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"Psychological Disturbance" Not Compensable Even With Presence of Physical Injuries

Written by admin on . Posted in ICBC Psychological Injury Cases, Uncategorized. 54 Comments on "Psychological Disturbance" Not Compensable Even With Presence of Physical Injuries


Important reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, discussing the law for compensation for psychological injuries following a motor vehicle collision.  In short the Court held that “psychological disturbance” not meeting the level of a recognized psychiatric illness is not compensable in BC, even in the presence of accident related physical injuries.
In today’s case (Schulze v. Strain) the Plaintiff, who was 4 years old at the time, was involved in a serious motor vehicle collision in 2007.  The Plaintiff was a passenger in a vehicle with his family.  The vehicle was involved in a collision at approximately 50 kmph and the force of impact was “considerable“.  Despite the severity of the collision the Plaintiff suffered minor injuries which made a full and complete recovery.
In addition to the physical injury, the young plaintiff suffered “psychological disturbance” with the Court finding that the Plaintiff was “emotionally upset…was having nightmares….did not want to travel in a car…(and was) reluctant to talk about the accident“.   Although the Plaintiff was emotionally effected the consequences were not severe enough to cause a recognized psychiatric illness.  The Plaintiff asked for damages in the range of $25,000 – $30,000 arguing that this is a fair range for a “moderate psychological injury”.
Mr. Justice Halfyard disagreed and ruled that mere “psychological disturbance” cannot be compensated in British Columbia even in circumstances where the Plaintiff suffers accident related physical injuries.  Specifically the Court reasoned as follows:

[32]         Having accepted the evidence of Jan’s parents and the evidence of Dr. Ness, I conclude that Jan was extremely frightened by his anticipation of the collision, and then experiencing the collision. Quite naturally, this was fear for his own safety, a fear of being seriously injured. That fear manifested itself in the physical symptoms and the changes in behaviour which I have previously described. Most of his symptoms had subsided within six months. I have found that Jan’s fear of travelling in a motor vehicle had diminished to the point of mere dislike, within about a year of the accident.

[33]         The evidence does not establish that Jan’s psychological disturbance amounted to a recognized psychiatric illness. While I am satisfied that Jan’s psychological disturbance was significant and far above being trivial, I am also not persuaded that the degree and duration of his emotional disturbance supports the conclusion that he sustained “a serious and prolonged injury.” (That was the lesser test which was argued by the plaintiffs in Kotai v. Queen of the North, but which was rejected by Joyce J.)

[34]         In Kotai v. Queen of the North, Mr. Justice Joyce analysed the law in detail in paragraphs 24 through 77 of his reasons. The conclusions that he expressed at paragraphs 64, 69, and 77, if accepted, would be fatal to Jan’s claim for damages for psychological injury. In the opinion of Joyce J., the law requires a plaintiff who advances a claim for psychological injury in circumstances similar to the present case, to prove that he suffered such serious psychological consequences as a result of the defendant’s negligence that they amounted to a recognized psychiatric illness. Counsel for the plaintiff submitted that I did not have to follow Joyce J’s reasoning and that I could properly conclude that proof of a recognized psychiatric illness was not an essential element of liability in the present case.

[35]         I do not accept that submission. Mr. Justice Joyce’s decision was a careful and reasoned decision. He considered numerous authorities in the course of reasoning to his conclusion, and it is not suggested that there were relevant authorities that were not cited to him. Having regard to the long-standing principle established in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I conclude that I should follow the reasoning of Mr. Justice Joyce in Kotai v. Queen of the North.  In my opinion, the cases relied on by counsel for the plaintiff have been superseded by subsequent authorities.

[36]         In my opinion, the law does not permit me to award damages to Jan for the psychological disturbance caused to him by the defendant’s negligence. As I see it, damages may only be awarded for the minor physical injury suffered by Jan as a result of the collision.

[37]         I award damages in the amount of $1,500 to Jan for pain and suffering and loss of enjoyment of life.

$95,000 Non-Pecuniary Damages for Chronic Pain and PTSD – Dr. Sovio Scrutinized

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 42 Comments on $95,000 Non-Pecuniary Damages for Chronic Pain and PTSD – Dr. Sovio Scrutinized

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $300,000 in total damages as a result of injuries and loss sustained in 2 BC Car Crashes.
In today’s case (Roberts v. Scribner) the Plaintiff was involved in two collisions, the first in 2005, the second in 2006.  She was not at fault for either crash.  The trial focused solely on the issue of the value of the Plaintiff’s ICBC Injury Claims.
The Plaintiff’s injuries affected her neck, mid back, low back, left shoulder collar bone and caused headaches.  She also suffered from depression and PTSD.
In assessing non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Bruce made the following findings about the Plaintiff’s injuries:

[173] I am satisfied that the soft tissues injuries Ms. Roberts suffered to her back, and to a lesser extent, her neck, have caused her substantial pain and disability since November 2005 when the first accident occurred. After the second accident she further aggravated her physical injuries, which developed into a chronic pain condition. In addition, Ms. Roberts’ psychological illnesses have aggravated her physical pain and suffering and have clearly contributed to the cycle of continuing pain. I note parenthetically that there is no dispute that Ms. Roberts’ PTSD symptoms and depression stem from the trauma of the accidents. Even the defence specialist, Dr. Smith, was of this view. At p. 5 of his report Dr. Smith says:

The most common sequel of motor vehicle accidents, particularly rear-end-type accidents, is the development of soft tissue injuries. If the soft tissue injury pain goes on for a number of months, individuals develop poor sleep and then are at risk for depression. I believe this is exactly what has happened with Ms. Roberts as a result of the two accidents.

[174] All of the specialists who examined Ms. Roberts have guarded prognosis for her complete recovery from the soft tissue injuries given the length of time they have persisted despite her tremendous efforts to rehabilitate herself. While Dr. Shah opined that some improvement could be expected in the future, he was unable to say at what point this might occur and to what extent Ms. Roberts’ condition would improve. Certainly there is some hope that different therapies may assist Ms. Roberts; however, her physical condition has plateaued since mid 2006 and she has not improved substantially since that time…

[177] The injuries caused by the accidents have also adversely affected Ms. Roberts’ ability to enjoy the recreational activities she loved to do before the collisions. She has attempted to return to snowboarding, but has not been able to tolerate more than one or two hours before the pain makes her stop for the day. Ms. Roberts has given up competitive horseback riding and the other sports she enjoyed before the accidents. Hiking and camping are also activities that she now finds too difficult to do because of the back pain she experiences when walking on an incline and sleeping on the ground. The physical and psychological injuries have also affected her social life; she is not able to sit for long periods at friends’ homes or in a movie theatre and thus spends most of her time at home seeking out a comfortable position. Her sleeplessness has affected her relationship with Mr. Harvey. They now have to sleep in separate rooms.

[178] Ms. Roberts has also undergone a complete personality change due to the injuries caused by the accident. The collateral witnesses testified about how fun- loving and comical Ms. Roberts was before the accidents and how depressed, sad and serious she has become since these events occurred. She does not enjoy life anymore and appears to function physically like a far older woman, moving slowly and stiffly and constantly attempting to find a comfortable position.

[179] Mr. Pakulak tested Ms. Roberts’ functional capacity overall, and in respect of several different movements that may be required for work, household chores, and recreational activities. There is no doubt that Ms. Roberts in many respects is functioning at a high level. However, it is also apparent that she has a reduced capacity in several functions, some of which are critical in her line of work. While the fact that she is unable to lift over 30 lbs does not render her disabled from performing the work of a graphic designer, Ms. Roberts’ reduced capacity for sitting and other movements related to working at a computer desk adversely affect her ability to carry out these duties efficiently and over an extended period. It is also important to consider that while Ms. Roberts may appear to be able bodied compared to many people, it is the changes in her life that are relevant to an assessment of damages. Before the accidents, Ms. Roberts was a youthful, extremely fit and active woman who had no difficulty whatsoever managing a full-time job, a busy social life, and an active recreational and exercise program. The functional limitations that now govern Ms. Roberts’ activities clearly represent a substantial change for her. Thus the impact on her ability to enjoy life cannot be underestimated. Moreover, in light of the guarded medical prognosis for her complete recovery, it is likely that these functional restrictions may, to some extent, continue to govern her life for the foreseeable future….

[181] Turning to the issue of quantum, it is well established that each case must be decided on its own facts. The authorities cited by the parties are useful as a guide in regard  to quantum; however, each particular case has unique factors that must be considered when awarding damages for pain and suffering and loss of enjoyment of life. In this regard, I found the authorities cited by Ms. Roberts, and in particular, the circumstances in Gosal, more closely mirror the facts in this case than the authorities cited by the defendants. Given my conclusions regarding the nature of Ms. Roberts’ injuries, the impact these injuries have had on her life, the length of time she has continued to suffer, and the guarded prognosis for her complete recovery, I find an award of $95,000 is appropriate in the circumstances.

An interesting side note to this judgement was the Court’s critical commentary of Dr. Sovio.  ICBC hired this doctor to conduct an ‘independent medical examination‘ of the Plaintiff.  As I’ve previously pointed out there are a handful of doctors who do a lot of these independent examinations for ICBC and it is not unusual for some of the reports generated by some of these physicians to contradict the opinions of treating doctors.  That indeed was the case in today’s judgement and Madam Justice Bruce pointed this out and gave ‘little weight‘ to Dr. Sovio’s opinions.  The Court made the following critical comments:

[131] Bearing in mind the anomaly of Dr. Sovio’s report, his lack of independent recollection of the interview, and the failure to cross examine Ms. Roberts on what is recorded in his report, I find little weight can be placed on his recorded history of her complaints and symptoms. It is also important to note that Dr. Sovio did not record Ms. Roberts’ exact words. Thus there may be errors of interpretation in his assessment of her pain levels, as well as her history of past and current symptoms…

While Dr. Sovio has come to a conclusion that Ms. Roberts is no longer suffering from her soft tissue injuries, I find his opinion is clearly inconsistent with the considered opinions of a variety of different specialists. As such, I find little weight should be placed on his assessment.

$80,000 Non-Pecuniary Damages for Knee Injury and Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Knee Injury Cases, ICBC Psychological Injury Cases, Uncategorized.

(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care.  The BC Court of Appeal judgement can be found here)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.
The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC.   The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.
The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months.  His knee, however, sustained long term injury.  Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.”    Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.
In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:
[36] Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home.  Pain is, of course, inherently subjective.  Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention.  Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression.  Both are of the view that he would benefit from psychiatric intervention.  That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…
[39] As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual.  It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance.  Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life.  It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels.  The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise.  However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception.  My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.

[55] Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians.  I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act.  I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct.  Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.

[56] The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner.  According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain.  Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms.  Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise.  I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective.  It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression.  Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:

With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.

[57] Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.

$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.
In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Psychological Injury Cases, Uncategorized.

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.
In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.
The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.

"Moderate to Severe" Soft Tissue Injury Non-Pecuniary Damages Assessed at $55,000

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

Reasons for judgment were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff approximately $85,000 in total damages from a 2004 BC Car Crash.
This case (BMM v. MLV) contains lengthy reasons that largely deal with the Plaintiff’s pre and post accident psychological difficulties.  Ultimately the Court rejected the Plaintiff’s claim that her pre-existing depression was affected by the accident.  Madam Justice Ballance concluded that “the evidence does not show that the Plaintiff’s pain and discomfort from her physical injuries caused by the Accident, exacerbated, compounded or intensified her Depression.”  Paragraphs 159-190 contain the Court’s reasoning behind this conclusion and are worth reviewing for anyone interested in seeing how BC Courts can deal with a claim that pre-existing psychological injuries are aggravated by a collision.
The Court did find, however, that the Plaintiff suffered “moderate to severe” soft tissue injuries and assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In reaching this figure Madam Justice Ballance summarized her findings and engaged in the following analysis:
[199] The plaintiff experienced moderate to severe soft tissue injuries to her neck and back as a result of the Accident. Although her shoulders were also implicated and she had initial sleep disturbance and was plagued with low-grade headaches that occasionally developed into migraine-like discomfort, the primary area of injury was her low back and her related left hip discomfort. I accept that during their acute phase, these injuries caused persistent and sometimes severe discomfort and pain to the plaintiff, and disabled her from attending work. Following her leave from work in 2005 and her intensive physiotherapy program, her symptoms improved significantly. She continued to be susceptible to flare-ups of her symptoms throughout the summer of 2005. Her discomfort prompted the plaintiff to attend a program at the CBI which she found considerably beneficial in improving her soft tissue injuries.
[200] I find that by the end of 2005, the plaintiff’s physical symptoms had largely settled, but had not resolved entirely. She was not restored to her pre-Accident condition at that time. I am satisfied that after that stage, the plaintiff experienced intermittent low back symptoms and associated pain throughout 2006 and continuing forward. Those episodes were infrequent but sufficiently bothersome to prompt her to obtain treatment from Dr. Weiss in late 2007 and endure two excruciating injections. I think that the plaintiff will probably experience intermittent bouts of low back discomfort caused by the Accident into the foreseeable future. The evidence indicates that those episodes will continue to be infrequent and rather mild in nature.
[201] I accept that the physical symptoms caused by the Accident brought about unwelcome and disruptive changes to the plaintiff’s enjoyment and quality of her life, especially during the first twelve months after the Accident. She was no longer the fun-loving and enthusiastic person familiar to her son, sister and co-workers. In time, she was able to gradually reintroduce and enjoy certain pursuits such as walking and some gardening, and bike-riding using her electric bike. I have found it challenging to attempt to parse out the changes in the plaintiff’s personality and life which can be said to be attributable to her physical injuries from the Accident, from those associated with her ongoing and severe bouts of Depression, which adversely affected her life but are unconnected to the Accident. I conclude that the enjoyment of certain of her activities was negatively affected at times by her low mood. Even the plaintiff agreed that her gardening could be affected by her mood. While I accept that in the first year or so following the Accident, the plaintiff’s physical symptoms made it uncomfortable for her to attend the usual family functions and pursue her normal community and political interests, I find that her sustained withdrawal from those endeavours and detachment from her sister and other extended family, are due to the plaintiff’s psychological state unrelated to the Accident….
204] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to the plaintiff’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $55,000. A deduction of 5% is to be taken to reflect the measurable risk that her low back symptoms would have manifested without the Accident.

$75,000 Non-Pecuniary Damages for Moderate/Severe Post Traumatic Stess Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.
In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.”
ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.
Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

This case is also worth reviewing for the courts awards of Loss of Future Earning Capacity.
In this case the Plaintiff’s past wage loss was modest up to the time of trial totalling neat $6,000. Notwithstanding this minimal past wage loss the Court awarded significant damages of $225,000 for loss of future earning capacity because of the ongoing impact of the Plaintiff’s PTSD on his ability to work in his own occupation.  Paragraphs 28-42 of this case are worth reviewing for anyone interested in the law of damages in BC relating to future wage loss.