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Tag: Mr. Justice Wong

$50,000 Non-Pecuniary Assessment for Chronic Intermittent Lower Back Pain

Short and to the point reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for a chronic low back injury.
In the recent case (Wong v. Robillo) the Plaintiff was involved in a 2010 collision which resulted in a “severe” impact.  Liability was admitted.  The Plaintiff suffered a neck injury which largely improved and a lower back soft tissue injury which became chronic and posed ongoing, intermittent difficulties by the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Wong provided the following reasons:
[15]         The plaintiff still has chronic intermittent lower back pain which affects his endurance and prolonged walking or sitting.  Although he is able to carry out most household chores, it is with discomfort.  He has dramatically improved, but he has had to live with chronic intermittent pain, anxiety, and uncertainty for almost three years.  I would assess his pain and loss of personal amenities past and future at $50,000.

$100,000 Non-Pecuniary Assessment For Disc Injury Requiring Discectomy

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury caused as a result of a motor vehicle collision.
In the recent case (Peso v. Holloway) the 26 year old Plaintiff was involved in a 2007 collision where the Defendant backed into his vehicle.  The Plaintiff suffered from pre-existing “mild, non-disabling” low back pain.  Following the collision the plaintiff experienced significant low back pain ultimately requiring surgical intervention by way of a discectomy.  The Plaintiff remained symptomatic and the Plaintiff faced ‘significant risk of additional surgery‘.  The Court found the aggravation of the pre-existing condition was caused by the collision.  In assessing non-pecuniary damages at $100,000 Mr. Justice Wong provided the following reasons:
[70]         Regardless of Mr. Peso’s pre-existing condition, he was able to enjoy his life before the collision. He was able to perform ordinary household tasks, cook, and socialize with his friends and family. He had a long history of competing in competitive and recreational sports and was very active on the weekend trip to Osoyoos immediately before the collision. In addition to working at a physical job, he participated in renovation and building projects for his brother, putting in an estimated average of 12 hours a week.
[71]         According to Dr. Street, in the absence of the collision Mr. Peso would have likely continued to experience mild, non-disabling symptoms in his low back. As a result of the collision, Mr. Peso required surgery and faces a significant risk of additional surgery at some point in the future. He is limited in his capacity to perform some aspects of his work. His left leg is weaker than the right and his capacity to lift is diminished. Mr. Peso, a gifted athlete before the collision, is unlikely to return to anything close to his pre-collision level of activity.
[72]         Non-pecuniary damages ought to be assessed in the context of a young man who has sustained a permanent, life changing injury. It was clear from Mr. Peso’s testimony that he has not let his injuries stop him. He has persevered with school and actively hid his symptoms from his employer. He has tried all of his former activities but he has only been able to tolerate some successfully. It is clear that despite Mr. Peso’s determination he has real fears about his future. He worries about recurrence of pain and he worries he will be expected to perform tasks that he cannot do.
[73]         Mr. Peso suffered chronic pain disability and loss of recreational amenities for over a year until his December 2008 surgery. His scope of future recreational enjoyment will continue to be curtailed.
[74]         I fix pain and suffering with loss of amenities, past and future, at $100,000.

50/50 Liability Split For Intersection Crash On Amber Light

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection crash involving a left hand turning vehicle and a through vehicle on an amber light.

In yesterday’s case (Tan v. Nenadic) the Plaintiff was a passenger on a motorcycle.  There were two designated turn lanes and two through lanes in their direction of travel.  They were travelling in the right hand through lane.  As they approached an intersection their light turned amber.  Vehicles in the lane to their left stopped but the motorcycle continued into the intersection.  At the same time an on-coming BMW was committing a left hand turn resulting in collision.  Mr. Justice Wong found both driver’s equally to blame.  In doing so the Court provided the following reasons:

] Mr. Kwong was driving a black 2001 BMW 330Ci convertible automobile eastbound on 49th Avenue, intending to turn left to go northbound on Boundary to attend his place of employment.  He had entered the intersection, stopped to wait for oncoming traffic to clear, before commencing his left turn.  Oncoming westbound traffic in the left travelling lane came to a stop when the light changed to amber.  It is unclear how many stopped vehicles were in that lane, but at least two to three, possibly more.

[8] Clear visibility of the right westbound travelling lane would likely be obscured by the line of stopped vehicles in the left westbound travelling lane for Mr. Kwong.  Mr. Kwong proceeded to make his left turn in one continuous sweep over the left westbound travelling lane, and proceeded halfway into the right westbound travelling lane, when he was struck by Mr. Nenadic’s motorcycle approaching from the east.  The car and motorcycle collided in the intersection.  The motorcycle went straight into the right front corner of the BMW, throwing Ms. Tan and Mr. Nenadic from the motorcycle.  There was considerable damage to the BMW.  Mr. Kwong apparently did not see Mr. Nenadic’s motorcycle until just before the impact…

[11] Like my late colleague, Mr. Justice Edwards, factually I have also concluded that both defendants were equally at fault.  Mr. Nenadic should have approached the intersection with more caution in order to be able to stop safely.  Mr. Kwong failed to take into account the manifest hazard in the case of Mr. Nenadic’s approaching motorcycle speeding towards him.  Had he paused for a better look before entering the right westbound oncoming lane, instead of casually continuing on, he would have avoided the collision.

[12] Accordingly, all defendants were equally culpable in fault.

$60,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury

Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, assessing damages for a rotator cuff injury sustained in a motor vehicle collision.
In the recent decision (Antonishak v. Piebenga) the Plaintiff was injured in a 2008 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff sustained a right shoulder rotator cuff tendinopathy resulting in shoulder instability.

The Plaintiff symptoms lingered to the time of trial and had a “guarded prognosis” for further recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Wong provided the following reasons:
[3] As a result of the accident, Mr. Antonishak sustained the following injuries:  soft tissue strain to neck and arm, right shoulder rotator cuff tendinopathy, anterior and inferior instability of the right glenohumeral joint and right ulnar neuropathy. Mr. Antonishak was then 27 years of age. He is now 32 years. These injuries have affected his employment duties and also interfered with his active recreational pursuits and lifestyle. The plaintiff complains that since the accident he has continued to suffer from right shoulder and arm pain together with fatigue. At the time of the accident, the plaintiff was employed as a waiter at the Hotel Eldorado Restaurant in Kelowna. As a result of his injuries, he claimed he missed seven days from work and, on other occasions, ended his shifts early due to increased pain and fatigue from his injuries. He said there were also a number of employment tasks expected of him that he was unable to perform due to his injuries. The plaintiff also said his injuries continued to interfere with his employment and with his various extracurricular activities. These ongoing functional impairments and limitations cause him concern of what his future holds as it relates to his ability to pursue various careers and occupations…

[7] At trial, Mr. Antonishak projected as an energetic, ambitious, and engaging person. He is certainly not a malingerer nor a layabout. He has plans for a future in the restaurant/hospitality industry as an entrepreneurial owner. When not working, he also likes to engage in active recreational sport pursuits and extensive international travel. He has a natural curiosity about foreign cultures and environments. He enjoys his present occupation as a fine dining server, but encounters pain and fatigue if he overworks his right arm and shoulder. He has curtailed some, but not all of his active recreational activities for fear of aggravating his weakened right shoulder and arm.

[8] For the foreseeable future, Dr. Monteleone has suggested cautious monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening program. If his present condition eventually becomes intolerable relative to his future career and lifestyle, then stabilizing shoulder surgery may need to be done. This would involve major surgery with potential six-month recovery time thereafter. In the meantime, the plaintiff lives with a weakened right-hand grip and chronic troubling pain and fatigue if he overtaxes himself in above-shoulder or extensive reaching or pulling activities.

[9] After four years of chronic troubling pain and fatigue with guarded prognosis of future improvement together with curtailed recreational activities, I fix this item of damage at $60,000.

A Costly Reality: Unrecoverable Interest and "Litigation Loans"

In Canada there are several litigation loan companies in operation that provide financing for injured Plaintiffs.  In short they provide loans and use the plaintiff’s personal injury claim as collateral.  They charge interest for this service, sometimes this interest is incredibly steep.
Plaintiffs need to exercise great caution before taking on such high interest loans for the simple reason that the interest is likely not a recoverable damage in their personal injury lawsuit.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (Campbell v. Swetland) the Plaintiff sustained multiple injuries in a catastrophic motorcycle collision.  These included brain injury with cognitive impairment, an open book pelvic injury, incontinence and a host of other orthopaedic and soft tissue injuries.  The parties settled some issues before trial including non-pecuniary damages agreed at $290,000.
Prior to trial the Plaintiff borrowed funds from a litigation loan company.  By the time of trial the interest on these loans was over $42,000.  The Plaintiff sought to recover this interest.  Mr. Justice Wong concluded such a claim is not sustainable as it is too remote.  The Court provided the following reasons:

[91] The plaintiff in opening and closing submissions has claimed interest incurred on loans post accident in order to complete necessary renovations to her home and funds to cover her living expenses. She submitted that post accident, with her severe injuries, she was incapable of gainful employment. Her only source of income was a $900 monthly government disability cheque. Hence the loans from lending institutions with high rates of interest. The total interest now owing from two loans is now $42, 453.

[92] It should be noted the plaintiff’s claim for the cost of financing her loans is not pled in her Notice of Civil Claim.

[93] The Defendant submits that it is not a recoverable head of damage. It is not known to law, by virtue of remoteness, or it is a special damage; special damages have already been resolved by agreement of the parties…

[96] In employment law, interest paid on monies borrowed to cover personal expenses while in between jobs have been held not to be recoverable as special damages [Millman v. Leon’s Furniture Ltd. [1983], 83 CLLC 14,071 ((Ont. Co. Ct.) and Kozak v. Montreal Engineering Co. (1984), [1985] 2 WR 641 at page 647 (Alta. Q.B.)].

[97] Similarity, in contract law, losses arising from a plaintiff’s impecuniosity or lack of financial resources have been held not recoverable [Freedhoff v. Pomalift Industries (1971) 19 DLR 3d 153 at page 158 (Ont. C. A.)]…

[99] The Plaintiff spent the initial months post-accident in hospital, but her first lawyer arranged a $30,000 “litigation loan” on November 13, 2008. Of that $30,000, $3,000 was immediately paid as a “processing fee”. After 18 days, $600.00 of interest was already due and owing.

[100] The Defendant submits that the loan was a result of the Plaintiff’s pre-accident indebtedness, not any losses sustained by the Plaintiff as a result of any negligence by the Defendant. If they were, then such losses are too remote and were not reasonably foreseeable to the Defendant.

[101] If a person’s own impecuniosity is the cause of damage, then that damage is not recoverable [Roopam Fashions v. Greenwood Insurance and Broco (2008) BCPC 0254].

[102] The Defendant further submits that the Plaintiff has not reasonably mitigated her financial situation. She has not tried to sell off her classic and prize-winning Harley motorcycle, her exercise machine and the clay art remaining in her studio.

[103] The cost of litigation financing, while not a recoverable head of damage, may be a proper disbursement. However, the most recent law out of both British Columbia and Ontario is that claims for litigation loan financing and interest are not recoverable [MacKenzie v. Rogalasky, 2012 BCSC 156 and Giuliani v. Region of Halton, 2011 ONS C5119]. In Giuliani, Mr. Justice Murray commented that the loan which the Plaintiff had obtained from Lexfund Inc. was:

in effect a contingency arrangement which allows the lender to make huge profits from the proceeds of litigation rather than from a commercially normative interest rate on a risky loan. (para. 52)


I am in complete agreement with the submissions of Defendants’ counsel that: “this Court should not reward, sanction or encourage the use of such usurious litigation loans, which in this case has interest provisions that are arguably illegal, otherwise such loans will be seen to be judicially encouraged and could become a common-place tactic.” I agree that an award of interest in this case would likely have an adverse impact on other Defendants’ decisions to proceed to trial or to Appeal. I think the Defendants’ counsel is correct in stating that access to justice is a two-way street. As I have indicated above, to award interest as requested by the [Plaintiff’s counsel] would not facilitate access to justice and would undoubtedly bring the administration of justice into disrepute. (para. 59)

[104] I agree with defence counsels submissions on this head of claim and conclude that it is not recoverable.

$50,000 Non-Pecuniary Damage Assessment for Sacroiliac Joint Injury

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Sacroiliac Joint injury following a motor vehicle collision.
In today’s case (Day v. Nicolau) the Plaintiff was injured in two separate collisions.  Fault for the crashes was admitted.  She suffered various soft tissue injuries the most serious of which was a sacroiliac joint injury.  By the time of trial her symptoms of pain persisted and were not expected to have further meaningful improvement.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Wong provided the following reasons:

[34] From the evidence Ms. Day sustained a soft tissue injury in the two motor vehicle accidents.  She has not maintained the exercise and core strengthening regimen recommended by her treating doctors.  Without proper back care, the potential for flare ups and complications exist.

[35] It is unclear what state of recovery function Ms. Day could have obtained with proper back care and exercise.  All doctors indicate in their reports the importance of back care exercise.  Though their prognosis is guarded they seem to imply that with proper care there is still potential for return to functionality with only intermittent flare ups. ..

[46] Ms. Day is a 28 year old woman who has a chronic injury to her lower back and related sacroiliac joint injury and a less serious lasting injury to her neck and right shoulder.  She has experienced pain, discomfort and some limitations to enjoyment of her previous active life for almost five years and her future condition is guarded.

[47] I fix the non-pecuniary award at $50,000.

Intersection Crashes and Legal Principles Determining Fault

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, summarizing some useful legal principles Judges look at when deciding the issue of fault following intersection crashes.
In today’s case (Luvera v. Benedict) the Plaintiff was injured in a 2005 motor vehicle collision.  He was driving his motorcycle and entered an intersection with the lights “probably in the late amber phase“.  At the same time, the Defendant who was approaching from the opposite direction of travel, “attempted her left turn only when the light turned from green to amber…(and) did not see the oncoming motorcycles“.  The Plaintiff drove into the right rear quarter panel of the Defendant’s vehicle.
Mr. Justice Wong found that both the Plaintiff and the Defendant were equally at fault for the crash.  Before reaching this conclusion the Court set out the following summary of principles of law:

[5]             In the March 2006 issue of the Verdict magazine, a publication of the B.C. Trial Lawyers Association, at page 40, there is a useful discussion of the jurisprudence in the article entitled, “Intersection/Right-of-Way Cases – Making Sense of the Law” authored by Barbara J. Flewelling.  At page 44, the author states:

There is a conflict in the cases about whether or not a left-turning driver must wait until all other vehicles have nearly or actually come to a stop before proceeding to make their turn.  Whereas the British Columbia Court of Appeal in Kokkinis v. Hall, [1996] B.C.J. No. 1560, has indicated that it is not necessary, in Mitchell v. ICBC, [2004] B.C.J. No. 1600, on a Rule 18A application, Mr. Justice Edwards was of the view that the interpretation of the obligations of a left-turning driver as set out in Kokkinis would invite left-turning drivers to assume rather than determine that oncoming through drivers will stop as the light turns yellow and requires through drivers to conduct themselves on the basis left-turning drivers will do so.  Edwards J. felt that due to the fact that many drivers regard an amber light as a signal to accelerate through an intersection, the Kokkinis principle seems to endorse a hazardous assumption of the part of the left-turning drivers.

In the Mitchell case, the left-turning plaintiff turned left on an amber light.  Mr. Justice Edwards found that the dominant through driver entered the intersection on an amber light, the collision occurred when the light was red, and that he was speeding.  Even though the judge said he could infer that the dominant driver would have had time to stop after the light turned yellow or could but was unable to stop due to speed, he still found that the left-turning servient driver had a duty to take account of manifest hazards and, by failing to see or react to the fact the van was approaching fast and not stopping, was negligent.  He apportioned liability equally relying on s. 1(2) of the Negligence Act as he was unable to determine different degrees of fault.

[6]             The author concludes in her summary at page 45 as follows:


Intersection/right-of-way cases are very fact dependent and it can be very difficult to assess liability with any precision.  However, there are some general principles that can be gleaned from the case law:

Although a driver who enjoys the right of way is entitled to assume that others will obey the law and the rules of the road, this is not absolute and if she is aware or ought to have been aware of the other driver’s disregard of the law and fails to take reasonable care to avoid a collision, she may be found partially or even wholly liable.

In determining if a dominant driver ought to have been aware of another’s disregard of the law, the courts seem to be taking a realistic approach to the exigencies of making rapid decisions in circumstances where a reasonable driver also has to check for cross-traffic and pedestrians.  The courts generally have recognized that at very busy intersections, there are times when the only way a driver can execute a left turn is on an amber light and a dominant driver may be found liable for failing to stop at an amber light.

The onus is on the servient driver to prove that the dominant driver was also negligent in that his or her negligence was a cause of the accident.

There is some conflict in the case law about whether a left-turning driver is obligated to wait until the oncoming traffic is nearly or completely stopped.  Some cases stand for the proposition that it is not necessary while others state that it is prudent to do so and that a left-turning driver who fails to do so will be found partially liable.

A servient left-turning driver has an obligation to take reasonable steps to determine if the dominant driver poses an immediate hazard.  The time this is determined is at the moment just before the turn is commenced.  There is some conflict in the law about whether that requires a servient driver to determine if the dominant driver is speeding and may not stop at the light.

[7]             Like my late colleague, Mr. Justice Edwards, factually I have also concluded that both parties were equally at fault.  Mr. Luvera should have approached the intersection with more caution in order to be able to stop safely.  Ms. Benedict failed to take into account the manifest hazards in this case of approaching motorcycles speeding towards her.

Setting Aside an Unfair Settlement in an ICBC Injury Claim

As I’ve previously written, typically when an ICBC claim is settled and a “full and final release” is signed the agreement is binding and can’t be undone.
BC Courts can, however, set aside ‘grossly unfair‘ agreements.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of the law.
In today’s case (McIsaac v. McIsaac) the Plaintiff was injured in a single vehicle car crash.  Her husband was driving and was the at fault party.   The Plaintiff’s injuries were serious enough to require hospitalization.
In the months that followed the collision ICBC approached the Plaintiff on a number of occasions and eventually a settlement was reached to resolve her claims for $22,000.  The agreement was ‘somewhat low‘ given the severity of her injuries.  She regretted finalizing her claim and retained a lawyer.   She commenced a lawsuit and asked the settlement to be set aside.  ICBC argued that it was a binding contract and should not be undone.  Mr. Justice Wong agreed with ICBC but before dismissing the lawsuit the Court set out the following useful summary of the law:

[17] I agree with defendant’s counsel’s submission that there are two alternative tests to assess the validity of the settlement.  Also, to have a settlement set aside or voided, the insured must have been unfairly induced to accept the settlement or release, and that the settlement or release must also be grossly unfair or grossly inadequate.  Settlement and release of a claim may not be set aside where the parties are not on equal footing if the insurer can demonstrate that the settlement is fair and reasonable.

[18] There are two alternative tests to determine the validity of a settlement.  Whether, when the settlement is looked at in the light of the knowledge of the adjuster at the time the settlement was entered into, the bargain was fair, just and reasonable, and whether the transaction seen as a whole is not sufficiently divergent from community standards of commercial morality that it should be rescinded.  See McCullogh v. Hilton (1998) 63 B.C.L.R. (3d) 272 (B.C.C.A.) and see also Gindis v. Brisbourne (2000) 72 B.C.L.R. (3d) 19 (B.C.C.A.), particularly at paragraphs 42 to 44.

[19] A settlement with an unrepresented claimant will not necessarily be invalid simply because all of the symptoms stemming from any injuries have not been fully resolved.  Again, see McCullogh.

[20] There is no evidence that the injuries sustained by the plaintiff were, at the time of settlement, any worse than what was understood by the plaintiff and the adjuster, nor is there any evidence that the plaintiff’s injuries have become any worse since the settlement was entered into.

[21] Quite apart from any alleged inequality of bargaining power, the plaintiff and the adjuster had a complete picture of the plaintiff’s medical condition at the time of the settlement directly from the plaintiff’s medical caregivers.

[22] Clearly on the evidence, the plaintiff relied on and trusted the ICBC adjuster and their bargaining power were unequal, but the ultimate question is whether viewed objectively, the agreement was unconscionable and offended applicable standards of commercial morality.

[23] I am satisfied on the evidence that it cannot be said that the plaintiff was taken advantage of by ICBC.  The plaintiff, upon receiving the offer to settle at $22,000, could have consulted with a lawyer before accepting the offer, but for reasons of her own chose not to.

[24] Counsel for the plaintiff now submits the adjuster relied on outdated 12 to 18 year case law authorities as guidance on damage quantum range, and did not make any adjustment for interim inflation.  Be that as it may, the amount offered likely also factored in some discount for contributory negligence by the plaintiff in not being seat belted at the time of the accident.

[25] I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlined factors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable.  In order to maintain consistency and predictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.