Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing benefits which ought to be covered under a plaintiff’s first party insurance (Part7 benefits) with ICBC.
In today’s case (Wepryk v. Juraschka) the Plaintiff was injured in a 2008 collision and sued for damages. At trial the Plaintiff’s damages were assessed at just over $83,000. The Defendant then applied to have some of the assessed damages deducted pursuant to section 83 of the Insurance (Vehicle) Act. In finding that mileage and parking expenses ought to be covered by ICBC’s no-fault benefits scheme (and therefore deductible from the tort damages) the Court provided the following findings:  I also agree that $22.50 for parking should be deducted as a component of travelling expenses for treatment. Travelling expenses are an integral part of necessary treatment and as such are a benefit subject to deduction: Petersen v. Bannon, (1991) 1 C.C.L.I. (2d) 232 (B.C.S.C.).  The plaintiff also claimed car expenses for driving to and from medical appointments at a rate of .50¢ per kilometre, and I awarded the entire amount of $1,368.90 claimed by the plaintiff on the basis of her calculations. The defendants originally submitted that the entire amount of $1,368.90 should be deducted, but now say the deduction should be $684.45. According to ICBC’s Claims Procedure Manual for Accident Benefits, ICBC will only reimburse the use of one’s own vehicle at a rate of .25¢ per kilometre. Therefore, one half of the $1,368.90 awarded at trial, or $684.45, should be deducted for driving expenses.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained as a result of a motor vehicle collision.
In last week’s case (Wepryk v. Juraschka) the Plaintiff was involved in a 2008 collision. She was a passenger and the driver of her vehicle lost control resulting in a roll over collision. Liability was admitted. The 43 year old Plaintiff suffered soft tissue injuries and while she was able to continue working as a hairdresser these injuries limited her abilities to do so. In assessing non-pecuniary damages at $50,000 Mr. Justice Ehrcke provided the following reasons:
All of the doctors are agreed that Ms. Wepryk suffered soft tissue injuries to her neck, left shoulder, and upper back as a result of the accident, and that she continues to experience pain, discomfort and occasional headaches from these injuries at the time of trial, three and one-half years after the accident.
In addition, Dr. Chan was of the opinion that Ms. Wepryk suffered adhesive capsulitis or frozen shoulder as a result of the accident. Dr. Loomer did not agree with that conclusion. Dr. Chu had no opinion on the causation of the adhesive capsulitis. Dr. Smith agreed with the opinion of Dr. Chan. On a balance of probabilities, I accept the opinion of Dr. Chan, although not a great deal turns on this, since, as Dr. Chu expressed it, the left adhesive capsulitis is “the least of her problems”.
There was also a disagreement between Dr. Smith and Dr. Tessler regarding the causation of left C-8 sensory neuropathy. Again, I find that nothing of significance turns on this, as these symptoms were minor and transient.
The important fact is that the defendants accept that Ms. Wepryk suffered soft tissue injuries to her neck, her left shoulder, and between her shoulder blades, and that she continues to experience pain to this day. As Dr. Smith put it in his report dated February 26, 2012:
More than three years have passed since Ms. Wepryk’s motor vehicle accident of December 5, 2008. In terms of prognosis, Ms. Wepryk unfortunately has fallen into the 10% of patients still with symptoms more than two years after their motor vehicle accident. Therefore, Ms. Wepryk’s prognosis to return to pre motor vehicle accident levels of functioning is poor, and Ms. Wepryk must now learn to cope with what I believe is a permanent functional impairment.
I accept that conclusion, notwithstanding that Dr. Loomer expressed a “hope” of improvement. In cross-examination, even he agreed that there is no definite evidence that she will get better.
It is likely, therefore, that Ms. Wepryk will continue to suffer from the pain to her neck, left shoulder and upper back, along with occasional headaches. Her symptoms are aggravated when she has to perform activities that require her to raise her arms, or to use her left shoulder. This has an impact on her work as a hairdresser, which requires such activities. It also has an impact on her recreational activities and activities of daily life….
While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Here, the plaintiff, who was 43-years-old at the time of the accident and who enjoyed an active lifestyle, suffered soft-tissue injuries to her neck, left shoulder, and upper back. Now, more than three and one-half years after the accident, her pain and discomfort have not fully resolved, and she is likely to have some residual effects for the indefinite future. She continues to have headaches three or four times a month, and she cannot engage in vigorous physical activities, particularly those that require her to raise her left arm above her shoulder-level, without experiencing pain. She therefore finds it difficult to be as physically active as she was before the accident. She says that she has gained some weight as a result, although the medical evidence suggests that any weight gain has been modest.
In the circumstances of this case, on the facts as I have found them, and considering the factors set out in Stapley v. Hejslet, I find the proper assessment of non-pecuniary damages to be $50,000.
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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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