Tag: Mr. Justice Truscott

Binding ICBC Claims Settlements: Lawyers and Client Consent

Written by admin on November 25, 2010. Posted in Settlement Law, Uncategorized. 46 Comments on Binding ICBC Claims Settlements: Lawyers and Client Consent

(Update: The case discussed in the below post went to trial on February 15, 2011 with reasons for judgement released on February 18, 2011 with Mr. Justice Truscott finding that no binding settlements were entered into).
As previously discussed, lawyers act as agents for their clients and can enter into a binding settlement even if their client did not instruct the lawyer to do so. (This, of course, would be improper and I address this at the bottom of this post). Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, further demonstrating this reality.
In this week’s case (Johnson v. Wells) the Plaintiff was involved in 2 motor vehicle collisions. She hired a lawyer to deal with one of these claims. In the lawyers dealings with ICBC he settled the claim that he was retained for apparently with his clients instructions. However, a disagreement arose as to whether the settlement covered the second claim. ICBC alleged that the lawyer entered into a settlement agreement for both claims. The lawyer disagreed. The BC Supreme Court was asked to decide whether there was a binding settlement.
The Plaintiff gave evidence that she “had not even retained (the lawyer for the second claim)…I had no intention of settling that claim and I did not instruct (my lawyer) to settle that claim“. Ultimately the Court deemed that there was not enough information to decide whether there was a settlement for the second claim and that ICBC’s adjuster needed to be cross examined. The reasons for judgment, however, do not focus on whether the client consented, rather, on the communications between the lawyer and ICBC and what was agreed to regardless of the client’s instructions. In ordering that ICBC’s adjuster be cross-examined Mr. Justice Truscott provided the following reasons:

[40] I have concluded that the plaintiff’s application to cross-examine Adjuster Johnston on her affidavit should be allowed.

[41] The cross-examination will be restricted to why Adjuster Johnston attributed $5,000 to the 2006 accident and $2,500 to the 2008 accident, what was said between her and Mr. Albertson about the 2008 accident and its settlement, why she thought Mr. Albertson was retained by the plaintiff or the 2008 accident, what discussion there was between the two of them on the terms of the release, and what discussion there was between the two of them on settlement of any Part 7 benefits claim.

[42] I see no usefulness in questioning Adjuster Johnston about Mr. Albertson’s authority to settle the 2006 accident because he clearly had that authority from the plaintiff given the plaintiff’s affidavit evidence.

Implicit in this judgment is that a binding settlement could have been entered into, regardless of the client instructions, depending on the discussion between the lawyer and ICBC.
If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim. In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so. As previously discussed, a best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.

Indivisible Injuries in Action

Written by admin on October 6, 2010. Posted in ICBC Brain Injury Cases, Uncategorized. 59 Comments on Indivisible Injuries in Action

As I recently discussed, the law in British Columbia requires a Defendant to compensate a Plaintiff for any indivisible injury caused by their wrongdoing. If a subsequent event contributes to or aggravates the injury a defendant cannot reduce the amount of compensation the Plaintiff is entitled to. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this principle of law.
In this week’s case (Fillmore v. McKay) the Plaintiff was involved in 2005 motor vehicle collision. The Plaintiff was riding his bicycle when he was struck by the Defendant’s vehicle. The Defendant initially denied being at fault but during trial admitted that the collision was indeed a result of her negligence. The Plaintiff suffered various soft tissue injuries and a traumatic brain injury.
At trial the Defendant argued that some of the Plaintiff’s injuries were made worse during a subsequent fall and that this should reduce the compensation the Plaintiff should receive. Mr. Justice Truscott rejected this argument and provided the following useful comments demonstrating the law relating to indivisible injuries in BC:

[145] The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

[146] I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

[147] As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

[148] Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

Rear-Ended Motorist Found 75% at Fault for Stopping for "No Apparent Reason"

Written by admin on September 1, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized. 107 Comments on Rear-Ended Motorist Found 75107 at Fault for Stopping for "No Apparent Reason"

As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault. There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC. Her vehicle was rear-ended by a truck driven by the Defendant. She sued for damages and the Court was asked to decide who was at fault.
The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant. Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash. In coming to this finding the Court provided the following reasons:

[44] I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45] Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46] In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47] This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48] I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51] Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52] This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53] In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

Mild Soft Tissue Injury Valued at $4,000; BC Supreme Court Rule 14 Discussed

Written by admin on September 1, 2010. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.
In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision. Prior to trial the responsible motorist admitted fault for the crash. The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits. The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash. Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:
[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43] However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44] I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10). This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court. Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule. I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

More on ICBC Injury Claims and the Subjective Nature of Pain

Written by admin on March 5, 2010. Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation – it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.
In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia. Fault was admitted by the rear motorist. The vehicles did not suffer much damage but the Plaintiff alleged injury.
The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:
She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[?]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.
The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle. Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries. Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion. In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non?pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain. If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.

Can British Columbia Residents Sue in BC If They Are Injured Out of Province?

Written by admin on February 11, 2010. Posted in Civil Procedure, Tort Reform, Uncategorized. 53 Comments on Can British Columbia Residents Sue in BC If They Are Injured Out of Province?

(The decision discussed below was upheld by the BC Court of Appeal in 2011, you can find the BCCA judgement here)
British Columbia remains the least ‘tort-reformed” Province in Canada and as a result we can be proud that in most instances BC offers fair adjudication of claims for those injured at the hands of others. Many other Canadian jurisdictions offer fewer protections with compensation restrictions such as ‘no-fault‘ laws or ‘soft-tissue injury caps‘ on damages.
If a British Columbia resident is injured in another Province can they sue in BC to be compensated for their injuries? Reasons for judgement were released today considering this issue.
In today’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007. The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier. The Plaintiff was injured and unable to perform her work. She returned to BC shortly after the car crash. She had the majority of her treatments in BC.
The Plaintiff eventually sued the alleged at fault motorist for compensation in British Columbia. The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.
Mr. Justice Truscott agreed with the defendants and dismissed the lawsuit. In doing so he made the following points regarding BC Courts’ jurisdiction to preside over a lawsuit arising from an out of Province motor vehicle accident:

11] The court’s jurisdiction is governed by the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (CJPTA), which gives the court territorial jurisdiction in particular circumstances.

[12] From the facts here, the only circumstance set out in the legislation that might give the court jurisdiction is the provision in s. 3(e) that “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.”…

[19] Defence counsel cites a number of court decisions in British Columbia that have denied jurisdiction on what are alleged to be similar circumstances, including: Canadian International Marketing Distributing Ltd. v. Nitsuko Ltd. (1990), 56 B.C.L.R. (2d) 130 (C.A.); Aubichon (Guardian ad litem of) v. Kazakoff, [1998] B.C.J. No. 3058 (S.C.); Jordan v. Schatz, 2000 BCCA 409; Sequin-Chand v. McAllister, [1992] B.C.J. No. 237 (S.C.); Williams v. TST Porter (c.o.b. 6422217 Canada Inc.), 2008 BCSC 1315; and Roed v. Scheffler, 2009 BCSC 731.

[20] All of these cases concluded that where a British Columbia resident plaintiff is injured in a foreign jurisdiction and then returns to British Columbia for treatment of injuries, there exists no real and substantial connection with British Columbia to give the courts of British Columbia jurisdiction because the only connection to this province is the fact that the plaintiff is a resident here at the time of the claim.

[21] In Jordan v. Schatz, Mr. Justice Cumming, writing the decision for the Court, said at para. 23:

What constitutes a “real and substantial connection” has not been fully defined. However, it has been well established by this Court in Nitsuko, supra, and in Ell, supra, that there is no real and substantial connection to British Columbia based on the bare residency of the Plaintiff in the jurisdiction. There must be some other or further sufficient connecting factor or “contacts” to this province. Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here.

…

36] I can see no exception that would be applicable in this case to allow me to depart from the decisions in those cases that have denied jurisdiction to the court when the plaintiff’s only connection to the jurisdiction is the fact she continues to suffer from her injuries while she resides here. To accept jurisdiction here would be to accept jurisdiction for a plaintiff who moves to the jurisdiction after an accident in another province and continues to suffer from injuries here. That cannot be.

[37] There is no real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based. There may be a real and substantial connection between British Columbia and the plaintiff, but that does not satisfy the words of s. 3.

[38] The action is dismissed for want of jurisdiction. The defendants will have their costs.

Even More on Costs and "Sufficient Reason" to Sue in the BC Supreme Court

Written by admin on November 20, 2009. Posted in Civil Procedure, Uncategorized.

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.
In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).
The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
ICBC opposed this application. Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court. He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules. The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Written by admin on October 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized. 54 Comments on Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Reasons for judgement were released today by the BC Supreme Court dealing with a fair range of damages for pain and suffering when an accident victim has a pre-existing condition which likely would have been progressive and painful without the accident.
In today’s case (Kaur v. Bhoey) the Plaintiff was injured in a 2005 BC Car Crash. She was a passenger and her vehicle lost control and she struck a utility pole. She was apparently concussed in this collision and was in and out of consciousness at the scene of the crash.
The Plaintiff had a pre-existing condition (osteoporosis with spinal compression fractures) which may have been progressive and led to chronic back pain even without the crash.
Mr. Justice Truscott found that the crash caused ‘soft tissue injuries‘ which caused a ‘kyphotic condition‘ otherwise known as a humpback. The Court held that, despite the injury, there was “a significant risk that (the plaintiffs) osteoarthritis would have led to more back fractures and more pack pain and kyphosis” He went on to award $50,000 in damages for the plaintiff’s pain and suffering. In arriving at this figure Mr. Justice Truscott summarized the law and the key findings of fact as follows:

[5] The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[6] Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.

[7] However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:

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… 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… 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…

[137] I accept that the kyphotic condition the plaintiff suffers from was caused by her low back soft tissue injuries sustained in the motor vehicle accident, and not by her pre-existing spinal compression fractures. I accept Dr. Hershler’s opinion in this regard.

[138] I accept Dr. Hershler’s opinion that the two compression fractures the plaintiff had before the accident in her low back were insufficient to cause this kyphotic condition.

[139] Dr. Hershler was able to push the plaintiff’s back to make her stand erect and that is some evidence that the kyphotic condition is being caused by pain and not by the compression fractures in her spine.

[140] This is not to conclude, however, that the plaintiff did not already suffer from some back pain before the accident caused by the compression fractures in her low back, in turn caused by her osteoporosis. Dr. Panesar’s records, and his evidence, as well as Dr. Yorke’s reports, set out previous incidents of back pain.

[141] I do accept, however, that prior to this motor vehicle accident these incidents were being generally controlled by medication.

[142] Still, such a finding does not answer the issue raised in Athey as to whether the plaintiff would have suffered her present state of back pain and accompanying kyphotic condition in any event of the motor vehicle accident, or at least there was a measurable risk of that occurring absent the motor vehicle accident that must be taken into account in reducing the overall award.

[143] With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…

[149] Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.

$60,000 Non-Pecuniary Damages Awarded for Chronic STI's and an Anxiety Disorder

Written by admin on August 25, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff close to $120,000 in total damages as a result of motor vehicle related injuries and losses.
In today’s case (LaFarge v. Natt) the Plaintiff was involved in 3 BC motor vehicle accidents. The Plaintiff was not at fault for any of the crashes. The lawyer representing the defendants admitted the issue of liability so the trial focused on the sole issue of damages.
Since all 3 defendants were represented by the same lawyer and fault was admitted for each of the crashes the court did not attribute damages to each specific crash rather damages were assessed globally. This is not uncommon in BC Injury Claims were ICBC is the insurer for multiple at fault defendants.
Mr. Justice Truscott found that the Plaintiff suffered chronic soft tissue injuries and an anxiety disorder as a consequence of these collisions. In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $60,000 he summarized the Plaintiff’s injuries and their effect on her life as follows:

[165] I accept that the plaintiff is continuing to suffer from physical injuries sustained in the first accident of March 1, 2002 and aggravated slightly in the following two accidents of October 5, 2002 and May 1, 2003.

[166] I accept that her injuries are now chronic as it is over seven years after the first accident when these injuries were first sustained.

[167] I do conclude that she has developed a restriction of movement as a pain avoidance technique as Dr. Feldman says. As he states her chronic pain is clouded by her pain focused behaviour without any real pain behaviour being identified…

[169] The critical issue on the plaintiff’s claim for damages for pain and suffering and loss of enjoyment of life is whether her anxiety issues constitute a psychological disorder or something less, and whether they are caused by the injuries she sustained in the motor vehicle accidents…

[180] I conclude that the initial attack in August 2004 has not been proven to be causally related to her motor vehicle injuries, and some attacks since, as Dr. Buch says, are possibly caused by unrelated aversive social transactions or other stresses in her life. In fact on consideration of all the evidence of the other stresses in her life I find it just as likely that some of her anxiety attacks are not related to her motor vehicle injuries.

[181] Whether or not her anxiety attacks have reached the level of a psychological disorder, I also conclude the plaintiff has satisfied the onus of proving that at least some of her anxiety attacks are causally related to the injuries in her motor vehicle accidents.

[182] Accordingly, with some of these anxiety attacks caused by injuries in the motor vehicle accidents and some by other stresses in her life, the issue becomes what the defendants should be responsible for…

[185] My conclusion that some of the anxiety attacks are causally connected to the plaintiff’s motor vehicle injuries while the initial anxiety attack of August 2004 is not proven to be so causally connected, and other unidentified anxiety attacks thereafter are likely not causally connected appears to fit the legal doctrine described in Athey as the “crumbling skull” doctrine which recognizes a pre-existing condition inherent in the plaintiff’s original position. The defendants are not obliged to compensate the plaintiff for any disability effects of the pre-existing condition which the plaintiff would have experienced anyway or did in fact experience.

[186] Here it is my conclusion that the plaintiff’s damages throughout should be discounted by 25 percent to reflect my finding that the first anxiety attack in August 2004 was not causally connected to her injuries and also to take into account the likelihood that other identified anxiety attacks since are unrelated to her injuries and are therefore unproven to be causally connected to her injuries.

[190] I consider the plaintiff’s cases to be more appropriate to consider, particularly Pelkinen v. Unrau where the injuries and psychological consequences to the plaintiff there were somewhat similar and the award for non-pecuniary damages was $90,000 less ten percent for failure to mitigate for a net award of $81,000.

[191] Here the plaintiff submits that an appropriate award to her would be $80,000 and I am prepared to accept this figure for general damages subject to a reduction by 25 percent to allow for the unrelated anxiety attacks to include the August 2004 attack. The award for non-pecuniary damages will therefore be in the amount of $60,000.