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BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized.

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.
In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).
During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.
It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.


Non-Pecuniary Damages Discussed for "Waxing and Waning" Soft Tissue Injuries

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


As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.
Not all injuries have the same course of recovery.  Some soft tissue injuries never heal.  Sometimes they cause constant chronic pain.  Other times these injuries largely recover but ‘wax and wane’ with activity.   What is the fair value of a soft tissue injury with symptoms that come and go over the years?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision.  The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.
The Plaintiff suffered soft tissue injuries.  These affected her neck and upper back and caused headaches.  her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime.   Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000.  In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:

[78]         Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.

[79]         They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….

[96]         At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.

[97]         Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.

[98]         It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.

[99]         As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…

[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.

More on ICBC Claims and Lack of Objective Signs of Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 48 Comments on More on ICBC Claims and Lack of Objective Signs of Injury


As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.
In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.
The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.
The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.

Non-Pecuniary Damages Update – the Kelowna Road Edition

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Dental Injury Cases, ICBC Headache Cases, Uncategorized. 51 Comments on Non-Pecuniary Damages Update – the Kelowna Road Edition


I’m writing today’s non-pecuniary damages case update in Kelowna, BC where I’m finishing up some work on a handful of ICBC claims.
Reasons for judgement were released earlier this week by the BC Supreme Court awarding non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for headaches and chronic pain following soft tissue and TMJ injuries.
In this week’s case (Ho v. Dosanjh), the Plaintiff was injured in a 2006 BC motor vehicle collision.   It was a rear-end crash and the Plaintiff’s vehicle sustained over $7,000 in damage.   The Plaintiff’s injuries continued to cause him problems by the time of trial (nearly 4 years after the collision).  Mr. Justice Silverman awarded the Plaintiff $75,000 for his non-pecuniary loss and in reaching this figure the Court noted the following about the extent and severity of the Plaintiff’s injuries:

[21]         As a result of the subject MVA, the plaintiff suffered pain in his neck, upper back, shoulder, jaw, numbness down the left arm, headaches, and insomnia.  He was on a variety of medications for a period of time and was unable to work.

[22]         The most serious and ongoing consequences of the MVA are the TMJ and the headaches, which leave him in constant pain.

[23]         Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw, teeth, and  related areas, and that he suffers from headaches as a result of the MVA.

[24]         He testified that these areas of concern had not improved significantly in the four years since the MVA and further recovery was unlikely; that the plaintiff will suffer long-term symptoms that impact on all aspects of his functioning; and that he should avoid any activities that involve jumping or jarring.  Dr. Mehta recommended conservative care, including continuation of various treatments which were already ongoing, such as physiotherapy and massage.

[25]         Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s capacity for recreational pursuits has been compromised and that this will continue for the foreseeable future.  He testified that, given the amount of time that has passed since the MVA, there is unlikely to be any further improvement.

[26]         Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ pain and that, in his opinion, “they will remain a long term issue.”  He noted that the plaintiff had a pre-existing degenerative condition, which made him more susceptible to injury from the MVA.

[27]         Dr. Gilbart provided an independent medical report and was called as a witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s pre-existing degenerative condition in his neck.  He opined that the “prognosis for significant further improvement in his symptoms at this point is guarded.”  He noted that the plaintiff was asymptomatic prior to the MVA and was functioning at a very high level in all aspects of his life.  Dr. Gilbart also noted that, despite the post-MVA pain complained of by the plaintiff, he still appeared to be functioning at a very high level.  Finally, he opined that, given the pre-existing condition of the plaintiff as well as his prior history, he likely would have had flare-ups in the future even if the MVA had not occurred.

[28]          With respect to the jaw pain and headaches, Dr. Gilbart deferred to the expertise of Dr. Mehta.

[29]         Presently, the plaintiff has not returned to most of his pre-MVA athletic activities.  He no longer is involved in volleyball, softball, aggressive hiking, or skiing.  He does still rollerblade, although not as aggressively as before, and he has recently begun to swim with the encouragement of his girlfriend, who is a physiotherapist’s assistant.

[30]         Various friends testified that the plaintiff’s personality has changed.  He is moody, irritable, withdrawn, quiet, rarely socializes, and not as pleasant to spend time with as he used to be.  It was clear to me, when watching the plaintiff in the gallery of the courtroom that he was distressed when he heard this testimony.  He subsequently testified that he had not actually heard these witnesses say this before…

76]         I am satisfied that the plaintiff has suffered neck, back, jaw, and shoulder pain, and that he continues to suffer on a daily basis, particularly from TMJ and headaches.

[77]         I am satisfied that it has affected his recreational and athletic activities, which were an important part of his life.

[78]         I am satisfied that there is unlikely to be much further improvement.

[79]         I am also satisfied that, while he is suffering pain, he is nevertheless able to function in a reasonably normal way.  He certainly appeared to be reasonably comfortable when giving evidence.  He also continued to work full-time after a period of months during which he was unable to work, although I accept that work is much less physically comfortable for him than it used to be.

[80]         While I accept the evidence that he might have suffered another flare-up even in the absence of the MVA, I am satisfied that the MVA was, and is, the primary cause of his current difficulties.

[81]         With respect to ongoing treatments for the rest of his life, I am satisfied that, while these might provide him with some periodic temporary relief, they are not likely to result in any improvement.  Consequently, what the plaintiff might perceive as the “need” for such ongoing treatments, will be reflected as an aspect of the non-pecuniary award.

[82]         In all the circumstances, I award $75,000 for non-pecuniary damages.

More on ICBC Soft Tissue Injury Claims and Plaintiff Credibility

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.
In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.
This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.

$45,000 Non-Pecuniary Damages Awarded for Chronic Mild-Moderate Soft Tissue Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.
In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.
Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft?tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non?pecuniary damages in this case is $45,000.

How Can the Same Injury Have Different Values in an ICBC Claim?

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As I’ve previously written, the exact same injuries can be valued differently by a Court when ICBC Claims go to trial.  When a judge or jury awards money for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the award isn’t made by following a chart or a mathematical calculation, instead the award is made by ‘assessing‘ damages.
An assessment is just as flexible as it sounds.  There is no right award for pain and suffering.  While past cases (what lawyers call precedents) are instructive, they only serve to provide a ‘range‘ of acceptable awards.  So long as a trial award falls within the acceptable range of damages it will not be interefered with if challenged on appeal.
In practice this means that two people with similar injuries can be awarded different amounts for their claims and both outcomes can be correct in law.  Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, discussing the ranges of damages in BC personal injury lawsuits.
In today’s case (Anderson v. Cejka) the Plaintiff was involved in a 2006 rear-end crash in Parksville, BC.  Fault for the crash was admitted.  The Court was asked to value the Plaintiff’s claim for pain and suffering.
Mr. Justice Halfyard found that the Plaintiff suffered from a Grade 2 Whiplash Disorder which took a long time to recover.  The Plaintiff sought an award between $40,000 – $50,000, ICBC submitted that an award of $15,000 – $25,000 was more appropriate.  The Court went on to award the Plaintiff $20,000 for his non-pecuniary damages and in doing so the Mr. Justice Halfyard made the following comments about ranges of damages:

[84]         In my opinion, previously-decided cases, even where there are some similarities with the case at bar, can only assist in establishing a general range of damages which may apply to a particular case. This is because no two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. Moreover, the injuries (or combination of injuries) sustained by one plaintiff will never be the same as those incurred by another, in kind or severity. Additionally, the reaction of any two persons to the pain of a similar injury or to particular treatments will rarely if ever be the same. Other differentiating features may be the apparent length of the recovery period and, if the plaintiff has not recovered, the kind and extent of residual effects remaining from the injury at the time of trial, and whether any of the effects will be permanent.

[85]         I have reviewed the cases cited by counsel, in light of the facts which I have found. Due to significant differences, I see no useful purpose in discussing them. There is no legal formula which can be used to measure the amount of pain and suffering and loss of enjoyment of life that a plaintiff has experienced as a result of an injury caused by the defendant. In my opinion, the range of damages for non-pecuniary loss in this case is the range suggested by Mr. Dreyer, namely, $15,000 to $25,000.

[86]         The pain suffered by the plaintiff was never serious. He himself consistently described its severity as being one or two on a scale of ten. Within a few months after the accident, the symptoms became intermittent. Eventually, they became few and far between. The plaintiff was never disabled by the pain, to any significant extent. I must be careful not to penalize the plaintiff for being stoical in the face of pain. But I do not find that this is the case here. I award $20,000 for this head of damages.

When trying to determine how much your personal injury claim is worth the best thing you can do is read as many cases as you can dealing with similar injuries so you can determine a realistic range for your injuries.

$50,000 Non-Pecuniary Damages for Shoulder Impingement in ICBC Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 53 Comments on $50,000 Non-Pecuniary Damages for Shoulder Impingement in ICBC Claim


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for accident related soft tissue injuries and shoulder impingement.
In last week’s case (Dial v. Grewal) the Plaintiff was involved in a 2006 BC motor vehicle collision.   Fault for the crash was admitted focusing the trial on the value of the claim.  The Plaintiff faced some credibility challenges at trial and the Court found that she “exaggerated” some of her testimony about the extent of her symptoms however Associate Chief Justice MacKenzie found that the plaintiff did suffer real injuries including traumatic right shoulder impingement.  In assessing the Plaintiff’s non-pecuniary damages at $50,000 the Court made the following findings:
[4] For the reasons that follow, I find on the evidence as a whole that an appropriate award for non-pecuniary damages is $50,000 for the injuries the plaintiff sustained to her neck and right shoulder, the aggravation of her pre-existing low back condition and headaches, and more minor injuries to her ribs, and dizziness…
[190] The purpose of a non-pecuniary damage award is to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. While each award must be made with reference to the particular facts of the case, other decisions may assist the court in arriving at an award that is fair to both parties: Smaill v. Williams, 2010 BCSC 73 at para. 78…

[194]     The plaintiff relies on the following cases in support of her submission that $80,000 is the appropriate quantum for non-pecuniary damages: Kasic v. Leyh, 2009 BCSC 649;Predinchuk v. Spencer, 2009 BCSC 1396; Thomas v. Bounds, 2009 BCSC 462; and Lee v. Metheral, 2006 BCSC 1841.

[195]     I find, conversely, that these cases support higher awards than is fair in this case because the defendants have no obligation to compensate the plaintiff for symptoms attributable to her pre-accident low back condition.  That said, I find that an award that is just and fair to both parties is $50,000.

[196]     As I have already discussed, the plaintiff’s testimony about her symptoms and pain was at times vague and at others, exaggerated. Nevertheless, I accept that she suffered substantial pain for months after the accident, as is supported by the medical evidence in this case. Her pain gradually improved, and she was able to substitute for her husband at work about 14 to 18 months after the accident, albeit primarily for a few hours at a time but also with a few full-time shifts. By that time, her neck and shoulder pain were manageable. The aggravation of her pre-existing low back condition had also resolved such that her back had returned to its pre-accident condition.

You can click here to access my archived posts of other recent BC Court cases awarding non-pecuniary damages for shoulder injuries.

BC Court Rejects ICBC's "LVI" Defence

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

One principle that has become clear in BC injury lawsuits is that ICBC’s LVI Policy of denying tort compensation in minimal vehicle damage accidents has no legal merit.  Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.
In today’s case (Mendoza-Flores v. Haigh) the Plaintiff was involved in 2 separate motor vehicle collisions.  She was injured in both.   ICBC accepted that the second accident caused some injuries but argued that the first crash “was incapable of causing the injuries complained of (by) the Plaintiff“.  Mr. Justice Harvey rejected this argument with the following useful comments:
[54] Regarding as the relationship between the damage to the two vehicles and the resultant claim for injuries suffered by one of the occupants, it is trite law that the fact that the damage to the plaintiff’s vehicle was minor does not lead to a conclusion that the resultant injuries are also minor: Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.).
The Court went on to award the Plaintiff damages for her injuries and loss including $40,000 for her non-pecuniary damages.   In reaching this figure Mr. Justice Harvey made the following findings:

[61]        In the result, I find that the plaintiff has experienced a moderate soft tissue injury which continues to cause both discomfort and poses problems in her employment to the present time.

[62]        The plaintiff never fully recovered from the effects of the first accident although it would seem, from the evidence, she was heading toward a complete resolution of her symptoms. Her symptoms just before the second accident were appreciably better than they are presently…

[67]        While unresolved to some extent, I do not view the evidence as proving the plaintiff’s injuries as permanent. Both from an investigative and treatment standpoint it appears there were, and are, further steps available to the plaintiff.

[68]        Reviewing her injuries and comparing them to the authorities I have been referred to, I conclude that $40,000 represents a proper global assessment of the plaintiff’s general damages arising from the two accidents.

You can click here to read my archived posts discussing other BC Court cases dealing with so-called Low Velocity Impacts.

ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.
In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”
In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.