Whiplash lead to chronic pain and $400,000 award.

https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc2068/2017bcsc2068.pdf

The plaintiff in this case was 67 years old and worked as a care aid and masseuse. She was injured in a motor vehicle accident after an oncoming vehicle made a left turn in front of her at an intersection. She sustained multiple physical injuries – most notably a whiplash type injury. The plaintiff later went on to develop chronic pain and psychological injury, including depression.

Of interest in this case was that the judge found the plaintiff’s ongoing chronic pain to be largely psychological and pre-existing, but reactivated by the initial genuine physical injuries. Since the plaintiff had a genuine belief that her pain was real, she was entitled to compensation for it:

“[343]     She reactivated a pre-existing major depressive disorder with psychosis which is now in partial remission. Although she suffers from chronic pain disorder, I do not accept that the pain in the plaintiff’s groin, thigh and numbness in her lower legs were caused directly by the accident; they are the result of a chronic pain disorder or somatoform disorder. Nonetheless, her perception of pain in the low back is disabling and a function of the chronic pain disorder—thus, some of her current symptoms are contributed to indirectly by the accident.”

The plaintiff was given an award of $180,000 for pain and suffering. She was also given a relatively large award for Future Cost of Care of $90,000. The judge decided that an award for Future Cost of Care “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health.” The plaintiff’s award included amounts for: physiotherapy, a driving service, and further psychological treatment.

This case illustrates the complexities involved in chronic pain cases, as the source of these injuries is typically both physical and psychological. This case also shows a growing acceptance by the courts to acknowledge injuries of a purely psychological nature.

Wage Loss Claims and Pre-Existing Injuries.

Wage loss claims that involve a plaintiff with pre-existing injuries are always complicated. It is the courts role to determine what losses are attributable to the new claim and what losses would have occurred in any event.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/20/2017BCSC2098.htm

In this recent Supreme Court of British Columbia case, the plaintiff was employed as a fisherman, with a history of working as a crew member or a skipper on seine style fishing boats. The plaintiff, at the time of their motor vehicle accident, was approximately 67 years old and had a pre-existing arthritis in his wrists and hands and diabetes. The plaintiff, after the accident, had surgeries to correct carpal tunnel syndrome, but the courts ruled that the carpal tunnel syndrome and the resulting surgeries were unrelated to the accident. The courts also ruled that the plaintiff’s arthritis would have gotten worse, even if the accident had not happened.

The plaintiff suffered a variety of soft tissue – including whiplash – injuries in a motor vehicle collision. Most notably, he suffered injury to his wrists and hands. This gave the courts the difficult task of determining what damages were related to the pre-existing hand and wrist injuries and which damages were related to injuries sustained in the motor vehicle collision. The plaintiff worked for approximately 3 more years after their accident but did not work afterwards. The plaintiff’s inability to work was the result of physical injuries and external market conditions, such as variations in fish runs.

The courts ruled that the plaintiff did have some impairment in his ability to work caused by their motor vehicle accident, but much of the plaintiff’s ongoing and previous income loss were due to his pre-existing injuries and resulting surgeries.

This case illustrates the difficulty in proving a past or future wage loss claim, but also illustrates that having pre-existing injuries is not a complete bar to recovery.

 

Plaintiff given award for Early Retirement.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/19/2017BCSC1958.htm

In a recent Supreme Court of British Columbia decision, a plaintiff, who was a 53 year old aesthetics instructor, was given an award of $27,000 to compensate her for the possibility of early retirement.

What’s interesting about this award is that the plaintiff, who was only 53 years old, did not plan to retire until age 65, and these damages were entirely speculative. The judge was satisfied that there was a “real and substantial” possibility of loss and treated the possibility of early retirement due to injury as a lost capital asset. The judge then awarded the plaintiff a half a year of wages.

The plaintiff in this case had suffered a chronic soft tissue injury arising from 2 separate motor vehicle collisions. Just over 4 years after their first accident, the plaintiff continued to suffer from ongoing back and neck pain that was disrupting her ability to sleep and leading to fatigue. The plaintiff had to switch roles at work. She no longer was able to be as active in instruction and instead focused on administrative work. The judge concluded that there was room for improvement in the plaintiff’s condition but no objective basis to conclude that the plaintiff would make a full recovery.

This case illustrates many of the challenges that arise when dealing with claims for future losses.

Plaintiff awarded $100,000 in punitive damages following a hit and run accident.

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http://www.courts.gov.bc.ca/jdb-txt/sc/17/18/2017BCSC1806.htm

The courts awarded a plaintiff $100,000 following a hit and run accident. Firstly, it should be noted that awards for punitive damages are relatively rare, and usually only occur in cases involving relatively extreme conduct.  Generally, punitive damages awards are reserved for wrongful acts that are so “malicious and outrageous that they are deserving of punishment on their own”.

In this case, a pedestrian was jaywalking when a vehicle crossed the yellow line and struck them on their left side. The pedestrian had been looking to their right, as that was the direction traffic in her lane was actually coming from. The driver continued driving. He later denied being the driver of his vehicle or that his vehicle was involved in the incident, despite a slew of witnesses and evidence that showed otherwise.

The judge decided that the driver’s actions were “worthy of denunciation and retribution” beyond the compensatory award for injury. The driver had not only failed to stop after striking a pedestrian and been dishonest about their involvement in the accident, but also had been driving while their driver’s license was suspended.

This was a tragic case that involved a young woman who suffered significant injuries, including a head injury and a fractured skull. This incident was made worse by the actions of a driver who refused to take responsibility for their actions.

When should you treat your injuries from a motor vehicle collision?

The simple answer is as soon as possible. If you’re injured in a motor vehicle accident, it is very important to get your health care providers involved immediately. Health care providers – such as qualified doctors, physiotherapists, and massage therapists – can not only help you recover from your injuries faster, but may be vital to potential personal injury claims.

In a recent supreme court of British Columbia case, lawyers hired by ICBC to represent the defendants tried to advance the argument that a plaintiff’s failure to begin an active rehabilitation program in a timely manner should result in them receiving a smaller award. In this particular case, the plaintiff had waited over a year before beginning an active rehabilitation program:

http://www.courts.gov.bc.ca/jdb-txt/sc/17/17/2017BCSC1732.htm

The failure to seek proper medical treatment and minimize damages is referred to as a failure to “mitigate”. The judge sided against ICBC and the defendants stating:

  1. The standard is one of reasonableness and not perfection. A mere delay in seeking treatment alone is not sufficient to prove a failure to mitigate.
  2. It is up to the defendants to prove that a plaintiff could have reduced their losses by seeking earlier or further treatment.

This case illustrates the importance of seeking proper medical advice and complying with that advice. As a personal injury lawyer, I always recommend that my clients seek proper medical advice and can refer clients to experienced experts. However, only medical experts have the expertise to recommend proper treatment.

 

Evasive Actions: personal injury claims without actual collisions.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1217.htm

This recent Supreme Court of British Columbia case dealt with a motorcyclist who was force to take evasive action while entering an intersection. The motorcyclist had the right of way, and another vehicle entered the intersection after stopping at a stop sign to the right of the motorcyclist. The motorcyclist was able to avoid striking the other vehicle, but ultimately lost control of their motorcycle and suffered a significant injury while striking the ground. The courts found that the motorcyclist’s actions had been prudent in the circumstances and that they were still entitled to make a claim against the other driver, despite the fact that no collision had occurred between the two motor vehicles.

In coming to this conclusion, the judge applied a couple important legal principles:

  1. When avoiding a hazard ahead, a driver is not expected to make the perfect decision, only a decision that is reasonable in the circumstances. The existence of a better course of action does not result in a finding of negligence.
  2. It is up to the driver who has created the initial hazard to demonstrate that the other driver could have reasonably avoided the hazard.

In this case had the defendant been able to show that the plaintiff’s rate of speed had contributed to or caused their fall then the judge may have made a different finding on liability. However, neither side presented evidence to show that the motorcyclist had been speeding. This case once again demonstrates the importance of hiring legal counsel, and why doing so prior to speaking with ICBC can be important.

What is Whiplash?

The modern definition of whiplash, as it is used by various legal and medical bodies in British Columbia, traces its origins back to a study commissioned by the Quebec Automobile Insurance Society in 1989. The “Quebec Task Force” (“QTF”), which was the body commissioned with completing this report, provided an in depth report on whiplash, which included a “Whiplash Associated Disorder” (“WAD”) grading scale, which remains in use today.

The QTF completed their report at a time when much less was known about soft-tissue injuries and rehabilitation. As such, much of their report is no longer seen as valid, particularly the parts that relate to recovery time. The reality of long-term and even permanent soft tissue injuries arising from whiplash injuries is far more accepted now.

However, the grading scale, which is based on a score of 0-4, remains heavily in use. For example, the Insurance Corporation of British Columbia references this scale on their CL-19 forms, which are routinely provided to treating doctors when a personal injury claim is made. The British Columbia Chiropractors Association has similarly adopted this scale. The WAD scale involves placing whiplash injuries into 5 separate categories:

  1. Grade 0 WAD: No complaint about the neck and no physical sign of injury
  2. Grade 1 WAD: Neck complaint of pain, stiffness or tenderness only and no physical sign of injury
  3. Grade 2 WAD: Neck complaint and muskuloskeletal sign(s) of injury
  4. Grade 3 WAD: Neck complaint and neurological sign(s) of injury
  5. Grade 4 WAD: Neck complaint and a fracture or dislocation

Of note, is that as you go up the grading scale, the descriptions of the injuries become less subjective and more objective. As previously discussed diagnosing a subjective injury largely involves relying on complaints made by the injured party, whereas objective injuries are typically physically observable, such as broken bones. As, the vast majority of personal injury whiplash cases involve primarily subjective injuries, hiring a competent lawyer to properly frame these cases is extremely important.