Tag: visual vestibular mismatch

Visual Vestibular Mismatch Leads to $90,000 Non-Pecuniary Assessment

Adding to this site’s archived cases addressing visual vestibular mismatch following a vehicle collision, reasons for judgement were released today by the Supreme Court, assessing damages for such an injury.
In today’s case (Miolla v. Fick) the Plaintiff was involved in a modest 2013 rear end collision.  The Defendant admitted fault but argued that given the minor nature of the crash the Plaintiff was not injured.  The Court rejected this argument and concluded the plaintiff suffered from soft tissue injuries and a visual vestibular mismatch which caused a chronic balance problem which largely interfered with the Plaintiff’s ability to work.  In assessing non-pecuniary damages at $90,000 Mr. Justice Myers provided the following reasons:

[30]    Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch.  In his direct evidence he briefly described that as disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo.  A longer explanation was provided in his report:

Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. Complaints of dizziness caused by checkered floors, busy carpets or patterned tiles is seen. Dislike of elevators and escalators, which caused dizziness is common. Busy television programs, such as car chases and hockey games cause dizziness. Scrolling a computer causes dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation.

[31]    He concluded that this was caused by the accident:

Onset of dizziness subsequent to the accident means, in my opinion, that the accident is the [probable] cause. There are measured abnormalities on balance tests. She has an abnormal result on Computerized Dynamic Posturography (CDP), compatible with a disturbance involving the balance system of the inner ear. This is an objective test. She has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with an abnormality on the left side. This is an objective test. OVEMP measure the macula of the utricle, one of the gravity detecting organs of the inner ear…

[42]    …I accept Dr. Longridge’s report and conclusion.

[61]    A closer case – in fact one remarkably similar to the one at bar – is Moukhine v. Collins, 2012 BSCS 118.  In that case, the 53-year-old plaintiff also suffered visual-vestibular mismatch.  That impaired his ability to work as a computer programmer by 50%.  His previous activity level was curtailed, as was the nature and extent of his outdoor activity level.  Damages were assessed at $90,000.  Based on that, I assess general damages at $90,000.

$90,000 Non-Pecuniary Damages For Visual Vestibular Mismatch

Visual Vestibular Mismatch is a medical condition which can result in dizziness, imbalance and nausea.  The consequences of these symptoms can be severe and disabling.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing a claim for damages arising from VVM resulting from a motor vehicle collision.
In last week’s case (Moukhine v. Collins) the Plaintiff was injured in a 2007 rear-end collision in Vancouver, BC.  Fault was admitted by the rear motorist.   The Court heard competing medical evidence as the consequences of the collision and ultimately accepted that the Plaintiff suffered from a visual vestibular mismatch as a result of the crash.
The prognosis was poor with the symptoms expected to plague the Plaintiff indefinitely.  The Plaintiff worked as a senior application developer and following the collision was never able to resume full time hours.  In assessing non-pecuniary damages at $90,000 Mr. Justice Watchuk provided the following reasons:
[195] I find Mr. Moukhine to be a credible witness. I accept that his descriptions of heaviness or fog or, sometimes, mist in the head describe what is to the doctors a form of dizziness. I accept that this feeling and the inability to concentrate or “think through” prevents him from working at his job as a computer programmer for more time than he describes that he is now able to work…

[225] I conclude on the evidence as a whole that the Mr. Moukhine has proven that as a result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which has not resolved.

[226] I accept Dr. Longridge’s opinion that it is unlikely that there will be further significant improvements to Mr. Moukhine’s condition or symptoms.

[227] As has been described above, this injury has had a significant effect on Mr. Moukhine.  It has resulted in continuing dizziness, primarily when he works on the computer.  He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.

[228] Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.

[229] The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.

[230] I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.

[231] At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating…

[233] Each case is to be assessed on its particular facts. Considering all of the circumstances in this case including Mr. Moukhine’s age, the effects of the injuries sustained in the accident and Dr. Longridge’s opinion that the vestibular injury is likely permanent, I assess non-pecuniary damages at $90,000.

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)

Contact

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

ERIK
MAGRAKEN

Personal Injury Lawyer

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

“Work hard, be kind and enjoy the ride!”
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