In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.
The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.
The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’
The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.
As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.
No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.
The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.
The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:
 There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.
The court awarded $80,000 for ‘general damages’ (pain and suffering).
The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.
This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.
In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.
Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“
This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.
The court summarized the law of ‘failure to mitigate’ as follows:
 To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito,  1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein,  1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill,  B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk,  B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).
The court rejected ICBC’s failure to mitigate arguments.
This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.
With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.
If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.
The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.
The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.
The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work‘
Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed
a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.
She went on to state that:
(the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.
The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’
This doctor made some interesting comments about chronic pain, namely that:
Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.
The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:
 I accept that as a result of the motor vehicle accident Mr. Niloufari suffered moderate strains to his neck and back which have caused him substantial pain and suffering over the two years and several months since the accident. I find these injuries have disabled him from any activities, including his work. As it stands now, more than two years have passed since the date of the accident with little hint of improvement in his pain and suffering or capacity to work.
 I am satisfied that the plaintiff suffers chronic pain with both physical and psychological components. I am not entirely satisfied that he has done his best to mitigate his loss by exercising and seeking psychiatric and/or psychological advice and treatment. I am not satisfied based on the medical evidence, that Mr. Niloufari should expect to be permanently disabled or disabled at all after a few years from now with diligent attention to his rehabilitation. I would expect him to gradually recover, as Dr. Hill suggested, over the next three or four years, with the expectation he could return to work in a limited capacity within one year.
The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.
The non-pecuniary damage award (pain and suffering) was $63,000.
This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.
In reasons for judgment released today, the BC Supreme Court valued a Plaintiff’s pain and suffering at $75,000 for soft tissue injuries.
The Plaintiff was a nurse’s aid. She was injured in a BC car accident which occurred in 2004 in New Westminster. The crash occurred at an intersection and both liability (fault) and quantum (value of injuries) were in dispute at trial. This is often the case when ICBC injury claims resulting from an intersection crash go to trial.
The Plaintiff was making a right hand turn. When starting her turn she felt it was safe to do so. At about the same time the Defendant was proceeding through the intersection and had recently changed into the right hand lane. Both motorists failed to recognize the hazard they posed to each other until it was too late.
The court found that both drivers were at fault. The Plaintiff was liable for ‘not keeping a proper lookout’ and that she should have seen the Defendant travelling in the curb lane prior to the collision.
The defendant was also found at fault for changing lanes at an unsafe time. The key finding is made at paragraph 70 where the court held that:
I find that at the time that the defendant changed lanes on Braid from the eastbound inside lane to the curb lane, 80 feet west of the intersection of Garrett and Braid, the plaintiff had already left the stop sign on Garrett and was in the process of making a right hand turn into the eastbound curb lane on Braid. I find that in making his lane change at this point on Braid the defendant was in such close proximity to the plaintiff’s car that his lane change could not be made safely. The weight of the evidence leaves no doubt that the defendant’s van was far too close to the plaintiff’s car for the defendant’s change of lanes to be made safely.
When 2 or more people are responsible for a BC car accident the Negligence Act requires a court to apportion fault between the parties. In this case the court held that both the Plaintiff and Defendant were 50% at fault for the accident. In doing so the court stated that “I do not think it can be found that blame for the accident rests more with one party than the other. In my opinion, they are equally guilty of breaching the rules of the road.”
The Plaintiff was a nurse’s aid. She claimed that as a result of the accident she became disabled from not only that job but also from ‘any other employment at a competitive level’
The Plaintiff’s doctor diagnosed the following injuries:
1) New large left central parracentral disc herniation posterior to the L5 vertebral body secondary to new onset degenerative L5/S1 disc change. This would be rated severe.
2) Left L5/S1 nerve root compression, also rated severe.
3) Milder degenerative changes at L3/L4, L4/L5 levels with early neural foraminal stenosis at L4/L5 and L5/S1, which are rated moderate to severe.
4) New onset degenerative CT spine changes rated moderate.
5) Musculoskeletal changes within the left side of her body, left arm, left chest, left hip and left leg, resolved within a week or two after the motor vehicle injury, rated mild.
6) Iatrogenic hypertension secondary to COX-2 inhibitor use for the treatment of the patient’s back injuries.
The bulk of the reasons for judgement focused on causation, that is, whether the above injuries were related to the accident or to other causes. As with most ICBC injury claims, the court heard from several ‘expert witnesses’ who commented on the plaintiff’s injuries and their cause.
In the end the court found that the Plaintiff failed to prove that the accident caused her disc herniation. The key findings can be found at paragraph 317 where the court held that:
 In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery. In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation. She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.
 In arriving at this conclusion I accept the opinion of Dr. Maloon, in preference to that of the plaintiff’s medical experts, that the soft tissue injuries the plaintiff sustained in the accident would not have been “significant enough to alter the natural history of her neck or low back condition” and that the “disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in [the accident].”
Since the court did not find the disc herniation related to the accident damages were assessed for soft tissue injuries. The court made the following finding prior to valuing the injuries at $75,000 for pain and suffering:
 I find that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back as a result of the accident which have had an affect on her personal, employment, social and recreational pursuits and activities. However, I also find that the plaintiff has failed to establish that the injuries sustained by her in the accident have caused her disability from employment.
 In the result, I find that the plaintiff’s award for general damages should be based on the fact that her condition had improved and recovered to the stage that by March 4, 2005 he felt well enough to return to work on a gradual basis. Moreover, I find that the fact her physical and emotional condition deteriorated after her fall on March 5, 2005 cannot be attributed to the injuries she sustained in the accident.
The Plaintiff’s award was then cut by 50% to reflect the fact that she was 50% responsible for the accident. This is the direct result of ‘contributory negligent’ in ICBC injury cases. If a Plaintiff is any percent at fault then the value of what can be recovered in tort is reduced by that percentage.
Do you have questions about this case or about an ICBC injury claim involving soft tissue injuries or a disk herniation? If so please click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)
In reasons for judgement released today, Madam Justice Boyd of the BC Supreme Court awarded a 53 year old paramedic $35,000 non-pecuniary damages (pain and suffering) as compensatory damages for a shoulder injury.
The Plaintiff was injured in Surrey, BC when his bicycle struck an SUV that turned left in front of the Plaintiff as he tried to clear an intersection. The collision was significant in that the bicycle struck the right front passenger side wheel area of the SUV, causing the plaintiff to fly over the hood of the vehicle and land some distance away.
Both Liability (fault) and quantum (value of loss) were at issue in this ICBC claim that proceeded to trial.
The court held that the driver of the SUV was 100% responsible for this BC motor vehicle accident.
The court found that “the plaintiff was an experienced trained cyclist, very much familiar with the challenges of urban vehicular travel.” The court summarized the findings of fault at paragraph 35 of the judgement where it was held that :
 Thus, in all of the circumstances, I find that the plaintiff was travelling lawfully along 140th Street at Laurel Drive when the defendant turned into his path. The defendant negligently failed to ensure he could complete his left hand turn without first ensuring before doing so that there was no traffic approaching so closely as to constitute an immediate hazard, thus breaching s. 174 of the Act. By the same token I find the plaintiff had no opportunity to avoid the collision and that accordingly he was not contributorily negligent.
The Plaintiff’s injuries were quite significant but he fortunately went on to make a ‘remarkable’ recovery. The most serious injury was to the Plaintiff’s right shoulder. The court held that
“Relying on Dr. Boyle’s report, I am satisfied that the plaintiff’s shoulder injury has not resolved entirely and that he faces the likelihood of chronic recurring discomfort. Further, there is a risk of his symptoms progressing, perhaps some day necessitating arthroscopic surgery. Based on the last paragraph above, I conclude that while the progression of the symptoms is not likely to occur within the next 2-3 years, there is indeed a possibility this progression of symptoms may occur during the plaintiff’s retirement years, exposing him to a period of reduced capacity and perhaps ultimately to surgery. “
The court awarded damages as follows:
1. Non-pecuniary damages: $35,000
2. Loss of income: $8,750.36
3. Special damages: $809.33
Do you have questions about an ICBC injury claim involving injuries to a cyclist or questions about the icbc settlement process? If so click here to arrange a free consultation with icbc claims lawyer Erik Magraken.
In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.
The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.
The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.
The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.
This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.
The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.
In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”
Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.
The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.
In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.
Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.
In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.
The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.
The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:
 In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.
The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement. This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury. The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss. After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.
Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.
This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow. The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement. If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.
Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.
In the appeal of an award for total damages of $31,380 for soft tissue injuries and psychiatric injuries, the BC Court of Appeal upheld the trial judgement and concluded that the trial judge did not err in his findings.
The Plaintiff unfortunately had experienced both a number of very significant stressors in her life. These came both before and after the October 2002 car accident that was at issue in the lawsuit.
The trial judge found that the 2002 accident “was very traumatic for (the Plaintiff). I accept that she was a very fragile person mentally before the motor vehicle accident. I accept that the motor vehicle accident increased her level of stress and anxiety that pre-existed the accident. I accept that she is in need of psychiatric counselling for this increased level of stress and anxiety caused by the motor vehicle accident. I also accept, however, that most of (the Plaintiff’s) physical complaints are not grounded in any physical injuries but are grounded in her somatoform pain disorder that preceded the motor vehicle accident.”
The trial judge ultimately concluded that the accident caused some “minor short terms soft tissue injury, but that the main injury that she had from the motor vehicle accident was to her mental state through the increase in her level of stress and anxiety requiring psychiatric counselling.”
The Court of Appeal dismissed the appeal and made no changes to the trial judges awards which included $25,000 for pain and suffering.
Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenence company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inetible accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.
In reasons for judgement released today, the Honourable Madam Justice Newbury of the British Columbia Court of Appeal increased the pain and suffering award for a BC auto accident victim from $15,000 to $42,000.
The Plaintiff was a 70 year old female. At trial in the British Columbia Supreme Court, the trial judge found that the Plaintiff suffered a soft tissue injury, namely a muscle strain to the trapezius area but concluded that “the evidence was not sufficient to establish a causal connection between the accident and the increase in frequency and intensity of (the Plaintiff’s) dizziness“.
On appeal, counsel for the Plaintiff argued that the trial judge was simply wrong in saying there was ‘no medical evidence’ that supported the causal connection between the accident and the Plaintiff’s increase in frequency and intensity of dizziness.
At trial an ENT specialist testified that “in my opinion the increased dizziness (experienced by the Plaintiff )subsequent to the accident in 2004 is probably from the accident in 2004“. Given this evidence the BC Court of Appeal agreed with the submission of Plaintiff’s counsel and concluded that the appeal must be allowed.
Normally when an appeal is allowed a new trial is ordered. Running a second trial is obviously time consuming and costly. Fortunately for the Plaintiff, the trial judge stated that he would have awarded between $40,000 and $45,000 for pain and suffering had he found that the Plaintiff’s dizziness was related to the 2004 car accident. Given this helpful finding, and to save the parties from the expense of another trial, the BC Court of Appeal exercised their discretion to substitute the higher award of $42,000 for pain and suffering.
On February 21, 2008, the Honourable Mr. Justice Wong awarded $50,000 for pain and suffering for a neck injury.
The Plaintiff was involved in a forceful collision on June 2, 2004. She sustained various injuries including headaches, back pain and neck pain. By the time of trial some of the injuries improved, however the Plaintiff continued to suffer from back pain and neck pain. Evidence was presented that she likely had damage to the facet joints in the upper cervical spine and that the prognosis for resolution of her pain was poor.
In addition to compensation for pain and suffering, the Plaintiff was awarded damages for past income loss, loss of general earning capacity, special damages, and cost of future care.