Tag: Whiplash Claims

$50,000 Non-Pecuniary Damages for Chronic Whiplash Injury

Adding to this ever-growing BC “Pain and Suffering” Caselaw Database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff close to $90,000 in total damages as a result of injuries and losses sustained in a 2006 car crash.
In today’s case (Cabral v. Brice) the Plaintiff was in a pick up truck which was rear-ended by a commercial truck driven by the Defendant.  The issue of fault was admitted leaving the Court to determine the value of the Plaintiff’s injury claim.
The Plaintiff had a pre-existing problem from a herniated disc at C6-7 but this made a complete pain free recovery in the years before the crash.  This previous injury did, however, make the Plaintiff more susceptible to being injured in a motor vehicle collision.  The crash caused a soft tissue injury to the Plaintiff’s neck which resulted in mechanical neck pain.  Although there was some improvement in his symptoms by the time of trial he continued to have ongoing intermittent symptoms which increased with activity.  In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Wedge noted the following:

[63] In Unger v. Singh, 2000 BCCA 94, [2000] B.C.J. No. 246, Proudfoot J.A. observed the following at para. 32 concerning the quantum of general damages in soft-tissue injury cases:

After analyzing the many cases cited by both counsel (I will limit my comments to relevant material) I find that the range of damages is indeed wide. Cases involving primarily soft-tissue injury with some emotional problems including sleep disruption, nervousness, depression, seem to be from a low $35,000 to a high of $125,000. However, I caution though that these numbers are only guides.

[64] In Stapley v. Hejslet, 2006 BCCA 34, [2006] B.C.J. No. 128, Kirkpatrick J.A. (writing for the majority) outlined (at para. 46) the factors a trial judge should consider when assessing general damages:

The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff:  Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[69] Mr. Cabral performed light duties at work for one month following the accident, and then returned to his full duties. He undertook a three-month course of physiotherapy, and was participating in all of his pre-accident sports activities by the summer of 2006. He received several further physiotherapy treatments between October 2006 and February 2007. Thereafter, he again underwent treatment for his neck pain in December 2008.

[70] The medical evidence established that Mr. Cabral suffered a significant neck sprain in the accident which, while it does not prevent him from working full-time in his job and participating in his sports activities, continues to cause intermittent pain which increases his fatigue and stress at work and limits some of his activities at home. The evidence established that Mr. Cabral’s recovery has reached a plateau. The evidence further established that his condition will not worsen over time.

[71] Mr. Cabral’s medical condition is not as severe as those suffered by the plaintiffs in the decisions cited by his counsel, although it does share some of the features of those decisions. The medical evidence suggests that his neck pain may now be chronic in nature.

[72] Each personal injury case possesses its own unique facts, and Mr. Cabral’s is no different…

[73] I have concluded that an appropriate award for Mr. Cabral’s non-pecuniary loss is $50,000.

$35,000 Non-Pecuniary Damages for Moderate Soft Tissue Injuries

Reasons for judgment were released today by the BC Supreme Court awarding just over $40,000 in total damages as a result of injuries and loss sustained in a 2006 Richmond, BC Car Crash.
In today’s case (Lo v. Chow) the Plaintiff was injured when his vehicle was struck by the Defendants.  Liability (fault) was admitted by the Defendant leaving the court to decide quantum of damages (the value of the plaintiff’s losses and injuries).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Sewell of the BC Supreme Court highlighted the following findings:

[19] As I have already indicated many of Mr. Lo’s symptoms resolved within a relatively short period after the accident.  His on-going complaints relate mainly to his lower back and are aggravated by heavy exertion at work.  Mr. Lo did not give any evidence about curtailment of recreational activity which he has suffered as a result of the accident.

[20] I conclude that Mr. Lo suffered a mild to moderate soft-tissue injury as a result of the accident.  On the evidence before me, and in particular given the duration of his symptoms, I conclude that he will continue to be symptomatic for the foreseeable future.  At the same time, the intensity of his symptoms is not severe and they do not appear to be in any way debilitating.  My impression of Mr. Lo is that he has coped well with his pain.  Nevertheless, he has continued to experience pain for over 3 years and, as I indicated above, that pain is likely to continue indefinitely.  In all the circumstances I award Mr. Lo non-pecuniary damages for pain and suffering of $35,000.00.

In addition to the discussion addressing damages for pain and suffering this case is worth reviewing for some of the ways ICBC defence lawyers use entries contained in clinical records to try and impeach a Plaintiff at trial.  This type of impeachment with ‘prior inconsistent statements‘ is a common method used in personal injury claims.

In this case the defence lawyer argued that the Plaintiff’s evidence was inconsistent with statements recorded in certain documents.   Mr. Justice Sewell put little weight in this argument and in rejecting it noted the following:

[13] In his submissions counsel for the defendant submitted that Mr. Lo’s credibility was in issue and that I should be very sceptical about the evidence which he gave as to his condition.  Having observed Mr. Lo in the witness box and taking into consideration the whole of the evidence I find that Mr. Lo was a credible witness and that I should accept his evidence as credible.  He did not seem to overstate his symptoms and gave forthright answers to questions even when the answers did not advance his case.

[14] Defence counsel’s criticisms of Mr. Lo’s credibility are centered on two particular documents.  The first is a document described as a Discharge Report prepared by Mr. Troy Chen, a personal trainer who supervised an exercise program to Mr. Lo between August 29, 2006 and October 12, 2006.  Counsel submitted that Mr. Lo’s evidence that he continues to have difficulty and pain when called upon to do heavy work cannot be reconciled with some of the comments attributed to him in the Discharge Report.  In particular, counsel points to the following passage on page 2 of the Discharge Report dealing with client activities:

“Mr. Lo indicated the following:

Working fulltime as a packager for BEPC Apparel.  No time for any sporting or recreational activities.  On October 12, 2006, Mr. Lo indicated that he was now able to perform all job-related duties without assistance.”

[15] Counsel submits that this statement is inconsistent with Mr. Lo’s evidence that while he was employed at BEPC he required assistance in lifting heavy objects and packages.  He therefore invited me to make adverse findings of credibility against Mr. Lo.

[16] I do not think that Mr. Lo’s credibility is in any serious way damaged by the contents of the Discharge Report.  Firstly, Mr. Chen testified that he has absolutely no recollection of the matters recorded in the Report.  Accordingly, the only evidence that I have from him is in the form of past recollection recorded in the Discharge Report.  Mr. Lo speaks primarily in the Cantonese dialect of the Chinese language.  Mr. Chen speaks English and Mandarin.  He testified that he would have spoken to Mr. Lo through an interpreter but was unable to identify who that interpreter was or the circumstances in which he made notes of Mr. Lo’s comments.  I also note that in the portion of the Discharge Report immediately below client activities Mr. Chen noted that Mr. Lo continued to suffer constant discomfort in his lower back and that exertion tended to elicit pain which may linger for several days.  Mr. Lo also reported to Mr. Chen that lifting heavy objects elicited pain in his right pectoral area.

[17] The other document which counsel submitted brings Mr. Lo’s credibility into question is a WorkSafe B.C. claim filed by Mr. Lo in June 2007 with respect to a work-related injury.  On June 8, 2007 Mr. Lo lifted 30 boxes weighing at least 60 pounds each.  Mr. Lo at that time reported back pain and made a claim for wage loss compensation to WorkSafe B.C.  In the course of investigating Mr. Lo’s claim WorkSafe B.C. required various forms to be completed.  In one of the forms which was completed on behalf of Mr. Lo, in English, he reported that there was no previous condition prior to the injury.  I, again, do not find that the contents of these documents cause me to form an unfavourable impression about Mr. Lo’s credibility.  The documents, as I indicated above, are prepared in the English language and were prepared on Mr. Lo’s behalf by an employee of BEPC.  Mr. Lo testified that the contents of the document were not read to him and he understood that they were an application for benefits.  In all of the circumstances, I do not think that Mr. Lo intended to mislead or make false statements in his application to WorkSafe B.C., nor do I think that the contents of these documents are necessarily inconsistent with Mr. Lo’s symptoms as he reported them to his physicians and testified to at trial.

More on ICBC Injury Claims and the LVI Defence

I’ve blogged and written many times about ICBC’s Low Velocity Impact Program (LVI) and today Mr. Justice Williams shared his opinions about the so called LVI defence.
In today’s case (Munro v. Thompson) the Plaintiff suffered a whiplash injury in a 2006 motor vehicle collision.  The Court found that the impact was indeed quite minimal when considering the vehicle damage.  In awarding $9,000 for the Plaintiff’s injuries (which the court found largely resolved several months following the collision) Mr. Justice Williams summarized the law as it related to Low Impact Collisions as follows:

[50]            The issue of the legitimacy of injury claims arising from accidents in which property damage is very minor is one that comes before the court not infrequently.

[51]            The accident at bar was a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent.  All of the evidence supports that conclusion.  In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy.  Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is his self-report.  There is not a great deal of objective evidence to support his description of the injuries he claims to have suffered.

[52]            In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury.  Certainly, as a matter of common sense, where the collision is of slight force, it is probably more likely that resulting injuries will be less severe than where the forces were greater, such as to result in significant physical damage to the automobiles.  However, I would not hold that out as a reliable thesis, but rather a statement of very general expectation. Suffice to say, I do not accept that there can be no injury where there is no physical damage to the vehicles.

[53]            With respect to the lack of objective evidence of physical injury and ongoing symptoms, it is well accepted that the court must be cautious in assessing the evidence.  The determination must be made in a way that the outcome will be fair to both the plaintiff and the defendant.

[54]            The plaintiff, to succeed in his claim, must establish on a balance of probabilities that this incident caused injury to him, and that those injuries entitle him to an award of compensatory damages against the defendant.

[55]            I am satisfied in this case that Mr. Munro was injured as a consequence of the accident, notwithstanding its apparently minor nature.  Accordingly, it is necessary to determine the extent of the effect of those injuries on him and the quantum of the damages to which he is entitled.

If you are injured by the fault of another in a BC Car Crash and ICBC tells you that your crash fits their LVI criteria therefore you suffered no compensable injuries its worth reviewing cases like this.  ICBC’s LVI policy is not the law, it is simply a corporate policy that has no legal force.  If you were injured in a car crash through the fault of another in BC your rights to make a tort claim are not diminished any because of the amount of vehicle damage. 

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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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