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PTSD Claim By Accident Witness Dismissed as "Too Remote"

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized. 116 Comments on PTSD Claim By Accident Witness Dismissed as "Too Remote"


If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages.  There are, however, restrictions on when these claims can succeed.  Reasons for judgement were released today addressing this area of law.
In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001.  At the time the Plaintiff was working on Highway 97 near Bear Lake, BC.  The Plaintiff was installing rumble strips on the side of the highway.  The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby.  The Defendant lost control of a pickup truck and collided with the grinder.  The Plaintiff witnessed the crash and was concerned for his friend.  Fortunately Mr. Lance “was not seriously injured“.
The Plaintiff claimed the incident caused PTSD and sued for damages.  The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable.  Madam Justice Gerow agreed and dismissed the lawsuit.  In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:
[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[25]         In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

[29]         There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.

[30]         Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.

[31]         Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.

Non-Pecuniary Damages for Disc Herniation and PTSD Discussed, Dr. Davis Criticized

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $340,000 in total damages as a result of injuries and loss from a BC car crash.
In today’s case (Smusz v. Wolf Chevrolet Ltd.) the Plaintiff was involved in a Highway crash near Kamloops BC in 2006.  Fault was admitted by the offending motorist.  The trial dealt with the value of the plaintiff’s claim.  She suffered various injuries including a disc herniation/protrusion in her neck.  In valuing the Plaintiff’s non-pecuniary damages at $100,000 Madam Justice Russell highlighted the following facts:

[87] The plaintiff was 43 years old at the time of this accident.  She suffered injuries which, although not requiring more than a brief visit to the hospital, were nonetheless significant.  The medical evidence was mostly consistent:  her physical injuries include moderate right paracentral disc herniation at C3-4 on the right side and moderate paracentral disc protrusion at C6-7 on the left causing irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which result in chronic left-sided neck, arm and low back pain, dizziness and headaches.  She suffered from PTSD, now substantially resolved, but still suffers from insomnia, occasional nightmares, depression and chronic pain some three years after the accident.

[88] The chronic pain caused by the injuries received in the accident has resulted in depression, no doubt complicated by her difficult financial situation, but the plaintiff was happy and energetic before the accident notwithstanding the fact that she had very little money.

[89] She was able to work in a job which did not require great skill and which did not pay well but in which she could have continued for the indefinite future.  It gave her some income and gave her the sense of participating in her family’s finances.

[90] The evidence of her friends and family support the substantial change she has undergone as a result of the accident.  From a positive, lively person who enjoyed participating in her community, she has become somewhat reclusive and quiet and it appears she may even lose her romantic relationship because her physical limitations interfere with the activities she used to enjoy with her boyfriend.

[91] While she had suffered brief episodes of depression in the past, I am satisfied they were reactive depressions and were fully resolved at the time of the accident.  I have no doubt that because she has suffered depression in the past, she was vulnerable to depression, but she is the thin-skulled plaintiff here rather than a crumbling skull plaintiff.  However, I find that the depression which followed the accident and her chronic pain means that she is at risk of developing an even more severe depression in the future.

[92] Immediately following the accident, the plaintiff also had chest bruising and abrasions which resolved quickly.  Her knee injury troubled her for about six months but is now resolved.

[93] There is a possibility she will require surgery in the future to address the herniation at C6-7 since the conservative treatment measures employed so far have not provided the plaintiff with any relief.  She has resisted this surgery because, even if it is successful, she will be left with continuing neck pain so resort to surgery would only be a desperate measure if she begins to suffer nerve damage which follows from the herniation or if her chronic pain worsens.

[94] The plaintiff’s anxiety is worsened by the possibility she will need surgery in the future.

[95] The plaintiff is also less able to perform her household work than she was and has received assistance from her children.  When she does do her housework, she does it more slowly and with some pain.  This is a substantial change from the enthusiastic homemaker she was before the accident.

[96] I have considered the plaintiff’s loss of housekeeping capacity and the help she has been given and will continue to receive from her children under this head of damages and would assess the loss at $10,000.

[97] Considering the factors listed above, and upon reviewing the case law provided by both counsel, I find that an appropriate award of non-pecuniary damages is $100,000.00, including the loss of housekeeping capacity.

Another noteworthy aspect of this case was the Court’s discussion of one of the defence experts.  Dr. Davis is a psychiatrist who prepared an expert report for the Defendant.  His opinion differed from the Plaintiff’s experts with respect to her accident related injuries.  He was cross-examined in open court and ultimately his evidence was not accepted.  In reaching this decision Madam Justice Russell made the following critical comments:

[81] Dr. Davis’ report differed substantially from those of all other experts.  It is his opinion that none of the plaintiff’s current emotional difficulties stems from the motor vehicle accident.  He is firmly of the view that her depression is solely attributable to her financial problems, her lack of a supporting husband and her limited skills in English.

[82] To support his position, Dr. Davis pointed to the two reactive depressions which had affected the plaintiff before the accident as establishing an “ongoing depression” and therefore her current symptoms were not causally related to the motor vehicle accident of October 2006.

[83] I note that when he wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of appointments with the plaintiff one week following the accident which recorded the occurrence of nightmares and acute anxiety.  Dr. Davis stated that these symptoms were important but appeared to minimize them by indicating they would only be a problem caused by the accident in the first six months or so, at the same time as her soft tissue injuries should have been resolving.

[84] I have reviewed Dr. Davis’ testimony and find it to be argumentative, unyielding and seriously at odds with what I view to be the preponderance of other and more credible medical evidence.  I do not accept his findings.

$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 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.

$90,000 Non-Pecuniary Damages for PTSD and Chronic Pain

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

Reasons for judgment were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $142,000 in total damages as a result of a 2005 BC Car Crash.
In today’s case (Quinlan v. Quaiscer) the Plaintiff suffered various injuries including PTSD and a Chronic Pain Disorder.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000 Mr. Justice Cole summarized the Plaintiff’s injuries and their effect on her life as follows:

[61] There is evidence that the plaintiff has suffered from depression off and on since 1994, including post-partum depression after the births of her children. Additionally, the plaintiff has had a tumultuous relationship with her now ex-husband, which has certainly affected her emotional state. There is evidence, however, that the plaintiff’s prescription for depression medication a few months prior to the Accident was not filled. Dr. Pirolli stated in her report that the plaintiff’s current emotional problems include PTSD and low mood. The PTSD, as I have stated above, is a consequence of the Accident. Regarding the plaintiff’s low mood, Dr. Pirolli stated that it could not “be directly attributed to the accident itself. There is the possibility, however, that any psychological issues present at the time of the accident may have been exacerbated by the accident and its sequelae”. In my view, the plaintiff’s depression prior to the Accident was not significant, and I find that the plaintiff was not suffering from debilitating depression at the time of the Accident.

[62] As mentioned above, the plaintiff’s cuts and bruises resolved within three to six months after the Accident. She is left with a permanent one-inch scar on her elbow, a three and a half inch c-shaped scar on her left knee, and a dark scar on her left shin. Her nose was broken and she had dizziness and headaches. As described in the medical evidence above, the plaintiff’s right wrist pain, right shoulder and right chest area injuries have persisted. Though Dr. Travlos was of the view that the plaintiff would continue to improve over the next 18 months (from his report of April 2007), he stated: “To what extent she recovers is difficult to say at this time and a definitive prognosis cannot be made”. The plaintiff’s problems have not improved to any great extent over the course of the 18 months following that report.

[63] Dr. Travlos was of the view that the plaintiff’s problems of chronic pain syndrome related to the diffused soft-tissue pain that the plaintiff suffered in the right arm and shoulder. In cross-examination he stated that it was unlikely that the plaintiff will fully recover and there is no guarantee that participation in treatment recommendations will result in improvements of those symptoms. The plaintiff’s injuries restrict her ability to participate in physical activities that she formerly enjoyed, such as skiing and baseball. I believe, however, that part of the reason the plaintiff does not participate in these sports is because of a lack of financial resources.

[64] I am satisfied that taking into consideration the plaintiff’s PTSD and her multiple injuries, an appropriate award for non-pecuniary general damages would be $90,000.

$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.

Can Injuries in an ICBC Claim be Worth Less for Failing to Lose Weight?

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

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.
Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.
In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.
The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:
The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.
In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

More on BC Personal Injury Law and the Duty to Mitigate

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

A plaintiff who fails to take reasonable steps to minimize their losses and injuries after a car accident risks having their claim reduced accordingly for this ‘failure to mitigate’.
I’ve written about this before and reasons for judgement were released today by the BC Supreme Court demonstrating this principle in action.
In today’s case (Latuszek v. Bel-Air Taxi 1992 Ltd.) the Plaintiff was involved in a serious intersection crash in the lower mainland.  The Defendant died in the collision and the Plaintiff suffered serious injuries.
These injuries included Depression, PTSD and Chronic Pain.  The Court valued the non-pecuniary damages (pain and suffering) for these injuries at $100,000 but then reduced the award by $40,000 due to the plaintiff’s failure to mitigate.
Madam Justice Stromberg-Stein summarized and applied the law as follows:

[84] Prior to setting non-pecuniary damages, I will address the duty to mitigate.

[85] There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended.  Because of the nature of the plaintiff’s work, as a professional driver transporting fuel, he has limited his medication to Tylenol Extra Strength or Tylenol 8 Hour.  Dr. Jaworski recommended exercises in the pool and gym and brisk walking.  Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking.  Dr. Jaworski suggested that brisk walking may be contraindicated now that he knows that Mr. Latuszek has a torn medial meniscus.  Mr. Latuszek does very little regular exercise of any kind, except once or twice a week.  He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist.  He has not taken holidays in the past two years to try the anti?depressant medication, yet he understands that such medication as well as exercise, may improve, if not cure, his symptoms.  The plaintiff has not prioritized his recovery.

[86] In light of the authorities presented by the parties, I conclude that general damages, having regard to the injuries suffered by Mr. Latuszek and the continued problems in that regard, including depression, PTSD, and chronic pain, should be set at $100,000.  There will be a reduction of $40,000 for failure to mitigate.  Therefore, I award $60,000 as general damages.

More Judicial Consideration of Rule 37B

Written by admin on . Posted in Civil Procedure, ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were released today by Mr. Justice Butler providing more commentary on the new BC Rule 37B.  (search this site if you wish to read my numerous previous posts on Rule 37B precedents).
In this case the Plaintiff witnessed a severe motor vehicle collision.  He was not involved in the crash nor did he know any of the people involved.   He claimed that he suffered from Post Traumatic Stress Disorder (PTSD) and sued for damages for nervous shock.  The claim succeeded and damages in the amount of $11,100 were awarded.
That in and of itself was a first in BC as far as I am aware as previous successful nervous shock cases involved circumstances where the allegedly injured party knew or had family connections to the victims of the collision.
The Defendants delivered a formal offer of settlement which was greater than the judgement amount.  The issue now was, what, if any, costs consequences should there be under the new Rule 37B.
In awarding the Plaintiff costs up to the point that the offer was made an in awarding the defendant costs from then onwards the court made the following comments:
[16]            One of the goals of Rule 37B, like the former Rule 37, is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted.  That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle….

[20]            While the case was novel for the reason noted above, it was not particularly complex.  The foreseeability, proximity and public policy questions have been the subject of other decisions of both this court and the Court of Appeal.  Ultimately, my decision rested upon the evidence of the three psychiatrists regarding causation.  This should not have surprised the parties, as all three psychiatrists concluded that Mr. Arnold suffered Post Traumatic Stress Disorder (“PTSD”) as a result of the nervous shock he experienced at the scene of the motor vehicle accident.  The real issue was whether the psychiatric difficulties he encountered approximately a year after the accident were caused by the motor vehicle accident induced PTSD.

[21]            Mr. Arnold received supportive medical legal opinions from two treating psychiatrists.  However, the report of Dr. Smith concluded that Mr. Arnold’s subsequent disability was not related to the PTSD or the motor vehicle accident.  Once Mr. Arnold was in receipt of that report, he had all of the information he required to properly consider the offer to settle.  Within a reasonable period after receipt of the report and the offer to settle, the offer to settle was one that ought reasonably to have been accepted.  This is the most significant consideration for me in deciding how to exercise my discretion in this case.

[22]            A reasonable period of time to consider an offer to settle is seven days:  Bailey v. Jang, 2008 BCSC 1372.  I do not know when Dr. Smith’s medical legal report was delivered to Mr. Arnold.  If it was delivered prior to the delivery of the offer to settle, then the offer to settle is one that ought reasonably to have been accepted seven days after the date it was delivered.  However, if Dr. Smith’s report was not delivered until some later date, I conclude that the offer to settle was one that ought reasonably to have been accepted seven days after delivery of the report.

[23]            Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion.  I find that I am unable to do so.  First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action.  Rule 37B gives this Court greater discretion than it had under the old Rule 37.  It specifically allows the Court to consider the relative financial circumstances of the parties.  However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[24]            In the present case, Mr. Arnold has put forward no evidence of special circumstances regarding his finances.  He has put forward no evidence of other factors that should be taken into consideration in the exercise of my discretion.  Accordingly, I will leave it to other courts to consider when it is appropriate to deprive a party of costs when that party has delivered an offer that ought reasonably to have been accepted.

Rule 37B precedents are being handed down at a very fast pace by our BC Courts and I will continue to discuss these judgments as they come to my attention, particularly in ICBC or personal injury claims.

$200,000 Non-Pecuniary Damages for MTBI and PTSD

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC PTSD Cases. 2 Comments on $200,000 Non-Pecuniary Damages for MTBI and PTSD

Reasons for judgment were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a signficicant motor vehicle accident which occurred in Burnaby, BC in 2005.
The Defendant lost control of a garbage truck which tipped over and landed on the Plaintiff’s Honda Civic.  A photo of the collision is included at paragraph 2 of the reasons for judgement and this is worth glancing at to get a feel for the severity of this impact.
The Plaintiff was knocked unconsious as a result of the crash.  His Glasgo Coma Scale was 9 by the time the ambulance crew arrived and this qucikly rebounded to 15 by the time the Plaintiff arrived at hospital.
There was no dispute that the Plaintiff suffered various injuries as a result of this crash, what was at issue was the ‘nature and extent of the Plaintiff’s current condiction and the degree to which improvement may occur in the future’.
After hearing various medical evidence the court found as follows:

[35]            (The Plaintiff) has clearly suffered physical and psychiatric injury as a result of the August 19, 2005 collision.  I accept that his injuries caused him headaches, back pain and neck pain and pain in his shoulder.  Likely, he would have had some neck and shoulder problems from his previous condition without the August 2005 injury, however that injury clearly either initiated them anew or made them worse.  The physical problems |(the Plaintiff) suffered because of the August 19, 2005 collision have, by the date of the trial almost three years later, largely resolved as documented in the medical records, however his psychiatric ones have not, and there is an issue that he may still be suffering symptoms of a mild traumatic brain injury in addition to his PTSD and major depressive disorder.  (the Plaintiff) was clearly rendered unconscious by some degree of impact to his head as evidenced by the ambulance crew reports, Mr. Touffaha’s observations and the glass found embedded in his scalp.  I find that (the Plaintiff) probably suffered a mild traumatic injury to his brain at the time of the collision.

[36]            Whether or not (the Plaintiff) still is affected by his mild traumatic brain injury is not clear, particularly because his psychiatric condition can produce the same symptoms at this point.  On the balance of probabilities, I accept the opinion of Dr. Teal, the neurologist, that (the Plaintiff) has not sustained persisting cognitive impairment as a result of traumatic brain injury, and will not have any long-term cognitive sequelae as a result of a neurological injury.

[37]            I also find, on the balance of probabilities that while (the Plaintiff) was initially rendered essentially catatonic for the first six months following the collision, he has since that time made significant improvement, and I accept the opinion of Dr. Wiseman that with a course of cognitive behavioural therapy conducted by a specialist in that field, he will continue to make improvements.  On the other hand, I accept that he will likely continue to have problems and symptoms from his PTSD and depression for the rest of his life.  I find that it is highly unlikely that (the Plaintiff)will be able to return to his employment at Coastal Ford or any other competitive employment.  The medical evidence is that to the date of trial he has been unfit for employment.  He is now 67 years old, an age at which neither the body nor the brain is particularly resilient.  His mental state in my opinion is and will remain too fragile for him to be competitively employed.

[38]            The result of this collision and its consequent injuries to (the Plaintiff) is that he has lost a large measure of who he was.  While human identity is partially associated with physical ability, it is much more related to a person’s mental state and abilities.  (the Plaintiff) is quite simply not the man he was.  Rather than being energetically and happily employed as the lease manager for Coastal Ford, he is unemployed.  Rather than being the social outgoing man he was, he is socially withdrawn and has little or no interest in conversing about anything.  Rather than being the patriarch supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and children.  I find there is a real likelihood he will make progress in these areas so that his life is more enjoyable, however I do not think that will extend to re-employment.

[39]            I assess general damages for the loss (the Plaintiff) has suffered consequent upon the collision for which the defendants are responsible at $200,000.