$120,000 Non-Pecuniary Assessment for Soft Tissue Injuries with Disabling “Pain Disorder”

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain disorder caused by two vehicle collisions.

In today’s case (Litt v. Guo) the Plaintiff was involved in two collisions, the first in 2003, the second in 2010.  The Plaintiff was not at fault for either.  The Court found both collisions caused various soft tissue injuries which went on to form a chronic pain disorder which was largely disabling for the Plaintiff.  In assessing non-pecuniary damages at $120,000 Mr. Justice Schultes provided the following reasons:

[371]     In summary, I will make the following findings on causation and the current state of Ms. Litt’s injuries:

·                 Ms. Litt suffered moderate soft tissue injuries to her neck, shoulders and back in the 2003 and 2010 accidents, which would not have been significantly disabling in themselves.

·                 Her physical injuries from the 2003 accident had receded to a manageable level by the time of the 2010 accident, but those injuries were aggravated by the 2010 accident.

·                 Ms. Litt developed a pain disorder as a result of the 2010 accident.

·                 Ms. Litt’s pre-existing anorexia nervosa and depression made her more vulnerable to developing depression and other psychological difficulties after the 2003 accident and to developing a pain disorder after the 2010 accident.

·                 Despite the other stressors in her life, Ms. Litt would not have suffered any disabling reappearance of her pre-existing conditions if the accidents had not occurred.

·                 There is a possibility of a continued improvement to her functioning and her capacity for employment, based on her self-described improvements to her outlook after beginning to follow a regime of healthy diet, exercise and counselling…

[378]     Keeping in mind the need to tailor the award to the particular circumstances of the case, but to consider outcomes in similar cases to ensure the overall fairness of the amount, I conclude that damages of $120,000 are appropriate under this heading.

Also of note are the Court’s critical comments of two defence expert witnesses in the case.

The first, a defence expert in ‘spine pain’ testified that soft tissue injuries would certainly have healed within 12-16 weeks of each accident and that this was “scientific fact”.  In rejecting this assertion the Court commented as follows –

[349]     Turning to the evidence dealing with the extent of Ms. Litt’s physical injuries, I find first of all that I am unable to accept Dr. Bishop’s categorical assertion that the outside limit of the duration of her actual physical injuries is 16 weeks. A comprehensive study that he accepted as authoritative shows that there is a greater variation in that recovery period, before even considering the influence of any psychological problems on the experience of pain. In addition, though through no fault of his own, he has no records and therefore no real evidentiary basis to critique the medical findings that were made by others in relation to Ms. Litt’s 2010 accident. While, as I will discuss, there is a good argument that Ms. Litt’s psychological condition has overtaken any physical causes of her pain, I am not convinced that any contribution by her physical injuries ended as quickly as he contends.

Next, the Court heard from a defence hired psychiatrist who minimized the connection between the Plaintiff’s chronic pain condition and the collisions.  In rejecting this evidence Mr. Justice Shultz provided the following critical comments-

[355]     I will start by saying that I find I cannot attach any weight to Dr. Levin’s opinion. He conflates the routine nature of the accidents with the requirement for a diagnosis of pain disorder under the DSM-V that the patient experiences the injuries as “significant, catastrophic or life threatening”. Their objective severity aside, Ms. Litt certainly perceives her injuries as being significant. His assertion that there can be no PTSD here because the accidents were not traumatic also ignores that fact that Dr. Lu does not rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent in Dr. Lee’s records, and I would not give as much weight to his diagnoses in psychiatric matters in any event.

[356]     More importantly, Dr. Levin made assumptions that are not borne out by the evidence, such as that Ms. Litt’s function was “seemingly unimpaired” in the years following the accidents, which he seems to have based largely on her continuing ability to take family vacations that involved air travel.

[357]     Worst of all in my view, he overlooked or ignored numerous entries in Dr. Lee’s clinical records that had the potential to undermine his opinions. My overall impression was that the primary purpose of his report was to counteract Dr. Lu’s opinion, rather than to address the evidence objectively, and that it was not prepared carefully.

Men Arrested in Cheese Heist After Truck Was Stolen

York Regional Police say three men are in custody after allegedly making off with a truck loaded with cheese.

Police say the tractor trailer had originally been stolen from the Brampton area Tuesday.

cheeseThey say they got a call early this morning reporting the truck had surfaced in Vaughan.

Police say the suspects drove off as police were approaching and made it to Highway 7 West and Highway 427 before the truck rolled over.

The suspects fled the scene, but were shortly tracked down with help from provincial police.

Harpreet Singh, 36, 19-year-old Saurav Kumar and Kulvir Bains, 31 are now facing theft charges and will appear in court for a bail hearing later today.

 

canada-press

 

No Negligence Found in Case of Failed Emergency Brake

erik-magrakenErik Magraken: BC Injury Law and ICBC Claims Blog:

This Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.  Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients.

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.

In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.

He sued the vehicle owner alleging negligence.  The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[18]        The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.

[19]        In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.

[20]        Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.

[21]        An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.

[22]        In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:

[175]    ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.

[23]        There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.

[24]        There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.

[25]        In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.

[26]        The action must be dismissed with costs.

Police in Newfoundland arrested a man with $47,000 in outstanding fines

Police in Newfoundland say they’ve arrested a man who owes thousands of dollars in outstanding fines.

Officers in St. John’s pulled over the 29-year-old man after a pursuit on October 31, 2015.

Police allege the accused was driving without insurance or registration and owes more than of $47,000 in outstanding fines.

The man is charged with driving while disqualified, flight from police, and breach of court orders.

 

Volkswagen’s Emission Retrofit May be Costliest Recall in Automotive History

Source: Alan Katz: propertycasualty360.com

Volkswagen AG’s worldwide repair of 11 million diesel vehicles to bring their emissions systems into compliance with pollution regulations is shaping up to be one of the most complex and costly fixes in automotive history.

The German carmaker will need to install parts for vehicles already on the road that weren’t designed to accommodate the equipment. The work may may need to be done in special shops set up for the purpose. And it will have to pass muster with dozens of countries with their own regulations. VW said Thursday that it was examining whether other diesel engines also have the cheating software.

“I can’t think of any other recall that would be as comprehensive,” said Jake Fisher, director of automotive testing at Consumer Reports magazine. “It’s really an expensive rework.”

The repair costs are only part of what Volkswagen is going to have to spend to get through a corporate crisis sparked by revelations it rigged its diesel cars for years to fool emissions tests. The company is also compensating dealers for storing cars they can’t sell. It faces more than 325 consumer lawsuits in the U.S., according to data compiled by Bloomberg, and has hired U.S. law firm Jones Day to conduct an internal investigation into the company’s actions.

Adding in likely fines, settlements with the U.S. Environmental Protection Agency, state authorities, the Justice Department and dozens of countries in Europe, and the cost could exceed 30 billion euros ($34 billion), according to the Center of Automotive Management in Bergisch Gladbach, Germany.

Texas lawyer faces charges over accusations he faked BP oil spill claims

A Texas lawyer faces criminal charges after he was accused of submitting thousands of false claims for damages from the 2010 Gulf of Mexico oil spill.

Robert McDuff, a lawyer for San Antonio attorney Mikal Watts, confirmed October 21, 2015 that Watts was indicted in Mississippi and will appear in court Oct. 29 in Gulfport.

“I look forward to a speedy trial and the opportunity to prove to a jury that I am not guilty of any crimes,” Watts said in a statement.

McDuff said the indictment is sealed and he wouldn’t discuss the specific charges against Watts. He said they are related to allegations that Watts committed fraud or forgery when he claimed to represent 44,000 clients in litigation against BP PLC.

McDuff said others have been indicted, but declined to name them.

Federal prosecutors didn’t immediately respond to a phone call and an email seeking comment. The indictment was first reported by the San Antonio Express-News.

The British oil giant sued Watts in 2013, alleging that more than half the clients were “phantoms,” people whom Watts never properly signed up, people who weren’t commercial fishermen or people who were dead. BP said claims officials could verify the Social Security numbers of only 42 per cent of Watts’ claimants, and even found someone who had never hired Watts included twice.

When BP sued Watts, it said he had filed only 648 compensation claims, and only eight of those had been ruled eligible for payment, with 17 others then pending.

McDuff said Watts believed the names and information he had been given were “real people who had suffered real injuries.”

“Although it later turned out that Mr. Watts had been provided with inaccurate information, and that some of these people had never authorized him to represent them, Mr. Watts was not aware of that when he filed these lawsuits against BP in order to protect the interests of the fishermen of the Gulf,” McDuff said.

BP said the large pool of clients caused it to offer an inflated $2.3 billion to pay off commercial fishing claims. It tried to persuade U.S. District Judge Carl Barbier in New Orleans to suspend payments from that fund after $1 billion was disbursed in a first round of settlements. Barbier refused, saying the questionable claims would be owed a small percentage of the remaining money. Other lawyers have said that BP should pursue fraud claims rather than stop payments.

Watts won a seat on the committee of lawyers who negotiated the multibillion-dollar settlement with BP in 2012, a group in line to reap more than $1 billion in payments. Watts resigned from the steering committee last year amid the federal investigation.

 

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