ICBC Law

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.

The Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle.  The Plaintiff had a green light and a significant impact occurred.

The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off.  Liability (fault) was admitted on behalf of the defendants on the morning of trial.  The trial focused on the Plaintiff’s injuries and their value.

The most contentious claimed injury was a concussive injury affecting cognitive abilities.   The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges.  In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident.  But I am not persuaded that it is more probable than not that this occurred.”

Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 - 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.

In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89]            I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall.  I would describe the severity of these injuries as being moderate.

[90]            I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident.  Not all of this loss of hearing was caused by the injury.  Some of it was attributable to the normal aging process.  I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91]            I am not satisfied that the plaintiff sustained injury to her brain.  Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium. 

[92]            The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder.  Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future.  These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions.  To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop.  But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder.  The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation.  But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

Reasons for judgement were released today by Mr. Justice Butler providing more commentary on the new BC Rule 37B.  (search this site if you wish to read my numerous previous posts on Rule 37B precedents).

In this case the Plaintiff witnessed a severe motor vehicle collision.  He was not involved in the crash nor did he know any of the people involved.   He claimed that he suffered from Post Traumatic Stress Disorder (PTSD) and sued for damages for nervous shock.  The claim succeeded and damages in the amount of $11,100 were awarded.

That in and of itself was a first in BC as far as I am aware as previous successful nervous shock cases involved circumstances where the allegedly injured party knew or had family connections to the victims of the collision.

The Defendants delivered a formal offer of settlement which was greater than the judgement amount.  The issue now was, what, if any, costs consequences should there be under the new Rule 37B.

In awarding the Plaintiff costs up to the point that the offer was made an in awarding the defendant costs from then onwards the court made the following comments:

[16]            One of the goals of Rule 37B, like the former Rule 37, is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted.  That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle….

[20]            While the case was novel for the reason noted above, it was not particularly complex.  The foreseeability, proximity and public policy questions have been the subject of other decisions of both this court and the Court of Appeal.  Ultimately, my decision rested upon the evidence of the three psychiatrists regarding causation.  This should not have surprised the parties, as all three psychiatrists concluded that Mr. Arnold suffered Post Traumatic Stress Disorder (“PTSD”) as a result of the nervous shock he experienced at the scene of the motor vehicle accident.  The real issue was whether the psychiatric difficulties he encountered approximately a year after the accident were caused by the motor vehicle accident induced PTSD.

[21]            Mr. Arnold received supportive medical legal opinions from two treating psychiatrists.  However, the report of Dr. Smith concluded that Mr. Arnold’s subsequent disability was not related to the PTSD or the motor vehicle accident.  Once Mr. Arnold was in receipt of that report, he had all of the information he required to properly consider the offer to settle.  Within a reasonable period after receipt of the report and the offer to settle, the offer to settle was one that ought reasonably to have been accepted.  This is the most significant consideration for me in deciding how to exercise my discretion in this case.

[22]            A reasonable period of time to consider an offer to settle is seven days:  Bailey v. Jang, 2008 BCSC 1372.  I do not know when Dr. Smith’s medical legal report was delivered to Mr. Arnold.  If it was delivered prior to the delivery of the offer to settle, then the offer to settle is one that ought reasonably to have been accepted seven days after the date it was delivered.  However, if Dr. Smith’s report was not delivered until some later date, I conclude that the offer to settle was one that ought reasonably to have been accepted seven days after delivery of the report.

[23]            Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion.  I find that I am unable to do so.  First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action.  Rule 37B gives this Court greater discretion than it had under the old Rule 37.  It specifically allows the Court to consider the relative financial circumstances of the parties.  However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[24]            In the present case, Mr. Arnold has put forward no evidence of special circumstances regarding his finances.  He has put forward no evidence of other factors that should be taken into consideration in the exercise of my discretion.  Accordingly, I will leave it to other courts to consider when it is appropriate to deprive a party of costs when that party has delivered an offer that ought reasonably to have been accepted.

Rule 37B precedents are being handed down at a very fast pace by our BC Courts and I will continue to discuss these judgments as they come to my attention, particularly in ICBC or personal injury claims.

Reasons for judgement were released today awarding a Plaintiff nearly $1.3 million in damages as a result of a 2002 motor vehicle collision which occurred at UBC.

The Plaintiff was a pedestrian at the time.  She was struck while walking in a marked crosswalk on a dark and rainy evening.  Both fault and quantum (value of the ICBC claim) were at issue at trial.

The court found that the defendant driver was 100% responsible for the collision.  At paragraph 8 Madam Justice BJ Brown noted that

[8]                In my view, (the Defendant) is 100% responsible for the accident.  She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space.  She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes.  Indeed, she was picking her husband up from teaching a class. 

The Plaintiff was a PhD student looking to earn her degree in chemistry at the tine.  The court found that she suffered some significant injuries which are summarized at paragraph 69 of the judgement:

[69]            (the Plaintiff’s) condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident.  It developed over the days and weeks following the accident, as (the Plaintiff) complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”.  Her complaints exceeded the physical signs. 

The court assessed damages as follows:

In noting that $1,000,000 was appropriate in loss of earning capacity, the court noted that ‘chronic conversion disorder, such as demonstrated by (the Plaintiff), usually evolved into a chronic illness.  Despite treatment, the majority of these patients fail to return to work.  Accordingly, it is unlikely that (the Plaintiff) will earn any significant amount of the course of her lifetime.’

This case is worth reviewing for anyone advancing a contested pscyhological injury claim with ICBC as it gives insight into the complexity involved in prosecuting such cases.

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.

________________________________________________________________________________

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.

________________________________________________________________________________________

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)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.

The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ’sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.

The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.

The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.

The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.

The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’

In the end the Court assessed damages as follows:

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.

The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

Do you have questions about this case or an ICBC claim involving mild traumatic brain injury (MTBI) that you would like to discuss with a BC personal injury lawyer? If so click here to arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

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:

[14] 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.

[15] (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.

[45] 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‘.

Do you have questions about this case or about an ICBC injury claim involving future wage loss? 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!)

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:

[24] 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.

[25] 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.

Do you have questions about this case, ICBC settlement, or Chronic Pain? If so, click here to arrange your free consultation with ICBC Claims Lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

In one the first ICBC claims to head to trial under Rule 68 that I’m aware of reasons for judgment were released today awarding a Plaintiff over $180,000 in compensation including $75,000 for pain and suffering as a result of 2 motor vehicle accidents.

For those of you not aware of Rule 68, it initially started out as a ‘pilot project’ and has now been adopted Province wide. It applies to many lawsuits including personal injury actions and ICBC claims where the amount sought is under $100,000. It is supposed to be mandatory for such claims but many BC personal injury lawyers avoid the rule due to perceived short-comings.

I am keeping an eye on how the courts treat this rule with respect to ICBC claims and will blog on any judgemetns involving this rule and ICBC that come to my attention in the upcoming months.

The facts of the case briefly are as follows: The Plaintiff was in 2 accidents. She was 24 years old on the date of the first accident. It was a rear-end crash which resulted in significant vehicle damage. Her car was rendered a total-loss.

The Second crash happened in 2006. This time she was a passenger and again her vehicle was involved in a rear-end collision. Her injuries from the first accident were aggravated in this crash.

The Court found that the Plaintiff ‘did indeed suffer a severe flexion-extension injury (whiplash), with acute symptoms lasting approximately one week, but continuing moderate symptoms which have persisted to today’s date, a full 4.5 years post accident. Her symptoms include not only pain and restriction of movement, but an overlap of psychological symptoms (pain disorder) including anxiety, irritability, frustration, anger, and difficulty modulating her behaviour in the face of day-to-day challenges. I accept Dr. Lamius’ evidence that there is some interplay of her physical and psychological symptoms. As he noted the pain activity triggers ongoing anxiety symptoms, while at the same time, the pain activity is worsened by the increased arousal pattern secondary to her anxiety. The pain and anxiety work together to create a vicious cycle.”

The court awarded compensation for both accidents as follows:

1. Non Pecuniary Damages (pain and suffering) $75,000

2. Loss of homemaking capacity: $11,744

3. Past loss of income: $$6,658.44

4. Future loss of earning capacity: $40,000

5. Cost of Future Care: $50,000

6. Special Damages: $6,211.08

What was interesting about this case is the fact that the court did not hesitate to consider a total award above $100,000. Rule 68 has a ’soft cap’ meaning it is to be used for claims worth less than $100,000. In this case the Plaintiff sought total damages well in excess of this.

The reason why rule 68 has a ’soft cap’ is because Rule 68(4) says that ‘nothing in this rule (rule 68) prevents a court from awarding damages to a plaintiff in an expedited action for an amount in excess of $100,000.‘

One thing ICBC is interested in, and ICBC claims lawyers should be interested in this as well, are the ‘precedents’ that will come out of the upcoming rule 68 ICBC claims judgements. In this case the defence lawyer argued that ’since the Plaintiff elected to use Rule 68…the court ought to infer that this claim, including all heads of damage, does not exceed $100,000, thus resulting in a much reduced award for non-pecuniary damages.”

The court rejected this logic stating that “I am unaware of any authority which suggests the Court may draw such an inference.” The court went on to cite rule 68(4) and then stated that “no defence motion was ever brought to remove the action from the rule 68 procedure. I am unable to draw the inference suggested.”

This case seems to be a positive development for anyone advancing an ICBC injury claim under Rule 68 whose total value may exceed $100,000. I hope the courts continue to adopt a flexible approach in awarding damages above the ‘cap’ in ICBC claims where the evidence justifies such a result.

Do you have questions about this case or Rule 68 and an ICBC claim? If so click here to arrange your free consultation with ICBC Claims Lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

In a striking example of how complex brain injury litigation can be, lengthy reasons for judgment were released today dismissing a Plaintiff’s claim that 2 accidents caused/contributed to a Mild Traumatic Brain Injury (MTBI).

The trial lasted over 30 days of court time spanning between November, 2006 - July 2007. The reasons for judgement give insight into just how complex the brain injury trial was. The reasons are well over 300 paragraphs long.

The Plaintiff was involved in 2 accidents. She sued for both and the trials for both claims were heard at the same time. The first accident happened in 2001 in Abbotsford BC when the Plaintiff’s vehicle was struck by a driver who failed to stop at a stop sign. Liability (fault) for this accident was admitted by the defence lawyer. The second accident happened in 2005 when the Plaintiff’s vehicle changed lanes and collided with the defendant vehicle who was pulling out from a parking lot. Liability was denied and the trial judge found the defendant was solely responsible for the accident.

With the determination of fault out of the way the court had to decide what injuries the Plaintiff suffered in both these crashes and their value. The Plaintiff said she suffered from a Mild Traumatic Brain Injury in the first accident and this injury was made worse in the second accident. This allegation was hotly contested by the defence lawyers.

The court heard from numerous witnesses including over 10 doctors. It is very common for ICBC brain injury claims to include opposing medical evidence and numerous ‘lay witnesses’ who give evidence of changes in a Plaintiff’s level of functioning after the accident. ICBC claims lawyers often refer to these witnesses as before and after’ witnesses.

The expert medical evidence included

1. The Plaintiff’s GP who diagnosed a ‘closed head injury‘

2. A Physiatrist who diagnosed ‘a head injury that has resulted in some brain dysfunction‘ along with ‘soft tissue aches and pains‘

3. A psychiatrist who treated the Plaintiff since 2002 who diagnosed ‘impairments…as a result of the accidents‘ and a ‘significant concussive injury in both accidents (which have gone on to become) a post-concussion syndrome, now persistent type…a personality change due to MTBI….a pain disorder that relates to (the Plaintiff’s) headaches and other chronic pain complaints…a post-trauma seizure disorder‘ He concluded that the Plaintiff ‘will continue to have significant disruption of her life and her ability to work is permanently compramised’.

4. A neuropsychologist who accepted the diagnosis of ‘closed head injury, possible seizure activity, chronic pain and post-concussive syndrome.’ He performed numerous tests and concluded that the Plaintiff ‘was suffering from psychological turmoil which was sufficiently severe to affect her score on neuropsychological tests’ and lastly that ‘the pattern of neurological test results was consistent with diffuse brain injury attributed as likely being caused by the car accident‘.

5. A urologist

6. A psychologist who saw the Plaintiff regularly since 2003

7. a Neurologist from the University of Colorado School of Medicine who diagnosed a ‘concussion with amnesia in the first accident and that she subsequently developed post-concussion syndrome’.

8. Another physiatrist who assessed the Plaintiff after the second accident and ‘attributed (her) symptoms after the first accident to post-concussive syndrome’. He also diagnosed various soft tissue injuries.

9. A psychologist who assessed the Plaintiff in 2006 who stated that ‘the plaintiff suffered from a brain injury based personality change arising from a frontal-lobe related impairment and emotional disturbance reactive to the trauma of the accidents‘

10. An orthopaedic surgeon who was hired by the defence lawyer. His opinion differed largely from most of the previous experts and gave evidence that:

Based on my assessment of Ms. Abma on May 9, 2003, she presented as an extremely symptom focused individual whose clinical examination strongly suggested a significant non-organic component to her various musculoskeletal/neurologic complaints. I base this latter opinion, that Ms. Abma has significant nonorganic illness, on the following findings:

1. Multiple areas of complaint.

2. No reported pain free interval.

3. Failure of all treatment modalities to date.

4. Significant pain behaviour and reaction on clinical examination.

5. Multiple areas of non-anatomic pain.

6. Regional numbness affecting her right arm.

7. Abnormal pain diagram.

All of these factors would suggest that there is a significant psychological social component influencing the reporting scenario and duration of Ms. Abma’s multiple musculoskeletal/neurologic complaints. In addition, Ms. Abma’s clinical records indicate that she suffered from anxiety/depression preceding her November 2001 motor vehicle accident, both of which can negatively influence an individual’s pain experience and their self perception of disability.

11. A Psychiatrist hired by the defence lawyer who noted that ‘there is no objective evidence to support the fact that this woman suffered any type of concussion or brain injury.’

12. An otolaryngolgist hired by the defence lawyer who ‘concludes that the plaintiff suffered a mild/modest neck sprain in the first motor vehicle accident classified as whiplash-associated disorder (WAD) Type 1. He considers that this may have re-activated the neck sprain from her 1996 motor vehicle accidents which demonstrated that her complaints continued for more than three years. Dr. Sinanan states “but for that factor, recovery from a Grade 1 WAD Type neck sprain usually is within six to eight weeks, 12 weeks at most

13. Lastly the court heard from a neurologist also hired by the defence lawyer and it was ‘uncontested’ that this doctor is the ‘foremost epilepsy expert in the Province of BC’. he concluded that the Plaintiff did not have a brain injury.

After all of this the court sided largely with the defence medical evidence. The key findings were made starting at paragraph 308 where the court held that:

[308] The most persuasive view of the plaintiff’s post-accident experience is described by Drs. Anton and Smith. Dr. Anton suggests that the plaintiff is suffering psychological injuries. Dr. Smith is also of a similar view: adjustment disorder with anxiety, which does not result from injuries sustained in either of the accidents, but arising from her belief that she is cognitively impaired as a result of the accident.

[309] I am not finding that the plaintiff is acting dishonestly. She believes that she is suffering from a brain injury. She is relying on the information she has been provided by her treating physicians. She has not proven on a balance of probabilities that she suffered a brain injury in the first accident. I find it much more likely that the psychological difficulties, including the cognitive, emotional and behavioural problems which the plaintiff has experienced, arose from her reaction to the brain injury diagnosis made by Dr. Ancill in April 2002. I do not accept the plaintiff’s assertion that all of her symptoms had their “genesis” in the motor vehicle accidents.

[310] Ultimately, I find that the injuries suffered by the plaintiff in the first accident are the physical injuries and to some extent the depression described in the evidence. The plaintiff suffered the following injuries as a result of the first motor vehicle accident on November 14, 2001:

1. aggravation of previous soft tissue injuries to her neck, back, shoulders and hips;

2. a contusion to the area above her left knee; and

3. some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries.

As a result of this finding the court largely dismissed the Plaintiff’s claims for loss of income past and future, future care needs, and her in-trust claims for voluntary services provided by her family.

Ultimately little more than compensation for pain and suffering for soft tissue injuries was awarded.

As an ICBC Injury Claims Lawyer, one of the highlights of this case for me was found at paragraph 204 of this judgement where the court discussed its view of some of the neuropsychological test results.  These tests, which can be used to see if a pattern of cognitive defecits are consistent with brain injury, have some built in ‘fail-safes’ in them.  These measures are built in to help the neuropsychologist gauge whether the patient is applying their best effort.  In other words, these built in to see if the Plaintiff may be faking the injury.

In this case the “Fake Bad Scale‘ disclosed some ‘suspicious results‘.  The various doctors placed varying levels of importance on this fact.  Madam Justice Gropper made her views quite clear at paragraph 304 where she stated that “If the testing is invalid it does not mean there is something wrong with the test,; it suggests that there is something suspicious about how the individual is responding to the testing and whether she is applying her best effort to it.  It is a factor to be considered, not simply ignored.’

This case, while perhaps lengthy and difficult to read through, is worth reviewing for anyone involved in an ICBC claim alleging Mild Traumatic Brain Injury. This is one of the most aggresively litigated injuries and this case shows just how involved these trials can be, not just from the medical side of things but from the involvement of ‘before and after’ witnesses and many intimate details of a Plaintiff’s life.

Do you have questions about this case or an ICBC claim involving Mild Traumatic Brain Injury?  Do you need advice from an ICBC claims lawyer?  If so 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.