$85,000 Non-Pecuniary Assessment for Chronic Pain With Guarded Prognosis

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

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained from two vehicle collisions.

In today’s case (Harry v. Powar) the Plaintiff was a pedestrian struck by a vehicle in a crosswalk in 2012.  She was involved in a rear end collision the following year.  The collisions resulted in ” headaches, chronic myofascial pain syndrome, cervical facet joint syndrome and lumbar facet joint syndrome” with a guarded prognosis for full recovery.  In assessing non-pecuniary damages at $85,000 Madam Justice Winteringham provided the following reasons:

[79]         I have found that Ms. Harry’s most significant injuries are the headaches, chronic myofascial pain syndrome, cervical facet joint syndrome and lumbar facet joint syndrome. ..

[84]         Ms. Harry was in her early thirties at the time of the Accidents. Sadly, the symptoms connected to her injuries are ongoing and I accept that her prognosis for a full recovery is guarded although she may experience some improvement with further treatments.

[85]         The evidence demonstrates that Ms. Harry has tried to manage her pain in a way that enables her to carry on with her life.  That is not to say her pain is insignificant.  Rather, I have found that Ms. Harry has done almost all that she can to pursue her career despite the defendants’ negligence.  It is also clear from the evidence that the energy exerted on pursuing her professional endeavours has taken a toll on the other aspects of her life.  She does not have the energy or the physical well being to regularly conduct day-to-day household tasks, engage in social events or participate in physical activity – all of which formed an integral part of her life before the accidents. ..

[90]         In all of the circumstances and taking into account the authorities I have been referred to, I am satisfied that an award of $85,000 will appropriately compensate Ms. Harry for her pain and suffering and loss of past and future enjoyment of life for which the defendants are responsible.    

Is Evidence of a Withdrawn Ticket Admissible in a Personal Injury Prosecution?

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

This week the BC Court of Appeal had the opportunity to decide if it is appropriate for a jury deciding fault for a crash in the context of a personal injury lawsuit can hear evidence that a motorist was issued a ticket by the police which was ultimately withdrawn before trial.

Unfortunately the BC Court of Appeal sidestepped the question finding that if such evidence is inappropriate, any harm caused by it can be cured by a warning to the Jury.

In today’s case (Jones v. Frohlick) the Plaintiff was injured in a collision and sued for damages.  A jury assessed the Plaintiff’s claim at $30,200 but then cut this down to $4,530 on the basis that they found the Plaintiff 85% at fault for the crash.

In the course of the trial the Defendant introduced evidence that the plaintiff was issued a ticket at the scene for failing to yield the right of way to the Defendant.  The ticket was subsequently withdrawn.  The Plaintiff sought a mistrial but this request was rejected.  In finding no mistrial was warranted and a warning to the jury about the significance of a withdrawn ticket was sufficient the BC Court of Appeal provided the following reasons:

[18]       In his ruling, the judge found that the evidence elicited from Mr. Jones on cross-examination regarding the traffic ticket was relevant as it was part of the narrative of the events that occurred at the scene of the Accident, and that any prejudice it may have caused Mr. Jones could be remedied by an instruction to the jury that they could not place any weight on the fact that the ticket was issued or that it was ultimately withdrawn or dismissed. He also noted that counsel for Mr. Jones would be able to cross-examine the attending officer about the ticket and its withdrawal or dismissal, which might even benefit Mr. Jones’ claim.

[19]       In his instructions to the jury, the judge stated:  

I will deal at the outset with the fact that you heard evidence that Mr. Jones was initially given a ticket at the scene of the accident and that the ticket was later dismissed or withdrawn. Neither the fact of the initial ticket nor the fact of the subsequent dismissal is relevant to your determination of liability here. Your obligation is to determine the issue based on the evidence that you heard in court and the legal principles that I will explain to you.

[25]       Mr. Jones raises an interesting issue of whether the traffic ticket was incorrectly characterized by the judge as “narrative” evidence given that the traffic ticket was unnecessary to explain the context or background of the events at the scene of the Accident as they unfolded, was disputed by him, and was subsequently withdrawn or dismissed. In support of these submissions he relies on R. v. Taweel, 2015 NSCA 107. He submits that, in these circumstances, the evidence was irrelevant and should not have been admitted as its prejudicial effect outweighed its probative value, or lack thereof, and it went to the ultimate issue on liability that was for the jury to decide.

[26]       However, even if the admission of that evidence was erroneous, that is not determinative of the appeal. The determinative issue is, assuming but not deciding that the impugned evidence was inadmissible, whether the prejudice caused by its admission could be remedied by an appropriate and adequate limiting instruction to the jury.

[27]       That brings me to the second ground of appeal: whether the admission of the impugned evidence was so prejudicial that even with an appropriate corrective instruction it would have caused a substantial wrong or would have resulted in a miscarriage of justice.

[31]       The impugned evidence in this case was not inflammatory. Nor was it in my view highly prejudicial as it was potentially open to both unfavourable and favourable inferences to Mr. Jones’ claim, the latter including that the ticket was withdrawn because it had no merit or, as was noted by the judge in his ruling, that it was misguided from the start. In these circumstances, I find no error in the judge’s exercise of his discretion in deciding that a corrective instruction was appropriate to alleviate the potential of any prejudice that may have been caused by the admission of the impugned evidence.

[32]       In my view, the instructions were also adequate. The direction to the jury that they should not consider the fact of the traffic ticket or its subsequent withdrawal or dismissal as part of their deliberations on liability, as it was not relevant to their determination, was clear and unambiguous, and therefore forceful. The instruction could not have been misunderstoods by the jury as permitting them to consider the impugned evidence, not only in assessing the evidence as a whole, but also in assessing the credibility of the witnesses and of Mr. Jones’ evidence in particular. As this Court stated in Paskall v. Scheithauer, 2014 BCCA 26 at para. 37:

…once it is determined that a corrective instruction was appropriate and adequate, the matter ends. This Court must assume that juries act judicially and responsibly, that is, the instructions of trial judges are followed “unless there is a clear basis for finding otherwise” (Hovianseian v. Hovianseian, 2005 BCCA 61 at para 25). It is not appropriate for this Court to speculate on whether the jury may have disregarded the judge’s corrective instruction.

[33]       The adequacy of the judge’s instructions is also evident in the final award by the jury. While undoubtedly not embraced by either side, it cannot be said that the award for non-pecuniary damages of $24,000 would not meet the test in Nance v. British Columbia Electric Railway, [1951] 3 D.L.R. 705 (P.C.) in that it was inordinately high or low, or that the total award of damages was “wholly disproportionate or shockingly unreasonable” (Young v. Bella, 2006 SCC 3 at para. 64).

BC Psychologists Speak Out Against ICBC Plan to Label Psychiatric Conditions as “Minor Injuries”

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

As recently discussed the BC Government, at the lobbying of ICBC, are trying to pass a law reducing the rights of British Columbians who are injured by distracted, impaired or otherwise at fault drivers.

As part of the overhaul ICBC is trying to label all psychological and psychiatric conditions as “minor” injuries, taking away the judicial rights of people who suffer these injuries in collisions and capping compensation for these.

Today the BC Psychological Association weighed in on these proposed laws and unsurprisingly are harshly critical.  In discussing the medical reality of psychological injuries the BCPA notes as follows –

The British Columbia Psychological Association opposes the inclusion of “a psychological or psychiatric condition” in the definition of “minor injury” in Bill 20.  We feel it will be detrimental to the health and care of British Columbians who sustain injuries in motor vehicle accidents.

Under Bill 20, any psychological or psychiatric condition arising from a motor vehicle accident is deemed to be minor, unless it has not resolved within 12 months from the MVA, and also meets, as yet undefined, prescribed criteria. 

BCPA disagrees and takes the positions that:

  • Psychological injuries are not minor injuries. Each individual is unique in their symptoms. 
     
  • It is very difficult to determine the twelve-month outcome of a psychological injury as it may be affected by pain, restrictions in functioning due to physical injuries, and pre-accident history, including prior history of depression, anxiety, substance use, adverse early childhood experiences, including neglect and trauma, poor coping styles, and cultural factors.
     
  • The duration of symptoms after an event is not an appropriate scientific measure of the severity of the psychological injury.
     
  • Psychological conditions may arise at different times after a collision, depending upon a number of factors. Many potentially severe psychological conditions, such as post-traumatic stress disorder, depression, and anxiety, may have an initial onset shortly after, or months after, a collision. 
     
  • Psychological conditions may appear to resolve, only to recur at a later date due to a change in circumstance, prolonged recovery, or a triggering event such as a return to work, a return to driving, or anniversary of the collision. 
     
  • Bill 20 gives Government the authority to make regulations with respect to assessment, diagnosis and treatment of minor injuries (including psychological injuries). Because of the unique circumstances of each individual, psychological injuries do not lend themselves to such an approach. Each individual must be assessed by a qualified psychology professional and prescribed the treatment that will best lead to an optimal recovery for them. 
     
  • If the appropriate treatment is not commenced as psychological symptoms manifest, it may lead to prolonged suffering, delayed return to work, impaired activities of daily living, and in increased treatment and wage loss costs in the long run.
     
  • Removing psychological and psychiatric conditions from the “minor injury” designation will help achieve the goal of people receiving better care and optimal recovery in the shortest time possible.
     
  • BCPA is also concerned with the proposed amendments to the Civil Resolution Tribunal Act.
     
  • Under the Act, the determination of whether an injury is “minor” and the entitlement to benefits from ICBC, is exclusively given to the Civil Resolution Tribunal.
     
  • Those suffering from psychological conditions are ill-equipped to deal with an appeal process on their own.
     
  • It is also unlikely that many of those people will be able to have the assistance of a lawyer in this process.
     
  • This process, online and/or in person, also puts at a disadvantage the elderly, people without computers or computer skills, those with poor English language skills, and those of limited means.
     
  • BCPA applauds this government’s efforts to address the mental health and addictions issues of British Columbians, but classifying psychological and psychiatric conditions as “minor” runs the risk of taking a step back in the treatment of psychological injuries arising from a car accident.

 

NDP Introduces ICBC Bill Saying “Psychiatric Conditions” Are “Minor Injuries”

Erik Magraken: BC

The BC Government introduced their so called ‘minor’ injury Bill strippng the judicial rights of collision victims.

Despite their media soundbites to the contrary, the Government is calling many serious injuries “minor” even those that can have permanent consequences.

Included in their open ended list of “minor injuries” are “Psychological Conditions, Psychiatric Conditions and Pain Syndromes“.  Pain Syndromes by definition are long lasting and debilitating mental health conditions.

The Bill, if passed into law, will strip the judicial and compensatory rights to everyone in BC who suffers a “minor injury” at the hands of a careless driver after April 1 2019.  All this so careless drivers can pay less for their insurance.   Below is the government’s open-ended list of everyone who will be captured by this bill designed to beef up ICBC’s bottom line.  Note they can grow it whenever they want by ‘prescribing’ more injuries to the list and by prescribing criteria to call even permanent injuries minor –

“minor injury” means 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;

“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.

(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.

BC Court of Appeal – “Costs Thrown Away” Should Routinely Be Ordered For Late Adjournments

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

Reasons for judgement were published today by the BC Court of Appeal finding that ‘costs thrown away’ should ordinarily be ordered against a party obtaining a late trial adjournment.

In today’s case (Bolin v. Lylick) the Plaintiff sued for damages from personal injuries.  6 weeks prior to trial she successfully applied to adjourn it after having switched lawyers.  The Court of Appeal noted there was nothing wrong with this however found that the adjournment was prejudicial to the Defendants and this should have been remedied with an order of costs thrown away.  In discussing this norm the BC Court of Appeal provided the following reasons:

[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.

$12M GoFundMe for Humboldt Broncos to close Wednesday

CBC News

The Humboldt Broncos organization will soon be closing a GoFundMe that raised $12 million to support players and families affected by a crash that left 16 people dead and 13 injured.

The outpouring of support began 10 days ago after the team bus collided with a semi on the way to Nipawin, Sask., on April 6.

Kevin Garinger, president of the Humboldt Broncos, made a statement Monday evening about how the team plans to secure and manage the funds that have been raised.

Garinger said the Humboldt Broncos board of directors, with legal counsel from MLT Aikins, and advice from GoFundMe executives, has decided to close the campaign and take it offline at 11:59 p.m. MDT on Wednesday, April 18.

The donated funds will be transferred to a newly created non-profit known as the Humboldt Broncos Memorial Fund Inc.

An advisory committee is being established to make a recommendation for the allocation of funds.

‘Working to support our Bronco families’

He said the organization’s board of directors has immense love and gratitude for all those who have donated time and money to Humboldt Broncos fundraisers.

“If there is any light shining through this dark time, it has come in the form of love for one another,” he said. “Our families and our entire organization has been blessed to feel this love from people from around the globe.

“Our priority currently remains focused, as it has since day one, on working to support our Bronco families, especially now as they are celebrating the lives of their loved ones and supporting our players who are struggling to heal.”

Garinger also thanked fund creator, Sylvie Kellington. Kellington, who is from the small community, started the fundraiser in hopes of covering parking costs for the families who were at the hospital following the crash.

undraisers and donations outside of the GoFundMe will go to the Humboldt Strong Community Foundation, created with legal counsel from Robertson Stromberg LLP. Garinger said its mission will be to support Humboldt Broncos players, employees, families and volunteers as well as first responders, emergency personnel, teams, athletes, organizations and communities affected by the crash and its aftermath.

Only fundraisers and initiatives directed to the foundation will be endorsed, sanctioned by or held in conjunction with the Humboldt Broncos organization. Garinger said the team’s management will not be able verify any other fundraising events.

In an update posted on the GoFundMe page on Friday night, the Humboldt Broncos announced the team was getting assistance from western Canada law firm MLT Aikins LLP law firm which is supporting the organization pro bono.

“Know that we are working around the clock with our advisers to get the funds to our families as quickly as possible,” the post said.

“We appreciate your patience as this process takes time and thoughtful consideration.”

As of the latest update, 10 people from the Humboldt Broncos crash remain in hospital, with two in critical condition, according to the Saskatchewan Health Authority. Little is known about their specific injuries, except that 18-year-old Ryan Straschnitzki is paralyzed from the chest down.

If some suffer severe injuries, including paralysis and brain injuries, financial support could be required to pay for 24-hour care.

If someone needs to use a wheelchair, home modifications could be a large expense.

The cost of psychological and emotional recovery for team members and their families could also come out of the fund.

Insurance coverage also on the table

Because the deaths and injuries resulted from a road accident in Saskatchewan, some of the costs will be covered through SGI, the province’s public insurance company.

SGI president Andrew Cartmell said benefits available for people who are injured range from travel and accommodation costs for families visiting their loved ones in hospital to long-term rehabilitation and keeping their standard of living consistent.

No-fault insurance means that funds aren’t tied to the cause of the crash and can be distributed before the investigation is complete.

Saskatchewan insurance also covers funeral costs up to about $10,000, plus additional death benefits, including grief counselling.

Hockey Canada’s insurance program also covers the Humboldt Broncos players, coaches and staff, spokesperson Lisa Dornan told CBC News in an email.

Dornan said crisis management staff from both Hockey Canada and insurance provider AIG were on-site in Humboldt to help support the families by making funeral arrangements and organizing travel.

Both SGI and Hockey Canada said that money received by survivors and family members from fundraising campaigns would not affect their insurance benefits.
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