Rose Keith Law 2017-11-30T22:44:36Z http://rosekeith.bc.ca/feed/atom/ WordPress Rose <![CDATA[Damages awarded for shoulder injury following a car accident]]> http://rosekeith.bc.ca/?p=1423 2017-11-30T22:44:36Z 2017-11-30T22:44:36Z Reasons for judgment were released earlier this week in the case of Ross v. Dupuis 2017 BCSC 2159.  This case involved the assessment of damages for a 35 year old female plaintiff, following injury in a car accident that had occurred five years prior to the trial. The trial judge made a number of interesting […]

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Reasons for judgment were released earlier this week in the case of Ross v. Dupuis 2017 BCSC 2159.  This case involved the assessment of damages for a 35 year old female plaintiff, following injury in a car accident that had occurred five years prior to the trial.

The trial judge made a number of interesting comments about assessment of the reliability of evidence given by the plaintiff.  I know from discussions with clients over the years that there is often a reluctance to disclose symptoms that they had prior to an accident, or an inclination to downplay them for fear that they will impact the damages awarded.  The damages that are awarded are meant only to return a plaintiff to the position that they were in prior to the accident, not better.  Pre accident condition is very relevant.  The reasons given in this case show how the manner in which a plaintiff describes her symptoms both before and after an accident can affect the outcome of her case.  Beginning at paragraph 117 the trial judge said as follows:

[117]  As is the case in most personal injury actions, the most important witness is the plaintiff herself.  Once an assessment of the credibility and reliability of the plaintiff’s evidence has been made, the court is generally in a position to determine causation, usually with the assistance of opinion evidence from qualified medical experts.

[118]  A plaintiff who accurately describes her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable.

[120]  Overall, I found  the plaintiff to be a genuine and honest witness who testified in a sincere, forthright, and credible manner.  Her credibility was enhanced by her willingness to agree, without hesitation, with questions put to her on cross-examination when appropriate even when her answers went against her interest, for example, her pre-existing pain symptoms and her candid acceptance of statements attributed to her in the various clinical records of physicians who were not called to testify on the basis that “if its recorded there I probably said those things”.  However, she was also steadfast when describing the pain she experienced after the MVA and the effect it had on her, although she had difficulty explaining why some of the clinical records in the month following the MVA make no mention of her having right shoulder pain immediately after the MVA.  The best she could do was to say “I don’t remember”.

The trial judge found that as a result of the motor vehicle accident the plaintiff had suffered a moderate tear to her rotator cuff, a superior labral tear, significant biceps tendinitis, and myofascial soft tissue injuries to her shoulder, neck and lower back sacroiliac joint during the MVA.  He also found that she suffered significant psychological injury and emotional distress, including depression and anxiety as a result of the MVA.  After considering judgment in similar cases and the fact that the plaintiff continued to suffer pain associated with the shoulder, as well as emotional and psychological issues, he awarded $120,000 for pain and suffering.

 

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Rose <![CDATA[$100,000 awarded for pain and suffering after car accident]]> http://rosekeith.bc.ca/?p=1419 2017-11-23T22:37:53Z 2017-11-23T22:37:53Z Reasons for judgment were released today in the case of Sharma v. MacDonald 2017 BCSC 2121. This case involved the claim of a female plaintiff who had been injured in a car accident three years prior to trial when she was 23 years old.  There was a dispute relating to the nature and extent of the […]

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Reasons for judgment were released today in the case of Sharma v. MacDonald 2017 BCSC 2121. This case involved the claim of a female plaintiff who had been injured in a car accident three years prior to trial when she was 23 years old.  There was a dispute relating to the nature and extent of the injuries as well as causation for the injuries.  The trial judge found that the motor vehicle accident caused neck, back and arm symptoms, including thoracic outlet syndrome.  The judge also found that the car accident caused driving anxiety.  The judge noted that prior to the accident the plaintiff enjoyed a full life and had no issues with respect to her back, arm or neck.  The trial judge found that the plaintiff had been steadily improving and that she now was able to enjoy playing basketball and working without significant limitations.  She however remained limited from returning to a number of her pre accident activities.  After reviewing relevant similar decisions the plaintiff was awarded $100,000 for non pecuniary damages.

In this decision, the judge also took the opportunity to summarize the rational for awards of damages for pain and suffering, or non pecuniary damages.  That rationale was set out by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.  In that decision the court noted that the money awarded as non pecuniary damages is there “because it will serve a useful function of making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in a direct way.”

in British Columbia, the Court in Milina v. Bartsch [1985] B.C.J. No. 2762 discussed the purpose of non-pecuniary damages, stating as follows:

Damages for pain, suffering, loss of amenities and other non-pecuniary losses are awarded for the purpose of providing substitute pleasures and amenities to make the life of the injured person more bearable.  In assessing such damages the court must consider the individual situation of the plaintiff and the extent to which money can provide solace, as well as the limitations established by the Supreme Court of Canada…”

This description of the purposes of non-pecuniary damages assists in understanding the compensation that is being provided.  The purpose of compensation in a personal injury case is to return an individual to the position that they were in prior to being injured.  When it comes to financial losses that is easy enough to do.  But the losses suffered do not end there.  Anyone who has been injured will suffer pain, inconvenience, restriction and suffering.  While those losses are not calculable, our law makes clear that they still have a value and that they should be compensated.

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Rose <![CDATA[Assessment of damages for US resident injured in Canadian car accident]]> http://rosekeith.bc.ca/?p=1416 2017-11-21T23:36:46Z 2017-11-21T23:36:46Z Reasons for judgment were released today in the case of Burke v. Schwetje 2017 BCSC 2098.  This case involved a claim for damages as a result of a serious car accident that had occurred in May 2010.  Fault for the accident was admitted.  The plaintiff suffered a permanent injury to his right hand and wrist […]

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Reasons for judgment were released today in the case of Burke v. Schwetje 2017 BCSC 2098.  This case involved a claim for damages as a result of a serious car accident that had occurred in May 2010.  Fault for the accident was admitted.  The plaintiff suffered a permanent injury to his right hand and wrist in the accident.  The complicating factor in this case was that prior to the accident the plaintiff had mostly asymptomatic arthritis in his hands.  This required the trial judge to make a determination on causation.  But for the accident, what condition would the plaintiff’s hands and wrists be in?  The trial judge found that the thumb and wrist pain suffered by the plaintiff post collision resulted from a significant aggravation of previously largely asymptomatic conditions in the plaintiff’s hands and wrists.

With respect to the assessment of damages, the trial judge noted that the plaintiff was unable to continue working as a commercial fisherman and that his culture, friendships and livelihood had all changed significantly since the collision and because of the collision.  His career was shortened by the aggravation of his asymptomatic arthritis and he faced continuing pain and possibly one or two surgeries.  $95,000 for pain and suffering was awarded.

Because the plaintiff was an American citizen his damages, with the exception of the award for pain and suffering were paid in US dollars.  This included the awards for loss of capacity.

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Rose <![CDATA[Proof of causation in an ICBC case]]> http://rosekeith.bc.ca/?p=1403 2017-11-14T21:38:14Z 2017-11-14T21:38:14Z Reasons for judgment were released this morning in the case of Wolford v. Shlakoff.  This case concerned the claim of the female plaintiff for damages for injuries that she suffered in a motor vehicle accident on June 30, 2014.  Liability was admitted with the only question for trial being the amount of damages that the […]

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Reasons for judgment were released this morning in the case of Wolford v. Shlakoff.  This case concerned the claim of the female plaintiff for damages for injuries that she suffered in a motor vehicle accident on June 30, 2014.  Liability was admitted with the only question for trial being the amount of damages that the plaintiff was entitled to.  The trial judge provided a great summary of what a plaintiff has to prove following a car accident and how damages are assessed.  In describing the law on causation, the trial judge said as follows:

[91]  Ms. Wolford must show on a balance of probabilities that but for the Accident her injuries and losses would not have occurred.  She need not show that the Accident was the sole cause of her injuries and losses, only that there is a substantial causal connection between them…

[92]  A tortfeasor takes her victim as she finds her.  A pre-existing vulnerability should not in itself reduce the defendant’s liability…This is the co-called “thin skull” rule.  The plaintiff’s burden is met if the Accident is found to have caused a pre-existing condition to become activated or aggravated…

[93]  On the other hand, the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway – this is the so-called “crumbling skull” rule…

[94]  In a thin skull situation, the plaintiff’s pre-existing condition has not manifested, or in other words is not active or symptomatic prior to the event in question.  In a crumbling skull situation the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”, there need only be “a measurable risk that the degenerative changes would have become symptomatic without the accident”…

[95]  A plaintiff may only be compensated to the extent that the defendant’s conduct worsened her condition, not for all of her pre-existing medical problems…

[96]  Moreover, the impact of an independent intervening event must be taken into account in the same manner as pre-existing conditions…

[97]  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduce proportionately.

The above quotation summarizes the law that is typically argues in any ICBC case.  There is generally an issue of causation, what harm or damages has the at fault driver caused?  That question is determined by taking into consideration the law as outlined above.

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Rose <![CDATA[When a Liability Release Agreement is not a Release]]> http://rosekeith.bc.ca/?p=1399 2017-11-09T22:05:56Z 2017-11-09T22:05:56Z Often when you take part in an activity that has some element of danger to it, or some possibility of causing injury, you will be required to sign a Liability Release Agreement, or a waiver.  Without signing it you will not be allowed to participate.  Often these agreements will operate to prevent you from being […]

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Often when you take part in an activity that has some element of danger to it, or some possibility of causing injury, you will be required to sign a Liability Release Agreement, or a waiver.  Without signing it you will not be allowed to participate.  Often these agreements will operate to prevent you from being able to seek compensation if you are injured while participating in these activities.

A different result occurred in a recent British Columbia Supreme Court case, Cooper v. Blackwell.  In this case Mr. Cooper was killed in a hunting accident while he was participating in a guided grizzly bear hunt.  Mr. Cooper was accident shot and killed by a guide during the course of the hunt.  The parties applied to the court to determine whether the Liability Release Agreement applied to the claim that was brought for damages as a result of the death or not.  The accident that resulted in Mr. Cooper’s death occurred on the third hunting trip that he took with the defendants.  On the first two hunting trips he signed a Liability Release Agreement.  The third trip was one which was provided to him without charge because of the previously unsuccessful trip and the defendant neglected to get him to sign a waiver for that trip.

The defendant’s argued that regardless of whether he had signed a waiver specific to the trip on which he died, the waiver should apply to eliminate his right to compensation on the basis that this trip was simply a continuation of the earlier trip for which he had signed a waiver.  They also argued that the parties had a history of dealing on the basis of particular written terms, the Liability Release Agreement, and such terms should govern their legal relationship.

The judge did not agree with either argument, noting that as a matter of general principle, releases and exclusion clauses are subject to rigorous scrutiny before being enforced by the Court and require express notice and clarity of language.  The Court also noted that as a matter of law, waiver requires an unequivocal and conscious intention to abandon rights and there was no evidence of such intention for Mr. Cooper regarding the hunting trip on which he died.

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Rose <![CDATA[Remedy for ICBC’s financial woes?]]> http://rosekeith.bc.ca/?p=1396 2017-11-07T22:24:39Z 2017-11-07T22:24:39Z Distracted driving results in the death of 78 British Columbians each year.  In the face of the ICBC financial crisis, Attorney General David Eby has announced that he will move to designate distracted driving as a high-risk behavior, similar to impaired driving and excessive speeding under ICBC’s driver risk premium program.  This will result in […]

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Distracted driving results in the death of 78 British Columbians each year.  In the face of the ICBC financial crisis, Attorney General David Eby has announced that he will move to designate distracted driving as a high-risk behavior, similar to impaired driving and excessive speeding under ICBC’s driver risk premium program.  This will result in a significant increase to the financial penalties faced by repeat distracted driving offenders.

AG Eby rightly pointed out that distracted driving is contributing to higher insurance rates for all drivers and is an unnecessary cause of death and mayhem on BC roads.  The proposed changes which will go into effect on March 1 will result in British Columbia having among the highest penalties in Canada for distracted driving according to the Canadian Automobile Association.  The change will also result in an additional $3 million to $5 million in premiums collected annually by ICBC, relieving some of the financial pressure that ICBC is currently experiencing.  Mark Blucher, ICBC’ s president and CEO is quoted in the AG’s press release as saying the following:

Ultimately, the pressure on our rates all start in one place – more crashes.  We hope this change will further discourage drivers from engaging in this extremely dangerous behavior, while also ensuring that high-risk drivers pay more for their insurance, while relieving the pressure on insurance rates for all drivers.”

You can read the full press release here.

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Rose <![CDATA[Valuing pain and suffering after a car accident]]> http://rosekeith.bc.ca/?p=1392 2017-11-06T19:52:18Z 2017-11-06T19:52:18Z Reasons for judgment were given last week in the case of Morgan v. Allen, a decision which involved the claim of a 53 year old woman for damages following two motor vehicle accidents.  Before the accidents the plaintiff was an active and healthy person, with no significant physical ailments or limitations.  The first accident occurred […]

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Reasons for judgment were given last week in the case of Morgan v. Allen, a decision which involved the claim of a 53 year old woman for damages following two motor vehicle accidents.  Before the accidents the plaintiff was an active and healthy person, with no significant physical ailments or limitations.  The first accident occurred in the summer of 2013 and the second accident occurred in the summer of 2014.  The trial judge described the function of damages following a car accident as being to restore the plaintiff to his or her original position, to the extent that a financial award can ever do so.  The award of damages however, is not expected to place the plaintiff in a better position than he or she would have been in but for the defendant’s conduct.

In assessing non pecuniary damages, or the damages for the pain, suffering and loss of enjoyment of life that the plaintiff suffered, the judge emphasized that the appropriate amount is not merely a function of the seriousness of the plaintiff’s injuries viewed in isolation.  Rather the court must consider the effect of the injuries on the plaintiff’s particular circumstances, taking into account factors such as the plaintiff’s age, the nature of the injury, the severity and duration of the plaintiff’s pain, the extent of any disability, the effect on family and social relationships, impairment of the plaintiff’s mental and physical abilities and the effect on the plaintiff’s lifestyle.  The court can also take guidance from awards in comparable cases.

The judge summarized the nature, extent and effect of the injuries suffered by the plaintiff as follows:

a)  After the first accident, Ms. Morgan experienced pain in her neck, back and shoulder as a result of soft tissue injury and headaches.  The pain did not effect Ms. Morgan’s ability to go to work or to do the administrative components of her job, but it was significant enough for Ms. Morgan to give up the teaching component of her job.  The pain also affected Ms. Morgan’s ability to do housework, and limited her recreational activities.  The headaches were also significant and, among other things, made it difficult for Ms. Morgan to sleep through the night.

b)  The second accident exacerbated the effects of the first.  The pain in Ms. Morgan’s neck, back and shoulder continued, as did the headaches.

c)  In the net result, both accidents caused soft tissue injuries and headaches.  There is no evidence of nerve damage or physical disability, although the neck, shoulder, and back pain do make it painful for Ms. Morgan to perform some physical tasks, including leaning over or lifting heavy items.

d)  The chronic pain and headaches are not disabling, but have significantly impacted upon Ms. Morgan’s quality of life, by limiting her ability to do things such as working around her house, playing with her grandchildren, and engaging in some recreational activities.  The headaches also limit Ms. Morgan’s ability to concentrate for a prolonged period on any one specific administrative task at work, and inhibit Ms. Morgan’s ability to sleep through the night.

e)  The effects of Ms. Morgan’s injuries have been more or less constant.  Ms. Morgan has not seen any notable improvement in the three years since the second accident and the effects can be expected to continue indefinitely.  There is no objective basis for concluding that Ms. Morgan will achieve a full recovery.

After considering comparable cases, the judge awarded the plaintiff $62,000 for pain and suffering.

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Rose <![CDATA[Government Review of ICBC operations to identify waste]]> http://rosekeith.bc.ca/?p=1389 2017-11-02T18:44:48Z 2017-11-02T18:44:48Z The BC Government has announced that they have selected PwC Canada to lead an operational review of ICBC.  The purpose of the review is to identify waste, find ways to prevent fraud and overbilling, and identify opportunities for business reform at ICBC. The news has been full lately with stories about the dire financial situation […]

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The BC Government has announced that they have selected PwC Canada to lead an operational review of ICBC.  The purpose of the review is to identify waste, find ways to prevent fraud and overbilling, and identify opportunities for business reform at ICBC.

The news has been full lately with stories about the dire financial situation at ICBC and the rate hikes that will be necessary to continue to fund the system as it currently exists.  It is good news to see the government analyzing ICBC’s situation with an eye to finding ways to make it more profitable while maintaining the rights of individuals that the system currently provides.

Our current system is one in which an individual injured in a car accident due to the fault of another motorist is entitled to compensation to put them back in the position they would have been in if they had not been injured.  It is a system that is fair and makes sense.  If someone suffers losses due to another’s negligence, those losses should be covered.  The person who was not at fault and was the victim of someone else’s negligence should not suffer as a result of that negligence.   That is the guiding principle of our current system.  This ensures not only that someone is not made worse off due to another’s negligence as far as money can prevent, but it also can help to serve as a motivator for motorists to be more careful drivers.  Attributing losses to negligence drives home the damage that has been caused through actions.  Although ultimately an insurance company (ICBC) pays those losses, the losses are quantified, the not at fault injured person is made whole and the negligent driving is discouraged through increases to the at fault motorists insurance rates.

Ernst & Young conducted a review of ICBC and brought forward a variety of recommendations which essentially boiled down to product change.  That product change would restrict the injured not at fault party’s compensation for their injuries.  That product change would mean that the injured party would suffer a loss even though the accident was not their fault.

The Attorney General’s office indicates that this is the first review of ICBC that they are aware of that directs the reviewers to talk to front-line employees about where they see waste, fraud, overbilling or other opportunities for reform.  This is a great step forward where the focus will be on what ICBC can do better, rather than focusing on taking away benefits to those paying for the insurance.  Rather than giving less for insurance dollars by restricting compensation, give more by making ICBC more responsive to the needs of the insured and eliminating waste, overbilling and poor cost controls.  I am optimistic that ICBC board chair Joy MacPhail will be able to achieve what she is setting out to, specifically:

The resulting solutions we want to see must be focused on striking the balance between relieving the cost pressures on ICBC while ensuring improved services and affordable rates for all British Columbians.

You can read the full news release from the Attorney General here.

 

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Rose <![CDATA[Staying Safe on Halloween]]> http://rosekeith.bc.ca/?p=1386 2017-10-30T15:08:31Z 2017-10-30T15:08:31Z Today is Halloween Eve.  If you have kids they are no doubt excited about dressing up and trick or treating tomorrow.  Halloween can be a lot of fun for both the young and the young at heart.  Unfortunately though, Halloween is also a time when car crashes increase by 25 percent according to ICBC.  ICBC […]

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Today is Halloween Eve.  If you have kids they are no doubt excited about dressing up and trick or treating tomorrow.  Halloween can be a lot of fun for both the young and the young at heart.  Unfortunately though, Halloween is also a time when car crashes increase by 25 percent according to ICBC.  ICBC reports that on average 240 people are injured in 620 crashes on Halloween in the Lower Mainland.

Below are some tips to help keep you and your family safe this Halloween:

  1.  Remember that kids will be very excited and will not necessarily be following the rules of the road, or being careful and predictable when they are trick or treating on Halloween night.  Keep an extra eye out and slow down;
  2. Make sure that you are visible while on the street.  Use a flashlight or other reflective material if you are wearing dark clothes;
  3. If you are indulging in alcoholic beverages, leave your keys at home;
  4. Slow down and be especially alert in residential neighborhoods;
  5. Take extra time to look for kids at intersections, on medians and on curbs;
  6. Enter and exit driveways and alleys slowly and carefully;
  7. Eliminate any distractions inside your car so you can concentrate on the road and your surroundings;
  8. Drive slowly, anticipate heavy pedestrian traffic and turn your headlights on earlier in the day to spot children from greater distances;
  9. Popular trick or treating hours are 5:30 pm to 9:30 pm so be especially alert for kids during those hours.

Working together, avoiding distracted driving, being aware and taking the extra time knowing the excitement of the evening we can reduce the number of injuries that are occurring on Halloween.

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Rose <![CDATA[ICBC tips for staying safe on the roads on Halloween]]> http://rosekeith.bc.ca/?p=1381 2017-10-24T19:42:23Z 2017-10-24T19:42:23Z ICBC reports that crashes spike by 25 percent on Halloween, resulting in 330 people being injured in 920 crashes across BC.  To help decrease that spike in accident rates, ICBC has provided the following tips: Tips for Drivers Stay well below the speed limit in residential areas, particularly between 5 and 9 which is the […]

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ICBC reports that crashes spike by 25 percent on Halloween, resulting in 330 people being injured in 920 crashes across BC.  To help decrease that spike in accident rates, ICBC has provided the following tips:

Tips for Drivers

  • Stay well below the speed limit in residential areas, particularly between 5 and 9 which is the peak time for trick or treating.  This will give you more time to stop in case a child runs across the street unexpectedly.
  • Scan as you drive – children may be walking in unexpected places.  Drive slowly and be prepared to stop quickly.
  • Don’t roll through stop signs or intersections – remember that small children can be difficult to see, especially if they are wearing a dark costume.  Take extra time at all stop signs and intersections to take a more careful look before proceeding.
  • Don’t pass a slow or stopped vehicle – they may be stopping to let children cross the road, or stopping for something else that you cannot see.
  • Watch out for drunk drivers – it is not just children who celebrate Halloween.  If you suspect an impaired driver, keep a safe distance.

Tips to keep kids safe

  • Make sure the costume fits – if it is too big or to small it could cause a child to trip and fall.
  • Be bright to be seen – dark costumes make children less visible at night.  If your child is wearing  a dark costume, add reflective tape and have them use a flashlight.
  • Create a safe route – the best route will be familiar, well established, direct and away from busy main roads.
  • Travel in groups – walking in a group makes children more visible to drivers.
  • Follow the rules of the road – walk on sidewalks, cross at crosswalks.  If there is no sidewalk, walk on the edge of the road facing traffic.

Stay Safe this Halloween by being road safe.

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