$65,000 Non-Pecuniary Assessment for Chronic “Low Level” Pain

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which resulted in chronic, albeit ‘low level’ pain for a Plaintiff.

In the recent case (McGoningle v. Parada) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered various soft tissue injuries which largely improved however she was left with chronic low level pain.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bracken provided the following reasons:

[56]         I find that the plaintiff suffered a soft tissue injury to her neck, back and shoulders in the accident.  She experienced pain and restricted movement for a few months before things began to improve…

[59]         I find the plaintiff’s condition has clearly improved, but she still suffers a level of pain that impacts her ability to do any heavy lifting or carving of large pieces.  She is able to create small crafts and perform light duties at the soup kitchen…

[61]         I am satisfied on the evidence that the plaintiff still suffers from a low level of pain that interferes with her daily life and limits her ability to perform heavy work and causes some pain in her work creating small crafts.  It appears that a program of physiotherapy, massage therapy and acupuncture did result in improvement, but the plaintiff was either unable or unwilling to follow the recommended course of treatment…

[69]         I agree with the defendant to the extent that the plaintiff’s injuries have improved significantly since the date of the accident and, even though the plaintiff suffers from chronic pain, she has made significant progress to the point that she has almost full range of motion of her upper body, neck and shoulders with pain only at the extremes of rotation.  I find the appropriate amount for non-pecuniary damages is $65,000.

BC Lions Streaker Alleges Brain Injury After Hit By Marcell Young – Quick Legal Breakdown

Earlier this week a streaker thought it was a good idea to run onto the field during a CFL game.  Not taking too kindly to the unwanted interruption Marcell Young of the BC Lions took matters into his own hands and put an end to the streakers 15 seconds of fame.

The ‘fan’ has now hired a personal injury lawfirm and is alleging the incident caused brain injury.  The firm published a press release noting “Our client suffered serious injuries, including a mild traumatic brain injury, as a result of being violently struck by BC Lions player Marcell Young.  Our client has been released from the hospital and is now recovering at home.  His future prognosis remains unclear. ”  These allegations of injury have yet to be proven in Court.

So is there merit in this potential lawsuit?  While controversial, there can be.

The fan had no business being on the field.  Interrupting the game can bring a host of legal consequences for the fan.  However, security guards, players or anyone else looking to end the streaker’s ill-conceived fun must do so with a reasonable amount of force in the circumstances.  Exceeding this can bring damages under the tort of battery.

The law of battery is rather straightforward.  A Plaintiff simply needs to prove that the Defendant made intentional and unwanted contact with him and harm indeed occurred as a result of the contact.

From there a Defendant is free to raise defenses such as consent, provocation or self defense.  BC Courts have stated as follows when justifying battery via self defense:

Self defence imports the idea that the defendant is under attack at the hands of the plaintiff, or reasonably believes that he will be subject to such an attack, even if the plaintiff has neither the intention nor the power to make such an attack. Even if the circumstances entitle the defendant to claim he was acting in self defence, he cannot escape liability unless he discharges the burden of proving that the amount of force he used was reasonable in all the circumstances. This will depend on the court’s assessment of the situation, taking into account the form and nature of the plaintiffs attack on the defendant and the reasonableness of the response of the defendant.

And the following for provocation:

In order to amount to provocation, the conduct of the plaintiff must have been “such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault.”  

$20,700 “Accelerated Depreciation” Claim Succeeds Following Vehicle Damage in Crash

Reasons for judgement were published this week by the BC Provincial Court ordering a Defendant (insured by ICBC) to pay over $20,000 in vehicle depreciation after a crash.

In the recent case (Chiang v. Kunar) the Plaintiff purchased a Mercedes for just over $68,000.  The following year the Plaintiff was involved in a crash caused by the negligence of the Defendant.  The crash caused over $34,000 in repair costs leaving the vehicle far less valuable after repairs.  The Plaintiff sued to recover the value of this accelerated depreciation but ICBC argued that there was no loss.  In siding with the Plaintiff, who to his credit succeeded in litigation while self represented, The Honourable Judge K. Arthur-Leung provided the following reasons:

      I am satisfied that the Claimant has met the burden of proof, and that this low to mid-level luxury vehicle was indeed a customized vehicle that was in the high end of its own category of Mercedes Benz, and sustained accelerated depreciation.  The Bill of Sale shows thousands of dollars of extras that he ordered for this Vehicle.  It was a rare vehicle at the time that it was initially in the Vancouver market, and the experts both testified that it remains an in demand vehicle if it was not in an accident.

In addition, the decision of Rutter v. Adams, 2016 BCSC 554 (CanLII) at paragraph 314 relies upon Signorello v. Khan, 2010 BCSC 1448 (CanLII) to include quantification that “…such losses can include a ‘loss of use and the inconvenience of having to return the vehicle on several occasions’.”  In addition, in Cummings v. 565204 BC Ltd., 2009 BCSC 1009 (CanLII), the Court relied upon Reinders v. Wilkinson, 1994 CanLII 2527 (BC CA)1994 CanLII 2527 (BCCA) that it is not necessary for the party to sell the vehicle in order to succeed in a claim for accelerated depreciation.  The damage sustained to this Vehicle was not merely cosmetic and required significant repair, to wit it remains outstanding with ongoing operational and mechanical problems…

THEREFORE THIS COURT ORDERS JUDGMENT TO THE CLAIMANT AGAINST THE DEFENDANTS, JOINTLY AND SEVERALLY AS FOLLOWS:

a)            The amount of $20,700.00, for accelerated depreciation of the Vehicle ($18,000.00 plus 15% tax);

b)            Interest on the sum of $20,700.00 as of February 26, 2015, in accordance with the Court Order Interest Act;

c)            The amount of $1,990.08 in general damages as claimed by the Claimant;

d)            Interest on the sum of $1,990.08 as of May 9, 2016, in accordance with the Court Order Interest Act;

e)            The amount of $472.50 for the cost of the Coast Auto Appraisal Report;

f)            Court attendance fees of Mr. Sparrow of Coast Auto Appraisal in the amount of $1,155.00;

g)            Court filing fees in the amount of $156.00; and

h)            Service fees in the amount of $30.00.

$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.

 

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