Changes to Income and Disability Assistance in BC

By Ivar Lee, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

A number of policy changes concerning income and disability assistance in BC went into effect on October 1, 2012.  One of these changes will have a significant and positive impact on people receiving such assistance and have personal injury claims (ie. an ICBC-related personal injury claim from a motor vehicle accident).  Please click here to view the full news release from the Provincial Government.

For those receiving income and disability assistance in BC and are involved in a personal injury claim, quite often a headache arises when their personal injury claim is settled and how the settlement will affect their entitlement to ongoing income and disability assistance since the settlement is often a lump sum payment.  Ordinarily, receiving such a lump sum settlement would result in a reduction or loss of benefits.  This would often result in an unjust and unfair result because the person has increased medical and care needs due to the accident (which the settlement is intended to compensate); however, receiving those critically needed funds would have the devastating impact of reducing or eliminating the person's entitlement to income and disability assistance benefits they need simply to pay for regular and ongoing living expenses they had before the accident.

In such cases, setting up a non-discretionary trust would permit the person to continue receiving benefits while also enjoying the benefit of the settlement funds.  However, under the previous law, such trusts were limited to an amount not exceeding $100,000.  Under the new law, that limit has been increased to $200,000.  This significant change will greatly assist those who receive a settlement for medical and care needs in excess of $100,000 (but not exceeding $200,000) with protecting their entitlement to ongoing income and disability assistance.

If you are receiving income and disability assistance in BC and are interested in retaining a personal injury lawyer to assist you with your personal injury claim so that you can maximize your settlement while minimizing the effect on your entitlement to benefits, please feel free to call one of our Vancouver personal injury lawyers today to arrange a free consultation by phone or in person.

Low Velocity Impact Collisions Explained

By Chris Trueman, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

If you are in a motor vehicle accident and the damage sustained to your vehicle is minimal or the crash involves a transfer of forces of less than 8 km/h, ICBC may classify your accident as a Low Velocity Impact (“LVI”) collision.  By categorizing your car accident as a LVI, you may be denied compensation for your pain and suffering, expenses for your treatment, and your wage loss, both past and prospective.   

In researching past court decisions for a recent LVI trial, I noticed that, over the last several years, decisions coming out of the Supreme Court of British Columbia have been overwhelmingly critical of the ICBC's LVI policy.  For example, in Lubick v. Mei, 2008 BCSC 555, a minimal damage rear-end collision resulted in an injury to the plaintiff:

[3]       According to Jiang, a line of traffic was stopped waiting for the left-turn signal.  When the light changed, the line started to move.  Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it.  He said the vehicles “barely touched” and that the impact was “very light, just a little boom”.

[4]       The evidence of the ICBC estimator confirms that the impact was relatively minimal.  The Lubick vehicle sustained cosmetic damage to the rear bumper.

Mr. Justice Macaulay went on to dismiss the logic behind ICBC’s LVI policy:

[5]       The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.  In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court.  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He went on to point out that the presence and extent of injuries are determined in the evidence, not with “extraneous philosophies that some would impose on the judicial process”.  In particular, he noted that there was no evidence to substantiate the defence theory in the case before him.  Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

A similar result was reached by Madam Justice Bruce in Dolha v. Heft, 2011 BCSC 737, where the Court found “there is no scientific justification for including that a low velocity collision is incapable of causing injuries”:

[16]     Based on the evidence led in this summary trial application, I find there is no reason to doubt the veracity of the plaintiff’s claims that she suffered pain in her neck and upper back, as well as headaches and dizziness, immediately following the accident and for a period of six to nine months thereafter.  Moreover, there is no evidence to contradict Dr. Samaroo’s opinion that these symptoms arise from soft tissues injuries caused by the accident.  There is no scientific justification for concluding that a low velocity collision is incapable of causing injuries. The minor nature of the collision is only one factor to consider when assessing the severity of the injuries suffered by the plaintiff.  While the medical evidence before the court is primarily based on the subjective complaints of the plaintiff, there is no evidence that the plaintiff’s symptoms continued beyond what would normally be expected for these types of soft tissue injuries.  Thus the caution expressed in Butler [v. Blaylock, [1981] B.C.J. No. 31 (S.C.)] and Price [v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)] is not relevant on the facts of this case.

Madam Justice Adair in Lee v. Hawari, 2009 BCSC 1904, found that the LVI defence does not follow logic or legal principle:

[53]     Mr. Hawari appears to suggest that because this was a low velocity collision, Ms. Lee could not have suffered any injury, or could only have suffered minor injuries.  However, this does not follow, either as a matter of logic or legal principle,  as Mr. Justice Thackray reminded litigants (and their insurers) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), at para. 4 to 6.  See also Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053, at paras 12 to 13, and Ceraldi v. Dathie, 2008 BCSC 1812, at para. 27.  The presence and extent of injuries are to be determined on the basis of evidence given in court.

In Cariglino v. Okuda, 2011 BCSC 1429, the Plaintiff was involved in a rear-end motor vehicle accident.  The vehicle that she was a passenger in sustained $724 in damage and the defendant advanced a LVI defence and argued that the small amount of damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”  Mr. Justice McKinnon rejected this "bald proposition":

[35]     The defendant contends that the very minor nature of the collision would render “improbable” the nature and extent of the injuries the plaintiff contends she suffers. I was not provided with opinion evidence to support that contention and thus am unable to accept the bald proposition that minor damage equals minor injury.

­In Gignac v. Rozylo, 2010 BCSC 595, the Plaintiff was involved in a minor collision resulting in cosmetic damage to his bumper  ICBC advanced the LVI defence, stating that “given the very minor nature of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims.  The plaintiff ... has suffered an extreme and unforeseeable physical or mental reaction to a minor event.”

Mr. Justice Wilson rejected the LVI defence in the following comments:

[28]     As I understand the third party's position on this issue of liability, in the context of reliance on Mustapha [v. Culligan of Canada Ltd., 2008 SCC 27] , the question in this case, with the necessary changes, as posed at para. 18 of Mustapha  is:

In order to show that the damage suffered by the plaintiff is not too remote to be viewed as legally caused by the defendant's negligence, the plaintiff must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from an incident involving contact of two motor vehicles which resulted in the scratching of paint on a plastic cover.

[29]     The third party contends that the plaintiff has failed to meet that onus.

[30]     I am not persuaded that the third party’s argument is open to me to accept.  There are two propositions which lead me to that opinion.

[31]     First, in Gordon v. Palmer , Thackray J. (as he then was) made the following observations:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  …  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slips and falls.  … The presence and extent of injuries are to be determined on the basis of evidence given in court.

[32]     Second, in Price v. Kostryba, McEachern, C.J.S.C. (as he then was), said at para 4:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash.  Human experience tells us that these injuries normally resolve themselves within six months to a year or so.  Yet every physician knows some patients whose complaint continues for years, and some apparently never recover.

[33]     Therefore, I conclude that Gordon is authority for the proposition that the magnitude of forces unleashed, in any given contact, is not determinative of the injuries sustained.  Accordingly, in this case, there was a “real risk” of the harm now complained of.

[34]     And, Price is authority for the proposition that, objectively, some patients, of “ordinary fortitude” sustain injuries which are permanent.  In this case, I am not dealing with the particular vulnerabilities of this particular plaintiff.

[35]     In result, I find the defendant liable for the plaintiff’s injuries.  That is to say, the defendant’s carelessness caused, as I will describe below, the plaintiff’s injuries, in fact and in law.

In summary, BC courts have recently called the LVI defence “myth” (Lubick, supra; Thomas v. Wormsley, 2009 BCSC 919; Jezdic v. Danielisz, 2008 BCSC 1863), following neither logic nor legal principle (Hawari, supra), and “void of scientific justification” (Dolha, supra).

I recently appeared on behalf of a plaintiff at trial where the LVI defence was put forward.  The judge rejected the LVI defence and our client was awarded $23,653.74 plus his legal costs in bringing his claim to trial.  Madam Justice Wedge made the following comments while ruling in favour of our client:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The full decision can be found here.  If you have been injured in an accident and an insurance company has told you that you will not be compensated for your injuries because of a Low Velocity Impact designation, please contact us to discuss your claim.

Get Medical Malpractice Help Sooner Rather Than Later

By John J. Hyde, Partner at Paine Edmonds LLP, Medical Malpractice Lawyer

I frequently deal with medical malpractice or medical negligence claims against doctors and hospitals. Very often people come to me years after they have suffered negligent treatment. I don't know why people wait so long before seeking legal advice on medical negligence claims, but a delay in seeking a legal opinion can cause serious problems for a malpractice case. In fact, if a person waits too long, it may be too late to begin an action because in B.C. the basic limitation for starting an action is two years.  The limitation is the time within which you must start an action if you want to sue the doctor or hospital for an injury arising from medical negligence (also referred to as medical malpractice). 

There are factors which may apply to extend that time, such as when you first discover you were negligently treated; but in B.C. at present, the absolute latest you can start a claim against a doctor or hospital for medical malpractice is six years from the date of your injury, at whatever point you found out about it and whether you knew about the negligence or not.  This is a special limitation just for malpractice claims against doctors and hospitals and it can give rise to real injustice. Fortunately there is a new Limitation Act for B.C. which eliminates this preferential treatment.  It will  come into force within the next 12 to 18 months, but that will not help you if you are facing a limitation period before the new limitation period comes into effect.
 
Because medical malpractice claims are usually complex and often require extensive investigation to determine if you should sue, the sooner you seek legal advice, the better.  A delay in seeking help may mean you lose the right to sue.  Please call me at 604.683.1211 for a free consultation if you have a medical malpractice claim.

Congratulations Adam Hadwin!

By Paine Edmonds LLP, Vancouver Personal Injury Lawyers

Congratulations to Abbotsford's own Adam Hadwin, winner of the 2011 Paine Edmonds Vancouver Open, on his recently announced promotional partnership with Canucks Sports & Entertainment.  The Canucks and Hadwin announced on May 17, 2012 that they’ve entered into a promotional partnership in which Hadwin will support Canucks Sports & Entertainment’s charitable initiatives by participating in signature Canucks for Kids Fund events.  In return, Hadwin will display the Canucks' primary logo on his apparel while on tour and other sanctioned PGA events.

Brad Garside, Adam Hadwin, Fraser Mulholland

Under the direction of partner Brad Garside, Paine Edmonds LLP has been a strong supporter of the Vancouver Open and Vancouver Golf Tour and the development of local golf talent such as Hadwin as they not only become future stars, but also key contributors to the community as evidenced by Hadwin's announced involvement with Canucks for Kids Fund events.

Paine Edmonds LLP is also a proud supporter of Canuck Place Children's Hospice, an important recipient of the Canucks for Kids Fund.  Partner Ivar Lee is a Family Volunteer at Canuck Place and our staff proudly donates funds raised from its annual Christmas donation drive.  To learn more about ways of donating to Canuck Place or volunteering opportunities, visit canuckplace.org.

Your Private Facebook Photos May be Ordered Disclosed in Your Lawsuit

By Chris Trueman, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

The Supreme Court of British Columbia recently ruled on an ICBC application concerning the production of private social media data in the context of a personal injury claim.   In the case of Fric v, Gershman, 2012 BCSC 614, the plaintiff was injured in a November 2008 motor vehicle accident and she sued for damages, claiming the accident left her with chronic pain and a diminished ability to enjoy life.  

The plaintiff had a Facebook site with 890 “friends”, 759 digital photos and one video.  Additionally, she had 12,000 other personal photos in her possession.  The plaintiff’s Facebook site shared only some information publicly, which did not include any photographs.  She was a first year law student at the University of Victoria at the time of the accident and some of her Facebook photos were taken at her December 2008 attendance at Law Games, where law school students from across Canada competed in athletic, social and academic challenges.  The plaintiff claimed her participation at Law Games was limited due to her injuries.

The defendants applied to the Court for an order to disclose the plaintiff's full Facebook account, including all of her vacation and Law Games photos, to determine whether the accident had had the detrimental effect on her life that she had claimed.  The Court stopped short of disclosing the plaintiff's entire Facebook profile, but did order the production of the plaintiff’s Law Games photos and any vacation photos taken post-accident.

An excerpt of the Court’s decision follows:

[54]     After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55]     The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56]     In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57]     The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58]     How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59]     Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60]     Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.

[61]     I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62]     In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63]     Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64]     Nonetheless, the order sought by the defendants is too broad.

[65]     The relief sought in paragraph 1 of the notice of application amounts to the “search of the filing cabinet” frowned upon in Desgagne v. Yuen, supra.

[66]     The defence is somewhat hampered in identifying relevant photographs since the plaintiff declined to answer questions regarding the Facebook content at her examination for discovery. The affidavit filed by the plaintiff does not offer any assistance in this regard.

[67]     One option open to the court is to order that the plaintiff re-attend an examination to answer questions about the photographs. However, that step might simply add a layer of unnecessary costs when the kind of photographs to be produced can be determined from evidence already gathered. Furthermore, the defendants did not request this relief in their notice of application.

[68]     Photographs of Ms. Fric’s activities at the Law Games are relevant to the claim of physical impairment and social withdrawal.

[69]     Ms. Fric says that she participated in some activities while on vacations in the last several years but also that these activities were at times restricted or abandoned. Again, the defence should be given an opportunity to discover whether the claim for reduced physical capacity is accurate.

[70]     In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71]     The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72]     Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[73]     The amended list is to be provided to the defence by no later than June 30, 2012, unless otherwise agreed.

[74]     It is impossible to say whether this exercise will require the plaintiff to review all of her 12,000 photographs, but it seems doubtful. Only the plaintiff knows how many photographs in her possession fall within the defined categories. As with any document disclosure, plaintiff’s counsel will be involved in the review and no doubt provide any necessary guidance.

[75]     The plaintiff is not obliged to include commentary from the Facebook web‑site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76]     Costs of the application will be to the defendants in the cause.

Please careful with what you post to social media websites.  Even if you mark your photos “private” or restrict access to only your closest friends, those photos can still be ordered disclosed and may be used to challenge your claim in court.  Photographs rarely tell the full story.  People generally don't take photos when they are feeling pain or making modifications to their routine.

The Duty to Inform ICBC When In a Car Accident

By Stephen M. Lloyd, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

"I don't want to go through ICBC."
"Let's just take care of this without calling ICBC?"
"How about I give you some cash instead of going through ICBC?"

It isn't uncommon for me to hear that statements like these have been said at the scene of a car accident. Unfortunately, this reflects a common, and potentially problematic, misunderstanding about the nature of insurance in British Columbia.

Make no mistake about it, under your contract of insurance with ICBC, you must report any accident you are involved in to your insurer. ICBC needs to have notice of motor vehicle accidents in a timely manner so that they can investigate the crash, find out what happened, and be informed of any injuries. By keeping ICBC in the dark, you may prejudice any claims you may have in the future.

Think about it this way: What if your injuries, which seemed minor at first, turn out to be more serious and more long lasting than you ever thought they would be? What if there is hidden damage to your car that only becomes noticeable months after the accident? Failing to report your accident and your injuries might just prevent you from being able to collect compensation for those damages.

Once you have called Dial-A-Claim (604.520.8222 or 1.800.910.4222), reported the accident and gotten a claim number, give us a call at Paine Edmonds LLP. Make sure you get some legal advice before signing any statements or signing any authorizations to release your private information.

What is My Case Worth? Loss of Earning Capacity Damages Explained

By Ivar Lee, Partner at Paine Edmonds LLP, and Chris Trueman, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyers

One of the most contentious components of a personal injury claim is assessing the appropriate amount of compensation for "loss of earning capacity".  These damages are meant to compensate an injured person who has evidence to prove that their injuries will limit their ability or capacity to earn income in future.  This amount of compensation is in addition to other types of compensation, such as "pain and suffering" damages (see our previous blog on this topic).

In many cases, insurance companies will try to argue that an injured person's injuries do not limit their ability to earn income at all.  In BC car accident cases, insurance companies such as ICBC often outright refuse to offer anything unless there is strong evidence to support such a claim.  The reason why insurance companies take such a stern position is due to the simple fact that this type of compensation can be very significant, especially for a high income earner who is unable to earn as much income due to their injuries.  In such cases, the amount of "loss of earning capacity" damages can often exceed the amount for pain and suffering damages. In fact, often times when the media reports a large judgment made by the courts, loss of earning capacity compensation is typically the largest component, not the award for pain and suffering.  Of course, for those that do not earn as much income, the amount may not be as significant or may be far less than the pain and suffering award.  Nonetheless, it is a loss that they should still be compensated for in some measure.

Given that insurance companies will often refuse to offer this type of compensation, it is very important that you retain a knowledgeable and experienced personal injury lawyer to present this claim for you.  A personal injury lawyer will be able to gather the necessary opinions from medical and economic experts to prove this part of your claim.  Also, most importantly, a personal injury lawyer will be able to present the legal arguments to convince the insurance company you're dealing with to soften their position and offer compensation.

The law in this area is complex but the main principles that a court must consider were recently summarized by the BC Supreme Court in the decision, Parker v. Lemon, 2012 BCSC 27:

[42] The approach to such claims is well set out in the decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras. 25-32, which I summarize as follows:

(1) A plaintiff must first prove there is a real and substantial possibility of a future event leading to an income loss before the Court will embark on an assessment of the loss;

(2) A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation;

(3) A plaintiff may be able to prove that there is a substantial possibility of a future income loss despite having returned to his or her employment;

(4) An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss;

(5) It is not the loss of earnings but rather the loss of earning capacity for which compensation must be made;

(6) If the plaintiff discharges the burden of proof, then there must be quantification of that loss;

(7) Two available methods of quantifying the loss are (a) an earnings approach or (b) a capital asset approach;

(8) An earnings approach will be more useful when the loss is more easily measurable;

(9) The capital asset approach will be more useful when the loss is not easily measurable.

Remember that every case is different and the evidence required and the right approach to quantify the loss will vary so make sure you speak to a knowledgeable and experienced personal injury lawyer to help you best present your case.  If you would like to arrange a free consultation with one of our Vancouver personal injury lawyers at Paine Edmonds LLP to discuss your case further in person or on the phone, please feel free to contact us.

Take care out there!

What is My Case Worth? Pain and Suffering Damages Explained

By Ivar Lee, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

As a Vancouver personal injury lawyer, it is not uncommon that I am asked the following question by someone recently injured: “What is my case worth?” 

It is completely understandable that someone would be curious about this, especially when they are deciding whether to hire a personal injury lawyer to handle their case or deal with an insurance company on their own.  In fact, quite often this question is triggered by a settlement offer made by an insurance adjuster working for the insurer of the person who injured them (ie. an ICBC adjuster following a car accident).  It is quite common that an insurance adjuster will make an offer early on, even though the injured person is still recovering and does not know the full extent of their injuries and how their life will be affected.  Remember, in many cases settling early on only benefits the insurance company, not the injured person.

One of the biggest reasons why it is difficult if not impossible to answer this question early on after an injury is that “non-pecuniary damages” (commonly referred to as "pain and suffering" damages or compensation) depend upon many factors that may change or be affected over time as one recovers from their injury or injuries.  That is why it is very risky for an injured person to settle their case too soon as they may end up getting far less compensation than they are entitled to.

In reasons for judgment released by the BC Supreme Court this past Friday (Simmavong v. Haddock, 2012 BCSC 473), Mr. Justice Greyell referenced a number of past decisions which summarize the principles and various factors that courts consider when assessing the amount of compensation for one's pain and suffering.

Non-pecuniary damages are awarded to compensate the injured person for pain, suffering, loss of enjoyment of life and loss of amenities and the award should be fair and reasonable to both parties (fairness is measured by reviewing comparable cases but each case depends on its own unique facts):

[65]         Madam Justice Ker summed up the purpose of non-pecuniary damages in Trites v. Penner, 2010 BCSC 882 as follows:

[188]   Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.  The compensation awarded should be fair and reasonable to both parties ...

[189]   For the purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases.  Such cases, though helpful, serve only as a rough guide.  Each case depends on its own unique facts ...

[Citations omitted.]

[66]         The principles underlying an award of non-pecuniary damages were discussed by Madam Justice Gray in Dikey v. Samieian, 2008 BCSC 604:

[139]    Non-pecuniary damages are those that have not and will not require an actual out-lay of money.  The purpose of such an award is to compensate Mr. Dikey for such things as pain, suffering, disability, inconvenience, disfigurement, and loss of enjoyment of life.  The award is to compensate him for losses suffered up to the date of trial and that he will suffer in the future.

[140]    As stated by the Supreme Court of Canada in Lindal v. Lindal (No. 2), [1981] 2 S.C.R. 629 at 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation.  It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative.  An appreciation of the individual's loss is the key and the "need for solace will not necessarily correlate with the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373).  In dealing with an award of this nature it will be impossible to develop a "tariff".  An award will vary in each case "to meet the specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.).

Courts consider a number of different factors when assessing the appropriate amount of compensation (see below):

[67]         In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be considered when assessing non-pecuniary damages, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes: 

(a)       age of the plaintiff;

(b)       nature of the injury;

(c)        severity and duration of pain;

(d)       disability;

(e)       emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)       impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff:  Giang v. Clayton, ... 2005 BCCA 54).

[68]         The assessment of non-pecuniary damages is necessarily “influenced by the individual plaintiff’s personal experiences in dealing with his or her injuries and their consequences, as well as the plaintiff’s ability to articulate that experience”:  Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

As pain is a unique experience to each person, only a knowledgeable and experienced Vancouver personal injury lawyer who patiently takes the time to listen to you explain how your injuries have affected your life can provide you with an objective and meaningful assessment of your case.  Be cautious if an insurance company tries to rush you to settle your case before you know the full extent of your injury or injuries and most importantly, how they will end up affecting your life.  If you don’t, you may risk making a decision that you will regret.

If you would like to arrange a free consultation with one of our Vancouver personal injury lawyers at Paine Edmonds LLP to discuss your case further in person or on the phone, please feel free to contact us.

Take care out there!

Car Accidents: You Must File Your Lawsuit Within Two Years

By Chris Trueman, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

If you have been in a car accident or otherwise injured due to the negligence of others, you have two years from the date of the accident to start a lawsuit.  Failure to file your lawsuit within the two year limitation period can be fatal to your case.  

If you are dealing injuries suffered in a car accident, ICBC has no duty to tell you about your two-year limitation period.  Reasons were released today in Field v. Harvey, 2012 BCSC 456.  In dismissing the injured party’s claim, Mr. Justice Bracken had this to say:

[6]             There was no further activity on the matter until July 31, 2009, when an ICBC adjuster telephoned the plaintiff’s home and left a message inquiring about her injuries. No response was received to that message.

[7]             As she had heard nothing further from the plaintiff, the adjuster closed her file on October 2, 2009. The next time the plaintiff contacted ICBC was not until November 24, 2010, almost sixteen months later. As the limitation period had expired by that point, the adjuster advised the plaintiff of the provisions of the Limitations Act and reminded her of the attempts to contact her. The plaintiff advised the adjuster that she had been too busy to return the calls. The plaintiff was advised to contact the adjuster’s manager to discuss matters further

…

[30]         It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire. It also clear that ICBC abided by the “preferred course” of action, as articulated by Huddart J.A. in Balzer, by including the following notification in their correspondence with the plaintiff:

Nothing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period. It is evident that the plaintiff received this notification, given her handwritten reply on the letter in question and this statement should have alerted the plaintiff to the existence of the limitation period. 

It is evident that the plaintiff received this notification given her hand written reply on the letter. The content of the letter should have alerted the plaintiff to the possible existence of a limitation period that might affect her claim.

…

[38]         Limitation periods exist, in part, to encourage plaintiffs to bring their actions in a timely manner. The plaintiff has failed to bring her action in a timely manner and has not satisfied this court that there exists a lawful reason for her failure to comply with the provisions of the Limitation Act.

If you have been dealing with your accident claim on your own and are approaching the two-year anniversary mark, please contact our office immediately to discuss your claim.

Car Accidents and Broken Engagements: Claims for "Loss of Opportunity of Family Income"

By Kathryn R. Taylor, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyer

In a recent decision of the BC Supreme Court, Mr. Justice Wong dismissed a plaintiff's claim for "loss of opportunity of family income" arising out of a potential marriage.  In Campbell v. Swetland, 2012 BCSC 423, the plaintiff was involved in a serious motorcycle accident in which she sustained significant physical injuries, including a traumatic brain injury.  Prior to the accident, the plaintiff's partner had asked her to marry him and she said "yes".  After the accident, the plaintiff became confrontational and difficult to live with, and her partner broke off the engagement.  The plaintiff sought $250,000 for loss of opportunity of family income arising out of the potential marriage.  Wong J. dismissed the claim for loss of opportunity of family income on the basis that it was unsubstantiated or speculative at best.

War and Motor Vehicle Accidents: Opening Our Eyes To The Invisible Wound of Concussion

By Stephen Lloyd, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer


I read an interesting article written by Jack Gruber in USA Today regarding the War in Afghanistan. The piece stated that official data from US military suggested that “concussions may be far more common in combat than previously known and may suggest that thousands of these casualties may have been missed earlier in the Iraq and Afghanistan wars”. Symptoms of concussion often include brief loss of consciousness, clouded thinking, dizziness and headaches. It is believed that 90% recover from their symptoms and return to combat, although this can take days or weeks. The USA Today story quoted military officials who admitted that in prior years “[…]we weren't doing things the right way". As Commander Earl Frantz wrote in his August 26, 2011 article for the New York Times, “Treatment for Concussion in War Zones”:

The idea of treating warriors for concussion during the acute phase in the war zone is a new concept. During the first nine years of war in Iraq and Afghanistan, if a service member was not bleeding or visibly broken on the battlefield, he shook off any cobwebs in his head from an attack and returned to the fight. As the improvised explosive device, or I.E.D., became the enemy’s weapon of choice, an unprecedented number of warriors were returning from battle with invisible wounds. Concussion, often called mild traumatic brain injury, is now the most common battlefield injury, affecting more than 300,000 service members since 2001.

Of course, I realize that this is war. This is combat. Nevertheless, what shocked me was that the rise in the number of concussions in war was not necessarily due to being directly struck on the head by an enemy combatant, or shrapnel, or a bullet, or…anything. It appears that many of the concussions were arising from simply being within the vicinity of some kind of blast. Any blast. As such, under a new policy implemented in July 2010, troops caught within 165 feet of a blast (about half the length of a football field) had to be pulled from the battlefield for at least 24 hours to be monitored for the signs and symptoms of concussion. The result of the new policy: the number of diagnosed concussions skyrocketed.


So what does this have to do with motor vehicle accidents?


Over the last dozen years practicing as a plaintiff’s personal injury lawyer in Vancouver, British Columbia, time and time again I have interviewed clients who, when questioned carefully, reveal that although they have no overt signs of trauma to the head (bumps, bruises, cuts, etc.), they do have the symptoms of this somewhat invisible injury: concussion or mild traumatic brain injury.


The clues are often quite subtle. The client recalls the sound of screeching tires, and the next thing you know, the other driver is at their window asking, “Are you OK?”. They vaguely recall being hit but are not sure how their car got pulled over to the side of the road. After the accident they felt confused and “out of it”. They had an immediate headache, felt dizzy and thought they might throw-up. And after they get home it gets even more strange: food tastes funny or smells bad, the lights are way too bright, the wallet gets deposited in the fridge, they forget once-familiar phone numbers, keys go missing, and everything and everyone is incredibly irritating. And of course, most ordinary people would never identify these odd things with suffering a concussion. This is especially so when the person involved in the car accident either did not hit their head, can’t recall hitting his or her head, or “only hitting the back of my head on the headrest”. Consequently, these people simply do not discuss these things with their doctor…or anyone for that matter. They try to “shake off the cobwebs” and carry on.


Now, I am not trying to say that being in a car accident is tantamount to being in combat. Quite frankly, that would be offensive to those who have been through the horrors of war. I have some sense of that because my grandfather fought in the Second World War, and I had the great privilege of talking to him extensively about his experiences. However, perhaps we can benefit from some of the hard lessons learned from the experiences of these brave men and women, and apply them, at least to some degree, to our everyday experiences as ordinary people…ordinary people who sometimes get into car accidents and experience concussions. At least we can say that, in part, because of these tragedies, concussion is becoming less invisible to ourselves and consequently, to the family doctors who rely on our own self-report as much as they rely on any physical examination. After all, you can’t treat what you can’t recognize in the first place.

DISCLAIMER: Please note this blog is for information only and is not claim-specific legal advice. Paine Edmonds LLP can only provide legal advice to clients. Please click here to arrange a consultation with one of our lawyers.

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