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Tag: soft tissue injuries

BC Personal Injury Claims Round Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on BC Personal Injury Claims Round Up

On Friday two more cases were released by the BC Supreme Court dealing with non-pecuniary damages which  I summarize below to add to this Pain and Suffering database.
The first case (Macki v. Gruber) dealt with a bus accident.   The Plaintiff’s vehicle was struck by a Greyhound bus in Duncan, BC.  Liability was contested but the Greyhound bus driver was found 100% at fault for the accident.  Paragraphs 1-60 of the case deal with the issue of fault and are worth reviewing for Mr. Justice Metzger’s discussion of credibility.  In finding the Defendant at fault the Court found that he was “careless” and that he “lied” and his evidence was rejected in all areas that it was in “conflict with the testimony of any other witness“.
The Plaintiff suffered various injuries, the most serious of which neck pain, headaches and upper back pain.  She was diagnosed with a chronic pain syndrome.  Mr. Justice Metzger assessed her non-pecuniary damages at $75,000 and in doing summarized the Plaintiff’s injuries and their effect on her life as follows:

[144] I find the chronic pain has made Ms. Mackie reclusive and morose. She has gone from a “bubbly, fun-loving, outgoing, social, interesting” person, to someone who is  anti-social, with bouts of depression and sadness. From the evidence of the plaintiff and Ms. Garnett, I find that the plaintiff defines herself as a very hardworking woman, but that the chronic pain prevents her exhibiting her previous commitment to work.

[145] This loss of enjoyment of life and identity is given considerable weight.

[146] I am satisfied the plaintiff is resilient and stoic by nature, and I do not doubt the extent of her pain and suffering. She has endured a regime of injections in order to retain some of her employment capacity. Plaintiffs are not to receive a lesser damage award because of their stoicism.

[147] I am satisfied that the plaintiff’s injuries and ongoing limitations are more like those cited in the plaintiff’s authorities and therefore I award her $75,000 in non-pecuniary damages.

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In the second case released on Friday (Dhillon v. Ashton) the Plaintiff was involved in 2 separate rear-end collisions.  Both claims were heard at the same time and fault was admitted leaving the court to deal with the sole issue of damages.

Madam Justice Ross found that the Plaintiff suffered various soft tissue injuries in each of the 2 accidents.  She awarded non-pecuniary damages in total of $25,000 for both collisions.

In assessing an award of $15,000 for non-pecuniary damages for the first accident the Court summarized the Plaintiff’s injuries as follows:

[60]         I find that Mr. Dhillon suffered soft tissue injury to his neck, right shoulder and low back in the First MVA. He suffered from headaches arising from this injury, but these resolved in a relatively short period of time. The injury to the right shoulder had essentially resolved by mid-May 2005. I find, consistent with Dr. Sandhu’s report that Mr. Dhillon was unable to work as a result of his injuries from the time of the First MVA to mid-May 2005 and then continued to suffer partial disability at work until July 2005. By July 2005 he was able to return to work without limitation. I find that his injuries from the First MVA were essentially resolved by October 2005, except for intermittent pain, consistent with Dr. Sandhu’s report. From October 2005 until the time of the First Workplace Accident, Mr. Dhillon required the use of pain medication for low back pain that was the consequence of both his prior condition and lingering consequences of the First MVA.

[61]         In the result, I find that Mr. Dhillon suffered mild to moderate soft tissue injury from the First MVA with the symptoms most significant in the first three months following the injury; with some ongoing problems for the next five months and intermittent pain thereafter. I find the appropriate amount for non-pecuniary damages for the First MVA to be $15,000.00.

In assessing non-pecuniary damages of $10,000 for the second accident Madam Justice Ross summarized the injuries it caused as follows:

[64]         I find that Mr. Dhillon suffered soft tissue injuries in the Second MVA that resulted in an exacerbation of his injuries to his neck, shoulder, and low back. He had returned to work following the Second Workplace Accident before the Second MVA, but was not able to work after this accident. He required physiotherapy, chiropractic treatment and pain medication for both the continuing injuries from the Workplace Accidents, an apparent recurrence or continuation of the right side back problem first noted in 2000, and the Second MVA. Mr. Dhillon was able to return to work part-time in November 2006 and full-time in January 2007. He requires some accommodation from his employer in terms of his duties. He continues to experience pain and requires medication to control his pain. I find that the Second MVA plays some role, albeit a minimal one, in Mr. Dhillon’s continuing symptoms, the other more significant contributors being the original complaint of low back pain, and the two Workplace Accidents.

[65]         In the circumstances, I find that $10,000.00 is an appropriate award for non-pecuniary loss for the Second MVA

More on Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 47 Comments on More on Chronic Soft Tissue Injuries

Today reasons for judgment were released by the BC Supreme Court in 2 separate cases dealing with chronic soft tissue injuries.  I summarize these below in my continued effort to grow this public database addressing awards for pain and suffering in ICBC and other BC Injury Claims.
In the first case (Warren-Skuggedal v. Eddy) the Plaintiff was involved in a very serious collision in Prince George, BC.  The defendant was “driving well in excess of the speed limit…(he) lost control and the truck swerved into the lane in which (the Plaintiff) was driving…the force of the impact tore (the defendants) vehicle in half“.
Fault was not at issue, rather, the court dealt solely with the issue of damages.  The Plaintiff unfortunately had some serious pre-existing health issues and Mr. Justice Sewell had to decide “the true extent of Ms. Warren-Skuggedal’s injuries and disabilities and the extent to which they are attributable to the injuries she suffered in the accident. ”
In valuing the Plaintiff’s non-pecuniary damages at $60,000, Mr. Justice Sewell summarized her injuries, their relationship to the collision and their effect on her life as follows:
[19] I conclude that Ms. Warren-Skuggedal suffered soft tissue injuries in the accident which aggravated her pre-existing depression and anxiety.  I find that she genuinely experiences the symptoms she has described although I do think that she does exaggerate and dramatize them to a certain extent….

[23]         I conclude that some of the symptoms Ms. Warren-Skuggedal reports are attributable to the accident but that the more serious ones are attributable to her pre-existing condition.  Specifically I find that the anxiety, depression and cognitive problems she experiences are not caused by the accident.  As I understand the law in this area the onus is on Ms. Warren-Skuggedal to prove, on a balance of probabilities, that her symptoms would not be present but for the negligence of the defendant, which led to the injuries and trauma suffered in the accident.  I do not think that she has met that onus with respect to the difficulties described in this paragraph.  I think it is more likely that she would have continued to suffer from depression, anxiety and cognitive difficulties even if she had not been injured in the accident.  The difficulties were part of her original position.

[24]         I must also conclude that Ms. Warren-Skuggedal’s inability to find employment since the accident and any impairment of her capacity to earn income in the future are not attributable to the accident.  While I base this conclusion on the whole of the evidence I note that it is consistent with the opinions expressed by Dr. Reddy and Dr. Hirsch, both of whom concluded that the motor vehicle accident did not negatively affect her employment prospects.

[25]         On the other hand, I do conclude that Ms. Warren-Skuggedal does suffer chronic pain as a result of the defendant’s negligence.  I also find that it is likely that she will continue to suffer from that pain for the foreseeable future.  I also conclude that that pain has resulted in some permanent restriction of Ms. Warren-Skuggedal’s ability to enjoy recreational activities and carry out such household tasks as heavier cleaning and gardening.

This case contains a useful analysis of the Courts role in wading through injuries both related to and unrelated to an accident.  The full judgement is worth reviewing for anyone interested in this area of the law.
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The second case released today (Gordon v. Timins) involved a 2005 BC Car Crash.  The Plaintiff’s vehicle was rear-ended by a u-haul truck.  This collision was significant enough to propel the Plaintiff’s vehicle into the vehicle in front of her.
The Plaintiff’s main injury was chronic neck pain.  Mr. Justice Cullen awarded the Plaintiff $45,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  He summarized this lasting injury as follows “In the result Ms. Gordon is left with an injury to her neck that, I find, never fully abates and is aggravated by aspects of her work.  I also find that the plaintiff’s neck pain when aggravated is associated with headaches, some dizziness and impaired sleep patterns with consequential fatigue. ”
In reaching this conclusion the court largely accepted the evidence of Dr. Dhawan, a specialist in physiatry, whose evidence was summarized as follows:

[96]         Dr. Dhawan was a specialist in physiatry or physical medicine.  He testified that the neck has a complicated anatomy with soft and hard tissue structures.  It has ligaments in front and the muscles on top of that.  If the muscles or ligaments are torn, it can lead to instability of the structure.  Dr. Dhawan’s diagnosis of the plaintiff when he saw her on July 18, 2008 was that she had torn muscles and ligaments.  He said that ligaments take longer to heal than muscles because they have less blood supply.  Scar tissue can form and it is not as strong as the original ligament and can stretch or tear more easily and can remain inflamed after forming.  He testified that in the case of a rear-end accident, the usual source of pain is the upper facet joints.  In his report, he reported no boney discogenic or neurological injury, characterizing it as a soft tissue injury.  He noted that the plaintiff “was referred to Kevin Tam … who was able to help her tremendously.”  He noted that she has difficulty in extending her head upwards to prune trees.  He recommended injection therapy – local steroid and anaesthetic injections, 2 – 3 times over a 2 – 3 month period.  He testified that those injections with a stretching and posture control program could resolve the syndrome of soft tissue injury.

[97]         He opined there would be no permanent sequelae like development of arthritis or any need for surgery and no disability from her work as a landscaper/arborist.

[98]         Dr. Dhawan concluded, however, that given the chronicity of her symptoms “some symptoms of neck and shoulder girdle pain may remain on a longer term basis and she will have to learn to live with pain and a quick resolution of symptoms is not likely.”…

[100]     Dr. Dhawan noted that although the degenerative changes are unrelated to the motor vehicle accident, “…individuals who have such changes in the neck do not respond well through treatment and have more prolonged symptoms after soft tissue injuries and symptoms of neck pain may persist for several years and may become chronic.”

[101]     Dr. Dhawan noted in Appendix 3 to his July 18, 2008 report that the plaintiff’s neck extension was only 25% of normal without pain.  He concluded that that was an objective symptom and consistent with his diagnosis.

$35,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Back Injury

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

Reasons for judgment were released Friday awarding a Plaintiff just over $69,000 in total damages for injuries and losses sustained as a result of a 2006 BC Car Crash.
In Friday’s case (Dermody v. Gassier) the Plaintiff was injured when his vehicle was rear-ended in South Surrey.  Fault was admitted leaving the court to deal with the sole issue of damages (value of the claim).
Mr. Justice Williams found that while the Plaintiff “embellished his description of the way things were before the accident” the Plaintiff nonetheless was injured and had a pre-existing condition worsened as a consequence of this collision.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000  Mr. Justice Williams summarized the Plaintiff’s injuries as follows:

[92] The plaintiff sustained soft tissue injuries in the motor vehicle accident.  Some of them were relatively transitory in nature; others were more serious and he says they have continued to impact him in a significant way.

[93] The bruising and such injury abated within a short period of time, that is, within two or three weeks.  The headaches continued, albeit on a diminished basis, for a period of time in the order of 12 months.  The neck pain was initially a serious problem but I conclude resolved substantially within 12 to 16 months.  The driving apprehension, again, resolved within a fairly short period of time and did not meaningfully impact in any long-term way upon the plaintiff.

[94] There is the matter of the sensation loss in the plaintiff’s feet.  None of the medical experts have been able to understand what causes that, and Dr. Sovio was quite sceptical of it.  Nevertheless, there appears to be no reason to find that it is not an actual condition; its onset was concurrent with the accident.  I, therefore, find that it is a consequence, albeit a relatively minor one, of the incident and that it is a continuing condition.

[95] The most serious and sustained injury was that to the plaintiff’s back.  I accept that it caused him significant pain and discomfort.  Based on the medical evidence, I accept as well that there will be some residual back pain going forward….

[103] To clarify, I find that, at the time of the motor vehicle accident, the plaintiff’s back condition was not asymptomatic.  He was having back pain with certain attendant limitations.  Whether that was from the incidents at the courier job, whether it was because of degenerative conditions, or whether it was some combination, I am not able to say.

[104] However, I am satisfied that his back was symptomatic at the time of the accident, and, in accordance with the crumbling skull principle, he is only entitled to recover damages that reflect the difference between his post-accident condition and his pre-accident condition….

I conclude that there were weaknesses in this plaintiff’s pre-accident condition that were not symptomatic at the time of the accident injury, but which would have the effect of making the plaintiff likely to experience greater consequences from the insult of the accident.  Injuries that result where such a situation is present are compensable…

[115] On the particular facts of the matter at hand, it is my conclusion that a fit and appropriate award of non-pecuniary damages in this case is $35,000.

In addition to the discussion addressing the award for non-pecuniary damages, this case contains a useful discussion of the “thin skull” and “crumbling skull” legal principles which is worth reviewing for anyone interested in how BC courts deal with pre-existing conditions and their interplay with traumatic injuries in BC tort claims.

ICBC Soft Tissue Injury Claims, Low Velocity Impacts and Credibility

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 1 Comment on ICBC Soft Tissue Injury Claims, Low Velocity Impacts and Credibility

When ICBC denies compensation for an injury claim due to their LVI Program the credibility of the Plaintiff is usually put squarely at issue. In Soft Tissue Injury Claims ICBC often challenges the veracity of the Plaintiff alleging that the injuries are being exaggerated or perhaps wholly made up.
Reasons for judgement were transcribed today by the BC Supreme Court, New Westminster Registry, dealing with such a defence.
In today’s case (Jezdic v. Danielisz) the Plaintiff was involved in a 2003 BC Car Crash.  The crash occurred in a parking lot and was a low velocity impact which resulted in little vehicle damage.  The Plaintiff alleged that she suffered various injuries in this collision.  Mr. Justice Sigrudson dismissed the Plaintiff’s claim finding that she ‘has not dischared the burden on her to establish on a balance of probabilities that she was injured in the car accident’.   In reaching this conclusion the Court made the following comments on credibility, low velocity impacts and soft tissue injury claims:

[30] I should consider the circumstances of the collision.  I am mindful that persistent injuries can arise from low velocity collisions.  This was a low velocity collision.  The defendant’s pickup truck was backing out of a spot two spaces (or at least one space) over from the plaintiff’s father’s vehicle.  The parking lot was slightly higher on the side where the defendant was parked, and lower on the side where the plaintiff’s vehicle was.  The accident occurred, I find, when the defendant’s vehicle backed into the plaintiff’s vehicle at an angle.  The defendant’s bumper rode up over the plaintiff’s bumper causing it to compress and split the paint on the bumper, and then the defendant’s vehicle struck the area around the trunk with the left rear corner of the defendant’s vehicle’s bumper.  The damage to the plaintiff’s father’s vehicle was to the lower part of the trunk.  The cost of repairs was $1,122 and the trunk was still operational.  There was no misalignment of the plaintiff’s bumper.

[31] I found the defendant to be a reliable witness.  The circumstances of the accident seem to accord with his evidence.  I think he was prepared to concede things when his evidence was shown to possibly be incorrect.  I accept that he was moving slowly – he described backing up at “a snail’s pace” with his foot on the brake pedal.  The evidence indicates that there were cars parked close to him that required him to move slowly as he backed out.  However, he was careless in ensuring that he did not make contact with the vehicles behind him as he was backing up.  He testified that he did not feel the impact, but agreed on cross-examination that it was possible that the plaintiff’s car moved two to three inches.

[32] Mr. Addision points to the fact that the defendant’s bumper appears lower on the left side, and the fact that there was a “wow” in the bar that attaches the bumper to the frame, but I find it extremely unlikely that those things occurred in this accident.  The accident, I find, was a very minor one with minor damage.

[33] Given the nature of the accident, it is perhaps somewhat surprising that the plaintiff says she was thrown first into the steering wheel and then back, and had immediate pain in her neck and her back.  But as has been noted, there is no rule of law or physics that a person cannot be injured in a low speed collision.  There was no expert evidence lead as to the anticipated body movement in an accident of the type that the plaintiff described.  However, I find some merit in Mr. Addison’s submission that it is probably difficult for a person to recall with any precision exactly how her body moves when she is in a collision.

[34] Although I found that Dr. Petrovic was a reasonable witness, his evidence depended on the veracity and reliability of the symptoms that were described to him by the plaintiff from time to time.

[35] Let me turn to the evidence of the plaintiff.  I have a number of concerns about the plaintiff’s evidence.  The plaintiff’s evidence contained significant inconsistencies in the manner in which she described her symptoms at trial, to her doctor and on discovery.

(a)        She testified at trial that her neck pain got better in the first eight months and there were times that she did not have neck pain, but on discovery she said that the pain in her neck was constant.

(b)        At trial, she said that the back pain was there for two years and got better, but came back depending on the weather.  However, on discovery in December 2005, more than two years after the accident, she said that the back pain was as constant and severe and had not changed since the accident.

(c)        Her description of her symptoms and their duration is inconsistent with Dr. Petrovic’s report that on July 17, 2003, three months after the accident, the plaintiff noted no neck or lower back symptomatolgy.

(d)        Her description of the fact that her injuries had resolved by about two years after the accident was inconsistent with her description to Dr Sovio in May 2007, four years after the accident, that she had pain in the back since the time of the accident.

[36] There were other aspects of the plaintiff’s evidence which were contradictory to other evidence that she gave or inconsistent with evidence that I accepted on a balance of probabilities.

(a)        Her evidence at trial was that she had spoken to Dr Petrovic’s office rather than going in, that she received the doctor’s advice from his receptionist but did not speak to him on the telephone, but on discovery I find that she said that she had spoken with the doctor on the telephone;

(b)        Her evidence about whether she was a member of the Lady Dyna-fit health club before the accident was different at trial than on discovery.  She explained her evidence at trial that before trial she went to that club on a free pass or tickets or on a promotion before the accident but the evidence of the owner Ms. Humphries suggests that the ability to use the club on that basis was quite limited.  This evidence suggested to me that on discovery and at trial she exaggerated to a degree the amount of her physical activity prior to the accident.

(c)        The plaintiff’s evidence at trial that she saw the truck moving pretty fast towards her vehicle was inconsistent with her evidence on discovery where she said that she heard the truck and did not see it.

(d)        In a statement given by the plaintiff after the accident she said that the impact moved the car she was in one meter but at trial she professed not to know how long a meter was and held her hands up four to six inches indicating that might be the distance that the car moved

(e)        She said at trial that she was upset after the accident and told the defendant it was because of the pain that she suffered but the defendant denied that she said that.  I accept the defendant’s description of the accident and of his subsequent discussion with the plaintiff.

[37] In assessing the plaintiff’s credibility I must take into account that English is not her first language, but also that she has been in Canada for ten years and appeared to me to be able to converse easily in English.  At the end of her cross-examination, she was indicating a lack of understanding of the terms and questions used during the discovery.  The plaintiff was offered an interpreter for the discovery but did not take that offer up.  Her inability to understand questions near the end of her cross-examination I found to be disingenuous.  It appeared to become an excuse that she felt she could use to fend off questions on cross-examination that she found difficult.  She appeared to be able to use the transcript from the discovery to analyze the questions for the purpose of explaining her evidence.

[38] I think that the inconsistencies in her evidence that I described are significant and are not explained by her lack of understanding of the questions on discovery or at trial.

[39] The burden is on the plaintiff to prove on a balance of probabilities that she was injured in the accident that was caused by the admitted negligence of the defendant.  Even in the absence of any objective symptoms, the court can be and often is persuaded by the evidence of the plaintiff.

[40] What is my overall assessment?  Has the plaintiff’s evidence persuaded me that she was injured, and the extent to which she was injured in the accident?

[41] I have concluded that on all the evidence that plaintiff has not discharged the burden on her to prove that she has suffered any injury in this accident.  I find the plaintiff’s evidence to be exaggerated and significantly inconsistent both internally and with facts that I find have been established such that I have serious reservations about her credibility to the extent that I can not rely on it alone to determine whether the plaintiff has discharged the burden on her to prove that she was injured in this accident.

[42] I find no support for the plaintiff’s case in the other evidence in this trial.  Dr. Petrovic’s report depends entirely on the reliability of the plaintiff’s reporting and accordingly his report can be given little weight.  I found no evidence that provided corroboration for the plaintiff’s alleged injuries.  The circumstances of the accident I find were very minor and did not provide corroboration for the injuries of the type that the plaintiff asserts.

[43] Looking at the plaintiff’s evidence in light of all of the evidence, I have concluded that the plaintiff has not discharged the burden on her to establish on a balance of probabilities that she was injured in the car accident.

[44] The plaintiff’s action must be dismissed.

More on BC Personal Injury Claims and the Duty to Mitigate

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

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses.  What this means is a Plaintiff must take reasonable steps to minimize their losses.  If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.
In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision.   Fault was admitted by the driver of the Plaintiff’s vehicle.   The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision.   Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘.  The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided.  A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant.  See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it.  The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen.  Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise.  In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment.  On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries.  The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong.  Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later.  This is not evidence of a person anxious to obtain psychological treatment.  Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2nd medical-legal report) but failed to take any immediate steps in that regard.  The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work.  She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.

ICBC Claims, Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on ICBC Claims, Soft Tissue Injuries and Credibility

Soft tissue injuries without objective signs are some of the most frequently litigated claims.  One of the reasons why is because credibility plays a vital role in these claims and ICBC often challenges the credibility of Plaintiff’s alleging such injuries.
Reasons for judgement were released on Friday by the BC Supreme Court, Vancouver Registry, dealing with just such a claim.  In Friday’s case (Tayler v. Loney) the Plaintiff was involved in a 2005 BC Car Crash.  Her injuries included soft tissue injury to her neck and back.  These injuries unfortunately continued to linger for many years.  By the time of trial the Plaintiff’s pain was ongoing.  ICBC’s response to this was that the Plaintiff was no longer injured and was simply ‘lying to the court’.
Mr. Justice Grauer rejected ICBC’s position and accepted that she indeed did suffer injuries in the car crash which continued to bother her to the time of trial.  Damages of $42,500 were awarded for the Plaintiff’s non-pecuniary loss (pain and suffering).  Since ICBC put the Plaintiff’s credibility squarely in issue the court had to address this head on.  In doing so the court engaged in a thoughtful discussion about credibility in ICBC injury claims where there is no objective sign of injury.  Mr. Justice Grauer summarized and applied this area of law as follows:

[65] While I have found that the plaintiff is in fact experiencing what she says she is experiencing, I also accept the weight of the medical opinion that there is no objective evidence of ongoing soft tissue injury.  In these circumstances, it is helpful to turn for guidance to the authorities to which counsel referred me, always remembering that each case turns on its own unique facts.

[66] In Butler v. Blaylock (7 October 1980), Vancouver Reg. No. B781505 (S.C.), McEachern C.J.S.C. (as he then was) remarked as follows:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by the wrongdoer.  But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[67] Counsel for the defendant relied in particular on the judgment of Taylor J.A. for the Court of Appeal in Maslen v. Rubenstein (8 September 1993), Victoria Reg. No. V01071 (C.A.), where the court was concerned with:

… those post-traumatic phenomena – sometimes identified with and sometimes distinguished from conditions known as “idiopathic pain disorder”, “chronic (or chronic benign) pain syndrome”, “functional overlay” and “somatoform pain disorder” – which involve continued suffering in accident victims after their physical injuries have healed.

[68] At paras. 8-12, Taylor J.A. went on to describe the basic principles applicable to these “difficult cases”:

To meet the onus which lies on the plaintiff in the case of this sort, and thereby avoid the ‘ultimate risk of non-persuasion’, the plaintiff must, in my view, establish that his or her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

If psychological problems exist, or continue, because the plaintiff for some reason wishes  to have them, or does not wish them to end, their existence or continuation must, in my view, be said to have a subjective, or internal, cause.  To show that the cause lies in an unlawful act of the defendant, rather than the plaintiff’s own choice, the plaintiff must negative that alternative.  The resolution of this issue will not involve considerations of mitigation, or lack of mitigation.  To hold otherwise, that is to say to place on the defendant the onus of proving that a plaintiff who suffers from a psychological problem had it within his or her own ability to overcome it, would be to require that the defendant, rather than the plaintiff, bear the onus of proof on the primary issue of causation, and would impose on defendants a heavy and unjustifiable burden.  If the court could not say whether the plaintiff really desired to be free of the psychological problem, the plaintiff would not, in my view, have established his or her case on the critical issue of causation.

Any question of mitigation, or failure to mitigate, arises only after causation has thus been established.

Where the court finds that psychological injury has been suffered as a result of unlawful conduct of the defendant which the plaintiff has not the ability to overcome by his or her own inherent resources, the court must then, if mitigation issues are raised, decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem, or could in future overcome it….  Where appropriate remediable measures would resolve the problem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

Once the principles to be applied are recognized, the rest is a matter for the fact-finder to determine on the basis of the evidence in the case, and it is for this reason that I find little guidance in many of the decisions cited.

[69] Plaintiff’s counsel relied heavily on the judgment of Spencer J. In Netter v. Baas (14 February 1995), Vancouver Reg. No. B930557 (S.C.), where the learned judge commented as follows:

Over the ensuing 33 months, no doctors save one, has been able to find a satisfactory objective cause for [the plaintiff’s] continuing pain related to this accident.  All the doctors who filed reports agree that he suffered soft tissue injury and resulting pain, but none explains why the pain should have been so severe and lasted so long.  This is the classic case of the plaintiff without objective symptoms who claims an almost total disability from his former physical occupations….

Such cases invite skepticism on the part of the defendant who is asked to pay for such an extreme result.  But this is a plaintiff who claims a formerly very physical lifestyle in the outdoors.  Although he worked in a sawmill in town for the year preceding the accident, much of his life to age 37 had been spent outdoors as a driller-blaster, a prospector and part-time farmer.  His hobbies involve the outdoors too, camping, canoeing, hiking and fishing.  Some of the doctors who examined him remarked upon his strength and build.  Would such a person willingly abandon the lifestyle he had previously embraced for the sake of the chance of an exaggerated accident claim?  There are cases where plaintiffs have done that but generally there is evidence from which that can be determined.  No evidence was called to challenge the accuracy of this evidence about his previous lifestyle.

[70] Turning to the present case, there is, as I have noted, no doubt that the plaintiff suffered soft tissue injuries to her neck, shoulders, upper and lower back, causing pain, headaches and disability.  I have also found that although she genuinely continues to experience pain and disability, there is no objective evidence of continuing injury.  There is no muscle-wasting, atrophy or limitation of motion, and she has been observed to be capable of spontaneous movements inconsistent with continuing physical injury.

[71] What, then, is the explanation for the delay in the plaintiff’s recovery?  On the evidence before me, I conclude that the answer lies in a combination of factors, identified by both Dr. Yuzak and Dr. Teal, although in different ways.  Dr. Teal described it as a psychological predisposition to the effects of trauma, noting her five previous motor vehicle accidents, and her profession.  Dr. Yuzak referred to the three complicating factors of her five previous accidents, her status as a health practitioner, and an environment that was not conducive to healing.  I find that all of these have played a part, and explain why the plaintiff has not recovered as one might otherwise have expected.

[72] I do not consider that this psychological and circumstantial predisposition has a subjective, or internal, cause in the sense of being the plaintiff’s own choice, as discussed in the Maslencase.  Rather, it is the effect of the defendant’s unlawful conduct upon the plaintiff’s pre-existing state that has resulted in the circumstances in which the plaintiff now finds herself, subject to the issue of mitigation.  I do not accept that the stresses in the plaintiff’s life since the accident constitute a novus actus interveniens, as submitted by the defendant.  Those stresses are of the sort that many people experience, and but for her injuries, would not in my view have caused the plaintiff any loss.

[73] Accordingly, I find that the plaintiff has established that her ongoing state of experiencing pain and disability was caused by the defendant’s negligence.

Facebook Photos Used to Contradict Plaintiff in ICBC Injury Claim

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

Last week I posted on a recent BC case which ordered that a computer hard-drive be produced to permit a Defendant to examine the amount of time an allegedly brain injured Plaintiff spent on Facebook.
As evidenced in reasons for judgment released today by the BC Supreme Court Facebook’s role in the realm of BC personal injury litigation is becoming more prevalent.
In today’s case (Bagasbas v. Atwal) the Plaintiff was injured in a 2006 car crash in Surrey, BC.  From the submissions of the defence lawyer it seems that this case was defended on the basis of ICBC’s LVI program. The Plaintiff sued for damages claiming $40,000 for her pain and suffering due to a whiplash injury and other soft tissue injuries.
In the course of the trial she testified that as a result of her injuries “she could no longer kayak, hike or bicycle“.  The defence lawyer contradicted this by producing to the Plaintiff “photographs posted on her Facebook page that showed her doing these activities“. 
In assessing the Plaintiff’s pain and suffering at $3,500 Madam Justice Satanove made the following comments:

[7]                The medical evidence before me was rather vague.  Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006.  I further find that the whiplash had probably substantially resolved itself within three months.  Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities.  The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas.  It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)).

[8]                Unfortunately, because of the inflated view the plaintiff took of her injuries, none of the cases cited by her counsel were of assistance in fixing non-pecuniary damages.  Similarly, because the defendant refused to recognize any damages, his counsel provided no case law on an appropriate range of compensation.

[9]                On my own research, this case is in line with the damage awards made in Bonneville v. Mawhood, 2005 BCPC 422; Siddoo v. Michael, 2006 BCPC 12; and particularly, Saluja v. Wise, 2007 BCSC 706, which are in the range of $1,500 to $6,500.  Taking the whole of the evidence into account, which reflected some injury and pain, but not much loss of enjoyment of life, I award the plaintiff $3,500 for non-pecuniary compensation.

This case along with last week’s decision show that the use of information contained on social media sites such as Twitter and Facebook is alive and well in BC Injury Litigation.  Lawyers and clients alike need to be aware of the potential uses such information can be put to in their claims.

$36,000 Non-Pecuniary Damages Awarded for Rib Injury

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

Reasons for judgment were released last Thursday (Grier v. Saadzoi) awarding a Plaintiff just over $46,000 in total damages as a result of injuries suffered in a 2004 British Columbia motor vehicle collision.
The crash happened in Surrey, BC.  The collision resulted in significant vehicle damage totalling the Plaintiff’s car.  The Plaintiff suffered various soft tissue injuries and rib pain.
In assessing the Plaintiff’s pain and suffering at $36,000 Mr. Justice Brooke summarized the Plaintiff’s injuries as follows:

[24]            I find that the plaintiff was a credible witness, who neither exaggerated nor diminished the injuries that she sustained or the continuing pain and discomfort she has.  She was a reliable historian.  She struck me as a person who is getting on with her life, despite having to put up with some pain and discomfort.  I am also satisfied that she has followed the advice that she has been given in terms of stretching and exercise and that she avoids, where she can, physical activity which will trigger any discomfort in the area of her rib.

[25]            The plaintiff has made a good recovery from the soft tissue injuries that she sustained in a forceful motor vehicle collision.  I find that the pain associated with the lower left rib was caused by the collision and that whether Dr. Vallentyne is correct, that the pain is a result of subcostal muscular involvement or Drs. Luoma and Coghlan are correct, that the pain is associated with the first floating rib, that the injury and its consequence is likely permanent.  Fortunately, however, the result is a modest impairment of her overall capacity and it can be controlled, to some extent, by avoiding certain physical activity, as well as involving herself in an exercise and stretching program and taking medication to assist her in sleeping and to moderate the pain.

[26]            Non-pecuniary damages are a “once and for all” award to compensate a plaintiff for pain, suffering and loss of enjoyment of life caused by the injury to the date of assessment and for the future.  In assessing damages, the ranges of damages awarded in comparable cases can be a useful guide, but in each case, the court must fashion an award that provides compensation to the plaintiff.  This is not a case like Price v. Kostryba, [1982] 70 B.C.L.R. 397 (S.C.), or Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), where complaints of injury continue long after the normal period for recovery, but rather one where the injury is real and continues to cause pain and discomfort and will likely do so for the foreseeable future.  I assess non-pecuniary damages at $36,000.

One aspect of this judgment that interested me was the court’s summary and analysis of the surveillance evidence the defendant’s used during the trial.  Video surveillance is commonly used by ICBC in the course of defending soft tissue injury claims and this judgement shows that surveillance video is not always a damaging thing.  

In today’s case the video showed the Plaintiff doing various physical activities including riding a motorbike.  This did not appear to hurt the Plaintiff’s case any as this video did contradict her evidence about her limitations.  The surveillance evidence was summarized at paragraph 19 as follows:

[19]            As part of the case for the defendant, a series of videos was put in evidence showing the plaintiff riding a motorbike off road and shopping and going about her normal household activities.  Clearly, the videotape was made surreptitiously and without the plaintiff’s awareness.  While the tape does not display any particular discomfort evinced by the plaintiff, her activity is restrained when compared to the activity of her husband who was with her.  She says that before the accident, they operated their motorbikes off road and on rugged and uneven terrain.  What was depicted in the video was the operation of the motorbikes on a relatively level gravel road.  It was noted that the plaintiff’s husband took the motorbikes out of the truck and that the plaintiff played no role in that.  Nevertheless, the videotapes do demonstrate that the plaintiff is able to continue at least some of her former activities, although perhaps not with the same intensity nor without pain.

As I’ve previously posted, Video surveillance does not in and of itself hurt a personal injury claim, overstating the effects of injuries does. It does not matter if you’re painting your house, lifting weights, or doing any number of physical activities that are caught on film. If you can be active and not aggravate your injuries that is a good thing. If, on the other hand, a personal injury claimaint tells others that they are limited and video surveillance shows otherwise, that could be very damaging. This goes to a person’s credibility. If a person is caught in a lie with respect to the effect of their injuries that will have a very negative effect on the value of an ICBC claim.

More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Wage Loss, ICBC Whiplash Cases. 54 Comments on More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Runghen v. Elkhalil) awarding a Plaintiff just over $147,000 in total damages as a result of injuries and damages sustained in a BC car crash.
The collision occurred in 2004 when the Plaintiff’s vehicle was rear-ended.  The issue of fault was admitted leaving only an assessment of damages at issue at trial.
In awarding $40,000 for pain and suffering (non-pecuniary damages) Madam Justice Fenlon made the following findings with respect to the Plaintiff’s injuries:
[16]            Based on the evidence of the experts, which is largely consistent, I find that Ms. Runghen suffered mild soft tissue injuries to her cervical and lumbar spine as a result of the accident; I further find that due to those injuries, she has headaches and chronic pain that has affected her ability to function both at home and at work.  I also find that Ms. Runghen’s pain and related incapacity are likely to markedly improve once an appropriate treatment plan is put in place.
Madam Justice Fenlon engaged in a thoughful discussion at paragraphs 17-34 of the judgement which is worth reviewing for anyone ingterested in seeing some of the factors courts take into consideration when valuing pain and suffering in ICBC soft tissue injury claims.
The balance of the judgement deals largely with claims for past wage loss and diminished earning capacity.   Awards were made under both of these heads of damages.  The court found that the Plaintiff’s ability to work was diminished as a result of chronic pain and that this would likely continue for at least some time after the trial.  In awarding $35,000 for diminished earning capacity the court engaged in the following analysis:

[50]            As noted earlier in these reasons, I accept that the chronic pain experienced by Ms. Runghen to date has been a limiting factor in her ability to take on longer hours at work.  I expect that limitation will continue to some extent over the next year, as she engages in a rehabilitation exercise program.  After that time, it is probable that she will be able to increase the amount of time she works to be more in keeping with what she would have been doing prior to the accident.  In coming to this conclusion, I recognize that Ms. Runghen had not established her career as a massage therapist and that we do not have a solid base line from which to work.

[51]            I am mindful that there is no certainty possible in terms of predicting what will occur in the future; there is a possibility, even with the correct treatment for her injuries, that Ms. Runghen may still experience some limitations.

[52]            Applying the considerations identified in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), I find that Ms. Runghen is likely to be somewhat less capable, overall, of earning income from all types of employment and that, in particular, she is likely to be less capable of earning incoming from her chosen field of massage therapy.  Ms. Runghen may have to consider retraining in another field or another area of specialization within massage therapy if she wishes to work full-time.

[53]            In my view, given the potential for marked improvement in Ms. Runghen’s condition that both Dr. Cameron and Dr. McGraw identified in their reports, and based on Ms. Runghen’s own experience with a similar but truncated rehabilitation program with Karp, it would not be appropriate to apply the precise mathematical calculation of future income loss used by Ms. Runghen.  Rather, this is an appropriate case to award a sum that takes into account the various contingencies and possibilities, without overcompensating Ms. Runghen by assuming the status quo and calculating a set wage shortfall over the next 36 year’s of her working life.  I set that sum at $25,000. 

[54]            I find that Ms. Runghen will need approximately six months to put in place and complete a four-month exercise rehabilitation program.  During that time, she will continue to work at her current level.  I therefore award damages of $10,000 to cover loss of income during this period.  

[55]            In summary, I award Ms. Runghen  a total of $35,000 for loss of future income and loss of earning capacity

 

More on Mitigation of Damages in ICBC Injury Claims

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

I’ve written previously about mitigation of damages in ICBC Injury Claims and reasons for judgment were released today by the BC Supreme Court (Ponipal v. McDonagh) applying this legal principle.

 Mitigation, in general terms, means taking reasonable steps to reduce one’s damages.  In a personal injury lawsuit mitigation usually revolves around taking reasonable steps in following the advice of treating physicians.

In today’s case the Plaintiff was injured in a 2007 intersection crash in Vernon, BC.  The Plaintiff suffered various soft tissue injuries.   In the course of her recovery an exercise and conditioning program was recommended to the Plaintiff.    Mr. Justice Blair found that the Plaintiff ‘unreasonably failed to pursue the program’ and that doing so would have reduced the effect of her injuries.

As a result of this ‘failure to mitigate’ Mr. Justice Blair reduced the Plaintiff’s award for non-pecuniary damages (pain and suffering) of $35,000 by 10%.  The discussion with respect to mitigation of damages was set out at paragraphs 25-29 which I set out below:

 

[25]            The defence points to Mrs. Ponipal’s omission to embark on a structured exercise and conditioning program as recommended by Drs. Travlos and Reebye as constituting a failure to mitigate the physical difficulties arising from the collision.  The defence submits that this omission by Mrs. Ponipal ought to result in the reduction of her general damages.

[26]            Antoniali v. Massey, 2008 BCSC 1085 outlines a framework which I will follow in this case in determining whether the defendant has established that Mrs. Ponipal failed to mitigate her damages.  The questions are as follows:

1.         whether an exercise and conditioning program under a trainer’s guidance would have reduced or eliminated the effect of the injuries;

2.         whether the reasonable plaintiff in Mrs. Ponipal’s circumstances would have followed such a program;

3.         whether Mrs. Ponipal unreasonably failed to follow such a program; and

4.         the extent to which Mrs. Ponipal’s damages would have been reduced if she had followed such a program.

[27]            I am satisfied from the evidence of Drs. Travlos and Reebye, both being specialists in physical medicine and rehabilitation, that an exercise and conditioning program under a trainer’s guidance would have reduced the effect of Mrs. Ponipal’s injuries.  I am further satisfied that a reasonable individual in Mrs. Ponipal’s circumstances would have undertaken such a program and that she unreasonably failed to pursue the recommended program.  Mrs. Ponipal testified that there were two reasons why she did not embark on an exercise program, the first being that she wanted to know the results of the nerve conduction study suggested by Dr. Travlos before she undertook the exercise program.  She expressed concern that the exercise program might worsen the numbness and tingling in her right arm and hand, negatively affecting her ability to play the piano.  However, there is no evidence that she discussed that concern with Dr. Travlos or any other of her caregivers.  The second reason she stated was the financial burden imposed in hiring a personal trainer.  However, this is not a family devoid of means and Mrs. Ponipal’s husband Garry testified that they would have done that which was necessary to assist his wife’s recovery.

[28]            The extent to which Mrs. Ponipal’s non-pecuniary damages would be reduced as a result of her failure to take the exercise and conditioning program is difficult to assess.  In Antoniali,Preston J. reduced the pre-trial non-pecuniary damages by 15 percent and the post-trial non-pecuniary damages at 50 percent.  In Job v. Van Blankers, 2009 BCSC 230, Ker J. reduced the plaintiff’s non-pecuniary damages by 10 percent to reflect her failure to mitigate her damages.

[29]            I assess Mrs. Ponipal’s failure to mitigate by reducing her non-pecuniary damages by 10 percent.