doesn’t ‘double dip’.  That is, a person should not be paid twice for the same accident related expenses.  The reality, however, is that in most BC personal injury trials both the Plaintiff and Defendant are insured by ICBC.  This leads to a built-in conflict of interest.  At trial defence counsel appointed by ICBC will often argue that a Plaintiff’s claimed future medical care needs are not reasonable.  If the Plaintiff is awarded damages for future care the same counsel will then often argue that the award should be reduced as ICBC will pay for these damages under the Plaintiff’s own policy of insurance.
It is difficult to reconcile these two positions.  In 2009 the BC Court of Appeal found that trial judges can consider defence counsel’s trial submissions as a reflection of ICBC’s views with respect to the likelihood of payment of future insurance benefits.  Further reasons for judgement were recently brought to my attention demonstrating this practical approach by trial judges in face of ICBC’s arguments.
In today’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two seperate collisions.   At trial the Plaintiff was awarded damages including $8,000 for cost of future medical care.  The Defendants then argued that all of this should be deducted as ICBC would likely pay these expenses under the Plaintiff’s policy of insurance.
Mr. Justice Stewart disagreed with this submission and in doing so acknowledged the reality that ICBC’s views were likely expressed through counsel at trial and the Court would be “naive” to ignore these.  Mr. Justice Stewart reduced the award by only $100 and in doing so provided the following helpful reasons:
[9]  … whether the kinds of treatment at the cost accepted in my judgement would be paid in their entirety by ICBC is problematic, and the position taken in the tort case by the defendants, – effectively ICBC – with respect to the nature, extent, and source of the plaintiff’s problems.  ICBC is stuck with having to wear two hats – defend the tort action versus administer Part 7 – but I would be naive if I ignored the significance of the position taken in the trial simply because ICBC has no choice but to wear two hats.  The need to be realistic in assessing the ‘uncertainties’ lies at the heart of what the Court of Appeal had to say in Schmitt v. Thomas and in Boota v. Dhaliwal.
As of today’s date Mr. Justice Stewart’s recent judgement remains unpublished but I would be happy to share a copy with anyone who contacts me and requests one.

Damages for Chronic Soft Tissue Injuries "Of No Clinical Significance" Assessed at $75,000


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing damages for chronic pain as a result of soft tissue injuries.
In this week’s case (Jackson v. Mongrain) the Plaintiff was involved in a 2006 collision.  The vehicle he was occupying was rear-ended by the Defendant.  Fault for the crash was admitted.  The Plaintiff was injured in this crash and in support of his case called evidence as to his long-standing symptoms of chronic pain.  The Defendant argued that the Plaintiff had no on-going injuries and in support of this argument pointed to the opinion of Dr. Reebye, a physiatrist hired by the Defence to conduct an ‘independent medical exam‘ who stated that the Plaintiff’s ongoing tenderness was of ‘no-clinical significance’.
Mr. Justice Stewart rejected the defence argument and went on to assess the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In doing so the Court made the following comments:

[24]        Because the point seemed obvious to me, at the end of the case I asked counsel for the defendant whether he conceded that to this day the plaintiff suffers from chronic pain which would not be his lot but for the negligence of the defendant on April 8, 2006.

[25]        The answer was no.

[26]        Why not?  As to that counsel for the defendant grounded his submission on the fact that Dr. Reebye, an expert in Physical Medicine and Rehabilitation, who examined the plaintiff on behalf of the defendant on June 22, 2010, told me that certain areas of tenderness in the plaintiff’s back were of “no clinical significance”.

[27]        The doctor told me that “not of clinical significance” meant that in his opinion what the patient complained of was “not a severe pain or it is localized pain”. Nobody, including me, asked the doctor to tell us anything more about what he meant by “of no clinical significance”. The doctor did make it clear elsewhere in his evidence that he did not doubt that the plaintiff was making truthful statements to him as he, the doctor, went about his examination. I must say that absent testimony to the contrary I assumed then and assume now that all the doctor was saying in using the phrase of “no clinical significance” was that the fact the area in question was tender resulted in a finding of just that, tenderness, and no more.

[28]        To say that that isolated statement by Dr. Reebye stands in the way of the conclusion noted above as to the overwhelming effect of the whole of the evidence makes no sense to me.

[29]        In the result, having recognized the caution that must be taken before finding that a plaintiff is burdened with pain and suffering as the result of soft tissue damage long after the flesh must have healed, I find as a fact that the plaintiff is burdened with chronic pain in the neck and back that would not be his lot but for the negligence of the defendant on April 8, 2006. That finding is based on the cumulative effect of my finding the plaintiff to be a witness upon whom I am prepared to rely, the thrust of the evidence of Dr. Mamacos (Exhibit 2 Tab 7) and Dr. Hamm (Exhibit 2 Tab 2 Page 13) and the absence of a pointed, precise statement by Dr. Reebye to the effect that he is of the opinion that the plaintiff does not suffer from chronic pain and discomfort which chronic pain and discomfort has its head and source in the injuries suffered by the plaintiff in the motor vehicle accident of April 8, 2006…

[53] The plaintiff has endured pain and suffering thus far for call it 57 months. His pain is chronic and I find in all likelihood will be with him to the grave. Dr. Mamacos added that once an individual’s back is injured the chances of what he called “back issues” in the future increase. The plaintiff swims and walks regularly. He exercises. He has had physiotherapy, taken over-the-counter drugs and had massage treatments. Because of the nature of the work the plaintiff did before the motor vehicle accident the fact that the level of his pain and discomfort – looked at in isolation – is not great did not mean he did not suffer a loss or diminishment of the capacity to earn income (see supra). But the fact remains that I would describe his pain and suffering as not intense but more of the nagging variety, i.e., always with him but at a very reduced level and causing real and substantial discomfort only when at work or outside of work he does something which is actually too much for him or when at the end of a workday the cumulative effect of his day’s activities and the state of his neck and back sets in. I find that very bad “flare-ups” occur three or four times a year. He uses over-the-counter drugs (amongst other non-prescription drugs) to assist him, as necessary. I accept that his chronic pain and suffering interferes to an extent with his activities when he is not at work. He limits himself to walking and swimming whereas before the motor vehicle accident he played basketball, rode a mountain bike, played racquetball and went camping and hiking. The evidence of the plaintiff, his mother and of the plaintiff’s friend Gordon Papp satisfies me that because of his problems with his neck and back, the plaintiff does less around the house that he and Gordon Papp co-own than would otherwise be the case. (I note here that I have ignored the evidence of the plaintiff’s friend Chris Kokkonis. The plaintiff’s own evidence convinces me that Chris Kokkonis is a witness who thought exaggerating the nature and extent of the plaintiff’s pain and discomfort would assist the plaintiff. It did not.)  I have considered the case law placed before me by counsel. Having considered the whole of it I award the plaintiff $75,000 by way of damages for non-pecuniary loss.

Diminished Earning Capacity Awards Without Past Wage Loss

(UPDATE February 9, 2012:  The Damages in the below case for Diminished Earning Capacity and Cost of Future Care were reduced somewhat by the BC Court of Appeal on February 9, 2012)

A common misconception is that a person cannot claim for diminished earning capacity (future wage loss) in an ICBC Claim when there has been no past wage loss.  As I’ve previously discussed, this simply is not true.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Morlan v. Barrett) the Plaintiff was injured in two separate motor vehicle collisions.  Fault was admitted by the Defendants in both actions.  The Court found that both crashes caused a single indivisible injury (chronic widespread pain eventually diagnosed as fibromyalgia).
The Plaintiff’s injuries and limitations caused her to change employment to a job that was less physically demanding.  Fortunately, her new job paid a better salary and the Plaintiff had no past wage loss from the time of her first crash to the time of trial.  Her injuries, however, were expected to cause ongoing limitations and the Plaintiff claimed damages for diminished future earning capacity.  Mr. Justice Stewart agreed the Plaintiff was entitled to these damages and assessed the loss at $425,000.  In reaching this assessment Mr. Justice Stewart gave the following useful reasons:
[7] The plaintiff found work at the Electrical Industry Training Institution (EITI) in 2008 and is employed there as a Program Coodinator.  The job is far less demanding and the commute is only 20 minutes.  The job is also far less rewarding in terms of job satisfaction.  Having to change jobs was a huge blow and this will be reflected in the non-pecuniary damages I award later.  By happenstance the plaintiff’s salary actually went up when she switched jobs.  For that reason there is no claim for loss of earning capacity to the date of trial.  But there is a claim for loss of opportunity to earn income – including benefits – in the future…

[17]        Pure happenstance resulted in her suffering no loss of income to the date of trial, i.e., she got a less demanding job which happened to pay more than her job at the B.C. Fed.  But a reduction in her capacity to earn income has been made out.  Her having to give up her job at the B.C. Fed demonstrates that the circle of secretarial or administrative positions for which she could, if necessary, compete has been narrowed.  (Exhibit 6, a “Functional Capacity Evaluation” and Exhibit 5, the report of an “Occupational Health Physician” simply confirm the obvious.)  To put it in familiar terms:  she is less marketable as an employee; she is less capable overall from earning income from all types of employment; she has lost the ability to take advantage of all job opportunities which might otherwise have come her way; and she is less valuable to herself as a person capable of earning income in a competitive labour market (Rosvold v. Dunlop, 2001 BCCA 1 at paragraph 10).  The live issue is whether there is a real and substantial possibility that the reduction in her capacity to earn income will in fact result in lost income – including benefits – in the future (Sobolik v. Waters, 2010 BCCA 523, paragraphs 39-43).

[18]        As noted earlier, having considered the whole of the evidence placed before me I rely on the evidence of the plaintiff’s family physician, Dr. Beck, as I peer into my crystal ball and consider the plaintiff’s future.

[19]        The fact that the balance of the medical evidence does not replicate what Dr. Beck said at Exhibit 4 page 6 – that the plaintiff has “plateaued even slightly worsened over the past year” – and indeed the evidence of the rheumatologist, Dr. Shuckett is quite different – is neither here nor there as having considered the whole of it I say as the trier of fact that Dr. Beck was an impressive, thoughtful witness of great experience who offered up her opinion against a background of having dealt with the plaintiff for 25 years and, more particularly, having had close supervision of the plaintiff’s medical condition since January 6, 2007 and the advent of the motor vehicle accidents.  In saying that I have not lost sight of the fact that Dr. Beck has in fact retired.

[20]        Having considered the whole of the evidence together, I say that three real and substantial possibilities have been made out:  that the plaintiff’s condition will improve; that the plaintiff’s condition will remain as it is; and that the plaintiff’s condition will worsen.  In “giv[ing] weight according to their relative likelihood” to these three hypothetical events I find that the possibility of her condition improving barely rises above mere speculation and that the possibility of her remaining the same and the possibility of her condition worsening are both great (Athey v. Leonati, [1996] 3 S.C.R. 458 at paragraph 27).

[21]        I find that there most certainly is a real and substantial possibility that the reduction in the plaintiff’s capacity to earn income will result in lost income – including benefits – in the future.  Beyond the fact that nothing in life is certain and that she may yet find herself on the job market there is the real and substantial possibility that even if she remains in her current job until the end of her working career, her working career will end earlier than it would otherwise have absent the effects on the plaintiff of the defendants’ negligence.  That is so because it is a real and substantial possibility that her fibromyalgia will remain as it is but common experience dictates that as one moves into one’s latter years the ability to work in spite of a condition that drains one’s energy diminishes.  Independently of that, it is a real and substantial possibility that the plaintiff’s fibromyalgia – and with it loss of energy – will worsen.  I make that finding having considered the whole of the evidence including that of the plaintiff as to her recent experience and of all of the doctors and concluded as the trier of fact that I rely most on the evidence of Dr. Beck.

[22]        I take into account factors beyond those that relate to the state of the health of the plaintiff and her ability to work.  The plaintiff has established a real and substantial possibility – not mere speculation – that had she not had to forfeit her job at the B.C. Fed she would have, within a few years of the date of the motor vehicle accidents, taken advantage of an opportunity to perhapsmove up in the hierarchy of the B.C. Fed to the point of becoming a Director and with that received an increase in salary and benefits.  That is the net effect of the evidence of the plaintiff and of Lynda Bueckert.  Moreover, as of January 6, 2007 the plaintiff had to assume that she would retire from the B.C. Fed when she turned 65.  After January 6, 2007 the law changed.  I find that the plaintiff’s love for her job at the B.C. Fed combines with my picture of what she was before January 6, 2007 and results in my accepting her evidence to the effect that it is a real and substantial possibility that absent the defendants’ negligence she would have continued to work at the B.C. Fed even after she had turned 65.  I have considered the positive and negative vagaries of life, i.e., the contingencies.  Having considered the whole of it I award the plaintiff $425,000.

ICBC Injury Claims and Lack of Continuous Medical Complaints


Individuals who suffer long-term chronic pain following a motor vehicle collision often attend frequently for treatment to their general practitioner.   These visits generate ‘clinical records‘ which generally document the patients complaints.
These clinical records are usually produced in the course of a subsequent personal injury lawsuit.  ICBC defence lawyers scrutinize these records and see if they can poke a hole in the Plaintiff’s case.  A common tactic is to review these records and see if the Plaintiff complains of the same symptoms at each and every visit.  If not, ICBC may argue that the Plaintiff recovered since there is a lack of continuous complaint.  So, does this mean an injured Plaintiff should make sure they discuss their accident related complaints each and every time they see their doctor?  The answer is no and reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing some of the reasons why this is not necessary.
In this week’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two motor vehicle collisions in 2006.  She was not at fault for either and the trial focused on the value of her ICBC claims.   During the course of trial ICBC’s lawyer argued that the Plaintiff was not credible and that her in Court testimony of chronic pain was contradicted by “temporal gaps” in the Plaintiff’s doctors clinical records.  Mr. Justice Stewart was quick to dismiss this attack and provided the following useful comments in response to the Defendant’s argument:

[9]             Another wing of the defendants’ attack on the plaintiff’s testimonial reliability – more particularly sincerity – focused on what the defendants say is the disparity between the plaintiff’s telling me, in effect, that her pain and suffering in the neck, shoulders and back has been present, persistent and continuous since the first motor vehicle accident in April 2006 and what the defendants describe as telling temporal gaps in what the plaintiff complained of when she was seen by her family doctor, Dr. Sun, over the years.

[10]         The plaintiff, in effect, told me that on any given occasion when she saw Dr. Sun and had her few minutes in the examining room that she went straight to only what was her most significant problem or complaint that day. I accept that. It makes sense in light of how our medical system functions today. Also I infer from the whole of Dr. Sun’s testimony that it was her practice to let the patient take the initiative and that she did not invite the patient to lodge a bill of complaints. Last, I note that – as will become clear later in these Reasons for Judgment – throughout the four years in question in the case at bar the plaintiff has been a woman beset with a myriad of problems for which she sought help or advice from caregivers, only some of which were neck, back and shoulder problems.

Mr. Justice Stewart went on to award the Plaintiff $75,000 in non-pecuniary damages for her accident related injuries.  This case is also worth reviewing in full for the Court’s lengthy discussion of Plaintiff “credibility” and “testimonial reliability” which is set out at paragraphs 5-17.

Medical and Transportation Costs Need To Be Assessed "In The Real World"


When suing an at fault party in a personal injury claim the Plaintiff is entitled to compensation for their reasonable medical expenses.  These expenses may include the cost of driving to and from various medical and therapy appointments.  How much is a reasonable amount to claim for transportation costs?  Reasons for judgement were released today addressing this topic.
In today’s case (Greewal-Cheema v. Tassone) the Plaintiff was injured in a 2007 BC motor vehicle accident.  Her vehicle was rear-ended.  Fault was admitted by the rear motorist.  The trial focused on the value of her ICBC claim.
The crash caused soft tissue injuries which largely recovered by the time of trial and the Plaintiff was awarded $25,000 for her pain and suffering.  In the course of recovering from her injuries the Plaintiff attended various therapies and claimed reimbursement at $0.50 per kilometer for the travel incurred in driving to and from these appointments.  ICBC argued that this was excessive and that no more than $.30 per kilometer should be allowed.  Mr. Justice Stewart disagreed with ICBC and found that the Plaintiff claimed a reasonable amount for her mileage related expenses.  In reaching this conclusion the Court provided the following useful comments:
[60] The plaintiff claims special damages of $2,683.50.  The defendants take issue with only a few things.  The defendants say that the amount allowed for mileage should be $.30 per kilometre not $.50 per kilometre.  Both counsel refer to the Schedules that form part of the Rules of Court.  I am not bound by the Rules on this point.  I say that what matters is that judges live in the real world.  In this day and age $.50 per kilometre is, if anything, too little.  I am against the defendants.  $.50 per kilometre it will be.  The defendants also made a submission about the period June 5, 2008 to August 25, 2008 and what the plaintiff was about during her “voluntary work strengthening program”.  Simply put, I found the defendants’ submission unconvincing.  I accept the plaintiff’s testimony to the effect that she worked hard and diligently and treated what she was about as if it were her job.  In the result I award the plaintiff $2,683.50 by way of special damages.

More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

$60,000 Non-Pecuniary Damages for Accident Related Fibromyalgia

(Please note the case discussed here was overturned by the BC Court of Appeal in May, 2010)
Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry, (Poirier v. Aubrey) awarding a Plaintiff just over $220,000 in total damages as a result of a BC Car Crash.
The Collision occurred in 2006 and was a rear-end crash.  The Plaintiff suffered from some pre-existing injuries but the trial judge found that the Plaintiff did not have a ‘relevant’ pre-existing condition.  Mr. Justice Stewart concluded that the accident caused fibromyalgia and awarded $60,000 non-pecuniary damages.  In arriving at this figure Mr. Justice Stewart noted the following:
there was no relevant significant pre-existing condition and the doctors may differ as to what label should be applied to the plaintiff’s condition – fibromyalgia, fibromyalgia-like syndrome, chronic pain condition – but the fact is that she suffers from chronic widespread pain that is, for her, debilitating and with respect to which the prognosis is guarded.  An “optimal fibromyalgia based treatment protocol”, including biofeedback, is recommended and there is a real and substantial possibility, bordering on likelihood, that her pain and discomfort will be relieved and her functioning improved.  (Exhibit 5 Tab B Page 6).  But no “cure” is in prospect…
I find as a fact that the plaintiff’s persistent, consistent and, ultimately, chronic pain and suffering arose only immediately after the September 5, 2006 motor vehicle accident.  The schism in the expert medical evidence placed before me was not as to whether the September 5, 2006 trauma was a materially contributing cause of the plaintiff’s ongoing chronic pain condition but as to whether it so contributed by exacerbating a pre-existing chronic pain condition or by simply triggering a chronic pain condition.  It is now a fact that there was no significant pre-existing condition.  The only available conclusion in the case at bar is that but for the defendant’s negligence on September 5, 2006 the plaintiff would not be burdened with the chronic pain condition that has been her lot since September 5, 2006.

[23] Soft tissue damage is the source of her problems.  I have kept Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) in mind.  I find that the plaintiff is one of that small percentage of people, well known to the law, whose pain and suffering continues long after science would say that the injured tissue must have healed.  I have cautioned myself about the need to be slow to rely on what are uncorroborated reports of long-standing pain and discomfort.  But, on the whole of the evidence I have decided that her complaints of pain are true reflections of a continuing injury and are not a product of desire by the plaintiff for things such as care, sympathy, relaxation or compensation and that she has used every ounce of willpower she has to overcome her problems and could not reasonably be expected to have achieved more by her own inherent resources or willpower.  (Maslen v. Rubenstein,supra, paragraphs 8 and 15).

[24] I turn to the future.

[25] To use language employed by Dr. Jaworski, the prognosis is “guarded”.  Taken together, the evidence of Dr. Hyams, Dr. Shuckett and Dr. Jaworski bottoms the conclusion that what is now in place – an ongoing, positive, pro-active approach, to echo Dr. Shuckett – means that there is a real and substantial possibility that significant improvement is in the offing.  To date, the plaintiff has sought help in such things as prescription drugs, chiropractic treatments, physiotherapy, massage, acupuncture and trigger point injections.  Only now is the plaintiff in the course of an organized effort to both alleviate her pain and discomfort to the extent possible and teach her techniques and methods of dealing with and surmounting her pain and discomfort.

[26] I turn to the assessing of non-pecuniary damages.  The plaintiff has been burdened thus far for 39 months.  Her prospects are not bleak, but guarded.  The level of the pain and discomfort she has endured was such that her life apart from work has been turned from one full of activity to one devoted to rest and recovery.  She is not housebound.  She drives a car for up to 20 hours a week and makes herself useful in the lives of her children.  The level of her pain and discomfort resulted in this woman – whom I am convinced is not a slacker and enjoyed her job in the world of insurance adjusting – being off work for six weeks, returning to work at half-time for two months and, ultimately, stopping work after having her employer cooperate in every way possible to reduce the demands of the job so that she could continue working.  That speaks volumes about her condition.  Additionally, the fact she actually enjoyed her work and has had it curtailed as a result of the defendant’s negligence must weigh heavily in the assessment of non-pecuniary damages.  I have considered the cases placed before me by counsel.  To track some of the language used in Knauf v. Chao, 2009 BCCA 605, I classify this as a case in which there is a real and substantial possibility that the plaintiff’s soft tissue injury will prove to be “permanent” but the degree of pain and discomfort cannot be considered to be “the most severe in nature” when compared with that of plaintiffs in other such cases.  Taking into account not just what I have said here but the whole of the evidence and all I have said thus far in these reasons for judgment, I award the plaintiff $60,000 by way of non-pecuniary damages.

This case was interesting for Mr. Justice Stewart’s very specific reasons setting out why he rejected many of the defence positions advanced at trial and also for the Court’s discussion of the law of adverse inference for failing to call a treating physician in an injury claim.

The Art of Valuing Pain and Suffering in ICBC Injury Claims

Today reasons for judgment were released by the Vancouver Registry of the BC Supreme Court in 2 separate Injury Claims where Pain and Suffering was valued.  In each case the Plaintiffs suffered different injuries which affected their respective lives to different degrees.  Yet both Plaintiffs were awarded exactly $55,000 for their non-pecuniary damages.  How can this be?  The answer is that valuing claims for pain and suffering is an art, not an exact science.
When asking a personal injury lawyer how much a claim for pain and suffering is worth it is difficult  if not impossible to value a claim at an exact dollar figure.  The only accurate answer is “whatever the judge or jury gives you“.  Instead of attaching an exact dollar figure to any claim personal injury lawyers learn that claims can best be valued within an approximate range of damages.  One judge can award a plaintiff $50,000 for a disc herniation and another can award a plaintiff with the exact same injuries $80,000 and there is nothing wrong in law with this so long as the award falls within the accepted range of damages for similar injuries.
Today’s cases demonstrate this quite well.  In the first case (Morrison v. Gauthier) the Plaintiff was injured in a 2006 BC Car crash.  Her vehicle was rear-ended in Coquitlam BC.  The Defendant was fully at fault for the crash.
The Plaintiff suffered fairly severe injuries which included an L4-5 disc herniation which from time to time “puts pressure on the L4 nerve root and that the result for the plaintiff is not just pain in the low back – which is always her lot – but intense pain that, amongst other things, travels down the back of her leg“.  In addition to this the Plaintiff suffered soft tissue injuries and a concussion in the collision.
Mr. Justice Stewart found that the effects of the Plaintiff’s back injuries were likely permanent and had a rather profound impact on her.  He stated that “the effect…on the Plaintiff’s life was dramatic…her capacity to (keep her work and home environment in order) has been severely reduced . ”  He went on to find that the Plaintiff was incredibly athletic before the collision and “was a woman who on the basis of the evidence placed before me, I can only describe as a dynamo” and as a result of the car crash “she became…ornery.  She withdrew from her friends.  She became moody and – stunning for her – one who sat idly watching television and gaining unwelcome weight.  To some extent she became – utterly new to her – a chronic complainer.”  Lastly he stated that (the defendant) “managed to reduce a woman operating at an athletic level undreamt of by 99% of the population to a woman who must now, often, be helped out of a chair.  (the Plaintiff’s) compensable loss if overwhelming“.
Mr. Justice Stewart awarded the Plaintiff $55,000 for her non-pecuniary damages.,
In the second case (O’Rourke v. Kenworthy) released today by the BC Supreme Court the Plaintiff was involved in a 2004 BC Car Crash.  The Defendant was 100% at fault.  Madam Justice Wedge found that the Plaintiff was injured in the crash.  Specifically the court found that the Plaintiff suffered from neck and back pain which was “severe for several months, which then alleviated considerably over the next year or so.”  The Plaintiff curtailed many of the physical activities which she enjoyed by after about a year she “resumed most of these activities despite continuing ot experience pain“.   By the time of trial she “continued to have pain in her neck and back, but it is not disabling.  She has been able to work, and she is currently able to work.  She participates in numerous sporting activities and continues to hike, which is her first love.  She has continued to travel extensively.   No medical professional offered the opinion that (the Plaintiff’s) pain is chronic in nature, or that it is caused by anything other than soft tissue injuries.  They all agreed that her symptoms are expected to improve and will likely resolve gradually over time…At most (the Plaintiff) is at risk of suffering exacerbation’s of her pain if she engages in certain rigorous activities.”
Scrutinizing the facts of the above two cases the first Plaintiff appears to have suffered more severe injuries which had a more profound effect on her life.  Yet both were awarded the exact same figure for pain and suffering.  This does not necessarily mean that either award was wrong in law, rather the difference can readily be explained by the fact that pain and suffering awards are assessed within rather large ranges of acceptable damages.  A more severe injury valued on the lower end of its respective range of damages can equal a more minor injury valued on the generous end of its range.
In the end, cases like this speak to the art of assessing pain and suffering in BC Injury Claims.  As with any art ‘feel‘ becomes important and this is gained through time and experience.  The more cases you read, the better you will get at the art of valuing non-pecuniary damages and determining the potential value of any given BC Injury Claim.

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If you would like further information or require assistance, please get in touch.

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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