Debilitating injuries described in mounting lawsuits against alleged van attacker

By Liam Casey

THE CANADIAN PRESS

Traumatic brain injuries, spinal fractures and internal bleeding are among the litany of ailments described in a mounting number of lawsuits against a man accused of killing 10 people and injuring 16 others in a van attack in Toronto last year.

Lawyers involved in the suits against Alek Minassian believe the cases, which the court is working to pull together in one large proceeding, will take years to come to a resolution.

On April 23, 2018, police allege Minassian drove a white Ryder rental van south along Yonge Street in the city’s north end, hopped the curb and deliberately mowed people down.

While Minassian’s criminal case slowly makes its way through the system – his trial on 10 first-degree murder charges and 16 attempted murder charges has been scheduled for February 2020 – the 26-year-old already faces four civil suits, with more expected.

The lawsuits, from the families of one person who died and three who were injured, are seeking millions of dollars from Minassian and Ryder Truck Rental Canada, alleging the devastating injuries and deaths on that day were due to an intentional act by Minassian and negligence on his and the rental company’s part.

The unproven civil suits will be fought in the trenches of insurance law.

“This is going to drag on for a long, long time,” said Gus Triantafillopoulos, who represents the family of Anne Marie D’Amico, a young woman who died that day and whose family filed a $1-million suit in January against Minassian and Ryder.

Triantafillopoulos said if the family receives any money through the civil proceedings it will all be donated to the Anne Marie D’Amico Foundation, which supports women who are victims of violence.

The first suit related to Minassian was filed in November 2018 by Amir Kiumarsi, a chemistry instructor with Ryerson University who is seeking $6 million dollars in damages.

He suffered a traumatic brain injury and several skull fractures, spinal fractures, traumatic internal injuries including a displaced kidney and numerous other injuries throughout his entire body, the claim says.

“These injuries have been accompanied by severe physical pain, suffering and a loss of enjoyment of life,” the claim alleges, noting that his future holds “numerous surgical and medical assessments, treatments and procedures.”

Since Kiumarsi filed his suit, the court is in the process of getting all the cases on one track, documents show.

Another suit was filed in mid-January by Amaresh Tesfamariam and her family, who are seeking $14 million. Tesfamariam has a complete spinal cord injury, multiple spinal fractures, rib fractures and a traumatic brain injury.

She cannot move her body below her neck, cannot breathe without a machine, suffers a total loss of independence and a “profound and permanent loss of her cognitive ability,” according to the claim.

Tesfamariam also has loss of short-term memory, depression, anxiety, a “drastic personality change” and cannot communicate properly with others, and cannot return to her work as a nurse, the claim alleges.

The latest suit was filed last week by Catherine Riddell and her family, alleging the “sustained serious and permanent” injuries the woman suffered are the result of negligence on the part of Minassian and the rental company.

Riddell lost consciousness, suffered a brain injury, hurt her head, neck, shoulders, arms, back, legs and arms. She fractured her spine, her ribs, pelvis, scapula and suffered internal injuries including a collapsed lung, the $3.55 million suit alleges.

She lives with headaches, memory loss, difficulty finding words, dizziness, back and neck pain, loss of mobility, nausea, anxiety, nervousness, insomnia and depression, her claim alleges, noting that she now faces a life filled with therapy, rehabilitation and medical treatment.

“Her enjoyment of life has been permanently lessened and she has been forced to forego numerous activities in which she formerly participated,” the claim reads.

Minassian does not yet have legal representation in the civil matters and has not responded to the claims, according to the documents. His criminal lawyer did not respond to a request for comment.

The lawyers for Ryder, who did not respond to multiple requests for comment, detailed the expected complexities in the litigation in an affadavit filed with the court.

It notes that notice has been given for 12 claims and more are expected. There will be numerous parties in the case from families of the dead to the injured and the various defendants. There will be examinations for all plaintiffs, and testimony would be expected from numerous medical experts.

“It would be safe to assume this matter will require a lengthy trial,” said the affidavit.

Kiumarsi’s lawyer, Darcy Merkur, said there will be a slew of arguments brought forward.

“One interesting question is this: is every different person hurt considered a separate accident?” Merkur said. “It’s a legal question, but also a philosophical one.”

The answer to that question will be important to the issue of potential payments, he explained.

$175,000 Non-Pecuniary Assessment for Chronic Psychological Injuries

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological injuries sustained in a collision.

In the recent case (Anssari v. Alborzpour) the Plaintiff was injured in a 2014 collision.  She sustained various psychological injuries including severe depression, anxiety, and post-traumatic stress symptoms.  These continued to the time of trial and were likely to continue in the future.  In assessing non-pecuniary damages at $175,000 Madam Justice Fleming provided the following reasons:

[95]         In any event, the fact and opinion evidence overwhelmingly establishes that Mrs. Anssari developed severe depression, severe anxiety and symptoms of PTSD due to the accident. It is clear her psychological injuries have resulted in the ongoing and severe symptoms she, her children and most of the expert witnesses described in their evidence. I find therefore the accident caused the following:

–       very low mood and intense feelings of anxiety worsened or triggered by a number of circumstances such as driving, noise, and sirens;

–       nightmares for about one year after the accident;

–       very low energy and very poor motivation;

–       agitation, irritation and anger, as well as intense sadness and emotional numbness;

–       a profound sense of hopelessness and if not a wish to die, a questioning of her ongoing existence;

–       irrational anger toward Mr. Alborzpour for causing the accident that she wants to let go of but cannot;

–       overwhelming feelings of guilt over the impact of her condition on her family;

–       chronic insomnia that prevents her from falling asleep until near dawn and staying asleep for more than a series a short periods ending in the late morning;

–       significant physical pain in her neck shoulders and back, severe headaches and numbness along with other altered sensations in her right arm for approximately two years after the accident; and

–       some ongoing pain in her neck, shoulders and back, headaches and intermittent numbness in her right arm.

[96]         Mrs. Anssari’s severe psychological symptoms have persisted despite treatment including anti-depressant medications, psychological treatment in 2014 and 2017, medication and treatment for her physical symptoms, ongoing support from her family doctor, and some involvement with a treating psychiatrist since early 2018….

[108]     The evidence makes it clear that Mrs. Anssari’s psychological injuries have had a devastating impact on every aspect of her life. Before the accident she was a vibrant, happy, healthy person with a loving marriage and extremely close, positive relationships with both children. A full-time homemaker and a highly involved parent, Mrs. Anssari also enjoyed socializing with friends, going out and travelling with her husband and children, and being physically active. She dreamed of being a grandmother and caring for her grandchildren. Her future was bright.

[109]     Since the accident, her emotional suffering, intense anxiety, and severely disrupted sleep, along with an almost complete loss of motivation, next to no energy and a deep sense of hopelessness have essentially taken all of that away. For the first year she was also plagued by nightmares of the accident. She still experiences flashbacks. I have accepted her psychological injuries exacerbated her physical pain which, although much better, has not resolved.

[110]     For the most part Mrs. Anssari spends her days and nights on the living room couch, interacting very little with the world around her, including her family. Her inability to take part in or find any joy in Sahar’s wedding preparations and the wedding itself would have been unimaginable before the accident. The same is true of her response to Rosha. Rather than fulfilling her dream of being an involved grandmother and caring for her grandchildren, she engages very little with Rosha during their almost daily weekday visits which in turn causes her more suffering. Similarly, Mrs. Anssari remains unable to let go of the anger she has felt toward Mr. Alborzpour since the accident. In response, as Mrs. Anssari put it, he has lost patience with her. The evidence of Saeed and Sahar suggests the marriage is beyond repair, a terrible loss for Mrs. Anssari given its strength before the accident and how firmly rooted her identity has been in her role as a wife and mother.

[111]     The effect of Mrs. Anssari’s injuries on her day-to-day functioning is as profound as the impairment of her relationships. I have accepted that her psychological injuries prevent her from engaging in any meaningful housework or cooking. They also significantly interfere with her ability to drive safely, a blow to her independence. She even struggles to engage in basic self-care.

[112]     Unhappy with what has become of her, Mrs. Anssari is, as I have said, guilt ridden about the effect of her condition on her family. Fortunately she wants to get better and is willing to undergo further treatment, despite the ineffectiveness of medication and psychological interventions thus far. Although a complete recovery is not a realistic possibility, a new medication regime and, failing that, ECT may very well result in substantial improvement over time.

[113]      Similar cases are of some assistance in assessing an award for non-pecuniary damages. No other case however will ever involve the exact same circumstances and each plaintiff is unique: Hans v. Volvo Truck North America Inc., 2016 BCSC 1155, at para. 525. I have considered the cases relied upon by the parties. The most similar is Hans where $265,000 was awarded in non-pecuniary damages seven years after the accident. The plaintiff’s psychological injuries, significant PTSD and major depressive disorder, were however even more serious than Mrs. Anssari’s and there was little prospect his symptoms would improve. He suffered from suicidal ideation, had attempted suicide three times, and been hospitalized for extended periods. The trial judge accepted the plaintiff would remain at risk of death by suicide. Given his PTSD, the plaintiff was also found to be at increased risk of developing another psychiatric disorder.

[114]     In all of the circumstances and having considered the factors enumerated in Stapley, I conclude $175,000 is an appropriate award for Mrs. Anssari’s pain and suffering. The award includes compensation for the non-pecuniary loss associated with her intended role as a caregiver to her grandchildren and her future loss of housekeeping capacity, both of which are discussed below but also takes into account the chance that with the medication regime or failing that ECT, her psychological condition will improve substantially, balanced against the risk of further deterioration.

$170,000 Non-Pecuniary Assessment for Hip Injury, PTSD, TOS and Chronic Pain

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a plaintiff who suffered a host of injuries in a vehicle collision.

In today’s case (Firman v. Asadi) the Plaintiff was involved in a 2013 collision.  The Defendant denied fault but was found liable at trial.  The collision resulted in multiple injuries including a torn labrum, thoracic outlet syndrome, PTSD and chronic pain.  Prognosis for full recovery was poor.  In assessing non-pecuniary damages at $170,000 Mr. Justice Verhoeven provided the following reasons:

[145]     Based upon the abundant medical evidence as well as the evidence of the plaintiff and other evidence of the lay witnesses, I find that the plaintiff’s injuries that she attributes to the MVA and as reported to the treatment providers and medical experts were caused by the MVA.

[146]     As noted, there is much overlap in the specific diagnoses found in the medical evidence.  In more general terms, the plaintiff’s injuries sustained in the MVA are: (1) left hip injury, including torn labrum, requiring surgery;  (2) TOS or thoracic outlet syndrome, requiring surgery, and with further surgery recommended; (3) whiplash injuries (myofascial pain syndrome, mechanical spine pain) and resultant chronic pain, particularly in her upper back, left shoulder, and arm; (4) left shoulder tendinopathy; (5) chronic headaches; (6) mood or psychological/psychiatric disorders, including depression, somatic symptom disorder, and anxiety.

[147]     The defendants dispute the diagnosis of PTSD, made by Dr. Schweighofer. Dr. Iso noted PTSD “symptoms”.  In the circumstances of this case, the question of whether the plaintiff fully meets the criteria for this diagnosis is of little practical consequence. Dr. Waraich noted that her symptoms meet the DSM-5 criteria for PTSD, with one exception. He states that, while a diagnosis of delayed onset PTSD could be made, in his view her PTSD symptoms are “better accounted for” by the diagnoses that he makes: depressive disorder, and somatic symptom disorder. However, he added:

…in my opinion, her future course and potential treatment of PTSD symptoms are relevant despite her not meeting full criteria for PTSD in my assessment.

[148]     The prognosis for substantial improvement is poor…

[218]     The evidence discloses that the plaintiff has suffered a very substantial non-pecuniary loss.  She is now only marginally able to continue with her former occupations, and passions in life, fitness training and barbering. Her physical and psychological injuries as outlined previously are substantial, and likely permanent to a large extent at least.  She has endured a great deal of pain and suffering, which will continue indefinitely. She has undergone two surgeries and a third surgery is likely, since it is recommended and the plaintiff says she plans to undergo it.

[219]     Her injuries and their consequences have quite dramatically affected her former lifestyle and her personality. She was previously very physically active. She participated in marathon runs and triathlons, operated a fitness business, and engaged in a number of sporting activities. She was independent and took pride in being able to support herself and her younger daughter, who continues to be a dependant. I referred earlier to the change in her personality noted by the witnesses. She is no longer outgoing, social, energetic and happy, as she was before.

[220]     Her homemaking capacity has been impacted. She testified that pre-accident she kept a tidy household. This is corroborated by Mr. MacDonald and her daughter. She no longer has the ability to maintain a tidy household. Now her house is messy.

[221]     On the other hand, she is far from completely debilitated, and there is a chance her condition will improve, with appropriate treatment.  Her pre-accident condition was not perfect, (in particular, she had symptomatic spinal degeneration, and headaches) and there was some risk that her conditions could have affected her detrimentally in future, as they had pre-accident.  They might have worsened.  …

[231]     Having regard to the case authorities I have referred to, I assess the plaintiff’s non-pecuniary damages in the amount of $170,000.

$160,000 Non-Pecuniary Assessment for Brain Injury and Chronic Pain

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain sustained in a BC vehicle collision.

In today’s case (Ranahan v. Oceguera) the Plaintiff was involved in a 2013 rear end collision.  Although faut was not formally admitted the Court found the Defendant fully liable for the crash.  The Plaintiff suffered chronic injuries from the collision and in assessing non-pecuniary damages at $160,000 Mr. Justice Mayer provided the following reasons:

[144]     I find that as a result of the accident, Ms. Ranahan has sustained mild traumatic brain injury and soft tissue injuries to her spine, which has developed into chronic neck pain, upper back pain, post-concussion syndrome, cognitive problems with memory and focus, imbalance, tiredness, fatigue, tinnitus, eye strain, sleep disturbance and chronic headaches. I also accept that the imbalance caused by her accident resulted in a further injury, the left ankle dislocation with a chip fracture, while coaching a soccer game.

[145]      I also find that Ms. Ranahan suffers from ongoing mood symptoms including irritability, moodiness a reduction in patience and positivity. She is experiencing on-going difficulties dealing with stress. Although Ms. Ranahan admits that prior to the accident she was under significant stress as a result of her husband’s health issues, family and work responsibilities she was managing these stresses and was fully functioning at work and at home and was able to participate in a number of sports and social activities.  

[146]      I find, based on the totality of the lay and expert evidence, that there are no genuine issues of causation in this case. I find that but for the accident Ms. Ranahan would not be suffering from her current physical and psychological/cognitive symptoms…

[157]     I find that, as a result of the accident, Ms. Ranahan experienced and continues to experience physical and emotional pain, suffering and limitation. Relevant facts have been set out earlier in my reasons and there is no need to repeat them.   

[158]     The impacts have interfered with her family and business life but as a result of her stoicism these impacts have been managed to a certain extent. In addition, her injuries have significantly impacted her recreational and social pursuits but she has not been completely unable to participate in some of these activities.  

[159]     I find that there has been some improvement in some of Ms. Ranahan’s symptoms. What is not clear is whether there will be any further improvement. There appears to be a belief amongst some of the medical experts, including Drs. Chow, Johnston and Boyle, that further assessment and treatment may result in improvement. The prognosis of Dr. Chow and Dr. Johnston is guarded.

[160]     Many of the cases relied upon by Ms. Ranahan occupy the higher end of the spectrum for non-pecuniary damages for similar injuries. The cases relied upon by ICBC are in my view at the lower range and the damages awarded in those cases are not sufficient to address the pain, suffering, loss of enjoyment of life and loss of amenities suffered by Ms. Ranahan. 

[161]     Having reviewed the cases provided by the parties I assess Ms. Ranahan’s non-pecuniary damages at $160,000.  

Lawyers coaching B.C. doctors to avoid injury caps under new auto insurance rules

B.C. doctors are being coached by trial lawyers to avoid classifying motor-vehicle injuries as “minor” under new rules that, starting in April, will cap some claims.

“An early and optimistic prognosis will have a devastating impact on your patients’ legal rights if their recovery does not ultimately follow this course,” law firm Murphy Battista warned physicians in a Jan. 24 letter.

“An example of a way in which a patient’s rights can be protected is if the family physician explains they ‘don’t yet know’ whether an injury will cause that patient ‘serious impairment.’ ”

That letter and others like it have prompted the organization representing physicians to urge its members to guard against what it describes as a campaign of misinformation around the changes to insurance settlements introduced by the Insurance Corporation of British Columbia.

“Doctors of BC has been made aware there are letters, flyers and other types of communications being sent to physicians that may contain misleading and inaccurate information about new ICBC regulations for treatment of patients,” reads a Feb. 14 statement from the association to physicians.

Doctors of BC says the changes will not limit patient care or restrict physicians from making independent medical decisions. In fact, it says, patients will have access to more options for treatment.

“Under the new legislation, the overall allowance for medical care and recovery expenses will double to $300,000 to better support patients injured in a crash. ICBC will also pay more per treatment based on fair market rates and customers will no longer be out-of-pocket for most expenses.”

Last year, Attorney-General David Eby described ICBC as “a financial dumpster fire” and announced dramatic changes to rein in costs. The Crown corporation is on track to post losses of $1-billion for each of the past two years.

The provincial government passed legislation to curb skyrocketing payments for minor-injury claims by capping settlements for pain and suffering at $5,500 and limiting when accident victims can sue.

In the newsletter Bridge, which provides “legal perspectives of interest to the medical doctor,” physicians are advised to avoid using the grading system in the paperwork that ICBC will use to determine if an injury falls within the cap.

“Initially, the physician may have attached a Grade 2 [that would fall under the cap] to the patient. It may be difficult to re-classify. In light of this issue, it may be prudent for the physician to initially stroke through the Grades with the statement ‘Not possible to assign grade at this time.’”

The changes have put the government at odds with the Trial Lawyers Association of B.C. The group warns that injured individuals are paying the price for financial mismanagement at ICBC. The organization declined to respond to interview requests from The Globe and Mail.

Vancouver lawyer Joe Murphy, co-founder of the firm Murphy Battista, said it is perfectly reasonable for lawyers to point out to doctors the impact their assessments could have on their patients’ rights.

“Unfortunately, you’ll find out if you have an accident that you are not entitled to treatments unless the adjuster decides you are,” he said in an interview.

He said the Doctors of BC statement is itself rife with inaccuracies.

“It is ironic. I’ve read through this, and many of the statements are based on inaccurate or misleading information. I don’t think the person who wrote this read the legislation,” he said.

Mr. Eby said in an interview on Thursday that he has heard from doctors about the unsolicited legal advice they are getting. “I’m glad the Doctors of BC are prepared to step up and warn physicians to call out misinformation when they see it.”

The Doctors of BC was consulted on the improvements to benefits for lost pay and medical rehabilitation for all people injured in accidents − the first major improvements in auto-accident benefits in more than 25 years.

Andrew Yu was one of the physicians who collaborated on the ICBC changes on behalf of Doctors of BC. He said members should not be influenced by lawyers when it comes to assessing their patients. “Some of these letters and brochures seem to offer direction on what words to use or not to use. We support the autonomy of family physicians to use their clinical discretion,” he said.

Source: The Globe and Mail

$85,000 Non-Pecuniary Assessment For Soft Tissue Injuries with Persistent Flare Ups

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for persistent soft tissue injuries with frequent flare ups.

In today’s case (Palmer v. Ansari-Hamedani) the Plaintiff was involved in two collisions with the Defendants accepting fault.  The first crash was relatively minor with injuries well on their way to recovery by the time of the second crash.  The second collision caused persistent soft tissue injuries which continued to the time of trial and often flared up with various activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Morellato provided the following reasons:

[86]         In conclusion, I find that Ms. Palmer’s suffered from the following symptoms in the months following the Second Accident: mental “fogginess”; nausea, dizziness, balance issues; ringing in ears, a bump on back of the head, bruising in swelling in the forearm and overwhelming nerve tenderness in the forearm.  I find that these symptoms had substantially resolved by the time she returned to full-time work at Dr. McDougall’s office in February of 2013.  Other related symptoms, however, persisted as described below.

[87]         Ms. Palmer’s soft tissue injuries to her neck and back have persisted for some time; however, I find that by the time she saw Dr. Pascoe in May of 2017, Ms. Palmer had substantially recovered from these injuries.  However, I find that she continues to suffer “flare-ups” as recognized by Dr. Pascoe in her August 2017 reporting letter.  Further, as noted above, I also accept that the flare-ups in her neck and back cause occasional headaches, some of which are migraine headaches but these are less frequent.

[88]         The evidence before me has not established, on a balance of probabilities, that Ms. Palmer suffers cognitive deficits or permanent brain damage from her Second Accident.  Nor am I satisfied that her Second Accident affected or compromised her ability to retrain or attend to further educational pursuits.

[89]         I find that while the injury to Ms. Palmer’s right shoulder and arm is not symptomatic on a daily basis, the injury has not yet resolved and continues to cause her pain and discomfort.  She suffers pain and numbness in her arm when her arm is tired or she holds her forearm and hand in flexed or extended positions.  I am also satisfied on the evidence before me that Ms. Palmer suffers flare-ups of pain in her shoulder area.

[94]         I have also considered the cases counsel have drawn my attention to as well as the related case law: see e.g.  Cleeve v. Gregerson et al, 2007 BCSC 1112 [Cleeve]; Senger v. Graham, 2018 BCSC 257; Knight v. Belton, 2010 BCSC 1305.  In this light, and having regard to the specific circumstance before me, I am of the view that an award of $85,000 is fair and reasonable.

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