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Tag: Mr. Justice Truscott

$50,000 Non-Pecuniary Assessment for Aggravation of "Active Back and Neck Pain"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Dhaliwal v. Pillay) the Plaintiff was involved in two collisions, the first in 2010, the second in 2011.  The Defendants admitted fault for both crashes.  Prior to the collisions the plaintiff fell off a ladder and injured his neck and back and had ongoing symptoms from this injury.  The Court found the collisions aggravated these pre-existing injuries.  In assessing non-pecuniary damages at $50,000 Mr. Justice Truscott provided the following reasons:

[223]     I am completely satisfied from the medical evidence that Mr. Dhaliwal hurt his back and neck in the 2008 ladder fall and it caused him significant continuing pain right up to and including to the time of the first motor vehicle accident.

[224]     It is my conclusion the two motor vehicle accidents only aggravated or exacerbated his existing active back and neck pain that preceded the first accident.

[225]     The applicable law has been set out by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458 where Mr. Justice Major, writing for the Court, said this at p. 473:

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.

[226]     Mr. Dhaliwal has pre-existing active back and neck pain which was due to degenerative changes in his spine and injury from the ladder fall, as well as arthritis in his hands and knees, and with Mr. Dhaliwal having only aggravated his back and neck pain in the two motor vehicle accidents and sustained headaches and right groin pain and right ankle pain, I consider an appropriate award for pain and suffering to be $50,000.

$80,000 Non-Pecuniary Assessment For Mild, Chronic Thoracic Outlet Syndrome

In the latest addition to this site’s Thoracic Outlet Syndrome caselaw database, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for mild but chronic TOS.
In this week’s case (Minenko v. Minenko) the Plaintiff was injured in a 2009 intersection collision.  The at fault driver admitted responsibility.  The Plaintiff developed a mild but persistent Thoracic Outlet Syndrome which remained symptomatic at the time of trial.  In assessing non-pecuniary damages at $80,000 Mr. Justice Truscott provided the following reasons:
[27]         Dr. Shuckett saw the plaintiff on August 2, 2013 and says that the plaintiff has probably achieved maximum medical recovery and will be left with her current symptoms.
[28]         She says the plaintiff is not disabled from work although it may be more difficult for her and she should do regular walking and some regular aerobic exercises that do not over-use her upper body and arms.
[29]         Dr. Shuckett also suggests flexeril pills to decrease muscle spasm and assist the plaintiff in sleep, along with local trigger point injections and/or Botox injections into the area of muscle spasms in the right neck and shoulder girdle region could be considered.
[30]         Injection therapy, if it works, in her opinion has to be repeated every six months or so which applies to any Botox injections as well…
[38]         At trial, she says she believes she is qualified to diagnose thoracic outlet syndrome but defers to Dr. Salvian for the ultimate opinion on this as he is the primary expert on it.
[39]         At trial, she strengthens her opinion somewhat by saying she believes the plaintiff has mild thoracic outlet syndrome.
[40]         The plaintiff says she also initially suffered from anxiety attacks in the night, but only occasionally does so now. Currently, she says she has headaches and constant dull pain in her right arm, as well as the right shoulder and right upper back area. Any physical activities cause her pain in her right arm and this increases over a busy day.
[41]         She takes Advil during working hours but continues working…
[81]         There is no evidence her injuries can be alleviated through surgery but some of the pain may be ameliorated through the use of Botox…
[100]     I have reviewed all of the cases cited to me by both counsel on the issue of non-pecuniary damages and in my view, the sum of $80,000 is an appropriate amount to award the plaintiff for her pain and suffering and loss of enjoyment of life and as well for her loss of housekeeping ability.

Undeclared Income And Tort Recovery Difficulties

Although income loss from ‘undeclared’ sources is recoverable in a BC personal injury claim attempting to do so can create some practical difficulties.  First off testifying to actual income differing from declared income can open the door to consequences to Revenue Canada.  Second, proving the loss can become a real barrier for a Plaintiff.  This second concern was highlighted in reasons for judgement released recently by the BC Supreme Court, Prince George Registry.
In the recent case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle accident.  While much of her claim was rejected at trial the Court did accept that she suffered from some injury and wage loss.   The Plaintiff worked in the food service industry and derived some of her income in tips.  Her tips were undeclared.  The Court did not accept the level of loss that the Plaintiff testified to and in doing so the Court provided the following comments highlighting the difficulty in assessing losses based on undeclared income:
[396]     Her only irregular employment was as a server in bars from time to time where she earned minimum income supplemented with undeclared income from tips.
[397]     Undeclared tips is a commonplace occurrence for young people working in the food service industry, although it makes it more difficult to determine the plaintiff’s actual pre-accident income when the only evidence of the value of the tips comes from her “estimate” at trial, unsubstantiated by any written record.
[398]     The plaintiff possessed a certificate from a medical terminology course that she never used, and says she had aspirations to go to hairdressing school although she had not made any inquiries or taken any steps towards that end.
[399]     I am unable to assess her pre-trial loss of income claim on any other basis than her history of earnings from the food service industry, using her income tax information, and adding a somewhat arbitrary amount for tips that I will accept she was receiving but not reporting, for the time period in which I conclude she was incapable of returning to that work because of injuries related to the accident.
[400]     I have found that the plaintiff recovered from her disabling pain from the accident by the end of 2008, and by that point in time her pre-existing psychiatric illnesses had settled back to their pre-accident level and were no longer exacerbating her physical pain.
[401]     The plaintiff says she intended to continue working at Steamers Pub until September 2008 and then go to hairdressing school.
[402]     She was making approximately $660 per month in 2008 from Steamers Pub, up to the time of the accident, from her income tax records.
[403]     In addition she says she was making about $900 per month from undeclared tips.
[404]     I am not prepared to accept a figure of $900 per month for tips without some independent proof. I will accept an amount of half that number of $450 per month for tips.

Facebook Photos Assist in Challenging Injury Claim

In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.
In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision.  Liability was admitted by the defendant.  The Plaintiff advanced a claim alleging longstanding and disabling physical injuries.  The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim.  Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence:
 [107]     She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time…
[331]     …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage…
[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.
[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.

No Adverse Inference Where Witness in Question Called by Opposing Party

Adding to this site’s archived cases dealing with the ‘adverse inference‘ principle in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this principle when a Plaintiff failed to call a treating physician.
In last week’s case (Frech v. Lanlgey) the Plaintiff was injured in two collisions which caused soft tissue injuries which lingered to the time of trial.  Global damages of just over $35,000 were awarded.  In the course of the litigation the Plaintiff obtained a report from a treating physician.  The Plaintiff did not rely on the report at trial nor did the Plaintiff call the physician as a witness.  The defence did call the physician allowing the Plaintiff to have the benefit of cross-examination.  The defence argued that an adverse inference should be drawn in these circumstances.  Mr. Justice Truscott disagreed and provided the following reasons:

[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.

[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.

[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.

[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.

[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.

[247] Therefore I decline to draw any adverse inference.

$40,000 Non-Pecuniary Assessment for L5-S1 Disc Herniation

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for injuries, including a symptomatic L5/S1 disc herniation sustained in a motor vehicle collision.

In the recent case (Pataria v. Bertrand) the Plaintiff was involved in a collision when he was 12.  Fault was admitted by the offending motorist.  Although the Court heard competing evidence about the cause of a low back disc injury Mr. Justice Truscott ultimately found this was caused by the trauma in the collision.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[171] I accept that the plaintiff sustained soft tissue injuries to his neck and back area, with accompanying headaches, in the motor vehicle accident. I also accept that initially he had symptoms of post-traumatic stress, difficulty falling asleep and hypervigilance, although those problems quickly resolved.

[172] I conclude however that physically the plaintiff is not as injured as counsel makes out. He is able to swim regularly and work out with weights in the gym.

[173] After the accident he was able to return to his sports of soccer, basketball and volleyball, albeit not at the same level of performance.

[174] At his examination for discovery on July 22, 2010 he said he was only feeling back symptoms once or twice a week.

[175] It is also a fact that initially he did not accept the recommendations of Dr. Low that he work harder at recovery although he has improved his effort as time has gone on.

[176] I accept the opinions of Dr. Purtzki that the plaintiff has evidence of allodynia and hyperalgesia and seems to experience non-painful stimuli as painful and mildly painful stimuli as more painful, as a generalization to the area of pain. This is commonly seen with ongoing chronic pain complaints. At the same time she says he may experience gradual improvement of pain in the next few years.

[177] I also accept her opinion that it is more likely than not that the motor vehicle accident is the cause of the disc protrusion which is most symptomatic at L5/S1. Her analysis of the medical literature indicates that in a young man such as the plaintiff disc herniation is much less likely to occur without trauma and the plaintiff’s low back complaints here arose following the motor vehicle accident…

[191] I consider an appropriate figure for general damages for this plaintiff, in the absence of any evidence from a spine surgeon and any prognosis for the psychological problems, to be $40,000.

Private MRI Cost Disallowed in Personal Injury Claim

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, disallowing the cost of a private MRI as a special damage in a personal injury claim.
In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  In the course of the Plaintiff’s lawsuit the Plaintiff obtained three private MRI’s.  The Plaintiff advanced the costs of these MRI’s as special damages at trial.  In declining to compensate the Plaintiff for these expenses Mr. Justice Truscott provided the following brief reasons:
[192] I decline to award anything for the three MRIs because the plaintiff decided to do these on his own, when Dr. Hobson told him that they were not medically indicated. In the circumstances there is no evidentiary basis for such an award.
It is worth pointing out that the costs associated with Private MRI’s can be recovered in a personal injury claims if a medical practitioner gives evidence that the expense is reasonably incurred for a valid medical purpose related to the claim.

$40,000 Non-Pecuniary Damages for "Mild" Sacroiliac Joint Injury

Reasons for judgment were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a long-standing sacroiliac joint injury.
In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  He suffered various injuries the most serious of which was a strain to his sacroiliac joint.  His symptoms largely recovered although mildly continued through trial and were expected to linger into the future.  In assessing non-pecuniary damages at $40,000 Mr. Justice Truscott provided the following reasons for judgement:

154] I accept the opinion of Dr. McGraw that the plaintiff sustained a strain of his left sacroiliac joint and I reject the opinion of Dr. Watt that it was rather a soft tissue injury to his left iliopsoas muscle and his left piriformis muscle.

[155] Dr. Watt may not have diagnosed a sacroiliac joint strain but he was not prepared to disagree with Dr. McGraw’s diagnosis of that.

[156] Dr. McGraw proved his diagnosis through the image-guided diagnostic block of the joint on March 3, 2009 and October 22, 2009.

[157] In his report of July 24, 2008 Dr. McGraw diagnosed grade 1 soft tissue injury to the lower back area and Dr. Watt in his report of February 9, 2011 also described complaints of non-radiating low back pain at the time of his assessment of January 17, 2011. To that extent the diagnosis of both doctors is similar…

[159] I am prepared to accept some present minor low back injury related to a strain of the left sacroiliac joint causing mild pain at times of prolonged lifting, bending or crouching but I also do not consider that this pain has been disabling to any of the plaintiff’s activities at all…

[163] Although Dr. McGraw says that consideration could be given to a surgical fusion or arthrodesis of the left sacroiliac joint if the joint pain is not managed in the long-term by conservative treatments such as injections, or doing nothing and becoming fit, he does not recommend surgical intervention.

[164] With this opinion of Dr. McGraw that I accept I do not consider the chance of surgical intervention to be at any level sufficient for an award of compensation.

[165] I am satisfied from all the evidence that the plaintiff’s effort to become more fit through his own exercise routines is working sufficiently to resolve the strain in his left sacroiliac joint and any related low back soft tissue injury.

[166] I decline to apply any adverse inference against the plaintiff for failing to call Dr. Feldman, a physiatrist who attended on him. The plaintiff says he was simply told, as Dr. Parkin had told him, to rest. Even if I were to apply any adverse inference I would not know what that inference would be other than the opinion would be no different than all the evidence I have heard.

[167] I am prepared to accept that the plaintiff’s complaints have continued for over four years, but at a mild level, and I consider an appropriate award of non-pecuniary damages for pain and suffering and loss of enjoyment of life should be in the amount of $40,000.

For other recent BC Caselaw dealing with non-pecuniary damages for sacroiliac joint injuries you can click here to access my archived posts.

$80,000 Non-Pecuniary Award for Chronic Shoulder Injury; Bradley v. Groves Applied

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a shoulder injury caused by a motor vehicle collision and subsequently aggravated by an at-work incident.
In last week’s case (Kaleta v. MacDougall) the Plaintiff was injured in a 2008 collision.  Fault was admitted by the Defendant.  As a consequence the Plaintiff suffered from “chronic neck and left shoulder pain”.  The symptoms were due to soft tissue injury and there was a “moderate probability” for long lasting symptoms.
Prior to trial the Plaintiff aggravated his shoulder in an at-work incident.  He made a WorkSafe Claim as a consequence.  ICBC argued the damages need to be reduced as a result.  Mr. Justice Truscott disagreed relying on the BC Court of Appeal’s decision Bradley v. Groves.  In assessing damages at $80,000 the Court provided the following useful comments:

[33] In Dr. McAnulty’s last assessment on March 3, 2011 the plaintiff again reported with chronic neck and left shoulder pain, worse at night. His prior knee and back pain had resolved.

[34] Dr. McAnulty’s diagnostic impression at the time was of chronic myofascial pain post motor vehicle accident affecting the left neck and shoulder and the plaintiff was advised to continue with activity as tolerated.

[35] In his summary and conclusions in his report of March 6, 2011, Dr. McAnulty says that despite the many interventions the plaintiff still remains symptomatic and now has more likely than not reached the point of maximum medical improvement, especially since two and one-half years have elapsed since the motor vehicle accident. He says the plaintiff may well suffer chronic myofascial pain in the future…

[57] I accept the opinion of Dr. McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury…

[61] As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361)…

[63] It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr. McAnulty’s report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.

[64] It is my conclusion that Dr. McAnulty considers the shoulder pain to be a chronic or long-lasting pain as a moderate probability, and I will assess the plaintiff’s damages on that basis…

[70] I award the plaintiff $80,000 for general damages for pain and suffering and loss of enjoyment of life.

Court Finds Abuse of Process for Liability Denial After Careless Driving Conviction

Useful reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, finding that it is an ‘abuse of process‘ pursuant to Rule 9-5(1)(d) for a Defendant to deny the issue of liability in a personal injury lawsuit after they have been convicted of careless driving as a result of the same collision.
In this week’s case (Ulmer v. Weidmann) the Plaintiff’s husband was killed when his motorcycle was struck by a vehicle operated by the Defendant.  The Plaintiff sued for damages pursuant to the Family Compensation Act.
Following the collision the Defendant was charged with “driving without due care and attention” under section 144(1)(a) of the BC Motor Vehicle Act.  He contested this charge but ultimately was found guilty following trial in the BC Provincial Court.
The Defendant then denied fault for the crash in the Wrongful Death lawsuit and claimed the Plaintiff was partly responsible.  Mr. Justice Truscott rejected this argument and found the Defendant solely responsible for the fatal collision.  The Court went further and found that while a party convicted under s. 144(1)(a) of the Motor Vehicle Act can argue an opposing motorist is partly to blame for a crash, it is an abuse of process for the convicted party to outright deny the issue of fault.  The Court provided the following useful reasons:

[83]         In my opinion the finding of driving without due care and attention in Provincial Court was akin to a finding of negligence against Mr. Weidmann, because his manner of driving was found to have departed from the standard of a reasonable man and he failed to avoid liability by proving he took all reasonable care in the circumstances.

[84]         I agree with plaintiff’s counsel that it was an abuse of process for the defendants to deny full liability in their statement of defence as this constituted an attempt to re-litigate the findings of the Provincial Court that were necessary for Steven Weidmann’s conviction of driving without due care and attention. This was an attempt to undermine the integrity of the adjudicative process which is not to be allowed.

[85]         I do not conclude however that the findings essential to Mr. Weidmann’s conviction in Provincial Court prevented Mr. Weidmann from alleging contributory negligence against Mr. Ulmer in this action…

[91]         While I have decided that there was no negligence on Mr. Ulmer contributing to the collision, based upon the evidence that I have accepted, I cannot say that this was a defence advanced in bad faith for the ulterior purpose of emotionally disturbing the plaintiff and putting pressure on her to settle at a figure favourable to the defendants.

[92]         Although I have concluded that it was an abuse of process by the defendants to deny liability completely, they were not guilty of an abuse of process in maintaining the defence of contributory negligence of Mr. Ulmer at all times.

The Plaintiff was ultimately awarded damages for her accident related losses and these included $10,000 for ‘nervous shock’.  Paragraphs 97-215 of the Reasons for Judgement are worth reviewing for Mr. Justice Truscott’s thorough review of the law of nervous shock claims.

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