Reasons for judgement were released today awarding a Plaintiff damages as a result of injuries sustained in a 2005 rear end crash which occurred in Vancouver, BC.
The Plaintiff was received various soft tissue injuries which largely recovered. In awarding $20,000 for the Plaintiff’s pain and suffering the court made the following key findings of fact:
The plaintiff, who is now 32 years old, suffered a mild to moderate soft tissue injury in the motor vehicle accident. He was doing well within three months and was substantially recovered after six. He has some residual symptoms but they do not restrict the nature of his activities. However, the degree to which he can participate in them is different now.
The more importance physical activity has in one’s life, the more one feels the loss of that capability. (the Plaintiff’s) life largely revolved around sports that required peak physical fitness, and the training required to maintain that level of fitness. Those aspects of his life were seriously disrupted for three to four months, with gradual improvement over the next two or three. His relationships with his friends suffered accordingly over that period. It was clear from his evidence and the evidence of Ms. Fok, his training pal, Mr. Candano-Dalde, and (the Plaintiff’s) mother, that (the Plaintiff) felt with some justification that there was nothing he could not do athletically prior to the accident. While he has recovered and is now very active again, it appears that he has lost the edge he once had.
The award for non-pecuniary damages should adequately compensate (the Plaintiff) for all of these factors, past and future. I set those damages at $20,000.
This case is one of the shorter trial judgements I’ve read from the BC Supreme Court dealing with quantum of damages in quite some time. This case is worth reading for anyone advancing an ICBC tort claim dealing with mild/moderate soft tissue injuries to see the types of factors considered when awarding money for pain and suffering.
In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome. The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome. In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million. Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses. The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal. In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff
(a) Confronting the Plaintiff
The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties. The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70). The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.
The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges. This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada. In this country, we have an adversarial system, not an inquisitorial one.
Such a rule would be unworkable with respect to judges in our system. Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses. They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.
The rule in Browne v. Dunn is not suited for application to judges. The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation. What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible. That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.
In addition, the rule in Browne v. Dunn has not been treated as an absolute rule. Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence. This feature of the rule is not adaptable to judges.
The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations. The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14). In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case. It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25). Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.
Following a 2 day trial using the Fast Track Rule (Rule 66), reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car accident.
The Plaintiff was injured as a passenger. The offending motorist admitted fault and the trial focused on damages (lawful compensation) only.
The Plaintiff had a range of complaints following the accident including pain in her neck, right shoulder and low back, and a significant increase in the frequency of her pre-existing migraine headaches.
In assessing a fair award for pain and suffering the court made the following finding:
I accept the plaintiff’s evidence that she was injured in the August 9, 2005 motor vehicle accident. In this regard, I note that while the physicians who examined the plaintiff also accepted the plaintiff’s assertions, the fact that they did so does not assist the court in making that finding. Their observations thereafter are of considerable assistance in assessing the possible course of the plaintiff’s recovery, however. It does appear, taking account of what is before me, that the plaintiff recovered functionally very quickly although she may suffer some minor aches and pains that will occasionally interfere with her activities.
The plaintiff has suffered some moderate interference with her life due to pain and suffering. The cases advanced as comparables by the parties are of some assistance in locating this case on an appropriate scale. I assess her damages for pain and suffering and loss of enjoyment of life at $25,000.
The Plaintiff also led evidence that she was able to take advantage of fewer overtime opportunities as a result of her injuries. For this loss the court awarded $20,000.
The court found that the injuries should continue to improve but may linger for a while longer. In addressing loss of earning capacity the court awarded $15,000 making the following findings: She is capable of doing her work and of working considerable overtime. On the basis of the medical evidence there is good reason to expect that she will fully recover in the next few years, with a modest chance of some limited impairment further into the future. I think some allowance must be made for the possibility that the plaintiff may occasionally suffer losses into the future that are related to the injuries she has suffered. I think the evidence suggests that these losses will be incurred, for the most part, in the next few years. I fix the sum of $15,000 for loss of future earning capacity.
Note: The case discussed in the below entry was overturned by the BC Court of Appeal with respect to the Diminished Earning Capacity Award on March 18, 2010. You can read my post on the BCCA’s decision by clicking here. Reasons for judgement were released today compensating a Plaintiff for injuries and losses sustained in a 2004 car accident.
The Plaintiff was driving her daughter to pre-school when her vehicle was rear-ended. The impact was ‘sudden and relatively severe‘ and caused enough damage to render the Plaintiff’s vehicle a write-off.
The court heard from a variety of medical ‘expert witnesses’ and placed the most weight on the Plaintiff’s GP. The court found that the Plaintiff ‘now has chronic pain with her soft tissue injuries and that pain and discomfort, in varying levels depending on activity level, will continue indefenately.’ The court also found that the Plaintiff suffers from ‘anxiety associated witht he accident’ and that ‘(she) is at risk of premature arthritis in her cervical spine and left shoulder‘.
In awarding $50,000 for the Plaintiff’s non-pecuniary loss (pain and suffering and loss of enjoyment of life) the court noted that:
The injuries have affected the plaintiff’s family relationships. She is not able to participate in normal physical family and recreational activities to the same extent as before the accident. She cannot perform housework or garden to the same extent. She presents as a perfectionist and is clearly bothered by these restrictions on activities that she enjoys and takes pride in.
(The Plaintiff) is also anxious and, perhaps, somewhat depressed; her relationship with her husband has been adversely affected, and she is naturally concerned and upset that her children now turn more naturally to their father for physical support and comfort. In addition to the ongoing pain and discomfort that restricts general activities, these factors also affect enjoyment of life. I take them into account in determining a fit award for non-pecuniary loss.
The most interesting part of this judgement for me was the court’s discussion of loss of earning capacity. Here the court found that the Plaintiff does have permanent injuries but that these will have ‘slight, if any, actual impact on her future earnings‘.
What interested me was the courts comments trying to reconcile to seemingly opposed lines of authority from the BC Court of Appeal addressing loss of future earnings. When one asks for an award for ‘loss of future income’ or ‘loss of earning capacity’ one has to prove this loss. There are various ways of doing this at trial.
Here the Plaintiff advanced a claim of loss of earning capacity using the ‘capital asset approach‘ as set out by our Court of Appeal in Pallos v. ICBC. The Defence lawyer argued that a subsequent case (Steward v. Berezan) overruled the law as set out in Pallos.
After listening to this debate the court noted that: 44]With respect, it is not clear, as I understand Steward, how one gets to the capital asset approach without first proving a substantial possibility of future income loss in relation to the plaintiff’s position at the time of trial. I cannot reconcile that approach with the factors first listed in Brown, later summarized in Palmer, and finally approved in Pallos in the passages set out earlier in my reasons.
It would be helpful if the Court of Appeal has an opportunity to address these issues fully. I observe that the Court of Appeal since held in one decision that Steward turned on its facts and did not create any new principle of law. The court also affirmed Parypa in the same decision. See Djukic v. Hahn, 2007 BCCA 203, at paras. 14 and 15.
Here the court held that “there is no reference in Steward to Pallos. Steward, in my view, does not over rule Pallos‘.
Mr. Justice Macaulay went on to reconcile the apparent conflict between these cases by concluding that Steward should be limited to its own ‘narrow factual circumstances‘ and awarding the Plaintiff damages based on the less stingent ‘capital asset approach‘.
Reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car crash.
It was a rear-end accident. The Plaintiff was a passenger. In such cases fault is rarely at issue and here the ICBC defence lawyers admitted fault on behalf of the Defendant. The trial dealt only with the issue of quantum of damages (how much the injuries are worth).
The accident caused the Plaintiff to miss 2 weeks from work. When she returned her physical duties at work were somewhat limited. She took 14 physiotherapy sessions and saw her family physician several times after the accident.
The court’s relevant finding as to the extent of injury can be found at paragraph 64 of the judgement where the court held that: The evidence indicates to me that the plaintiff had an initial soft tissue injury to her neck and upper back and she substantially recovered approximately five months after the injuries, although the injuries to her upper back and shoulder area have lingered on to the point where Dr. Yong says they may last another one or two years.
$20,000 was awarded for the Plaintiff’s pain and suffering. No other damages were awarded although a claim for ‘loss of earning capacity’ was advanced.
As is often the case in ICBC claims that proceed to trial, here the defence lawyer argued that the Plaintiff’s award should be reduced for ‘failure to mitigate’. What this means is that if a person unreasonably fails to follow medical advice and following such advice would have made a difference the amount of compensation awarded can be reduced.
Mr. Justice Truscott refused to reduce the Plaintiff’s damages even though the evidence established that she ‘did not do all of her home exercises and id not take physiotherapy when she had asked for it‘.
Why was this evidence not good enough to reduce the Plaintiff’s damages? Because there was no medical evidence that had the Plaintiff followed this course of treatment that her injuries would have recovered any better than they had. This case is a good example of the fact that the defence has the burden of proof when arguing ‘failure to mitigate‘ in an ICBC claim and that expert medical evidence should be tendered to discharge this burden when addressing the effects of a rehabilitation program.
Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.
This is one of the crispest judgements I have read in quite some time. I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.
The Plaintiff was injured when she was 4 years old. She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign. The accident was in 2002 and the claim finally went to trial in 2008. For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline. In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday. One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.
In this case most of the Plaintiff’s injuries were not disputed. She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.
What was at issue was headaches. The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident. The defendant said there are other potential causes for the headaches such as migraines or other trauma. It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial. Usually the court hears competing theories about the extent of injury and the cause of injury. (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)
The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”
Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement. He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.
With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.
If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.
The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.
The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.
The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work‘
Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.
She went on to state that: (the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.
The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’
This doctor made some interesting comments about chronic pain, namely that: Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.
The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:
I accept that as a result of the motor vehicle accident Mr. Niloufari suffered moderate strains to his neck and back which have caused him substantial pain and suffering over the two years and several months since the accident. I find these injuries have disabled him from any activities, including his work. As it stands now, more than two years have passed since the date of the accident with little hint of improvement in his pain and suffering or capacity to work.
I am satisfied that the plaintiff suffers chronic pain with both physical and psychological components. I am not entirely satisfied that he has done his best to mitigate his loss by exercising and seeking psychiatric and/or psychological advice and treatment. I am not satisfied based on the medical evidence, that Mr. Niloufari should expect to be permanently disabled or disabled at all after a few years from now with diligent attention to his rehabilitation. I would expect him to gradually recover, as Dr. Hill suggested, over the next three or four years, with the expectation he could return to work in a limited capacity within one year.
The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.
The non-pecuniary damage award (pain and suffering) was $63,000.
This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.
In another example of our courts dealing with the issue of fault and intersection crashes, reasons for judgment were released last week faulting a ‘through driver’ 100% for a crash involving a left hand turner in Langley, BC.
I have previously blogged about this and will blog more on this topic in the future. The issue of fault is probably the most litigated when it comes to intersection crashes involving left hand turning vehicles.
In this case the Plaintiff was attempting to turn left. The Defendant, approaching in the opposite direction, was attempting to go through the intersection. The light was amber or red. This is a common recipe for disaster and indeed they crashed with each other. As is often the case in ICBC claims involving intersection crashes the 2 sides had different versions of evidence, particularly as to whether the light was red or amber at the time.
The court found that the light was red at the time of the crash. While both vehicles where, therefore, in the intersection on a red light, only the ‘through driver’ was found at fault because the Plaintiff was clearing the intersection.
The court quoted a case that is well known to ICBC claims lawyers which is helpful to left hand turning motorists in such a situation. The cases is Kokkinis v. Hall from the BC Court of Appeal where the court held that:
9 This discussion, however, detracts from the more important question of law, which is whether Mrs. Kokkinis was on one hand entitled reasonably to assume that Mr. Hall would stop before entering the intersection or on the other hand, whether she can be faulted for failing to see his van “until it was on top of her”, i.e. constituted an immediate hazard. In this regard, Mr. Johnson cites Feng v. Graham  5 W.W.R. 137 (B.C.C.A.), (not a left turn case), for the principle that the plaintiff’s entitlement to assume that other traffic will obey the law, is “subject to the proviso” (in counsel’s phrase) that where it is apparent or should be apparent that an oncoming driver is not going to yield the right-of-way, then at that point the other driver must act reasonably and cannot simply proceed into the collision, as it were. At the least, Mr. Johnson says, it was open to the trial judge to find that in the circumstances, Ms. Kokkinis failed to exercise reasonable care for her own safety and the safety of others, and that she must therefore bear some responsibility for the accident.
10 I must say this argument has given me pause; but ultimately I resolve it by asking whether in law Mrs. Kokkinis should be faulted for diverting her attention momentarily from oncoming traffic to check cross traffic at the point in time in question, i.e., as she prepared to start her turn – to see if any of those cars had jumped the light or were going to pose a threat to her turn. Was this an unreasonable or careless thing to do? I think not, given both the realities of the situation (which of course occurred over only a few seconds) and past decisions of this Court that have imposed on left-turning drivers the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection. To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. An amber light is not, as the current witticism suggests, a signal to accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice Esson noted in Uyeyama, in a busy city like Vancouver and at a busy intersection like 25th and Granville, an amber is likely the only time one can complete a left turn. Drivers approaching intersections must expect that this will be occurring. Putting a burden on a left turning driver to wait until he or she sees that all approaching drivers have stopped would, in my view, bring traffic to a standstill. We should not endorse such a result.
11 Accordingly, notwithstanding the principle (which I do not doubt) that questions of apportionment are generally questions of fact with which we should interfere only in exceptional cases, I would conclude that the issues I have referred to are ones of law and that the learned trial judge erred in law in placing too high a standard on the plaintiff and in failing to consider the assumptions she was entitled to make. I would not apportion any of the fault to her and would apportion 100 percent to Mr. Hall.
The court held that this was a similar case to Kokkinis and found the through driver at fault.
In terms of injuries the Plainitff suffered from general body trauma, bruising and soreness, soft tissue injuries to the neck, chest wrist and knee. The most significant injury was to the back and the court found that “3 years post-accident the Plaintiff continues to have significant pain from his back. Any prolonged activity, such as sitting in a lecture hall or travelling in a sitting position over 45 minutes causes soreness and pain. The Plaintiff is not recommended to pursue recreationbal activities of a physical nature such as football, which he had formerly done.”
The court awarded damages totalling $74,978.13 including $45,000 for non-pecuniary damages (pain and suffering).
In reasons for judgment released today, the BC Supreme Court valued a Plaintiff’s pain and suffering at $75,000 for soft tissue injuries.
The Plaintiff was a nurse’s aid. She was injured in a BC car accident which occurred in 2004 in New Westminster. The crash occurred at an intersection and both liability (fault) and quantum (value of injuries) were in dispute at trial. This is often the case when ICBC injury claims resulting from an intersection crash go to trial.
The Plaintiff was making a right hand turn. When starting her turn she felt it was safe to do so. At about the same time the Defendant was proceeding through the intersection and had recently changed into the right hand lane. Both motorists failed to recognize the hazard they posed to each other until it was too late.
The court found that both drivers were at fault. The Plaintiff was liable for ‘not keeping a proper lookout’ and that she should have seen the Defendant travelling in the curb lane prior to the collision.
The defendant was also found at fault for changing lanes at an unsafe time. The key finding is made at paragraph 70 where the court held that: I find that at the time that the defendant changed lanes on Braid from the eastbound inside lane to the curb lane, 80 feet west of the intersection of Garrett and Braid, the plaintiff had already left the stop sign on Garrett and was in the process of making a right hand turn into the eastbound curb lane on Braid. I find that in making his lane change at this point on Braid the defendant was in such close proximity to the plaintiff’s car that his lane change could not be made safely. The weight of the evidence leaves no doubt that the defendant’s van was far too close to the plaintiff’s car for the defendant’s change of lanes to be made safely.
When 2 or more people are responsible for a BC car accident the Negligence Act requires a court to apportion fault between the parties. In this case the court held that both the Plaintiff and Defendant were 50% at fault for the accident. In doing so the court stated that “I do not think it can be found that blame for the accident rests more with one party than the other. In my opinion, they are equally guilty of breaching the rules of the road.”
The Plaintiff was a nurse’s aid. She claimed that as a result of the accident she became disabled from not only that job but also from ‘any other employment at a competitive level’
The Plaintiff’s doctor diagnosed the following injuries:
1) New large left central parracentral disc herniation posterior to the L5 vertebral body secondary to new onset degenerative L5/S1 disc change. This would be rated severe.
2) Left L5/S1 nerve root compression, also rated severe.
3) Milder degenerative changes at L3/L4, L4/L5 levels with early neural foraminal stenosis at L4/L5 and L5/S1, which are rated moderate to severe.
4) New onset degenerative CT spine changes rated moderate.
5) Musculoskeletal changes within the left side of her body, left arm, left chest, left hip and left leg, resolved within a week or two after the motor vehicle injury, rated mild.
6) Iatrogenic hypertension secondary to COX-2 inhibitor use for the treatment of the patient’s back injuries.
The bulk of the reasons for judgement focused on causation, that is, whether the above injuries were related to the accident or to other causes. As with most ICBC injury claims, the court heard from several ‘expert witnesses’ who commented on the plaintiff’s injuries and their cause.
In the end the court found that the Plaintiff failed to prove that the accident caused her disc herniation. The key findings can be found at paragraph 317 where the court held that:
In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery. In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation. She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.
In arriving at this conclusion I accept the opinion of Dr. Maloon, in preference to that of the plaintiff’s medical experts, that the soft tissue injuries the plaintiff sustained in the accident would not have been “significant enough to alter the natural history of her neck or low back condition” and that the “disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in [the accident].”
Since the court did not find the disc herniation related to the accident damages were assessed for soft tissue injuries. The court made the following finding prior to valuing the injuries at $75,000 for pain and suffering:
I find that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back as a result of the accident which have had an affect on her personal, employment, social and recreational pursuits and activities. However, I also find that the plaintiff has failed to establish that the injuries sustained by her in the accident have caused her disability from employment.
In the result, I find that the plaintiff’s award for general damages should be based on the fact that her condition had improved and recovered to the stage that by March 4, 2005 he felt well enough to return to work on a gradual basis. Moreover, I find that the fact her physical and emotional condition deteriorated after her fall on March 5, 2005 cannot be attributed to the injuries she sustained in the accident.
The Plaintiff’s award was then cut by 50% to reflect the fact that she was 50% responsible for the accident. This is the direct result of ‘contributory negligent’ in ICBC injury cases. If a Plaintiff is any percent at fault then the value of what can be recovered in tort is reduced by that percentage.
Do you have questions about this case or about an ICBC injury claim involving soft tissue injuries or a disk herniation? If so please click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)
In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.
The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.
A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.
The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”
The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.
In the end the court awarded damages as follows:
Pain and Suffering: $15,000
Past Wage Loss: $4,790.50
Mileage Expenses for treatments: $50
This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.
Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.