Tag: whiplash injury

$60,000 Non-Pecuniary Damages for Whiplash and likely Zygapohyseal Joint Injury

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of a BC car crash resulting in whiplash claim with a likely zygapophyseal joint injury.
Zygapophyseal joints (also known as facet joints) are the interconnecting joints joining vertebral bodies to one another and it is not uncommon for injury to occur to these joints in motor vehicle collisions.

In this week’s case (Lamont v. Stead) the Plaintiff was involved in a rear end collision caused by the Defendant in Burnaby, BC.  Fault was admitted leaving the Court to deal with the extent and value of the injury claim.   The Defendant accepted he injured the Plaintiff however argued that these injuries substantially resolved within 9 months.  The Plaintiff disagreed giving evidence that her neck injury symptoms were ongoing through trial.
In support of her case the Plaintiff advanced evidence from Dr. Rhonda Shuckett, a well respected BC rheumatologist.  Dr. Shuckett testified that the Plaintiff likely had permanent injuries explaining as follows:

I suspect her left neck injury since the MVA is mainly attributable to soft tissue and perhaps zygapophyseal joint injury…It is already approaching two years since the subject MVA and she remains symptomatic. I think there is a good chance that she is going to continue with her current level of pain. She is not disabled but is impaired to some degree…

Mr. Justice Bernard accepted this evidence and awarded the Plaintiff damages accordingly.  In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering and loss of enjoyment of life) at $60,000 the Court made the following findings:

[30] The evidence establishes that the plaintiff’s prospects for any significant improvement in her neck pain are poor. As a consequence, she faces a considerably altered future; particularly as it relates to her life outside the workplace. Her chronic pain deprives her of much of the enjoyment she found in being physically active, in attending to her family, and in participating in family activities…

[35] In summary, I am satisfied that the plaintiff’s pain is chronic, partially disabling, and likely permanent. Similarly, I am satisfied that the evidence establishes that the plaintiff’s neck pain was caused by the defendant’s negligence, in the sense that it directly caused or materially contributed to it. There is a substantial connection between the plaintiff’s chronic neck pain and the collision, and the plaintiff has shown, on a balance of probabilities, that but for the negligence of the defendant, she would not have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[40]        The loss of enjoyment of life due to chronic neck pain is undoubtedly greater for Ms. Lamont than it would be for a person who has led a more sedentary lifestyle. Ms. Lamont has been actively engaged in strenuous sport throughout her adult life, and this has been a significant feature of life with her husband and children. It is, understandably, a source of great frustration and sadness to her that she has been deprived of the capacity to engage in most of the activities she loved, and to experience them with her family.

[41]        Given the relatively profound nature of the loss to this plaintiff (including compromised household management and parenting), the chronic pain which she must endure, the age of the plaintiff, and the very poor prospects for significant improvement, and, having regard to the similarities between the cases cited by the parties and the case at bar, I assess the non-pecuniary losses of the plaintiff at $60,000.

Non-Pecuniary Damages Discussed for Neck Soft Tissue Injury, Significant Low Back STI

2 cases were released today by the BC Supreme Court dealing with non-pecuniary damages in auto-accident cases which I summarize below to add to this ever-growing free online  pain and suffering caselaw database.  The first case dealt with a soft tissue neck injury; the second with a ‘significant’ low back soft tissue injury.
In the first case (Berry v. LaBelle), the Plaintiff was injured in a 2006 rear-end crash.  Fault was admitted leaving the Court to deal with the value of the claim.
The Plaintiff was a 42 year old drywaller at the time of the accident.  He sued for various damages including past loss of income and diminished earning capacity.  At trial he asked for some $600,000 in total damages for his injuries and losses.  He alleged that he suffered from left handed weakness as a result of the collision which negatively affected his ability to work.  After 4 days of trial, however, his claim proved largely unsuccessful being awarded $0 for his loss of income / diminished earning capacity claims.  The Court did find that the Plaintiff suffered a compensable injury and awarded the Plaintiff damages for non-pecuniary loss (money for pain and suffering and loss of enjoyment of life).
Specifically Madam Justice Baker found that “the only injury resulting from the motor vehicle accident…is a strain to the soft tissues on the left side of the neck“.  In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court noted the following:

[51] Nevertheless, I am satisfied that the strain to the soft tissues on the left side of Mr. Berry’s neck did cause him discomfort for several months after the accident, although it appears that injury did not actually impair range of motion in the neck.  Mr. Berry had full range of motion in his neck the day after the accident; Dr. Fehlau described the range of motion as “good” when Mr. Berry was seen at her clinic on August 17, 2006.  Massage therapy alleviated the discomfort but only temporarily; physiotherapy had more lasting benefits.  The pain did not incapacitate Mr. Berry at work, although he modified some of his tasks to accommodate the injury.

[52] By no later than October 2006 – seven months after the accident, Mr. Berry had returned to his favourite recreational activity – dirt-biking.  According to Mr. Berry’s description, and those of his friend Mr. Van Lingen, cross-country dirt-biking is a very strenuous and even hazardous recreational activity.  Mr. Berry told Dr. Fehlau on October 24, 2006 that his neck became sore after one-half hour of dirt-biking.   I accept that Mr. Berry initially moderated the intensity of his dirt-bike excursions.  However, Mr. Van Lingen testified that before the bike accident in September 2008, Mr. Berry was back to riding as he had before the March 2006 motor vehicle accident.

[53] Mr. Berry and his wife both testified that the neck discomfort had a negative effect on their sexual relationship.  They testified that before the accident, they had sexual intercourse two or three times every day, but that the frequency diminished after the accident because Mr. Berry experienced neck pain during intercourse, particularly when certain positions were attempted.  Mr. Berry and his wife both testified that Mr. Berry was less patient and more irritable when his neck was sore.

[54] Mr. Berry testified that he has given up river kayaking and golfing because of his injuries but I am not persuaded this is true.  Mr. Berry has not made a serious attempt to engage in either of these activities since the accident.  He testified he had gone kayaking once on a lake, and had not attempted river kayaking.  He had not attempted to play golf.  Given that Mr. Berry has been able to continue to do very heavy physical labour at work, and resumed cross-country dirt-biking within seven months after the accident, I do not accept that he is incapacitated from playing a few games of golf annually, or kayaking on a river.  I think it more likely that Mr. Berry has changed his recreational focus to activities he can enjoy with his wife and young son, and to a new interest – on-line computer games – which Ms. Schroeder testified that Mr. Berry plays for hours at a time.

[55] I am satisfied that Mr. Berry has recovered from the injuries caused by the accident.  I consider that an award of $30,000 to be adequate compensation for the temporary impact Mr. Berry’s neck injury has had on his enjoyment of life and, in particular, the discomfort he has experienced when lifting heavy materials at work; while engaging in strenuous recreational activities; and during intimate relations with his spouse.

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The second case released today (Demarzo v. Michaud) considered the onset of pain in a pre-existing but asymptomtic condition, namely a degenerative spine.

The Plaintiff was involved in a March, 2005 rear end collision.  Fault was admitted.  The Court heard evidence that the Plaintiff suffered from relatively severe back pain following this collision.  The parties differed on whether the Defendant was legally responsible for this.  The Defendant argued that he was not stating that the accident related injuries were minor and that a ‘pre-existing degenerative spine‘ and a subsequent event (an incident where the Plaintiff was lifting weights and aggravated her back pain) were responsible for the symptoms. The Defendant argued that the Plaintiff would have experienced her back pain as a matter of course even without the rear-end crash.  (note: this type of a ‘causation’ argument is often advanced at trial in personal injury lawsuits involving plaintiff’s with degenerative changes in their spine).

Mr. Justice Brown largely agreed with the Plaintiff and awarded just over $350,000 in total damages including $85,000 for her non-pecuniary damages.  Specifically he found that the Plaintiff suffered from a “significant soft tissue injury to her lower back” which resulted in chronic symptoms.   In navigating through the Defenses raised and awarding damages Mr. Justice Brown noted the following:

[51] I find that the plaintiff sustained a significant soft tissue injury to her lower back but it is not possible to unravel the plaintiff’s clinical history in such a way that allows a conclusive evidentiary finding on the specific medical legal question of when the plaintiff sustained her annular tear.

[52] The plaintiff’s lower back symptoms have become chronic and I accept Dr. Leete, Dr. Filbey’s medical opinions that she will continue to experience intermittent lower back complaints, especially related to certain activities. This is far from what she was able to do before the accident.

[53] As for the defendant’s contention that the plaintiff’s landscaping activities produced her degenerated spine and that this is the ultimate cause of her symptoms, I prefer the opinions of Dr. Leete and Dr. Filbey that there is no sound medical basis for the proposition that because someone over the years has been active in sports and worked as a landscaper, they are necessarily predisposed to development of degenerative changes in the spine or that such changes are associated with back pain. I understood from the evidence of Dr. Leete and Dr. Filbey that one patient may present with images of a markedly degenerated spine and have no history of symptoms, while another patient may present with marked symptoms, and have images of a perfectly normal spine. I also find that there is no sound medical basis for concluding that the plaintiff would have suffered the symptoms and limitations that she has experienced or that her degenerative spine would have inevitably become symptomatic, absent inducement of symptoms by the trauma of the motor vehicle accident.

[54] The plaintiff’s position is that when she lifted the dumbbells, she experienced immediate onset of pain in the same area she injured in the accident; that this was an exacerbation of the plaintiff’s unresolved injuries; and that there is no evidence to show that she would have experienced her continuing symptoms but for the injuries she sustained in the accident. On the balance of probabilities, I agree with the plaintiff’s position. I find that but for the accident the plaintiff would not have suffered the pain and disability she experienced after accident, including the exacerbation of her injuries on May 29, 2005 and acute flare-up with neurological symptoms in November 2005…

[57] The plaintiff has never returned to her former work as a landscaper or to any of her former recreational activities, at least not with any degree of intensity. She is still unable to play volleyball, cannot run long distances, although she did try running in the last month but at a far lower level than before. She no longer exercises at the gym. She does not enjoy movies in theatres because she finds sitting for long periods very uncomfortable. She explained that the last time she went out with friends, she felt very uncomfortable, but suffered through it as she was too embarrassed to leave. Given her enjoyment of sports and active lifestyle shared with her husband, as well as the loss of her former capacity to be active, this represents a substantial loss for the plaintiff as a person and a spouse. Although the plaintiff will likely improve somewhat in the future, I accept that she will not ever be able return to her former level of participation in recreational activities or regain her former physical capacities; and will continue to experience varying degrees of chronic back pain that will necessitate alteration of her lifestyle.

[58] The accident depressed the plaintiff’s mood, leading to a marriage separation in early spring 2007. Mr. Saliken testified that the plaintiff became depressed, unhappy about living with him in Nanaimo, impatient and angry. Making matters worse was the apparent mindset of Mr. Saliken’s family, who were impatient with the pace of the plaintiff’s recovery and kept asking why she could not work. The plaintiff’s feelings of frustration, augmented by her feelings of diminishment in the eyes of her husband’s family, who she did not yet know well and who had “never seen how hard she could work”, and her feeling that she had become a drain on the household combined with other aggravating factors, ultimately led to arguments and her two months separation from her husband. Fortunately, their bond and commitment to one another were strong enough to allow the plaintiff and Mr. Saliken to weather these adverse emotional affects of the accident and they reconciled. Nonetheless, the plaintiff’s separation from her husband and her emotional distress are emblematic of the degree of suffering and loss of enjoyment of life the plaintiff has experienced. She is entitled to a substantial award for pain and suffering and loss of the enjoyment of life. Bearing in mind that while she will receive compensation for her loss of earning capacity, she has still lost the enjoyment and satisfaction she experienced in her chosen career. I award the plaintiff $85,000 for non pecuniary damages.

Loss of Commission Income and ICBC Injury Claims

Reasons for judgement were released today (Tong v. Sidhu)awarding a Plaintiff $30,000 for non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2007 BC Car Accident.  
Mr. Justice Cohen of the BC Supreme Court made the following findings with respect to the Plaintiff’s injuries:
[40]            In my opinion, the medical evidence and the plaintiff’s testimony supports the conclusion that the plaintiff suffered mild to moderate soft tissue injuries, and that he has made an overall improvement to a level where if he dedicates himself to learning and correctly performing the exercises recommended by Dr. King he will probably experience a full recovery within six to twelve months.
[52]            Upon a consideration of the severity and duration of the plaitniff’s accident related injuries and symptoms, and upon a review of the authorities on the range of the general damages submitted by the parties, I find that an award of $30,000 is a fair and appropriate sum to compensate the plaintiff for his general damage claim.
The Plaintiff, who was a commodities broker, also alleged a past and future loss of income although these claims were dismissed.   The Plaintiff sought approximately $50,000 for past income loss and $44,000 for future income loss.
In dismissing these damages Mr. Justice Cohen found that the Plaintiff ‘has not proven on the requisite standard that he has suffered past or future income loss‘.  Following this conclusion Mr. Justice Cohen engaged in a lengthy analysis of the Plaintiff’s claim for lost income and stated as follows:

[63]            First, the only documentary evidence the plaintiff has brought forward to support his claim are his income tax returns and payroll slips for 2007 and 2008.  Although he signed an authorization for release of employment information to the defendant, the onus remains on the plaintiff to bring to court any records which would help him to identify the details of his earnings history.  He has not produced any employment records to indicate or establish a month over month or year over year trend based on details of income from client or personal trading accounts.

[64]            Moreover, the plaintiff did not elicit evidence from Mr. Mok on his commission earnings to provide some comparative evidence regarding the level of earnings from commissions experienced by commodities brokers at Union Securities, or for that matter evidence of the earnings of brokers in other firms with a similar level of experience and client base as that of the plaintiff.

[65]            With respect to Mr. Mok, he and the plaintiff were performing the same work and both were earning income from commissions generated by client trades, as well as income from self trades.  Mr. Mok did say that he had two streams of earnings and that while his earnings from trades in his own account would not be shown on his T4, both streams of income were shown on his income tax returns.  He said that earnings from trading on his own account would be declared under the item of “business income” in his income tax returns.

[66]            I find that the plaintiff’s evidence on his precise earnings was at times both contradictory and confusing.

[67]            For example, the plaintiff was asked in chief about the line in his 1999 income tax return for “business income”, which shows an amount of $20,805.89 gross and a net loss of $8,323.15.  Although the plaintiff initially testified that the loss amount was due to amounts that he had to pay out of his pocket for losses sustained by his clients due to his trading errors, he later changed this testimony to say that the business income item related to a tax shelter investment that he had made, and that this was the amount reported to him by the company as a unit holder.  With respect to where he reported his income from self trades he said that he did not report this income in his income tax return as the earnings had gone into his RSP account, although he produced no records to substantiate his evidence on this point.

[68]            Finally, I think that there is evidence that completely undermines the plaintiff’s assertion that he is entitled to damages for loss of income, past or prospective.

[69]            In cross-examination, the plaintiff agreed with defence counsel that it was not common for him to make earnings in excess of $100,000.  He agreed that his earnings jumped substantially in 2004 because of the financing he worked on.  He also agreed with the figures from his income tax returns that since 2001, with the exception of 2004, he has earned in the range of $40-50,000 annually.  He agreed that 2004 was unusual, adding that it was unusual in the sense that his hard work paid off.  He also agreed with counsel that the last year he earned a figure in the same range was in 1996.  He agreed with counsel that his average income for the past 7 years has not been in the $80,000 range, but rather closer to $50,000.

[70]            The plaintiff agreed with counsel that based on his average earnings over the period leading up to the accident that his income in 2007 was similar to what he had earned in earlier years, with the exception of the year 2004.

[71]            The plaintiff testified that for the years 2001-2008 he would rank himself against his peers as being in the middle of the pack, and not on average a top performer.  He agreed that his assessment of his ranking has not changed since the accident, and also agreed that essentially, with the exception of 2004, his income has not significantly changed.

[72]            Counsel reminded the plaintiff of his evidence that his focus and concentration had been affected by the accident and he was asked whether it had affected his number of clients, to which he replied that he gained and lost clients for all kinds of reasons.  When counsel suggested to the plaintiff that he had not lost clients as a result of the accident, he replied that he may have lost or gained clients during the period following the accident.  He was not able to say whether in fact the accident related injuries had resulted in a loss of clients.

[73]            Mr. Steven Engh is manager of sales at Union Securities.  He met the plaintiff when they both worked at C.M. Oliver.  He was asked how he would rank the plaintiff as a commodities broker. He replied that the plaintiff would fall in the middle of the pack, and that as far as he knew this had been the case for the past five years.  He also said that all of the brokers in his firm have been affected by the current securities market conditions and that this would include the plaintiff’s area of trading.  He did agree with plaintiff’s counsel in cross-examination that the securities business is very demanding and that it takes a focused person to succeed.

[74]            In the result, I find that on the whole of the evidence the plaintiff has failed to prove his income loss claim. With the exception of the year 2004, the plaintiff’s history of earnings in the seven years leading up to the accident disclose a trend of income much closer to the $50,000 range than his claim of $80,000.  This is clearly borne out by his income for the year 2006, a year in which he was completely healthy, had his list of prospects, and presumably was focused and determined to increase his income to a level closer to his exceptional result in the year 2004.  Yet, his income for the year 2006, at least from commissions on trades, was not very far off his usual annual earnings in the $50,000 range.

[75]            In my opinion, the evidence falls far short of the claim that the plaintiff is making for income loss, past and prospective, and therefore this head of damage must be rejected.

This case is worth reviewing for anyone on commissioned or self employed basis who suffers a wage loss in an ICBC Injury Claim to see how courts scrutinize such claims and to get some insight into the factors and the type of evidence courts find useful in determining whether there has been a past loss of income.

BC Supreme Court Awards $58,000 for Soft Tissue Injuries and Depression

In a judgement released today by Madam Justice Humphries, a total of $58,000 was awarded to a 37 year old plaintiff as a result of a 2004 motor vehicle accident in Vancouver, BC.
The Plaintiff suffered soft tissue injuries in her neck, shoulder and low back. The accident also caused depression which was, according to the court, at least as debilitating as the physical injuries. The court found that the physical and psychological injuries were inter-connected.
The Plaintiff did suffer from pre-existing injuries in all of the above areas as a result of a 1996 motor vehicle accident. Evidence was presented that she was largely recovered from her pre-existing soft tissue injuries and depression by the time of the 2004 accident.
The court summarized her injuries as follows:
From all the medical reports and from her own evidence, (the Plaintiff) appears to have recovered from the physical effects of this accident by late 2005 or early 2006 in the sense that she had ceased experiencing daily and ongoing pain. However, she continues to have and can expect to have bouts of pain depending on her activities. This is somewhat similar to the same state she was in prior to the accident, when she could work long hours, attending physiotherapy once in awhile if she was experiencing discomfort caused by her job. However, I accept that the effects of over-exertion and work-related activities since the second accident are more limiting than they were just prior to it
In the end the court awarded $45,000 for pain and suffering (non-pecuniary damages), $3,000 for past wage loss and $10,000 for loss of earning capacity.
If you have an ICBC claim and have suffered from pre-existing injuries that were re-injured or aggravated by a subsequent car accident this case is worth reading to see some of the factors courts consider in these circumstances.
Also of interest is the courts reasoning in awarding some money for past wage loss despite the “flimsy” evidence that was advanced in support of an income loss claim. The Plaintiff was a self-employed photographer and there was no hard evidence of lost income. The court, at paragraph 40, held as follows:
It is only common sense that a self-employed person whose work depends on dealing with the public, persuading people to hire her, and being able to carry heavy cameras and position herself quickly in order to take pictures must be able to rely on physical agility and a pleasant personality in order to work to her full capacity. I accept that (the Plaintiff) was putting in many hours building her contacts and working on various facets of her business just prior to the accident, and due to her temporary physical limitations and some periods of depression, she was able to work less after the accident for a period of time. However, the amount of the loss is not amenable to a calculation, and many of the hours she put in were not necessarily hours for which she would be able to bill a client. As well, her earnings in the years prior to the accident were very low; in fact, she made more in 2004 than she did in 2002 and 2003. I assess an amount of $3,000 for past wage loss based on the plaintiff’s evidence of the restrictions she faced in carrying on with her existing business and the delay in her plans to expand her baby/pet photography.
If you are having difficulty agreeing to settlement of an ICBC claim because of pre-existing injuries or because of a disputed claim for past-loss of income from a self-employed business this case is worth a read to see how our courts sometimes deal with these issues.
Do you have any questions about this case? If so feel free to contact the author.

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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.

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