$95,000 Non-Pecuniary Assessment For Chronic Pain with Psychiatric Overlay

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain symptoms with psychiatric overlay caused by a series of collisions.

In today’s case (Sandhu v. Bates) the Plaintiff was injured in three collisions.  Fault was admitted by the Defendants.  The Plaintiff suffered injuries which developed into a myofascial pain syndrome.  She further developed somatic symptom disorders.  Her prognosis for full recovery was guarded.  In assessing non-pecuniary damages at $95,000 Madam Justice Winteringham provided the following reasons:

[137]     In summary, I make the following findings of fact respecting Mrs. Sandhu’s injuries:

a)    Mrs. Sandhu sustained moderate soft tissue injuries to her neck, lower back, buttock, right hip, right ankle, and right knee in the accidents.

b)    Rather than following a typical course of recovery after the accidents, Mrs. Sandhu experienced chronic low back pain affecting her buttock and pain down the right leg and associated numbness in the left buttock. Her chronic pain worsened in the first and second years following the accident and persisted at the time of trial.

c)     I accept Dr. Squire’s opinion that the diagnosis for her physical injuries is most consistent with myofascial pain syndrome of the lumbopelvic area and that the intermittent exacerbations are likely episodic acute muscle spasms and the right leg pain is likely referred pain from the myofascial pain syndrome. I also accept that she continues to experience intermittent neck pain.

d)    Dr. Joy, Dr. Anderson and Dr. Suhail all agree, and I find, that Mrs. Sandhu developed somatic symptom disorders. I note that though their diagnoses were not identical, Dr. Anderson and Dr. Suhail report that she meets the diagnostic criteria of somatic symptom disorder with predominant pain, following the accidents.  In addition, I accept Dr. Anderson’s opinion that following the accidents, Mrs. Sandhu suffers from a generalized anxiety disorder.

e)    I find that, as Mrs. Sandhu’s psychological condition deteriorated, her ability to cope with pain was poor. Dr. Suhail’s opinion, with which I agree, was that “as here pain would trigger her anxiety, her subsequent psychological problems would reduce her ability to cope with pain. Whenever she would be stressed and anxious, her back pain would increase.”

f)      Dr. Joy, Dr. Anderson, Dr. Suhail, Dr. Chapman and Dr. Kashif all agree that Mrs. Sandhu suffered from anxiety after the accidents. They disagree about prognosis. I find that the first accident, and aggravated in the second and third, caused Mrs. Sandhu’s generalized anxiety disorder. The medical experts are all of the opinion that Mrs. Sandhu’s prognosis is guarded, particularly if she is unable to address her anxiety disorder. Dr. Suhail indicated some recent improvement and, with ongoing cognitive behavioral treatment, there is some reason for cautious optimism.

[153]     I have reviewed the cases referred to by the parties. On my review of Mrs. Sandhu’s cases, as her counsel admits, the injuries suffered in some of those cases were more serious than what I have found in the present case. Similarly, I have found the cases relied on by the Defendants involved Plaintiffs with lesser injuries than those I have found in Mrs. Sandhu’s case.

[154]     In all of the circumstances, and taking into account the authorities I have been referred to, I am satisfied that an award of $95,000 will appropriately compensate Mrs. Sandhu for her pain and suffering and loss of past and future enjoyment of life, for which the Defendants are responsible.

Understanding ICBC’s ‘Minor Injuries’ For Crashes After April 1, 2019

This week the BC Government released their regulations setting out the framework for ICBC’s ‘minor injury’ scheme which will be in force for people involved in BC collisions after April 1, 2019.

First and foremost it should be emphasized that the term ‘minor injury’ is misleading.  It is a political term used to make the public ok with having your rights stripped.  In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition.  With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold.  Here is the rundown.

Section 103 of the Insurance (Vehicle) Act notes that everyone in a BC crash after April 1, 2019 that suffers ‘minor’ injuries have their non-pecuniary damages capped at an amount set by regulation.  The regulations released last week set the cap at $5,500.

The term “minor injury” is defined in section 101 of the Act as follows:

a physical or mental injury, whether or not chronic, that

(a)subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b)is one of the following: 

(i)an abrasion, a contusion, a laceration, a sprain or a strain; 

(ii)a pain syndrome;

(iii)a psychological or psychiatric condition; 

(iv)a prescribed injury or an injury in a prescribed type or class of injury;

The Regulations went on to expand this list with the following ‘prescribed’ injuries

a. a concussion that does not result in an incapacity

b. A TMJ disorder

c. a WAD injury

A TMJ disorder was defined to mean “an injury that involves or surrounds the tempomandibular joint.“.

A WAD injury was defined to mean “a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;

(b) a fracture or dislocation of the spine”

Sprain was defined to mean “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn“.

Strain was defined to mean “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn“.

Psychological or Psychiatric Condition is defined as follows:

a clinical condition that

(a) is of a psychological or psychiatric nature, and

(b) does not result in an incapacity

The word “incapacity” was defined as well with the Regulations noting as follows:

in relation to a claimant, means a mental or physical incapacity that

(a) is not resolved within 16 weeks after the date the incapacity arises, and

(b) is the primary cause of a substantial inability of the claimant to perform

(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession.

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

So, if you have any of the above “minor injuries” you are facing capped non-pecuniary damages.  A concussion by default is minor but if it does result in the above definition of ‘incapacity’ it will not be subject to the cap.  The same goes for psychological or psychiatric conditions.

A “minor” injury can also get around the cap if it results in  “serious impairment or a permanent serious disfigurement“.

These terms have also been defined as follows:

“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;

“serious impairment”, in relation to a claimant, means a physical or mental impairment that

(a)is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and

(b)meets prescribed criteria.

The “prescribed criteria” set out in the regulations basically mirror the test for ‘incapacity’ with the regulations stating as follows:

The claimant’s physical or mental impairment must meet the following  prescribed criteria:

(a) the impairment results in a substantial inability of the claimant to perform

(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or

(iii) the claimant’s activities of daily living.

(b) the impairment is primarily caused by the accident and is ongoing since the accident;

(c) the impairment is not expected to improve substantially.

You will see from this combination the injury not only has to last more than 12 months as set out in the Act but the Regulations went on to basically require the injury to be permanent to not be considered minor.

Even if a ‘minor’ injury goes on to meet the test for no longer being considered minor ICBC has the right to argue that it is still minor if you did not follow their treatment protocols with s. 101(2)(3)(4) of the Act holding as follows

(2)Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if

(a)the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and

(b)the injury

(i)results in a serious impairment or a permanent serious disfigurement of the claimant, or

(ii)develops into an injury other than an injury within the definition of “minor injury” in subsection (1).

(3)An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.

(4)For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.

And who has the burden of proving an injury is minor?  Not ICBC.  You must prove your injury is not minor if ICBC suggests otherwise with the regulations noting “In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury“.

British Columbia’s “Minor” Injury Law Says One Year Actually Means Forever

Yes, you read that right.  12 months is 1 year but according to new Laws and Regulations passed by British Columbia 12 months actually means forever.

What am I talking about?  Earlier this year the BC Government passed a law capping non-pecuniary damages for what they call ‘minor’ injuries.  The law states that if the injuries cause “serious impairment“, however, that they are no longer minor and not subject to the cap.  Seems fair enough right?  Read on.

To meet the definition of ‘serious impairment‘ in section 101(1) of the Insurance (Vehicle) Act the injury must not “be resolved within 12 months” and meet whatever further criteria the government dog-piles on via Regulation.

Last week the Government published their Regulations which added the requirement in addition to the 12 month duration required in the Act the injury must basically be disabling to lead to ‘serious impairment‘.  Then, they went further and said the 12 month injury also has to be permanent with a requirement that “the impairment is not expected to improve substantially”.

So when the Government tells you that injuries that last more than 12 months are not subject to the cap they are lying.  They in fact require the injuries to be disabling and permanent to shed the restrictions of the cap.

This inconsistency between the Act and Regulations appears illogical, incoherent and contrary to the stated intention of capping minor injuries.  A situation that opens the harsh Regulation to judicial challenge.  Probably one of many to come by British Columbians impacted by these new laws in 2019.

BC Lawsuit For Alberta Car Crash Dismissed for Lack of Jurisdiction

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, dismissing a BC lawsuit on grounds that it had no jurisdiction over an Alberta based collision claim.

In today’s case (Brooks v. Leithoff) the Plaintiff was involved in a total of 5 collisions.  Four of the five occured in BC.  The third occured in Alberta.  The Plaintiff sued the Alberta motorist in BC alleging the crashes all gave rise to a single indivisible injury.

The Defendant sought to have the claim dismissed on the basis that there was no connection to BC to the crash.  The Court agreed with the Defendant and dismissed the lawsuit.  In doing so and finding the claim should have been filed in Alberta Madam Justice Power provided the following reasons:

[49]         When I consider the plaintiff’s arguments, I am not persuaded that the facts that the plaintiff points to are sufficient to displace what I view to be the clear weight of case law in British Columbia:  neither the plaintiff’s residency in British Columbia, nor the fact of indivisible injuries, nor the fact that the plaintiff is suffering ongoing damages in British Columbia, are, by themselves, sufficient to establish a clear and substantial connection to British Columbia.  When these three elements are combined, do these elements together then prove sufficient to ground jurisdiction?  I cannot conclude that they do.

[50]         During the course of argument, the plaintiff fairly conceded that some of the plaintiff’s arguments related to forums conveniens, which is not something I should take into account at this stage.  The plaintiff may have to mount two separate trials on substantially the same evidence as a result of this ruling, but again, that is not a factor I should take into when determining whether jurisdiction has been established.

[51]         During arguments, counsel for the plaintiff also suggested that if I did not accept that there was jurisdiction under s. 3(e) of the CJPTA, I could nevertheless exercise my residual discretion under s. 6 of the Act to find that this Court has jurisdiction.

[52]         In my view, this argument must fail because the exercise of discretion under s. 6 requires that either a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or b) that the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.  The fact that the plaintiff has already commenced an action in Alberta leads me to conclude that it is open to the plaintiff to continue litigation of this matter in that jurisdiction.

[53]         During the arguments before me, counsel for the plaintiff also pointed to concerns relating to fairness, and the practical difficulties that Ms. Brooks would face in bringing two separate but essentially identical claims in two separate jurisdictions.  While I appreciate these practical difficulties, there are times when appeals to fairness in the law must yield to the demands for clarity and order in the law.  The words of Mr. Justice La Forest in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at 1058, although made in a somewhat different context, are nevertheless applicable here:

While, no doubt … the underlying principles of private international law are order and fairness, order comes first.  Order is a precondition to justice.

[54]         Overall, it is my view that the weight of the case law clearly establishes that the facts here are not sufficient to establish a real and substantial connection to British Columbia.

[55]         In the result, the defendant’s application to strike and dismiss the plaintiff’s claim for want of jurisdiction in British Columbia is granted.

 

BC Court of Appeal ~ “Segregated” Non-Pecuniary Awards Should be Avoided

Several years ago it was more common to see BC courts awarding damages for ‘diminished housekeeping capacity‘ as a stand alone head of damage in injury litigation.  More recently the common practice is for courts to roll these in to the general damages awarded for non-pecuniary loss without a stand alone analysis.  Last week the BC Court of Appeal published reasons indicating the latter is the preferred practice.

In the recent case (Riley v. Ritsco) the Plaintiff was injured in a vehicle collision and sued for damages.  At trial non-pecuniary damages of $65,000 were assessed.  The Plaintiff successfully appealed and in doing so the BC Court of Appeal increased this head of damage to $85,000.  The Plaintiff also argued that the judge erred in not assessing damages for loss of housekeeping capacity as a stand alone head of damage.  In finding no error occured here the BC Court of Appeal provided the following guidance:

[101]     It is now well-established that where a plaintiff’s injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages.

[102]     I acknowledge what was said in Kroeker about segregated non-pecuniary awards “where the special facts of a case” warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff’s lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise.

[103]     The $85,000 figure that I have proposed for non-pecuniary loss takes into account all of the general damages the plaintiff has suffered and will suffer. It should not be augmented by a segregated award for loss of housekeeping capacity.

ICBC Vehicle Theft Claim Denied With Help of Damaging Cell Phone Records

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a lawsuit seeking insurance coverage for vehicle theft.

In the recent case (Winterbottom v. ICBC) the Plaintiff owned a Ford F150 which he reported stolen.  It was located a few days later in a remote location and was destroyed by fire.

ICBC denied coverage to the Plaintiff and he sued.  In dismissing the lawsuit the Court noted that cell phone records placed the Plaintiff in the vicinity where the truck was ultimately recovered.  Mr. Justice Blok provided the following reasons highlighting the utility of these records in dismissing the claim:

[113]     Cell phone calls involving Mr. Winterbottom’s phone were the central focus of the case.  At the risk of repetition, I summarize these as follows:

a)    Six calls (three incoming, three outgoing) made between 6:08 pm and 7:21 pm, all of which utilized a cell phone tower located at Ross Road, west of Abbotsford.  This suggests that Mr. Winterbottom’s phone was located south of the Fraser River, and not at his residence, which is where he said he was located at the time;

b)    Two incoming calls, both from Mr. Waardenburg’s phone, made at 9:32 pm and 9:48 pm, which utilized a north-side Sumas Mountain cell phone tower that serviced the very area where the burned-out Truck was found;

c)     An outgoing call to “Todd” at 9:49 pm, which involved a hand-off from the north-side Sumas Mountain tower to a tower located near the Mission Bridge, indicating a movement of the cell phone from east to west.  This would be consistent, for example, with the movement of the phone along Lougheed Highway on the north side of the Fraser River;

d)    Nine calls made between 10:01 pm on October 21 and 12:25 am on October 22, which utilized a cell tower site west of Mission, a location consistent with Mr. Winterbottom being located either at the Mission Springs pub or at his home;

e)    One call to Mr. Nygaard-Peterson made at 12:25 am on October 22 that involved a hand-off from the west Mission cell phone tower to an Abbotsford-area cell phone tower, indicating southbound movement of the phone, plus a second call at 12:46 am that utilized the second tower only.  These calls suggest Mr. Winterbottom was not located at his home or at the pub; and

f)      Three calls made in the morning of October 22, beginning at 8:39 am.  The first call involved a hand-off between two Abbotsford-area cell towers, indicating either movement of the phone or a call made in an overlap area.  The second call utilized the Ross Road cell tower west of Abbotsford.  A third call utilized the Ross Road tower and then handed the call off to a cell tower near Sumas Mountain, thus indicating a west to east movement of the cell phone.  In all cases, the calls are not consistent with Mr. Winterbottom being located at his home.

[114]     Neither Mr. Winterbottom nor Mr. Nygaard-Peterson had any explanation why they would have been phoning one another during the time they had said both of them were located at the Mission Spring pub, although Mr. Nygaard-Peterson speculated that he might have lost his phone or stepped outside.  Mr. Waardenburg had no recollection of the calls and had no idea why he would have been in phone contact with Mr. Winterbottom so often during the relevant time frame.  Both Mr. Winterbottom and Mr. Nygaard-Peterson denied being anywhere other than the Mission Springs pub or the Winterbottom home that night.

[115]     I conclude that the cell phone and cell tower evidence given by Mr. Funk is reasonably reliable and accurate.  His evidence was not undermined in cross-examination.  The plaintiff’s assertion that all cell towers utilized by Mr. Winterbottom’s cell phone were within their standard 35 km range in relation to the pub or the Winterbottom residence ignores Mr. Funk’s evidence that the 35 km figure is merely the licenced range and does not reflect the actual range or coverage.  Mr. Funk’s extensive field testing of actual coverages satisfies me that his evidence can be reasonably relied upon to determine general areas where a cell phone was located or where a cell phone was not located.  While there may be room for occasional aberrations due to topology or physical barriers, etc., for the large number of calls involved in this case to be inaccurate would mean that there would have to be aberrations in almost every instance.  I am satisfied from Mr. Funk’s evidence that this is unlikely in the extreme.

[116]     I agree with the observation of plaintiff’s counsel that the plaintiff appeared to give his evidence in a forthright manner.  So did his witnesses, although their evidence was generally to the effect that they were too drunk to remember much.  There were, however, problems with their evidence.  For example, there was no consistency between the plaintiff and his witnesses about how he got home from the pub.  I agree that those particular inconsistencies might be explained by extreme drunkenness, but the cell phone calls are not so easily explained away.  There is no explanation why the plaintiff and Mr. Nygaard-Peterson were phoning one another when, according to their evidence, they were both at the pub or, later, at the Winterbottom residence.  Mr. Winterbottom agreed he woke up at 10 am the next morning, but he could not explain how that testimony reconciled with the five cell phone calls made from his phone between 8:39 am and 9:43 am that morning other than to say he did not remember them.  Critically, his testimony about where he was located contradicted with the evidence of his cell phone location at various points that night and the next morning.  None of this evidence adds up.

[117]     The cell phone evidence is reliable and cogent, and it persuades me that Mr. Winterbottom was not where he said he was that night.  It also indicates that at one point in the evening Mr. Winterbottom’s cell phone utilized a cell tower that serviced the same rural area where the burned-out Truck was found.  Perhaps most importantly, the cell phone and cell tower evidence persuades me that Mr. Winterbottom’s evidence cannot be relied upon.

[118]      In a case such as this, the burden is first on the insured to show a loss falling within the scope of the insurance coverage, which here is theft.  The only evidence of theft comes from Mr. Winterbottom.  I conclude that there are so many difficulties with the evidence of Mr. Winterbottom, centred on the discrepancies between his testimony about where he was compared to the cell phone location evidence, that I cannot rely on his evidence to prove that a theft occurred.

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