Courts decide that whiplash injury worth $1,190,562.70

http://www.courts.gov.bc.ca/jdb-txt/sc/16/14/2016BCSC1486.htm#_Toc458696781

This case involved a plaintiff that was injured in two separate motor vehicle accidents, in which he’d suffered whiplash type injuries. Complicating factors here included the plaintiff’s pre-existing degenerative changes to his neck. At the time of trial, the plaintiff was 40, but he was in his mid 30s at the time of the motor vehicle accidents in question.

Following these motor vehicle accidents, the plaintiff’s injuries progressed to the point that his hands shook and his legs felt weak. His symptoms were relieved by surgery, but never totally disappeared.

Prior to these motor vehicle accidents, the plaintiff had been an active person who regularly participated in demanding activities, like rock climbing. He did have some pre-existing neck pain, but it was not of a disabling nature. Before these accidents, the plaintiff was also employed as a tax auditor for the Canada Revenue Agency. His job involved a mixed role of office work and visiting the homes and offices of those under audit. His job required some physical activity, such as carrying file boxes. He was also often expected to work in small and awkward spaces provided by those he was auditing.

After the accident, and despite having surgery, the plaintiff was unable to return to his previous hobby activities. He had returned to work but in a limited capacity and part-time capacity.

Of special note in this case was an opinion from a medical expert stating that the plaintiff’s pre-existing neck conditions had pre-exposed him to a worse injury from whiplash in a motor vehicle collision:

 On cross-examination, Dr. Wong agreed that an individual with cervical spondylosis is more susceptible to injury due to whiplash. Whiplash causes hyperflexion and hyperextension of the neck which can disrupt the muscles and ligaments supporting the spinal column. Whiplash can also accelerate degenerative disc disorder by damaging and weakening the outer part of a disc and making it susceptible to herniation and bulge. Nerves can become pinched or irritated as a result.

This case, once again, illustrates the profound effect a whiplash injury can have on a person and the importance of getting proper legal advice.

Has Pokemon Go resulted in injuries affecting you or your loved ones?

Reports of people injured in Pokemon Go incidents, some genuine and some fabricated, are flooding the internet. In a high profile incident, a man in Victoria, Australia crashed into a school:

http://www.huffingtonpost.com.au/2016/07/28/driver-crashes-car-into-school-because-of-pokemon-go/

Local police released the following statement on their Facebook account:

ONIX-CEPTABLE – POKÉMON GO NO NO

Casey Highway Patrol is investigating after a motorist made an unplanned PokéStop late yesterday when he crashed his car into a school in Berwick.

Police have been told the local man was trying to capture a creature from the Pokémon Go application when he appears to have lost control on Ridgemont Drive about 6.50pm.

It is understood the Berwick motorist was travelling north and negotiating a roundabout when he lost control at Flowerfield Close.

He ran off the road through a fence and into a school portable building.

Luckily no one was injured.

The 19-year-old did not level up nor collect any stardust or candies only debris from the crash.

Any PokéBalls, eggs or potions the driver may have had remaining only attracted police leaving the wild Pokémon for another day.

The driver furnished a negative preliminary breath test however it is expected he will be charged on summons in relation to careless driving.

Leading Senior Constable Julie-Anne Newman
Media Officer
51531

Luckily no on was hurt in this incident, but it illustrates the danger of operating a motor vehicle while distracted. Like texting, Pokemon Go diverts a driver’s attention away from the road.

This story out of Pittsburgh illustrates the danger Pokemon Go can be to pedestrians:

http://www.wtae.com/news/teenager-hit-by-car-blames-pokemon-go/40694020

Here a pedestrian, who had become distracted by the game, ventured unsafely across a street and was struck by a motor vehicle.

Science fiction envisioned enhanced reality tools that would provide us with hyper vigilance and increased information about the world around us. The reality of, so far, seems to be differing significantly.

How much is whiplash worth: Judge states that she must “exercise caution” during whiplash case.

http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1138/2016bcsc1138.pdf

In the above noted case, a plaintiff was awarded considerably less than she had claimed for a whiplash injury. The judge, in deciding how much this whiplash case was worth, stated that she would have to “exercise caution” in assessing this claim. This injury, like in many whiplash claims, was not objective. As I’ve stated in previous posts, an objective injury is an injury that is physically observable in some way. Examples of objective injuries are visible cuts and bruises or x-rays showing broken bones. Although you can dispute how the plaintiff got those injuries; you cannot dispute that they exist. Soft tissue injuries, which are common in whiplash events, on the other hand, are not usually observable and you can dispute that they actually exist.

In coming to their final decision, judges will typically put more weight on the credibility of the plaintiff in cases without objective injuries. In this particular case, the judge cited problems with the plaintiff’s credibility, as she had given inconsistent statements. Additionally, the judge also found an adverse inference against the plaintiff, as the plaintiff had not called their family doctor to provide evidence.

This case illustrates many of the common pitfalls in whiplash claims.

Injured party awarded $177,177.63 for “whiplash associated disorder”.

http://www.courts.gov.bc.ca/jdb-txt/sc/16/11/2016BCSC1162.htm

After suffering injuries in a motor vehicle accident, over 5 years ago, a plaintiff was awarded $177,177.63 in damages. An orthopaedic expert she hired diagnosed her with a “whiplash associated disorder” and stated that although she was likely to see improvement in her condition, her injuries may never fully resolve.

This case was complicated by a few issues and required competent and experienced counsel to effectively resolve. The plaintiff in this case had a medical history that included some pre-existing neck and back pain. The plaintiff had also actually increased her working hours after the accident. Despite this, the plaintiff was still able to secure a sizeable award, not only for non-pecuniary damages (AKA pain and suffering) but also for loss of future earnings. The judge relied on evidence from the plaintiff’s experts – including both orthopaedic surgeons and functional capacity experts hired by the plaintiff – to come to the conclusion that there was a “real and substantial possibility” that the plaintiff was likely to lose income in the future.

This case once again illustrates how whiplash injuries can escalate into injuries that can have a profound affect on the life of an injured party. This case also illustrates the difficulty in judging the worth of a whiplash case and the importance of hiring proper representation.

Whiplash: what kind of compensation are you entitled to?

As per this recent example, awards for whiplash injuries can be very high:

http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1122/2016bcsc1122.pdf

The plaintiff in this action was awarded over $500,000. She retained a very knowledgeable expert in Physical Medicine and Rehabilitation, Dr. Heather Finlayson. Dr. Finlayson, in her medical report, stated that whiplash injuries involve “rapid movements of the head and neck forwards and backwards and/or side-to-side and can cause “high-velocity stretch of muscles and their attachments, such that the muscles go into painful spasm“. Whiplash type injuries can lead to various chronic injuries – in this case, myofascial pain syndrome.

What this case illustrates is that, when assessing damages, it is not necessarily the mechanism of the injury that is important but the effect on the injured party. In other words, no two whiplash cases are the same and every case must be assessed on its individual merits. For example, two people involved in the same accident might both suffer whiplash-type injuries. One person may heal very quickly and the injury may have relatively little impact on their lives. As a result, the award for their damages is likely to be relatively low. Another person might suffer far more long term and disabling injuries, resulting in severe limitations to their professional and personal lives. They would likely be entitled to a relatively high award.

RCMP pull over couple engaged in sexual act while driving. License & registration take longer than expected to produce.

Richmond RCMP recently pulled over a couple engaged in a sexual act while driving.

http://www.cbc.ca/news/canada/british-columbia/police-stop-car-sex-1.3622677

Richmond RCMP  provided the following Tweet about the situation: 

In reply to a follow up Tweet asking if the couple had received a ticket, Richmond RCMP simply Tweeted back “Yes”. The driver was given a $368 ticket for driving without due care and attention and a $167 fine for a seat belt violation. The driver would most likely have been ticketed under the following sections of the Motor Vehicle Act:

Careless driving prohibited

144  (1) A person must not drive a motor vehicle on a highway

(a) Without due care and attention,

Seat belt assembly

220

(4) A person in a motor vehicle being driven or operated on a highway must, if the motor vehicle has properly attached to it a seat belt assembly for the seating position occupied by that person, wear the complete seat belt assembly in a properly adjusted and securely fastened manner.

From a lawyer’s perspective, although this story has a humorous angle, this amounts to some pretty reckless behaviour. It’s always best to avoid an accident in the first place and avoid legal proceedings all together

Recent Supreme Court of British Columbia case illustrates the need for competent legal representation.

http://www.courts.gov.bc.ca/jdb-txt/sc/16/09/2016BCSC0948.htm

This case featured a plaintiff with injuries arising from two accidents: one occurring on August 27, 2010; and the second on September 1, 2010. These two accidents occurred less than a week apart and almost 6 years ago. The plaintiff was alleging that these accidents had resulted in soft tissue injuries to his neck, shoulders, and back, which had hampered his ability to work and left him with a reduced capacity to work.

In this case, the evidence lead by the plaintiff “was confined to his evidence, that of a co-worker, his brother and his former chiropractor“. What this did was put extra emphasis on the credibility of the plaintiff. In other words, the plaintiff did not have proper expert evidence to corroborate the substantial claims he was making, and the judge was forced to rely more on the credibility of the witness than he otherwise would have. As the plaintiff had a history of under reporting his income in order to qualify for more social assistance, his credibility was going to be a severe issue for him and the judge approached his evidence with “great scepticism and care“.

Additionally, the plaintiff himself was not qualified to make a diagnosis of the types of injury(ies) that would lead to a long term disability, and he failed to produce any experts providing this kind of opinion. In order to make a claim for long term disability, it typically requires retaining multiple medical experts as well as functional and vocation experts. The judge found the plaintiff’s evidence, that he had hear of a similar case in the news settling for $1,000,000, inadequate. Ultimately, the plaintiff was awarded $15,000 for non-pecuniary damages, $3,788 for special damages (special damages typically consist of treatment costs), and dismissed the rest of the plaintiff’s claim.

This case may represent an extreme example, but most certainly illustrates the value of an experienced personal injury lawyer.