Tag: soft tissue injuries

Pain and Suffering for Dislocated Shoulder / Elbow and Soft Tissue Injuries

Reasons for judgement were released today awarding damages as a result of injuries and loss from a 2002 BC motor vehicle collision.
The Plaintiff was a passenger.  He was involved in a single vehicle accident.  The collision was significant and is described at paragraph 2 of the reasons for judgment as follows:
                The thirty-two year old plaintiff was travelling from Prince Rupert to Terrace as passenger with three children in a car driven by the defendant, Crystal Caroline Bird (“Bird”), when Bird lost control of the vehicle after encountering ice on the highway.  The vehicle, a 1998 Toyota van owned by Bird, crossed the centre line of the highway and rolled twenty feet down an embankment, flipping over before it landed.  According to Wilson, he lost consciousness briefly in the accident and felt pain in his shoulder, elbow and left knee immediately.  He bled from his head, having hit the window.  His back hurt.  A passing driver was hailed and managed to open the passenger door.  Wilson got out of the vehicle and sat, waiting for the ambulance.  The vehicle was very significantly damaged.
The Plaintiff sustained some fairly serious injuries and these, along with their recovery, are summarized well at paragraph 31 of the judgement which I reproduce below:
The plaintiff suffered a dislocated right shoulder, dislocated left elbow, contusion and sprain of the left knee, mild sprain of the cervical spine, and multiple contusions and bruises in the motor vehicle accident of November 30, 2002.  I accept Dr. Kokan’s assessment that the plaintiff’s left knee was not dislocated in the accident but was probably sprained and has fully recovered.  The right shoulder had largely resolved by August 2003 but remains vulnerable to re-injury.  The left elbow has been the greatest problem, heightened by the lengthy wait for surgery.  The plaintiff has lost about ten percent of the movement in this elbow and has residual tenderness.  The incapacity is, however, mild and the plaintiff still has a good range of motion in the elbow.  The left knee had largely resolved to its pre-accident state by June 2005.  It is difficult to ascribe continuing lower back pain to the accident.  I conclude that there was some accerbation of the historical back pain in the accident but do not find that continuing problems can be attributed to the accident.  The plaintiff’s scalp laceration and facial abrasions have healed.
In awarding $85,000 for the Plaintiff’s Pain and Suffering the court made the following observations:
[34]            Wilson’s injuries here are more significant that in either Thorp or Foreman.  The plaintiff required two surgeries for the left elbow dislocation (including a closed reduction) and a closed reduction of the dislocated right shoulder, among other injuries described above.  Wilson has greater permanent restriction in movement of the left elbow than did the plaintiff in Thorp and still has nagging pain.  He is stoical about the continuing pain and discomfort.  Although I do not find that the permanent elbow restriction hinders recreational activity, the plaintiff’s right shoulder injury caused pain when swimming until June 2005.  The plaintiff suffered while he waited for surgery between 2003-2006.  I assess non-pecuniary damages at $85,000.

$35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $45,000 in total damages as a result of a 2004 BC car crash.
The crash was significant.   The Plainitiff was travelling at 60 kilometers per hour when his vehicle was struck head on by the Defendant.  The Plaintiff’s vehicle was destroyed as a result of the impact.
The court found that the Plaintiff suffered various soft tissue injuries as a result of this crash and that these injuries plateaued by the end of 2006 to about 90% of the Plaintiff’s pre accident level.   The court’s key findings are made at paragraphs 28-31 which I set out below:

[28]            On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29]            I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30]            I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31]            I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect (the Plaintiff) in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in (the Plaintiff’s) usual activities on a sporadic basis, perhaps every month or so.

The following damages were awarded:

a)         non-pecuniary damages of $35,000.00;

b)         past income loss of $8,250.00;

c)         special damages of $2,786.15; and

d)         court order interest on the past income loss and special damages awards.

 

Soft Tissue Injury Nets $35,000 for Pain and Suffering in Rule 68 Claim

I’m on the road working on ICBC claims in Kelowna today so today’s BC personal injury update will be a little lighter on detail than usual.
Yesterday the BC Supreme Court released reasons for judgement awarding just over $82,000 in damages as a result of injuries and loss sustained in a 2005 BC Car Accident in Victoria, BC.
The Plaintiff was a 24 year old graphic designer at the time of the accident.
The court made the following finding with respect to injury:

[83]            From the foregoing evidence and my findings, I find that the plaintiff has established that he suffered a soft tissue injury to his cervical and lumbar spine in the accident.  Dr. Chan’s report does not attempt to classify the severity of the injury, but he did note the injury to be resolving at about two months post-accident, with a conservative treatment regime.  The plaintiff missed a week of work immediately after the accident, then returned to work half days for three to four months, and then went back to full-time hours of seven to eight hours a day.  He considers the last significant improvement in his condition to be about six months post-accident.

[84]            To date, just over three years as of the date of trial,  the plaintiff remains unable to work the additional hours per day to bring him to his pre-accident level of 50 to 60 hours per week, and continues to experience “flare ups” with pain in his lower back when engaging prolonged periods of standing or sitting.  Certain physical activities and sports that he previously enjoyed, he now engages in at a reduced level or has declined to continue with, for example snowboarding and mowing his parents’ lawn.  In my view, the evidence establishes a minimal ongoing impairment arising from the soft tissue injuries he sustained in the accident. 

Damages were awarded as follows:

(a)        Non-pecuniary damages:                                           $35,000.00

(b)        Damages for lost income:                                          $15,647.18

(c)        Damages for loss of future earning capacity:            $30,000.00

(d)        Special damages:                                                       $  1,845.36

Total:                                                                                       $82,492.54

This is one of the few ICBC injury claims that I’m aware of that proceeded through trial under the relatively new Rule 68.  Rule 68 should be carefully reviewed for anyone prosecuting an ICBC injury claim that may be worth less than $100,000 as this rule presents some benefits and restrictions in the way in which an ICBC claim can be advanced.

A Busy Day – 3 Car Crash Cases Released by BC Supreme Court

There is a lot to blog about today so I will have to keep these case summaries short.  The BC Supreme Court released 3 cases today that may be of interest to people advancing ICBC claims.
The first deals with the choice of forum of where to sue.  The Plaintiff was in a collision with a tractor trailer in 2007.  The crash happened in Alberta.  The Plaintiff lived in BC and the owner of the tractor trailer had a registered business office in BC.  The Plaintiff started the lawsuit in BC and the Defendant brought a motion that the case should be dismissed or stayed because the lawsuit should have been started in Alberta.
After summarizing the applicable law the court sided largely with the Defendants finding that:

[27] The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.

[28] I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.

[29] I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.

[30] In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.

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The second case released today dealt with Court Costs.  Typically when a case succeeds in Supreme Court the winner is entitled to court ‘costs’.  In theory this is to compensate the winner for having to trigger the judicial process to get whats fair.
After an 11 day trial as a result of a car accident the Plaintiff was awarded $81,694 in damages for injuries and loss.  In the trial the Plaintiff’s claim for past wage loss and cost of future care were dismissed.
The Defendant brought a motion asking the court to award the defendant ‘costs and disbursements for that portion of the proceedings ralted to the cloaims fr past income loss and cost of future care’ amongst other relief.  The motion was brought further to Rules 57(9) which states

Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

And rule 57(15) which states

The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.

The court granted the motion stating that:

Analysis and Decision

[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated.  I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial.  I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.

[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful.  I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss.  In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity.  I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial.  In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.

Conclusion

[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson.  In addition, the defendant is awarded his costs and disbursements for two days of trial.

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The third case of interest released today dealt with a car accident from 2003 which allegedly caused severe psychological injuries.
The crash occurred at an intersection in Surrey.  The Plaintiff was turning left on a green light.  The defendant entered the intersection approaching from the Plaintiff’s left.  The Defendant had a red light.  The accident then occurred.  The Defendant was found 90% at fault and the Plaintiff was found 10% at fault for failing the see the defendant’s vehicle which was ‘there to be seen’
The most contentious alleged injuries were brain injury and Dissociative Identity Disorder (DID).  The plaintiff did seem to suffer from DID, the question was whether the car crash caused this.
The court made the following findings with respect to injuries:

[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness.  The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life.  At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future.  In the aftermath of the accident, her life has been devastated.  She can no longer look after herself or her children.  She lives in an assisted living facility.  She is separated from her husband. Her future prospects are grim.

[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident.  The accident clearly terrified her.  Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do.  She was told that she had suffered a serious brain injury.  This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral.  Her tinnitus and dizziness are likely permanent.  The prognoses for her TMJ problems are guarded.  There is some optimism that her pain disorder will improve given her recent change in medication.  Similarly, over time her depression should respond to treatment.  Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission.  Absent her DID, the plaintiff would now be on the road to recovery.  DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.

$150,000 was awarded for non-pecuniary damages (pain and suffering and loss of enjoyment of life)

$40,000 Pain and Suffering for Neck, Back and Shoulder Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $90,000 in damages as a result of a 2005 collision.
The Plaintiff was 25 at the time of the BC car crash.  He was not at fault for the crash and the trial focussed exclusively on the issue of damages.
The court heard from a variety of experts.  The court also viewed surveillance footage of the Plaintiff playing hockey and doing other physical activities.  Such surveillance footage often comes to light at the trial of ICBC claims, particularly those inovlving on-going soft tissue injuries.
In awarding $40,000 for non-pecuniary damages (pain and suffering) the court made the following findings:

[15] I am persuaded by the evidence to conclude on the balance of probabilities that (the Plaintiff) suffered a flexion extension injury to the soft tissues of his neck, back and shoulder.  Considering the persistent difficulty that he has had with his lower back, the injury is fairly described as moderate in nature.  (the Plaintiff) had back trouble related to his rugby injury and on occasion his extremely heavy work load prior to his injury for which he sought treatment, but I accept his evidence that his previous back problems were intermittent and less severe before the accident.  (the Plaintiff) had already given up rugby and snowboarding prior to his injury.  His ability to play in-line hockey demonstrates that he does not have a functional disability, his problem is that demanding activities can cause the onset of significant pain.

[16] I accept Dr. Travlos’ opinion that:

He will likely still experience intermittent pain flare ups, but should be capable of reasonable physical activity.  He will learn to avoid certain recreational activities and certain types of work activities in order to manage his pains and by doing so should have reasonable pain control.

As I have noted earlier, (the Plaintiff) had pain in his back prior to the collision and would have had it in the future if the collision had not occurred, but his motor vehicle injuries have increased his susceptibility to back pain and made that back pain worse when it occurs.  I assess (the Plaintiff’s) claim for general damages for pain and suffering which has been and will be caused by his motor vehicle injuries above and beyond that which he would have had had he not been so injured at $40,000.

Sacroiliac Joint Injury nets $48,500 Pain and Suffering in BC Car Crash

Reasons for judgement were released today awarding an ‘ideal Plaintiff’ just over $100,000 in total damages as a result of a 2006 BC Car Crash which occurred near Kelowna, BC.
Both fault and quantum (value of the injuries) were at issue at trial. The collision happened when the Plaintiff’s vehicle, which was stationary, was hit by the Defendant’s tractor trailer unit. The evidence that was accepted was that the tractor trailer, while passing the stationary vehicle, jackknifed to its right. The collision was significant causing about $12,000 in vehicle damage.
The Defendant gave a different version of what happened saying that the Plaintiff vehicle ‘suddenly and without warning turning into his vehicle’. This was rejected.
This case is worth reviewing for Mr. Justice Josephson’s findings of credibility. In rejecting the defendant’s evidence he noted that the defence theory ‘is contrary to locig and common sense‘ and that the defendant’s testimony was ‘impatient, dogmatic and almost haughty‘.
As is often the case in ICBC claims the court heard from competing medical expert who disagreed as to the extent of the injuries sustained. Here the court preferred the evidence of the Plaintiff’s expert, a highly regarded rheumatologist who is no stranger to severe soft tissue injuries.
The court accepted the Plaintiff’s doctors evidence of injury which is summarized at paragraph 23 of the judgement reading as follows:
[23] She diagnosed the problem as being with the sacroiliac joint, a joint located between the tail bone and the hip. Ligaments cross over the sacroiliac and can be stretched in a motor vehicle accident, particularly if a foot is pressed on a brake pedal at the time, which can cause the symptoms of pain experienced by the plaintiff. While not certain, Dr. Shuckett was of the opinion that the plaintiff’s hyper-mobility may have exacerbated the injury. This type of injury is difficult to treat when, as in this case, recovery has not occurred. Medicines are not effective as the sacroiliac area does not have a rich blood supply.
In explaining why he preferred Dr. Shuckett’s evidence to the defence doctor’s evidence the court noted that:
[25] I do not place great weight on the evidence of Dr. Schwiegel, a neurosurgeon retained by the defence for an independent medical examination. Dr. Schwiegel does not possess the same degree of expertise as does Dr. Shuckett in this type of injury. He did not diagnose the involvement of the sacroiliac joint in the symptoms, though now agrees that may be the case. Put simply, I prefer the expert opinion evidence of Dr. Shuckett where it conflicts with that of Dr. Schwiegel.
The court found that the effects of these injuries were significant, summarizing them as follows:
[26] In summary, as a result of these soft tissue injuries, the plaintiff has gone from a gifted and active athlete to a person unable to engage in sports and other activities that were a large and important part of her life. It has affected her personal relationships. For example, family and friends now see her retreat to the sofa in pain after a family dinner. Only her strong will and determination has led to some improvement in her symptoms with aggressive physiotherapy. Her future remains “uncertain”. After the expiration of this much time and effort with only modest improvement, it may well be that significant symptoms will continue in the foreseeable future.
$48,500 was awarded for pain and suffering.
Also of interest is the judges awards for past and future wage loss. Here the Plaintiff was a commisioned sales person whose past income loss could not be caluclaed with real precision. Nonetheless compelling evidence was awarded that a loss occurred and an award was made. Simialry, it was found that the injuries may have an impact on future earnings and an award was made for loss of earning capacity.
In making an award for loss of earning capacity the court noted that:

[40] In this case, the plaintiff’s ability to perform at the high level she would have been performing but for the accident will be compromised by her injuries to some degree, though that degree is difficult to measure. Her determination and outstanding personal qualities will diminish that loss. Regular weekly appointments and daily multiple sessions of recommended exercises diminish her ability to perform to the same high level that she would have been able to perform but for the accident.

[41] Her physical limitations, as well, render her less marketable to potential employers in future. Employment requiring even temporary physical stress will not be available to her.

[42] The period of time that the plaintiff will be so affected is also difficult to measure. The best medical evidence is that her future is “uncertain”. That there has been so little improvement over the long period of time since the accident leads to the conclusion that recovery will more likely be long term than short.

[43] The plaintiff seeks a not unreasonable $20,000 for loss of earning capacity. I award the plaintiff $18,000.

More on Soft Tissue Injuries, ICBC, and Expert Evidence

Reasons for judgement were released today awarding a Plaintiff $12,000 for ‘pain and suffering and loss of amenities‘ (non-pecuniary damages) for ‘a mild soft tissue injury which had essentially cleared within 3 months or so. ‘.
The Plaintiff was rear-ended in 2006 in North Vancouver. The court found that the impact was significant. The Plaintiff complained of headaches, neck pain, low back pain, mid back pain, left elbow and forearm pain and occasional pain shooting to his knees.
In what can be described as a very unusual occurrence, the trial proceeded without any medical opinion evidence addressing the extent of injury. The Plaintiff attempted to have his GP testify but the court would not permit it as proper notice of the ‘expert opinion’ was not provided per Rule 40-A.
The court admitted the doctor’s clinical notes into evidence. The Plaintiff then tried to treat these as notice of what the doctor was going to testify to. The court found this improper and did not permit the doctor to give opinion evidence stating that:

During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.

[12] In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert’s opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.

[13] To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:

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

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

The court went onto award $12,000 for pain and suffering and $180 for special damages.
This case is a great reminder of the need to comply with Rule 40-A if you are advancing an ICBC injury claim in Supreme Court and wish to call expert evidence to give the court an opinion about injuries, causation, future treatment, and prognosis. Failure to do so can result in the court not admitting the evidence which can badly damage an ICBC claim. Here the court expressly stated that “although an opinion of a medical expert such as a medical/legal report from (the Plaintiff’s) GP may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion.
Another note-worthy result of this judgement is the apparent ‘cost’ consequences.
From reading paragraphs 25-29 of the judgement it appears that the lawyer for the defendant made a formal offer of settlement prior to trial which was greater than the judgement. In such circumstances a defendant can be awarded ‘costs’ for the trial. In this case the court awarded $4,400 in costs which would have to be subtracted from the judgement amount prior to the Plaintiff getting paid. In addition, the Plaintiff would not be reimbursed disbursements for the trial and would be responsible for the Defendant’s trial disbursements. After taking all this into account the true value of the judgement may in fact be $0. When considering ICBC claim settlement it is very important to consider the likelihood of beating ICBC’s formal offer at trial.

More on LVI's, ICBC Claims and Soft Tissue Injuries

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

$35,000 Pain and Suffering Awarded for Wrist and Soft Tissue Injuries

Written reasons for judgment were released today by Madam Justice Stromberg-Stein of the BC Supreme Court awarding a Plaintiff just over $60,000 for her losses and damages as a result of a 2005 BC Car Accident.
The Plaintiff was in her mid 20’s when she was involved in an intersection crash involving a left turning vehicle. The lawyer for the offending driver admitted liability (fault) for the accident leaving the issue of quantum of damages (value of the injuries) to be addressed at trial.
The Plaintiff suffered several injuries including soft tissue injuries to her neck and lower back. Her most significant injury was a fibro-cartilage tear of her right wrist and a possible scapholunate ligament injury as well.
The Plaintiff had 14 sessions of physiotherapy which created ‘some improvement’ of her neck injury. The Plaintiff had an MRI of her wrist which revealed a tear of the triangular fibro-cartilage complex (a “TFC tear”). The Plaintiff had a cortisone injection in her wrist which offered some temporary relief. Arthroscopic surgery was also recommended by an orthopaedic surgeon but the Plaintiff elected not to have this procedure done until her son was older.
The Plaintiff’s lawyers sought just over $150,000 in damages as a result of these injuries. The defence lawyers suggested numbers were significantly lower. Such a discrepancy is common in most ICBC injury claims that go to trial.
After hearing the evidence the court awarded damages as follows:

a) $35,000.00 for non-pecuniary damages;

b) $7,812.00 for past wage loss, subject to Part 7 and statutory deductions;

c) $486.99 for special damages;

d) $20,000.00 for diminishment of earning capacity; and

e) $1000.00 for cost of future care.

The court’s discussion relating to ‘diminshed earning capacity’ is worth reading for anyone advancing an ICBC injury claim concerned with future wage loss. In this case the Plaintiff was able to return to work for a period of time following the accident before leaving the workforce on maternity leave. By the time of trial the Plaintiff was retraining for a different profession. The court agreed with the defence lawyers point that this change of careers ‘is a natural progression for somebody (in the Plaintiff’s) position‘ and the court also put weight in the defence lawyer’s position that the Plaintiff ‘never worked a full year.’
The court cited one of the better known quotes from the BC Court of Appeal addressing ‘diminished earning capacity‘ which states:
Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.
The court concluded that only a ‘modest award‘ was appropriate for the Plaintiff’s diminished capacity and awarded $20,000 for this loss.
Do you have questions about an ICBC wrist injury claim or an ICBC claim involving ‘diminished earning capacity‘ (future wage loss)?  Do you need advice from an ICBC claims lawyer?  If so, click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)

$86,967.02 Awarded for Chronic Soft Tissue Injuries and Anxiety

Reasons for judgement were released today following a 3 day trial in Vernon, BC in which Mr. Justice Cole awarded a 35 year old plaintiff close to $90,000 in compensation for her losses and injuries as a result of a motor vehicle accident.
This case is worth a read for anyone advancing an ICBC claim or involved in ICBC settlement negotiations concerning the issue of ‘indivisble injuries’. That is, where an event other than the accident has contributed to the injuries sustained in the accident. I will say more about this below.
The Plaintiff was involved in a rear-end accident in Kelowna BC on June 30, 2005. Her vehicle was rearended by a truck driven by the Defendant. As a result of this incident she suffered from various soft tissue injuries and anxiety.
In early 2007, the Plaintiff was almost struck by a vehicle while she was in a cross-walk. This added to her anxiety issues.
The court heard from several medical experts who commented on the Plaintiff’s injuries. This is quite common in ICBC injury claims that proceed to trial as there is often 2 sides to the medical story. In this case, however, the medical evidence addressing the physical injuries was quite similar.
Dr. Laidlow, a physiatrist who often conducts ‘independent medical exams’ for ICBC, testified that the Plaintiff will be “prone to mechanical lower back pain…and may require the odd use of anti-inflammatories during times of flare up“.
Dr. Travlos, another physiatrist well versed in diagnosing and treating injuries related to ICBC claims, stated that “(the plaintiff’s) current residual neck and shoulder symptoms are a result of tjhe accident. It is likely that these symnptons will slowly continue to improve and ultimately resolve….the Plaintiff’s tailbone symptoms are clearly an ongoing issue…..the nature of her current low back / pelvic symptoms is intermittent and this bodes well for further recovery.”
The court also heard from the plaintiff’s family doctor who testified that there was room for improvement in the Plaintiff’s condition.
Possible future treatments for the injuries included trigger point injections, diagnostic injections, a facet joint rhizotomy and medicaitons.
In the end the court concluded that the Plaintiff sufferd a soft tissue injury “that would be described as the upper end of a moderate soft tissue injury that should resolve itself over time“. The court also found that the Plaintiff suffered from anxiety as a result of the collision in 2005 and the near collision in 2007. The Plaintiff claimed she suffered from Post Traumatic Stress Disorder (PTSD) as a result of the collision and this was supported by the evidence of Dr. Neilson. The court, however, held that the Plaintiff did not make out this claim as the Plaintiff did not prove all the facts that were underlying Dr. Neilson’s diagnosis of PTSD.
The court awarded damages as follows:
Pain and Suffering (non pecuniary damages) $60,000
Special damages: $6,045
Past wage loss: $19,522.02
Future medical care: $400
Future Therapy: $1,000
This case did a great job reviewing 2 areas of law which frequently come up in many ICBC claims, namely claims for ‘loss of future earning capacity’ and claims where intervening events add or contribute to accident related injures.
As in many ICBC claims the Plaintiff had an intervening event which added to her anxiety. When valuing the injuries the court did a great job in summarizing how a court is to do so when the subsequent event caused an ‘indivisble injury’.
The court referenced some of the leading authorities in concluding the PTSD claim gave rise to an ‘indivisble injury’.   Most experienced ICBC claims lawyers are familiar with these authoritative cases which the court referred to, particularly:
Athey v. Leonati
EDG v. Hammer
Ashcroft v. Dhaliwal
The court concluded that “I am satisfied, in this case, that the two incidents that the plaintiff was involved in are indivisble. The anxiety caused to the plaintiff by the second incident is directly connected to the accident involving the defendant. Since the individual that caused the second accident was not before the court, as was the case in Ashcroft, where there was a settlement of the claim, the defendant is liable for all of the plaintiff’s damages
Do you have questions about this case or a similar ICBC case involving soft tissue injuries, post traumatic stress or an intervening event?  If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

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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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