$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

The guest post is written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2105 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection.   The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome.  By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist.  In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

[11]         It is convenient to begin with Dr. Letcher’s evidence, which I accept in its entirety. On physical examination in September 2019, over four years after the MVA, Dr. Letcher identified tenderness and palpable trigger points on the right side of Mr. Tang’s neck, and the right side of his low back. Dr. Letcher reviewed the medical documentation made available to him, and noted the documentation of significant and prolonged low mood, anxiety disorder, sleep disturbance, as well as decreased exercise/activity tolerance. This was consistent with the history provided to him by Mr. Tang, and consistent with Mr. Tang’s evidence at trial, which I accept.

[12]         Dr. Letcher’s opinion is that the MVA probably caused acute muscle and ligamentous strains to Mr. Tang’s neck and back, which would have healed within about eight weeks, but he has subsequently developed regional myofascial pain syndrome affecting his neck and low back. At the time that Dr. Letcher examined Mr. Tang, there was no clear evidence of a more diffuse chronic pain syndrome such as fibromyalgia. I accept this evidence, and despite Dr. Lee’s diagnosis of fibromyalgia, I am not satisfied on the balance of probabilities that Mr. Tang ever met the diagnostic criteria for that condition.

[13]         Dr. Letcher’s opinion is that Mr. Tang’s depressed mood, anxiety, and sleep disturbance complicate his prognosis, which Dr. Letcher describes as “guarded given the chronicity of his symptoms.” His neck and back pain will most likely persist into the foreseeable future, with some improvement with treatment strategies. Although Mr. Tang is not disabled from work, Dr. Letcher emphasized that he would need to “work around his symptoms as best as possible….

[17]         Mr. Tang has endured a significant amount of pain, and although I find he has achieved a recovery on the order of 80 percent, the likelihood is that he will always have some pain and stiffness in his neck and low back. Work is important to Mr. Tang, and the effects of his injuries causes him to have to work around his symptoms. He has been able to keep up with domestic chores since the summer of 2015. His injuries have affected his recreational pursuits, but in a modest way.  ..

[20]         Each of these cases has been of some help in making the assessment, but, naturally, each has important distinguishing features. Making an individualized assessment, I consider that $80,000 is a fit award for non-pecuniary damages.

bc injury law, chronic myofascial pain syndrome, chronic regional myofascial pain syndrome, Mr. Justice Thompson, Tang v. Duong

Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane.  As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.”  The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane.  In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson provided the following reasons:

[33]         Neither party was aware of any cases that address the issue of whether a cyclist who intends to cross an intersection is obligated to leave a dedicated bicycle lane and cross a right turn lane in order to move into the through lane for traffic. If the plaintiff was so obligated, she would have been subject to a heightened duty of care that may be significant in determining whether she was at fault, in whole or in part, for the accident….

[40]         If I were to accept the defendant’s argument, the dedicated bicycle lane should not be used by cyclists who intend to cross the intersection and would instead be used solely by cyclists intending to turn right. However, there are neither signs nor markings in the bicycle lane that would indicate that the bicycle lane has ended for through cyclists. There are no signs or markings that require users of the bicycle lane to turn right. The bicycle lane is separated from the single lane and what subsequently becomes the right turn lane by a solid white line. The bicycle lane contains only one painted sign, which is a picture of a bicycle. The painted bicycle sign is positioned shortly after northbound lane divides into two lanes divided by a broken line. In the absence of any signage indicating that through cyclists should do otherwise, it is reasonable to assume that cyclists are intended to remain within the bicycle lane, regardless of whether they intend to turn right or to continue through.

[41]         Dedicated bicycle lanes provide cyclists with a small portion of the roadway in which to travel to the exclusion of motor vehicles, recognizing that motor vehicles may need to traverse a bicycle lane, whether to enter or exit the roadway, to park adjacent to the curb, or for other reasons. Cyclists can expect that vehicles will not be driving in the dedicated bicycle lanes and will yield to cyclists using those lanes, just as drivers of motor vehicles can expect that cyclists will confine themselves to dedicated bicycle lanes where available.

[42]         At this intersection, a cyclist would have to leave the dedicated bicycle lane, traverse the right turn lane, and then merge into and ‘take’ the through lane, a potentially hazardous manoeuver when the latter two lanes can be expected to contain vehicular traffic travelling much faster than the cyclist.

[43]         I find that the plaintiff was not in breach of any traffic rules or the rules of the road when she stayed in the dedicated bicycle lane and proceeded to cross over the intersection in the direction of the dedicated bicycle lane on Hollywood Road north of Highway 33 because cyclists in the dedicated bicycle lane are not obligated to turn right. The dedicated bicycle lane is both for cyclists who are turning right and those who are continuing through the intersection. The plaintiff was not subject to a heightened duty of care.

[44]         The facts here are similar to those in Levers v. Blace, [1993] B.C.W.L.D. 1666, 1993 CarswellBC 2355. In that case, a cyclist was riding alongside a motorist in the same lane of traffic when the motorist made a sudden right turn into a parking lot, resulting in the cyclist colliding with the passenger side of the motorist’s vehicle. Justice Lowry held the motorist to be solely responsible for the collision:

[5]        Mr. Blace says that he was stopped beside Mr. Levers at the light. But he says Mr. Levers was in the right turning lane. He says that when the light changed, he accelerated and did not see the bicycle again until the impact. He assumed Mr. Levers had turned right on Trunk Road. Mr. Blace has no recollection of looking to his right or behind before he made his turn into the Dairy Queen lot. If he had, he would have seen the cyclist. He activated his turn signal just as he cleared the intersection. He assumed there was no reason he could not turn safely. His assumption was wrong.

[45]         The circumstances in this case are similar to those here because the defendant had previously seen the plaintiff before he got to the intersection, but had lost track of her and failed to ensure that it was safe to commence his right turn.

[46]         I do not accept that the plaintiff should share any responsibility for the accident. The plaintiff had been travelling in the dedicated bicycle lane for several blocks. It was a bright and sunny day and she was clearly visible. Motorists such as the defendant who were travelling in the same direction as the plaintiff had a prolonged opportunity to observe her in the bicycle lane and the defendant ought to have anticipated that she may continue through the intersection in line with the dedicated bicycle lane.

[47]         Because I have concluded that the plaintiff was ahead of the defendant as they approached the intersection and that they arrived at the intersection at approximately the same time, the defendant was obligated to yield to the plaintiff, no different than if she had been a pedestrian using the adjacent crosswalk. The defendant’s evidence was that he did not see her, even though he had seen her previously. However, it does not matter whether he actually saw her at the time he was commencing his turn. Rather, she was riding her bicycle in the dedicated bicycle lane in accordance with the bylaw and she was there to be seen.

[48]         I do not accept the defendant’s submission that the plaintiff failed to take sufficient precautions for her own safety by not having a rear-view mirror attached to either her bicycle or helmet. Even if she had been aware that the defendant was approaching her from behind in the right turn lane, it was reasonable for her to expect that the defendant would have allowed her to pass before commencing his turn, and it is not apparent on the face of the evidence as to what kind of evasive action the plaintiff could have taken upon the sudden realization that the defendant was not going to allow her to do so.

[49]         I find the defendant 100% at fault for the accident. Subject to something of which I am unaware, the plaintiff is entitled to her costs.

bc injury law, Bike Lanes, Chartlon-Miner v. Hedgecock, cyclist collisions, Mr. Justice Wilson

ICBC Effort To Remove Case From Supreme Court Fails

While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.

Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.

In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages.  After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.

The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction.  In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:

[12]         The plaintiff filed an affidavit sworn December 13, 2019. In that affidavit, he deposes that, as a result of the accident, he continues to experience symptoms in his back, shoulders and right hip, and has difficulty sleeping. He complains of pain in his lower back and shoulders when not active, and of pain lasting two to three days if he engages in activities. He further deposed to having difficulty falling asleep and of waking in the night because of lower back pain. He further deposed to attending massage therapy on a more or less weekly basis and that he intends to seek chiropractic treatments.

[13]         In approaching this mater, I am particularly mindful of the caution expressed by Justice McEwan in Kooner v. Singh, 2011 BCSC 1384, at paras. 3 and 6. There, he stated it is only in the clearest of cases that a matter should be transferred to the Provincial Court. It is only where there is no possibility of a damage award exceeding the Small Claims’ limit that a matter should be transferred to the Provincial Court:

[3]        I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[6]        I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[14]         The plaintiff is relatively young. He apparently had no medical issues prior to the accident. He apparently suffered soft tissue injuries in the accident to the neck, back and shoulders, and continues to suffer from what may be chronic pain which may encumber him for the rest of his life. He also has ongoing sleep difficulties and his injuries have affected his enjoyment of recreational activities. The injuries suffered by the plaintiff and the effects of those injuries are somewhat similar to what is described in Poulin and Carson, where the plaintiffs were awarded general damages of considerably in excess of $35,000.

[15]         In my view, on the basis of the evidence before me and the authorities, there is a possibility that the plaintiff may recover damages at trial in excess of $35,000. Accordingly, this matter should not be transferred to the Provincial Court, and the application is dismissed.

Rec Legaue Hockey Bodycheck Results in $702,551 Damage Award

Today’s guest post comes from Erik Magraken BC Injury and ICBC Claims Blog

Although infrequent, Canadian courts have occasionally imposed civil and even criminal liability following injuries at sporting events.  The latest such case was published this week out of Ontario.

In the recent case (Casterton v. MacIsaac) the Plaintiff successfully sued the Defendant after suffering injuries in a hockey game.

The parties were playing in a recreational senior hockey league.  It was a no contact league though incidental contact was part of the game.  The plaintiff accepted that accidental contact was part of the risk of playing.  Blindside hits, however, were absolutely prohibited and the Court accepted that such hits were not consented to either expressly or implicitly as part of playing.

The Defendant collided with the Plaintiff resulting in fairly severe injury.  He was initially charged criminally with assault for the incident.  He was convicted but his conviction was overturned on appeal and the charge was ultimately stayed.

In the civil lawsuit the Court heard conflicting evidence but ultimately found that the Defendant was liable as the contact was from a prohibited blindside hit.  The collision caused the Plaintiff to suffer a concussion, two broken teeth and various cuts.  Damages of over $700,000 were assessed comprised of $63,000 in general damages, $199,512 in past lost income, and $440,039 in future income loss.

In imposing liability from the body check Justice Sally Gomery made the following findings and provided the below reasons:

[111]      The League is a recreational, non-contact league.  Every player who testified nevertheless recognized that hockey is a fast-paced sport where some degree of body contact is inevitable.  Accidental injury is always a risk. Various players talked about past injuries they got from loose pucks. Players in the League, including Casterton, signed a waiver releasing the league from any damages as a result of hockey injuries.

[112]      Injury can be caused by contact with other players. Body checking is punishable as a major penalty. The very existence of this penalty shows that body checking – just like conduct that may attract a minor penalty, such as tripping and hooking – may occur. It is sanctionable, but not completely unexpected conduct.

[113]      In sum, players can expect that they may be accidentally injured during a game, even a game in a recreational, non-contact league. They accept this risk when they play.

[114]      Each player also testified, however, that blindside hits – especially hits to the head – are absolutely prohibited. They have no place in recreational play, or in any hockey game.

[120]      I have already rejected some of Desjardins’ evidence; notably, his testimony that MacIsaac was skating parallel to the back boards when the collision occurred.  On the other hand, his recollection about MacIsaac’s body posture just before the collision has been consistent from the time it occurred.  It was the reason why he gave MacIsaac a ten-minute major misconduct penalty.

[121]      Desjardins played in competitive and semi-professional leagues before becoming a referee in 2010. He had officiated about 600 games by March 2012.  He explained why this incident stood out in his memory.  He had no bias towards or against either team or any particular player. He had simply never seen “such an act of violence” in a hockey game; as both a referee and as a player. He was fifteen to twenty feet away from the point of impact, and nothing obstructed his view. In his opinion, MacIsaac deliberately attempted to injure Casterton.

[122]      I conclude that MacIsaac intentionally skated at high speed towards Casterton from an angle where his approach could not be seen. He positioned his arms and drew up his body in such a way as to maximize bodily contact, causing a collision between MacIsaac’s shoulder and forearms and the lower half of Casterton’s face. Casterton did not anticipate the check and, as such, made no moves to protect himself or attempt to avoid the collision. Each player admitted that, if Casterton’s theory of how the collision occurred were accepted, this was a blindside hit.

[123]      Based on the evidence of Winton and Desjardins about MacIsaac’s body posture, I find that MacIsaac either deliberately attempted to injure Casterton or was reckless about the possibility that he would do so.  But even if I concluded that the hit was neither intentional nor reckless, applying the test in Kempf, MacIsaac would be liable for Casterton’s injuries because he failed to meet the standard of care applicable to a hockey player in the circumstances. Every player who testified stated that a blindside hit to the face is and was outside the bounds of fair play. 

[124]      MacIsaac is therefore liable for the injuries that Casterton suffered during the March 15, 2012 game. 

Canada: What To Know About Left-Turn Accidents

Article by Gluckstein Personal Injury Lawyers

What to know about left-turn accidents

Traffic accidents always come down to a blame game and the person making the left turn is often in the wrong. About half of all crashes at Canadian intersections involved a vehicle that was turning left, according to a 2007 joint study by the Traffic Injury Research Foundation and the Insurance Institute for Highway Safety.

With so many claims stemming from those incidents, the Insurance Bureau of Canada considers all left turns into traffic that lead to an accident, as against insurance company policy.

Before trying to beat the light and making an ill-advised left turn, here are some things drivers should consider:

Different types of insurance

Insurance companies always deem someone at fault in cases of accidents. The fault could be partial or full depending on the circumstances. Individuals deal with their own insurance companies, regardless of who caused the accident. No-fault insurance allows a person to receive part or full coverage by their company regardless of who caused the accident. They can receive medical and other benefits without having to track down the other driver and take them to court. They are also eligible even if they are deemed to have caused the accident.

Proving who’s at fault

Insurance companies determine fault by analyzing accident reports. Therefore, if the other driver committed a traffic violation as well, such as speeding or running a red light, there is room for adjustment. Adjusters can “split the fault” in these situations, instead of the full liability for the driver turning left.

As a driver, proving what happened at the time of the accident is crucial in determining your eligibility for an insurance claim. First-hand witness accounts are helpful in constructing the scene before and after the accident.

An impartial witness is ideal to corroborate your story, especially if you claim that the other driver was at fault.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: Mondaq

Non Disclosed Defence Report Thwarts Request for Second Independent Medical Examination

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.

In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages.   In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.

The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.

The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment.  In short the litigation ‘playing field’ may already be even.  In dismissing the application Master Keighley provided the following reasons:

[14] Now, as I have indicated, the report of the neurologist prepared at the behest of the defence has not yet been disclosed. I am of course aware of the decision of the Court of Appeal in Tran v. Abbott, 2018 BCCA 365, and that case is helpful in emphasizing the central purpose of the rule, which is to place the parties as close as possible to an equal position with respect to medical evidence to be produced at trial. The case is important, to my mind, in making it clear that there is no longer a requirement to show special circumstances to justify the commissioning of a second report.

[15] The Court has to be satisfied, however, that there is evidence to suggest that the preparation of a further report is necessary to achieve that equality. There are a number of ways in which that evidence might be adduced. Sometimes the applicant may refer to a medical report produced by, in these circumstances, the plaintiff indicating that the party, for example, preparing the report lacked the expertise to deal with a particular issue and suggests that a reference be made to another specialist to resolve that aspect of the plaintiff’s condition.

[16] Sometimes the court has before it an affidavit from a specialist with whom the appointment is sought indicating that an examination is necessary to deal with issues within that expert’s expertise. I do not have either of those here. As was the case with my colleague Master Muir in Gray-Verboonen v. Mandurah, 2019 BCSC 1697, this is, as she noted in the case before her, one of those cases where the defence has the benefit of a recent assessment of the plaintiff but neither the plaintiff nor the Court has the benefit of such.

[17] I am simply not satisfied in this case on the basis of the evidence before me that a referral to an orthopedic surgeon is necessary to achieve the desired equality between the parties. It may well be that (although I appreciate the timeline is now somewhat shortened, not only with respect to the 84-day deadline but also the January trial), if the defence instructions change and the neurologist’s report is produced before the deadline, it may indicates that perhaps with other evidence that a referral should be made. But I am not satisfied on the basis of the evidence before me today that the applications should succeed. The relief sought in paragraphs 1 and 2 of the Notice of Application is, accordingly, dismissed.

To my knowledge, this judgement is not reported but as always I am happy to share a copy with anyone that contacts me and requests the reasons.

bc injury law, Defence Medical Exam, independent medical exam, Khan v. Cabrera, Master Keighley, multiple defence medical exams

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