On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision. In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:
[101] The trial occurred about five years following the accident. Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities. He is stoic and is inclined to push through pain until it becomes intolerable. He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers. He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.
[102] The evidence demonstrated on a balance of probabilities that these problems were caused by the accident. Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods. All the problems had resolved prior to the accident. The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.
A highlight of this decision for me was the court’s discussion of credibility. One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff. That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:
[6] The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain. I quote portions of pages 397-399 of those reasons for judgment:
The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.
Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …
In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:
I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.
Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.
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The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC. The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome. Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue. The Plaintiff was found 60% at fault for the collision.
In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:
[127] I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back. Further, I am satisfied that she developed and continues to suffer chronic pain as a result. I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.
[128] I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:
…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.
[129] Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail. He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.
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The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC. The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches. In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:
[112] The issue of causation in this case is determined by applying the factors in Athey. Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event. I disagree. I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident. Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35.
[113] Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation. In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch. The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future. The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication. Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004. I accept that he has tried every mode in an effort to alleviate his symptoms. In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help. I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.
[114] Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness. These are frustrating and to some extent debilitating. He also has jaw, or temporal mandibular joint arthralgia and myofascial pain. He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue.
[115] It is understandable that these conditions have affected him emotionally. The opinion of Mr. Koch corroborates the plaintiff’s evidence. I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms.
I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims. As always, I welcome any feedback from all my visitors.
