Tag: soft tissue injuries

Neck, Low Back and Knee Soft Tissue Injuries Discussed

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.
In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued.  All three trials were heard together.  His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed.  This left the court to deal with the Plaintiff’s motor vehicle accident claims.
The first motor vehicle collision happened in 2003.  The Plaintiff was 15 at the time.  He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk.  The issue of fault was admitted.  The Plaintiff suffered a knee injury and eventually had arthroscopic surgery.  Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury.  In arriving at this figure the Court highlighted the following facts:
86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident.  He suffered discomfort and a restriction in his activities.  In the first three weeks after the Second Accident, Evan missed six full days of school.  He found it difficult to crouch or kneel and felt that the knee was unstable.  He was not able to carry out his part-time job as a football referee.  He used crutches for a month or two and then used a cane.  He found it difficult to use the crutches because this caused additional pain in his right wrist.  His parents rented a wheelchair for him to use at home.  He was unable to take part in part-time work over the Christmas holidays…

[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee.  The structural injury was mild.  If there was damage to the ACL, it was not significant and healed quickly.  As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury.  All of the doctors accept that there was a severe strain to the right knee.  The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.

[101] The experts also agree that Evan should have been symptom free sometime after June 2006.  However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms.  The question that remains is whether Evan falls within that small subset.  If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau.  This question raises the issue of Evan’s credibility….

I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents.  There are simply too many inconsistencies in his case to accept his assertions at face value…

[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident.  There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident.  I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints.  I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status.  In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort.  Specifically, I find that the symptoms persisted for four or five years…

[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.

The second accident was a rear-end car crash.  Fault was admitted.   The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury.  In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:

[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant.  By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…

[135] Given my findings, the cases referred to by the plaintiff are of little assistance.  In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur.  Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation.  In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.

In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility.  In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role.  Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence.   Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“.  This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.

$45,000 Non-Pecuniary Damages for Soft Tissue Injuries to Back, Neck and Shoulders

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff just over $88,000 in total damages as a result of a 2006 BC car crash.
In today’s case (Dutchak v. Fowler) the Plaintiff was involved in a rear-end collision.  Fault was admitted by the Defence lawyer leaving the Court to deal with the sole issue of quantum of damages (value of the injury claim).  The Plaintiff suffered various soft tissue injuries which continue to bother her by the time of trial and these had a likelihood of continuing indefinitely into the future.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Sewell made the following observations about the severity of the accident related injuries:

22] While I accept that Ms. Dutchak has genuine symptoms, I do have some concerns that she has unrealistic expectations about the consequences of the physical activities in which she engages.  Ms. Dutchak runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays squash three times a week and cycles for long distances on a regular basis.  These activities undoubtedly cause physiological stresses on her anatomy.

[23] It is apparent that engaging in these physical activities is an important part of Ms. Dutchak’s relationship with her husband.  Both Ms. Dutchak and her husband continue to place a high level of importance on physical activity and a good deal of their personal interactions with one another revolves around physical fitness and exercise activities.  In addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24] I have concluded that Ms. Dutchak is now able to engage in almost all of the activities she did before the accident, but at a price.  That price is a much higher level of pain and discomfort than before the accident.

[25] The preponderance of evidence before me satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely disappear.  However, I am also of the view that there is a reasonable possibility that she will experience some continued improvement as she adjusts to her altered circumstances…

[28] In the result, I conclude that Ms. Dutchak has suffered soft-tissue injuries to her upper back, shoulders and neck which have resulted in stiffness, pain and headaches, all of which are significantly aggravated by strenuous physical activity.  She continues to experience those symptoms.  My conclusion is that there is some prospect of continued improvement but that in assessing damages in this case, I should proceed on the basis that Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other hand, I also conclude that Ms. Dutchak is now able to perform virtually all of the tasks and activities that she did prior to the accident and, in particular, is able to engage in vigorous physical activity.  In carrying out these activities she has no mechanical limitations.  The only restriction on these activities is the pain which they cause.

[29] I have also concluded that Ms. Dutchak is highly motivated to continue with these activities and, in fact, is continuing to perform and engage in them notwithstanding the level of pain and the headaches that she experiences as a result…

In my view, this case is one in which an award of non-pecuniary damages should be at the lower end of the range for cases involving chronic pain.  I say this because Ms. Dutchak is able to engage in all of the activities she formerly did with the assistance of analgesic medicines and in the full knowledge that engaging in activities will often trigger pain for her.  In all the circumstances I award Ms. Dutchak $45,000 for non-pecuniary damages.

Gaps in Medical Treatment in ICBC Injury Claims


If you are involved in an ICBC Injury Claim and have significant gaps in your medical treatment will that reduce the value of compensation you are entitled to?  The answer is not necessarily.  If the gaps in medical treatment are unreasonable and the evidence demonstrates that more frequent medical intervention would have improved the course of recovery then the claim can be reduced for “failure to mitigate“.  However, a gap in medical treatment in and of itself will not reduce a claim for damages and reasons for judgement were released yesterday by the BC Supreme Court demonstrating this.
In yesterday’s case (Sidhu v. Liang) the Plaintiff was injured in 2 BC Car Crashes, the first in 2004 and the second in 2008.  He was not at fault for either crash.  He sued as a result of both accidents and the trials were heard at the same time.  The Court was asked to deal with the value of these ICBC Claims.  In the years from the first collision to the time of trial there were some significant gaps in accident related medical appointments.  One such gap was over 25 months.  The Defence Lawyer argued that the Plaintiff’s injuries were minor and healed quickly as evidenced by the significant gap in treatments.
Madam Justice Russell rejected this argument and held “I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants’ negligence.  I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.”
The Court went on to award the Plaintiff $36,000 in Non-Pecuniary Damages.   In doing so Madam Justice Russell summarized the accident related injuries and their effect on the Plaintiff as follows:

67] The plaintiff’s position, which I accept, is that the medical evidence establishes that the first accident caused musculoligamentous injuries to his neck, back, hips, and elbows, resulting in chronic, persistent pain which continues to restrict his vocational, social and recreational activities.  Furthermore, the second accident caused a minor aggravation of the musculoligamentous injury to his neck.

[68] As a result of the injuries he sustained, the plaintiff has experienced functional limitations due to ongoing symptoms in his neck and left upper back, as well as residual symptoms in the elbows, and mid to low back.  These injuries interfere with his work ability as well as his ability to do chores and participate in his family construction project.  His wife and father have had to take on the physical household chores.  His wife testified that he became less physically active and has decreased his participation in family activities.  The plaintiff’s wife also testified that his pain has caused him to be moody and he also claims to have experienced emotional difficulties in the form of increased stress as a result of the accident.  Because of his modified work ability, the jobs he can take require him to work longer hours for less money and therefore he is facing increasing financial pressures, has less free time and therefore has decreased his social activities, all of which he asserts leads to his stress…

[71] While I have concluded that, according to the medical evidence, the accidents were the cause of the injuries, these injuries are improving, albeit slowly.  Dr. Gandham has estimated that the plaintiff will recover within two years and Dr. Heshler gives a similar guarded prognosis.  Dr. Connell is also optimistic.  Given that the plaintiff is young and healthy with a good prognosis for recovery, I am convinced that he will make a full recovery and thus assess his damages at 80% of the amount put forward by counsel, as I note the amount suggested is the upper range for these types of injuries.

$70,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court Awarding damages as a result of a BC Car Crash.
In today’s case, (KT v. AS) The Plaintiff was involved in a motor vehicle collision while seated as a passenger in 2005.  It was a significant intersection collision.  The Plaintiff was 17 years old at the time.  The Plaintiff claimed that she suffered both physical and psychological injuries as a result.
Madam Justice Ballance largely rejected the Plaintiff’s claim for accident related psychological injuries but did accept the claim for physical injuries.  In awarding the Plaintiff $70,000 in non-pecuniary damages the Court summarized the Plaintiff’s accident related physical injuries as follows:

[210]     According to the plaintiff, since the accident she has felt an ache along with tightness and sore muscles in her low back.  She says that every few weeks the pain is so intense that she keels over.  She testified that in the first six months or so following the accident, her neck and muscles were stiff and knotted, particularly when her head was bent.  Her headaches would follow at least once per week, building up slowly from the back of her neck.  At times they lasted an entire day.  Unlike the headaches that she experienced prior to the accident, eating did not alleviate the pain in her head.  Also within the initial six months time frame, the plaintiff said she would feel a sharp pinching sensation in her upper back/trapezius area a few times each month that seemed to come out of nowhere.  She testified that at her last appointment with Dr. Smith roughly 22 months post-accident,  her neck was still stiff and she was still experiencing intermittent sharp pinching pain in her shoulder blade/trapezius area.  Her low back continued to produce a dull ache most of the time that fluctuated considerably in intensity depending on her activity.

[211]     The plaintiff says that she has not had a pain-free day since the accident.  In terms of her current symptoms, the plaintiff claims that her low back pain, of variable intensity, persists and is her dominant problem.  Physical activities such as soccer, jogging and extensive walking, climbing up or descending stairs can cause a flare-up of pain.  However, the postures that are most aggravating are those which appear to be innocuous, such as sitting and static standing for prolonged periods.

[212]     The plaintiff also continues to experience episodic pain in her neck and upper trapezius area.  She claims that the jabs of pain in her shoulder blade area have become infrequent, flaring up roughly once per month.  Although she still suffers headaches, especially when she sits down for long periods to study, they have substantially diminished in their frequency.  Her hips and “upper butt” area have not caused her difficulty for a very long time.

[213]     The defence concedes that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back.  As to her low back injury, the defendants assert that, at most, the accident caused a temporary aggravation of an “ongoing injury process” due to her pre-existing injuries and core weakness.  It should be evident from my discussion of the expert medical evidence and, specifically, my disapproval of Dr. Hepburn’s opinion, that I find the evidence does not support the defendants’ position that the plaintiff’s current low back pain is basically the same as the dysfunction in her upper “butt” sacroiliac joint or hip regions experienced before the accident.

[214]     The evidence amply establishes that the accident caused musculoskeletal injuries to the plaintiff’s neck, upper trapezius (left shoulder area) and her lumbar spine.  Relying on Dr. Hershler, Dr. Jung and Ms. Cross, I also find that it is more probable than not that the accident injured the facet joints of the plaintiff’s lumbar spine.  I find, as well, that it caused her headaches secondary to her neck pain, injured her left sacroiliac joint and aggravated her pre-accident difficulty with the right side of that joint.  On balance, I am not persuaded that she suffered a costovertebral injury as opined by Dr. Jung.

Another interesting aspect of this decision was the Court’s discussion of the Defence Medical Evidence.  The Defence hired Dr. Hepburn, a retired orthopaedic surgeon, to conduct a so-called ‘independent medical exam‘ of the Plaintiff.  Madam Justice Ballance largely rejected this expert’s evidence and in doing so made the following critical comments:

191]     Since his retirement in 2007, Dr. Hepburn’s medical practice has been solely devoted to conducting independent medical examinations.  Virtually every referral examination he receives comes from defence counsel and ICBC.

[192]     By his own admission, a mere 10%-15% of Dr. Hepburn’s practice prior to his retirement involved soft tissue injuries, and even then he was not involved in their ongoing management and treatment.  Dr. Hepburn testified that, while in practice, he did not treat patients with back injuries who had not suffered a fracture, slipped disc, disc prolapse or other type of injury requiring surgical intervention.  Generally, he would not even see such patients and would typically refer them to a specialist better trained to treat ongoing non-orthopaedic soft tissue injuries, such as a physiotherapist and physiatrist.

[193]     Dr. Hepburn could not recollect treating any costovertebral joint injuries, and testified that he only treated orthopaedic facet joint injuries (dislocations and fractures) for which surgery can produce some benefit.

[194]     As Dr. Hepburn testified, it became apparent that, although he was qualified as an expert in the diagnosis and prognosis of soft tissue injuries, his expertise lies almost exclusively in the field of orthopaedics.  This, however, is not an orthopaedic case.  It is a claim involving chronic soft tissue injuries which cannot be repaired through surgical intervention.

[195]     The plaintiff told Dr. Hepburn that her major problem related to her low back.  She also complained of pain in her left shoulder, a stiff neck, and headaches.  Dr. Hepburn agreed that the plaintiff likely suffered some soft tissue injury to her neck and knee from the accident.  However, he found it unclear as to whether her lower back pain was connected to the accident.  In this regard, he seemed to place some reliance on his understanding that there had been no complaint of back pain noted in the plaintiff’s medical records in the months following the accident.  That is a misconception.  The physiotherapy records are replete with the plaintiff’s complaints of low back pain in the months immediately after the accident.  The treating physiotherapist’s discharge note, which formed part of Dr. Smith’s file, leaves no doubt that the plaintiff’s lumbar spine was the chief area of treatment throughout the many sessions.  I can only conclude that Dr. Hepburn’s review of those records was superficial.

[196]     As an aside I would also note that the plaintiff’s controversial ICBC statement tendered into evidence by the defence itself refers to complaints of low back pain within the first two weeks following the accident.

[197]     In addressing the plaintiff’s pre-accident physical difficulties, Dr. Hepburn seemed to suggest that it would be legitimate to interpret her physiotherapist’s notations of sacroiliac joint pain as being medically equivalent to a notation of unspecified low back pain.  The implicit suggestion was that the plaintiff’s post-accident low back pain is the same as her sacroiliac joint complaints before the accident and, accordingly, was not caused by the accident.  He went so far to say that, in all likelihood, the plaintiff actually had low back pain and not sacroiliac joint dysfunction when she saw her physiotherapist before the accident.  I have previously made clear that I reject the free-floating notion that a physiotherapist would confuse those distinct anatomical areas.  His evidence on this point distinguished Dr. Hepburn from the other medical experts who gave evidence on the point.  It caused me considerable concern.

[198]     I also found it strange that in his report, Dr. Hepburn described the plaintiff’s headache complaints as falling beyond his area of expertise.  The preponderance of all of the other medical opinion evidence, which I find credible, is that the plaintiff’s post-accident headaches probably stem from her injured neck.  In his report, Dr. Hepburn did not allow for the prospect that the plaintiff’s headaches could be cervicogenic in origin, and represented referred pain from her injured neck.  He was only prepared to admit that potential in cross-examination.  Instead, in his report he had implied that the plaintiff’s headaches had a psychological source by suggesting that they could be addressed by medication for anxiety.  In my view, Dr. Hepburn’s assessment of the plaintiff’s ongoing headaches was not evenly balanced.  That too was of concern.

[199]     Dr. Hepburn did not find a restricted range of movement in the plaintiff’s spine.  He explained that the dual inclinometer applied by Dr. Jung is not used by him or any orthopaedic surgeon to his knowledge.  That does not mean that measurement with that device is not the gold standard.  I was most impressed with Dr. Jung’s explanation of the frailties of the so-called “eyeballing” assessment of range of motion and the superior measurement capability of the device he used.

[200]     Dr. Hepburn was adamant that the manner in which Dr. Jung and Dr. Hershler purported to diagnose a potential facet joint injury was not adequate.  He testified that a definitive diagnosis cannot be made without proper imaging studies such as a bone scan, CT scan or MRI.  He stood by his opinion that there was no facet joint injury that he could detect on his examination of the plaintiff.  Dr. Hepburn’s comments regarding the diagnosis of facet joint injury illustrates the difference between the medical approach to diagnosis for the purposes of determining causation, and the legal approach to the question of causation.  As noted by the Supreme Court of Canada in Snell v. Farrell, [1990] 2 S.C.R. 311, [Snell ] at para. 34:  “Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.”

[201]     With respect to Dr. Jung’s diagnosis of costovertebral injury, Dr. Hepburn opined that such an injury is quite rare and would normally be associated with severe trauma such as in an individual with broken ribs.  He suggested that it would take a “divine talent” to diagnose this type of injury based on physical/clinical presentation alone.

[202]     Relying on Dr. Hepburn’s opinion, the defence argues that the plaintiff’s subjective pain complaints which have continued for more than four years after the accident are inconsistent with the fact that her spine has suffered no structural damage or other ominous pathology.  The underlying logic appears to be that pain and chronic injury do not occur in the absence of orthopaedic or other structural injury.  That notion offends common sense and is blind to the credible explanations given by Drs. Jung and Hershler and Ms. Cross as to the nature of soft tissue injury.

[203]     In the end, I consider it unsafe to give any weight to the opinions expressed by Dr. Hepburn.

$40,000 Non-Pecuniary Damages for Young Mom With Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $43,000 in total damages to a Plaintiff as a result of a 2005 car crash.
In today’s case (Daniels v. Haaksma) the Plaintiff was a passenger in a vehicle that was rear ended.  As a result of the collision she suffered “mild to moderate soft tissue injuries to her lower and mid-back, and moderate soft tissue injuries to her neck. ”  Mr. Justice Ehrcke found that while these injuries “resulted in considerable pain, discomfort and loss of range of motion, as well as headaches and loss of sleep”  these largely improved after 6 months and ‘substantially recovered” 3.5 years after the crash when the Plaintiff was injured in a subsequent collision.
In awarding $40,000 for non-pecuniary damages for the Plaintiff’s pain and suffering and loss of enjoyment of life the Court stressed the fact that the Plaintiff was a young mother at the time of the crash and that her injuries caused her to lose out “on experiencing the full joy of raising her son when he was an infant“.  In assessing the Plaintiff’s damages at this figure Mr. Justice Ehrcke made the following findings:
[41] As set out above, I have concluded that the plaintiff suffered mild to moderate soft tissue injuries to her lower and mid-back and moderate soft tissue injuries to her neck as a result of the 2005 accident, resulting in pain, discomfort, and loss of range of motion, headaches, and loss of sleep. These symptoms were particularly acute for the first several months after the accident, but they improved about 75 percent after six months. She continued, however, to experience some pain and discomfort over the next two years. By the time of the subsequent accident in October 2008, she was substantially recovered and did not have any continuing limitations on her ability to work…

[45] One important factor in the present case is that the plaintiff’s injuries came at a particularly unfortunate time for her, when she was trying to care for her infant son. This was her first child. He was only four months old at the time of the accident. As a result of her injuries, she could not enjoy a carefree experience of playing with him. She could not lift him without someone else’s assistance. She had to have someone hand the child to her when he needed feeding. Because she was breast feeding, she was reluctant to take painkillers to relieve her pain. It is a cliché, but true, that children are young only once. The plaintiff feels that as a result of the accident she lost out on experiencing the full joy of raising her son when he was an infant. That is a loss that she can never recover. This was a great disappointment to her.

[46] The evidence in this case also establishes that the accident put considerable stress on the plaintiff’s relationship with her fiancée. He was working long hours at his new business, and when he came home, he had to take on housekeeping chores that would normally have been shared. He described how, as a result of the accident, the plaintiff was no longer the active person she had been, and how much of the fun went out of their relationship.

[47] Particularly important in this case is the fact that the plaintiff had been an accomplished soccer player prior to the accident. This was clearly a very important part of her life. She had been playing since she was a young child. She played on three different leagues at a very high level. She had travelled to foreign countries with her team. To a large extent, her social life revolved around her athletic activities. It was an important factor in initially bringing the plaintiff and her fiancée together. After the accident, she found she could not play soccer. She tried for a month or so in 2006, but had to stop…

[50] On the evidence, I am satisfied that the plaintiff tried to resume playing soccer in 2006 and perhaps again in 2007 and that she stopped playing because she felt the pain from her injuries prevented her from playing at the level she had previously been accustomed to. I am satisfied that this is a factor that should properly be taken into account in assessing non-pecuniary damages…

[53] In my view, the severity of the injuries, the length of their persistence, and the effect which they had on the plaintiff’s life in the present case are more serious than in the cases cited by the defendant, and somewhat less serious than the cases cited by the plaintiff. At the end of the day, every case is unique and must be determined on the basis of its own facts.

[54] I am satisfied that in the circumstances of the present case the proper assessment of non-pecuniary damages is $40,000.

Self Represented Litigant Awarded $30,000 Non-Pecuniary Damages for Neck and Back Soft Tissue Injuries

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just under $50,000 in total damages for injuries and loss from a 1999 motor vehicle collision.
In today’s case (Foo v. Masardijian) the Plaintiff was involved in a rear-end crash on April 27, 1999.  Fault was admitted by the rear motorist.  The trial involved an assessment of damages.
The Plaintiff represented himself.  He was seeking “an award of one-half to one million dollars“.  He sought this figure apparently on the basis that his accident related injuries were ongoing by the time of trial.  This was rejected by the Court which held that some of the Plaintiff’s perceptions about his injuries were “completely mistaken“.
Madam Justice Baker had issues with respect to the Plaintiff’s reliability as a witness as he testified to a series of post accident events which were “sufficiently bizarre and inherently improbably to cast doubt on the accuracy of (the Plaintiff’s) perceptions.”
Ultimately Madam Justice Baker awarded the Plaintiff $18,000 for past loss of income and $30,000 for his non-pecuniary damages.  In justifying this figure the Court summarize the Plaintiff’s accident related injuries as follows:

54] Mr. Foo did experience pain and discomfort, particularly in the first 18 months following the accident and some intermittent neck and lower back pain after that time.  Although I am not persuaded that the disability perceived by Mr. Foo after September 2000 can fairly be attributed to the accident injuries, Mr. Foo did experience discomfort and some degree of disability for a period of about 18 months with some lingering intermittent symptoms after that time.

[55] It does not appear that Mr. Foo engaged in many recreational activities before the motor vehicle accident as he was working 7 days a week in his restaurant.  He did testify that driving long distances caused some discomfort and this applied to driving to Seattle on some Saturday afternoons to attend a Buddhist temple there.  Mr. Foo eventually began attending a temple in the Lower Mainland where he now volunteers at least one day a week as a cook.

[56] This case does have some unique aspects, as Mr. Foo has developed certain perceptions about his injuries and about certain treatment he has received that I am persuaded are completely mistaken.  I am not satisfied that the defendant can be held to be responsible for these mistaken perceptions and therefore include no compensation for the injuries or slights Mr. Foo believes were visited upon him by the defendant’s insurer.

[57] Considering all of the circumstances, I award Mr. Foo the sum of $30,000 for damages for pain, discomfort and loss of enjoyment of life.

$40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Adding to this “pain and suffering case-law database” reasons for judgement were released today dealing with damages for a knee injury and soft tissue injuries sustained in a BC Car Crash.
In today’s case (Hill v. Durham), the Plaintiff was involved in a 2005 rear end accident.  The Plaintiff was a passenger at the time and the issue of liability (fault) was admitted at trial.  The trial focused on the extent of the Plaintiff’s accident related injuries and their value.  In total, damages of just over $77,000 were awarded including an award of $40,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In arriving at this figure Mr. Justice Barrow summarized the Plaintiff’s accident related injuries and prognosis for these as follows:
[22] Dr. McKenzie saw Ms. Hill in early October 2006. In his consultation report of October 12, 2006 he wrote that Ms. Hill’s problem seemed to be localized to a particular tendon in the knee and he thought that it may be the “result of trauma during the motor vehicle accident”. He prescribed exercises and ordered some further diagnostic imaging. An MRI was performed in January 2007 and it revealed two things:  thinning of the patellar cartilage in the knee joint and greater than normal water content in one of the bones, a condition technically described as subchondrial bone marrow edema. Dr. McKenzie testified that edema such as that found in Ms. Hill’s knee is caused by one of two things:  trauma or excessive wear and tear. When it is caused by excessive wear and tear it is accompanied by other findings visible on x-ray. Those other findings were not present in Ms. Hill’s knee, and as a result Dr. McKenzie concluded that the edema she is experiencing is as a result of trauma. He noted that Ms. Hill’s left knee has neither of the conditions. He testified that the degree of trauma necessary to cause this condition would “not be trivial”. He said that the problems are consistent with the kind of trauma that might be sustained by hitting a knee on the dash in motor vehicle accident…

25]         To a degree the resolution of this issue and other issues turns on the reliability and credibility of Ms. Hill. In general I found Ms. Hill to be a careful and credible witness. She testified that she had experienced bumps, bruises and injuries of various kinds over the course of her life. She said that she had always recovered reasonably quickly and completely from these events. She expected to do likewise following this accident. In general she impressed me as someone not prone to dwell on or overstate her physical problems. I accept that she now believes she struck her knee in the collision, although she has reached that conclusion not because she specifically remembers doing so but rather on the basis of the circumstantial evidence. She testified almost in passing that at one of her first yoga classes, within a month of the motor vehicle accident, she told her teacher that she was experiencing difficulties with her right knee. I accept her evidence on that point, and accept that she became aware of the discomfort in her knee reasonably shortly after the accident. Further, I am satisfied that she did not strike her knee after the accident in a manner that would give rise to the condition Dr. McKenzie found. I think it more likely than not that, as Dr. McKenzie noted, Ms. Hill was experiencing a number of more significant pains in the immediate aftermath of the collision and it was only as those pains subsided and her activity level increased that she became aware of the difficulty in her right knee.

[26]         I am satisfied that Ms. Hill’s right knee problems are caused by the motor vehicle accident.

[27]         The prognosis for this injury is guarded. Dr. McKenzie’s opinion is that the condition is often chronic. In February 2007 he prescribed a knee brace for use when exercising in a way that strains the knee. In his opinion, Ms. Hill may require renewals of that brace as well as periodic support from physiotherapists and medications for pain and inflammation. Ms. Hill reported to Dr. Dodek in October 2008 that her knee symptoms were improving.

[28]         Ms. Hill’s other injury is to the soft tissues of her back. She has headaches secondary to that injury. In his October 28, 2008 report, Dr. Dodek expressed the view that her “long term prognosis for recovery…remains good” notwithstanding that almost three years had passed since the accident. Dr. Travlos, in his November 1, 2007 report, wrote that Ms. Hill’s headaches would continue to reduce in frequency and would likely return to their pre?accident level. As to her right mid and low back difficulties, he expressed no opinion on future prognosis. He did, however, encourage Ms. Hill to add cycling to her exercise program and to reduce her reliance on physiotherapy. He also thought that her consumption of over-the-counter analgesics could and should be reduced. Dr. Apel, in her September 12, 2008 report, concluded that the prognosis for complete recovery is guarded however the prognosis for significant symptom reduction is fair to good. In her view, Ms. Hill’s current exercise program is insufficient and with appropriate changes, including increased focus on stretching, she will experience further symptom reduction…

[34]         Turning to the authorities, the injuries sustained by the plaintiffs in Menhinick, Wery, and Houghton (Litigation Guardian of), are generally similar to those suffered by Ms. Hill. The prognosis for each of those plaintiffs, however, was more guarded than I find is the case for Ms. Hill. The injuries sustained by the plaintiffs in the other authorities cited by counsel for Ms. Hill are all significantly more serious. On the other hand, I am satisfied that Ms. Hill’s injuries are more significant than those suffered by the plaintiffs in Krogh and Job.

[35]         In summary, Ms. Hill suffered a moderate soft tissue injury to her back. That injury remains problematic almost four years after the accident. I am satisfied that it will continue to improve. Her knee injury is less painful but is likely to last longer, if not indefinitely. Based on all of the evidence and a consideration of all of the authorities cited by counsel, I find that the appropriate award for non-pecuniary damages is $40,000. Although not asked to, I would allocate that award $25,000 to the back injury and $15,000 to the knee injury. I have not reduced the award to account for Ms. Hill’s pre?existing knee problems because I am satisfied they would not interfere in any significant way with her recreational and other activities.

$25,000 Non-Pecuniary Damages Awarded in Low Velocity Impact

Reasons for judgement were released yesterday (Boyd v. Shortreed) by the BC Supreme Court, New Westminster Registry, dealing with a Low Velocity Impact (LVI).  The Plaintiff testified that she was involved in a rear-end crash and that she was injured despite having minimal damage to her vehicle.  Interestingly, the Defendant denied that the crash happened at all.
Mr. Justice Harvey rejected the Defendant’s evidence and concluded that a crash did occur.  Specifically he held that:
[33] The plaintiff reported the accident on April 19, 2005 by telephone and advised the adjuster for ICBC of the damage to her vehicle and the fact she had been injured.  Without first bringing the vehicle to ICBC, she took the car to an auto body shop for repairs and the bumper was fixed.  She testifies that the total cost of repairs was about $360.  No documentary evidence concerning the repairs was ever produced in evidence.  Photographs of the rear bumper of the plaintiff’s vehicle were of little assistance in determining whether there was any damage visible.  It is conceded that the damage amounted to nothing more than an abrasion or scratch requiring repainting.  There was no structural damage to the plaintiff’s car…

[59] There were other inconsistencies in the evidence of the defendant which cause me to reject his evidence as to the happening of the incident.  Accordingly, wherever the evidence of the plaintiff and the defendant conflict, I accept the evidence of the plaintiff as being the accurate version of events.

[60] That being found, I conclude that the defendant struck the plaintiff’s car from the rear.  While I accept there was a situation of peril created by the driver of the tractor trailer, the proximate cause of the collision between the defendant’s vehicle and that of the plaintiff was the inattention of the defendant by travelling too close to the rear of the plaintiff’s vehicle or, alternatively, the condition of the brakes on his vehicle which did not allow him to slow his vehicle in time to avoid hitting the plaintiff’s vehicle.

[61] I do not find the plaintiff’s reaction to the danger created by the tractor trailer driver to be wanting and decline to apportion any fault for the accident to her.  She reacted appropriately to a situation of emergency created by another driver who is not a party to the action.

[62] As a result, the defendant is 100% liable for the collision and resultant damages.

In valuing the Plaintiff’s Non-Pecuniary Damages at $25,000 Mr. Justice Harvey made the following findings with respect to her accident related injuries:

[76] The only new complaint arising from the accident appears to be the onset of mid-back pain.  This is based mainly on self report.  The extent and duration of these symptoms are described in some detail in the reports of Dr. O’Connor and Dr. McKenzie.  This complaint seems to have occasioned the most pain and has persisted, although significantly improved, to the date of trial.  Her recovery was estimated by the plaintiff to be at 85% of normal when she last attended Dr. McKenzie in August 2009.  There is no ongoing disability related to the complaints nor has there been for some since late in 2007.

[77] In summary, the plaintiff suffered an exacerbation of her previous symptoms in her neck and lower back.  I find these complaints had substantially resolved to their pre-accident condition inside of one year.  In April of 2006, according to the notes of Dr. Shah, there was a further onset of lower back pain but, on the whole of the evidence, I cannot relate this flare up to the accident of April 2005.  The injury to her mid-back was as a result of the accident.  It persisted longer and caused her more discomfort than the exacerbation of her pre-existing symptoms.

[78] Accordingly, taking all of this into account, I assess general damages in the amount of $25,000 in respect of her soft tissue injuries.

$95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Reasons for judgement were released yesterday dealing with an appropriate award of damages for soft tissue injuries and chronic pain lasting for over 6 years.
In yesterday’s case (Gosal v. Singh) the Plaintiff was involved in 2 BC Car Crashes.  The first in 2003, the second in 2005. The first crash was a rear end collision.  Fault was admitted.  As the Plaintiff was recovering from her injuries from the first collision she was involved in the second collision.
The second crash happened when the Defendant, who was parked, pulled out in front of the Plaintiff’s lane of travel.  Fault was not admitted but Madam Justice Loo held that the defendant was 100% at fault finding that he “moved his vehicle from a parked position without first determining that he could do so safely, and that (the Plaintiff) had no opportunity to avoid the collision.”
The Plaintiff suffered from various soft tissue injuries and chronic pain which lasted for over 6 years and still bothered the Plaintiff by the time of trial.  In valuing the Plaintiff’s non-pecuniary damages (pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Loo made the following findings:

[49] Ms. Gosal suffered mild to moderate soft tissue injuries to her neck, upper back, shoulders, and mid and lower back, which caused severe headaches. She was treated with physiotherapy, massage, and chiropractic treatments, but her recovery took longer because of her depression and anxiety. She was recovering when the second accident exacerbated her injuries, including her depression and anxiety.

[50] Dr. Khunkhun states that Ms. Gosal’s long-term prognosis is guarded because her symptoms have not resolved after such a long period of time since the accidents. She does not consider Ms. Gosal to be at an increased risk of any long-term sequelae such as osteoarthritis. She believes Ms. Gosal would continue to benefit from body conditioning and strengthening exercises. She observed that in the past Ms. Gosal benefitted from regular exercise and when she stops exercising regularly, her mood deteriorates and her pain increases.

[51] Dr. Manchanda last saw Ms. Gosal on September 24, 2008. She told him that she had pain on about four or five days a week, and no pain on about two days a week. She was still looking for employment in counselling. At that time, Dr. Manchanda felt that Ms. Gosal could work in a job that was sedentary or involved light physical duties. He also felt that Ms. Gosal could complete the majority of her household chores, but that she might require a break or assistance with the heavier chores, such as vacuuming or carrying heavy laundry.

[52] Dr. Manchanda’s prognosis has thus far proved to be accurate. Ms. Gosal has worked full-time since October 6, 2008 in a job that is fairly sedentary and involves only light physical duties. There is no evidence that she has taken time off work because of symptoms arising from the accidents…

[67] I prefer Dr. Sandhu’s opinion that Ms. Gosal is not seeking secondary gains. She was looking after the household and her children’s needs as best she could, and doing her best to continue with her studies. Having observed Ms. Gosal, and on all the evidence, I conclude that she is not malingering and that her complaints of pain and depression are genuine.

[68] She continues to improve, albeit slowly. I find that there are two to three days a week when she is not in pain. Full-time employment has assisted her both physically and emotionally. Though it is now more than six years since the first accident, and more than four years since the second accident, she still suffers from depression and pain. I anticipate that over the next few years, with a regular daily exercise program, her physical pain and depression will continue to improve but may not resolve completely.

[71] I find that circumstances of Ms. Gosal’s injuries are similar to those in Foran v. Nguyen, 2006 BCSC 605, 149 A.C.W.S. (3d) 419, where the award for non-pecuniary damages was $90,000, and Jackson v. Lai, 2007 BCSC 1023, 160 A.C.W.S. (3d) 276, where the award was $100,000.

[72] I consider an award of $95,000 for non-pecuniary damages to be appropriate.

In addition to this case’s value as a precedent for valuing non-pecuniary damages for chronic pain, this case is worth reviewing for the Court’s criticism of the expert witness called by the defense.

I’ve previously written about the duty of experts to the court and highlighted judicial criticism when experts ignore this duty.  In today’s case the court made critical findings with respect to Dr. Hymie Davis, a psychiatrist who billed over $290,000 to ICBC in 2008.  Specifically Madam Justice Loo found that Dr. Davis “was presenting a case for the defence rather than providing an impartial expert opinion.  Dr. Davis’ argument that (the Plaintiff’s) injuries should have healed and that she is seeking secondary gains or malingering, is at odds with his article “The Whiplash Injury“.

BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act.

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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