Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding that an ICBC hired expert witness’ opinion was “of little to no assistance to the Court“.
In today’s case (Tench v. Van Bugnum) the Plaintiff was injured in two collisions that the Defendants admitted fault for. The Plaintiff presented evidence that the collisions resulted in chronic Thoracic Outlet Syndrome (“TOS”) resulting in significant impairment. The Defendant’s insurer, ICBC, hired a doctor who did not examine the Plaintiff and provided an opinion rejecting the diagnosis. In dismissing this opinion as being of ‘little to no assistance‘ Madam Justice Fleming provided the following reasons:
Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In today’s case (Hsu v. Choquette) the Plaintiff was involved in a 2010 collision that the Defendant accepted fault for. The collision caused compression of nerves resulting in Thoracic Outlet Syndrome. In assessing non-pecuniary damages at $87,500 Mr. Justice Schultes provided the following reasons:
 The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus.
 Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side.
 His opinion was that Ms. Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back. He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries.
 More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.”…
 Considering the unique circumstances of this case, but keeping in mind awards made for roughly comparable injuries and levels of pain and suffering, and adding an amount for the insufficiently documented yet legitimate claim for future loss of housekeeping capacity, I will award $87,500 under this heading.
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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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