On August 10, 2020 Section 12 of the Evidence Act was revised to restrict the number of expert reports that may be tendered in what is defined in the Act as a “vehicle injury proceeding”.  Specifically, Section 12.1(2)(a) restricts expert evidence on the issue of vehicle injury damages to no more than 3 experts and no more than one report from each of those experts.  Section 12.1(5) gives the court authority, upon application by any party, to allow additional expert reports to be tendered, and/or more than one report from a single expert, provided the conditions of Section 12.1(6) are met; the subject matter of the additional evidence is not already addressed by another expert; or, “without the additional expert evidence, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.”

The full text of this Decision can be found here

The full Oral Ruling of this Application by Mr. Justice Kirchner, April 26, 2021, can be found here

Written by Stella Gowans, Paralegal

The Reasons for Judgment of The Mr. Honourable Justice G. E. Taylor were given June 13, 2019 at Hamilton, Ontario.

On June 7, 2012 at approximately 1:30 a.m., PJ was operating a motor vehicle approaching a T intersection in the community of Fonthill, in the Town of Pelham. The plaintiff, WH was the front seat passenger in the vehicle and was not wearing a seatbelt. P was driving at 80 kilometers an hour when the posted speed limit was 50 kilometers an hour. P failed to observe the stop sign at the intersection. The vehicle left the roadway, hit a tree, rotated 180 degrees and came to rest facing west on the front lawn of a residence. W suffered serious injuries including comminuted, depressed skull fracture, subarachnoid hemorrhage, subdural hemorrhage, intraparenchymal hemorrhage and diffuse axonal injury.

On the evening of June 6, 2012, P and W with four other friends and acquaintances attended the All Star Tap and Grill House in Fonthill to watch a Stanley Cup finals hockey game and take advantage of a “12 for 12 special” – that is 12 cups of beer for $12.00. The group ordered and consumed 4 trays of beer. It was determined that P drank more than an equal share of the 48 glasses of beer that were served. At approximately 1:00 a.m. P drove the group home, after which he, W and their friend G went out to buy cigarettes. On the way home G and W encouraged P to drive faster, which he did.

P was found 80% at fault for the accident and the All Star Tap and Grill House was found 20% liable as they failed to fulfil their obligations, pursuant to Smart Serve, to engage in behaviour designed to keep their patrons safe. W was found contributorily negligent for failing to wear a seatbelt, riding in a vehicle when he knew the driver was intoxicated and, encouraging the driver to speed. As a result his award was reduced by 25%. In that regard, the Court found that All Star breached its duty to W and the All Star is therefore 20% responsible for having overserved W.

Dr. Rosenbloom, an expert in pharmacology, testified that, at the time P left the All Star, he would have had a blood alcohol concentration between 217 and 254 milligrams of alcohol per 100 millilitres of blood. (This is referred to as a BAC of 192) “Dr. Rosenbloom said that at the BACs that he determined, there would be noticeable signs of impairment including red eyes, staggering, stumbling, slurred speech and impaired fine motor skills. He said these signs of impairment should be apparent to a trained observer.”

Dr. Flor Muniz, physical medicine and rehabilitation expert with respect to acquired brain injuries concluded that W had suffered a severe traumatic brain injury which has resulted in significant cognitive consequences. She opined that there could be deterioration of W’s condition in the future. “The aging process could be more severe and it could occur earlier. She said there could be a higher likelihood of dementia.”

Dr. Michael Rathbone, neurologist, performed a neurological examination of W. According to Dr. Rathbone “W has lost approximately one third of his brain cells and the connectors between his brain cells. This is a significant loss of brain function. He doubts that there will be any further recovery”

Conclusion – Non-pecuniary damages were assessed at $300,000.00; Past income loss – $356,627.00; Future income loss – $1,741,863.00; Cost of future care – $9,055,000.00. A management fee of 2% is allowed. W’s parents were awarded $175,000.00 each and W’s siblings were awarded $25,000.00 each for their claims under the Family Law Act.

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF

If you would like to book an assessment with Dr. David Rosenbloom, Pharmacology, Dr. Michel Rathbone, Neurology or Dr. Flor Muniz Rodriguez, Physiatry, please contact us at Integra

Written by Stella Gowans, Paralegal

The Reasons for Judgment of The Honourable Madam Justice W.A. Baker were given on August 13, 2021 at Vancouver, British Columbia.

On October 25, 2016, the plaintiff, MK, was a passenger that was rear-ended by the defendant, GC. The defendant has admitted liability. Mr. K suffered soft tissue injuries and a concussion in the accident. He alleges these injuries have resulted in ongoing chronic pain and associated psychological injuries.

At the time of the accident Mr. K was 35 years old. He was married with two young sons and enjoyed good health and an active lifestyle. He worked as a computer consultant through his own company, Cyber Node Tech Computers and he worked as a booking agent for a company called CIH, an online car rental company.

Mr. K was a passenger in an SUV that was stopped waiting to enter traffic from an alleyway. The force of the impact caused his glasses to fly off of his face. In the aftermath of the accident he was extremely tired and achy and slept for several hours. He awoke with a massive headache and tightness all over his body. His wife drove him to the hospital where he was diagnosed with whiplash and concussion. On his first visit to his family doctor a few days later he reported stiff neck, overall pain, headaches, migraines and twitching in his hand and foot. He was also extremely light sensitive.

Dr. Anton, physiatrist, conducted an independent medical examination. He diagnosed the plaintiff with injuries to the soft tissue structures in his neck, shoulder girdle and upper back. In addition he was of the opinion that Mr. K probably sustained a mild traumatic brain injury.

Dr. Donald Cameron, Neurologist, also conducted an IME. Dr. Cameron diagnosed Mr. K with a mild traumatic brain injury as a result of the accident. This injury then developed into post traumatic brain injury syndrome. Dr. Cameron diagnosed Mr. K with post traumatic headaches, resulting from both the musculoskeletal, cervicogenic headaches associated with neck pain, and the mild traumatic brain injury he suffered in and from the accident.

The Court was satisfied that the plaintiff will not return to his pre-accident state. His myofascial complaints have moved to a chronic state and it is probable that Mr. K will continue to have pain and suffer from psychological disorders for the rest of his life. The Court further found that Mr. K injuries have had a significant impact on his life, the results of which have devastated him. His psychological injuries have changed him from an optimistic go-getter, enthusiastic and social family man, to an angry, withdrawn, anxious, loner who can barely be around his family. He has daily pain and is unable to work. He has had bouts of suicidal ideation. Non-pecuniary damages were awarded in the amount of $150,000.00.

Conclusion – Mr. K is awarded damages in the total amount of $1,175,569.00 as follows:

Non-pecuniary damages – $150,000.00; Past loss of earning capacity – $62,171.00; Loss of future earning capacity – $885,000.00; Cost of future care – $62,518.00; Special damages – $15,880.00

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF

If you would like to book an assessment with Dr. Donald Cameron, Neurologist, please contact us at Integra

Written by Stella Gowans, Paralegal

Plaintiff’s forced career change results in increased remuneration – the Court awards $100,000.00 for Future Loss of Earning Capacity.

H v. L 2021 BCSC 1168

The Reasons for Judgment of The Honourable Mr. Justice Veenstra were given on June 15, 2021 at Victoria, BC.

The plaintiff, MLH, was 26 years old at the time of the collision and 30 years old at the time of trial. She seeks compensation for injuries she sustained in an accident that occurred on July 11, 2016. She was cycling on Yates Street in Victoria when, without warning, the defendants’ vehicle cut in front of her and stopped suddenly, causing her to brake hard in order to avoid a collision. As a result, Ms. H vaulted over the handlebars of her bicycle and landed on the pavement. The defendants have admitted liability. The plaintiff alleges that the injuries she suffered in the accident required her to leave a job she loved and completely change her career trajectory, and that they continue to cause her pain, which is likely to continue on a permanent basis. The defendants argue that the plaintiff mostly recovered from her injuries by 2018 and that her claims of ongoing symptoms are exaggerated.

Prior to the collision the plaintiff had worked as a branch manager in a sales and marketing firm. She had a passion for fitness and participated in competitions. In 2015 she changed career paths and she began to work in a fitness studio in Victoria where she built her clientele as a personal trainer. As a result of the injuries she sustained in the collision she has not been able to return to the studio as a trainer. She now works in a government position as project coordinator for the Ministry of Social Development and Poverty Reduction.

Dr. Alan Richardson, Orthopaedic Surgeon, identified the plaintiff’s injuries as “a fracture of the right wrist carpal bone, ie., the trapezium; soft tissue injuries to the neck and upper back including probably the left parascapular muscles; and soft tissue injuries of the right hip”. He testified that the plaintiff’s prognosis is moderate, explaining that while he saw no need for surgery, the “patient would continue to be symptomatic”

The Court found that the plaintiff answered questions in a direct and thoughtful manner. Her evidence as to her symptoms was generally consistent with the medical evidence and that of the other lay witnesses. “As a result, despite the careful submissions advanced by the defendants, I found the plaintiff to be a credible witness.” Further, the Court accepted the evidence of the Plaintiff’s medical experts and rejected that of the defendants’ medical expert.

Summary

Non-pecuniary damages in the amount of $115,000.00; Past wage loss (as agreed) – $8,406.00; Future loss of earning capacity – $100,000.00; Cost of future care – $100,400.00; Special damages – $4,528.00; For a total of $328,334.11

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF

If you would like to book an assessment with Dr. Alan Richardson, Orthopaedic Surgeon, please contact us at Integra

Written by Stella Gowans, Paralegal

FIREFIGHTER UNABLE TO RETURN TO FULL DUTIES IS AWARDED
$750,000.00 FOR LOSS OF FUTURE EARNING CAPACITY

M v. S 2021 BCSC 1411

The Reasons for Judgment of The Honourable Mr. Justice Walker were given on July 20, 2021 at Vancouver, BC.

The Plaintiff was injured in a rear end collision on March 5, 2017. He was 46 years old at the time of the collision and 50 years old at the time of trial. He sustained a mild traumatic brain injury, injuries to his neck, left shoulder, mid and low back, left wrist and headaches. He developed anxiety, depression and chronic pain.

At the time of the collision he was an experienced firefighter, having worked for the Vancouver Fire Department (VFD) for approximately 17 years. He loved his job and his colleagues were like a second family. He had career ambitions to become a ranking Lieutenant (he had achieved the designation
of Acting Lieutenant) and eventually Captain. His occupation is very physically demanding. He was extremely fit and active in a number of sports including hockey, soccer, cycling, running and working out at the gym. After the collision he was off work for approximately 14 months. He was allowed to do a graduated return to work with light duties in the VFD’s Fire Prevention Department, gradually returning to full-time hours. The position involves site inspections and computer work. Computer work was difficult, aggravating his neck pain and exacerbating his ongoing headaches. He disliked the position and pressed VFD to go back to fire suppression work. He returned to work as a firefighter in September 2019. He struggled to carry out his duties. He was not capable of performing his tasks on a sustained basis. In December 2020 Mr. M suffered a psychological breakdown that was, based on the medical evidence, a result of injuries sustained in the collision. Mr. M took a leave of absence and, at the time of trial, he had not returned to work.

DR. ANDREI KRASSIOUKOV, physiatrist, testified on behalf of the plaintiff. He opined that Mr. M has developed chronic myofascial pain and that his prognosis to return to work as a firefighter is guarded. He stated “Chronic pain may lead to prolonged physical suffering, marital problems, family problems, loss of employment and various adverse medical reactions from long-term therapy… a number of these symptoms are present in Mr. M’s case.” … “It is my opinion that Mr. M most likely will continue to have some level of pain in the affected areas for the foreseeable future.

DR. GORDON ROBINSON, Neurologist, also testified on behalf of the plaintiff. The Court noted that he is regarded as Canada’s leading expert in the causes and treatment of headaches. He opined that Mr. M “probably will continue to have post traumatic headache indefinitely.”

MR. JUSTICE WALKER accepted the evidence of the experts who testified in Mr. M’s case and accorded no weight to the majority of opinions expressed by Dr. Hawkeswood, for the defence. He rejected the defence submissions challenging the evidence of the experts who testified in Mr. M’s
case. He stated that he had no hesitation in finding that they carried out thorough assessments of Mr. M and provided objective opinion evidence.

Summary

The court also requested further submissions concerning an appropriate award for management fees.

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF. 

If you would like to book an assessment with Dr. Harpreet Sangha, Physiatrist, please contact us at Integra

Written by Stella Gowans, Paralegal 

“Crumbling Skull” vs. “Thin Skull”

PB v. KO, 2021 ONSC 2308

The Reasons for Decision of The Honourable Mr. Justice Robert N. Beaudoin, Ontario Superior Court of Justice, were given on March 26, 2021.

This case requires consideration of the “crumbling skull” versus “thin skull” principles and the application of any general or specific contingencies to that assessment, where the Plaintiff has a complex medical history.

The Plaintiff PB (“PB”) was born on March 7, 1963.  Shortly after birth he was diagnosed with hydrocephalus and a shunt was inserted into his spine in order to drain the fluid from his brain.  By the time he was 11 years old he started to develop a curvature of his spine which required major surgery.  That surgery was followed by surgeries to the hamstring muscles of his legs and his right foot.  PB went on to develop kyphoscoliosis, an extreme curvature of the spine.  He also suffers from a number of other medical conditions. Despite his many challenges, Paul was able to enjoy a full life.  He could walk independently, and he participated in numerous activities.  He was independent in almost all aspects of his daily life.  His disability had not varied for 20 years.   On October 13, 2010 PB suffered a serious fall and required an emergency craniotomy to control the bleeding in his skull.  That surgery was successful and after rehab he was able to return to his regular activities.  On February 4, 2011, he underwent a procedure to have a filter removed from his interior vena cava.  During this later procedure (“the incident”) the Defendant radiologists caused a puncture to PB’s heart, requiring immediate repair.  The puncture disrupted the flow of blood to PB’s spine resulting in paraparesis of his lower limbs.  He is confined to a wheelchair.

Counsel for the Plaintiff argues that PB’s claim is governed by the “thin skull” rule and that his pre-existing condition rendered him more vulnerable to the injuries he suffered which have left him functionally paralyzed. The Defendants maintain that the “crumbling skull” doctrine is applicable, and that PB would have found himself in his current condition within five years of the subject incident, regardless of the negligence of the Defendants. Mr. Justice Beaudoin found that the Defendants “failed to meet the evidentiary burden to apply the “crumbling skull” doctrine. 

The Plaintiff, PB, was awarded non-pecuniary damages in the amount of $250,000.00; Out-of-pocket expenses – $177,317.54; Future care costs (after a 15% negative contingency) – $5,702,527.53; For a total award of $6,129,845.07.

With respect to the claim of PB’s parents, BB and LB, the Court awarded a total of $1,746,752.00 for the loss of care, guidance and companionship as well as past attendant care services.  The total award for the Plaintiffs came to $7,876,597.07

For further analysis and reporting of the decision please download the linked PDF.

The full Reasons for the Decision of The Honourable Mr. Justice Robert N. Beaudoin can be found here.

Written by Stella Gowans, Paralegal 

Locomotive engineer has not been accommodated by his employer, CN Rail. Judge awards $650,000.00 for loss of earning capacity. 

RH v. CN 2021 BCSC 1407 

The Reasons for Judgment of the Honourable Madam Justice Matthews were given on July 19, 2021 in Vancouver, British Columbia 

On November 23, 2017, RH (“Mr. H”), age 45 at the time of trial, was involved in a motor vehicle collision when a vehicle driven by the defendant CN, travelling in the opposite direction to Mr. H, executed a turn in front of Mr. H’s vehicle. The defendants have admitted liability for the accident. The parties agree that Mr. H suffered soft tissue injuries to his wrist, neck, left shoulder, mid-back and lower back. Mr. H asserts he had migraine headaches caused by the accident. The defendants argue that he had pre-existing migraine headaches and the accident did not aggravate them. 

With the exception of his low back pain, Mr. H’s injuries reduced in frequency and severity by six months after the accident and do not bother him regularly nor cause impairment to his functioning. Currently Mr. H’s main area of dysfunction is his low back. He testified that since the accident he has had low back pain that radiates into his buttocks. He testified that he has a constant level of pain, and he has flare ups with certain activities. The pain seemed to slowly improve until 2019, when it became worse. He testified he would sometimes take 15 to 20 Advil a day when working until late 2019 when his doctor advised him to reduce his Advil consumption because it was causing stomach problems. Mr. H’s wife testified that sometimes he was in so much pain after a shift that she would have to help him remove his footwear. 

Dr. Sangha opined that “…Mr. H has a strain to the lumbosacral area of his back with mechanical low back pain caused by loading on the left facet joints at the end of his lower lumbar and sacral spine. He also noted discomfort in Mr. H’s left sacroiliac joint and opined that pain contributes to his low back discomfort to a lesser extent than his facet joint pain.” He characterized Mr. H’s report of flare ups as severe bouts of lumbago and opined that they are typically very frustrating and difficult to manage. 

The most contentious issue is whether Mr. H’s accident injuries have interfered with his career as a conductor with CN Rail. Mr. H claims that CN Rail has not permitted him to work since he asked for accommodation due to his injuries which impede his ability to undertake some physical aspects of the job. The defendants assert that Mr. H’s injuries do not cause these impediments and if they do, CN Rail has a duty to accommodate Mr. H. They also assert that since the accident, Mr. H has trained to become a locomotive engineer and can work in that position without issue and earn more money. For these reasons their position is that Mr. H has not suffered a loss of earning capacity. 

Madam Justice Matthews found that the medical evidence, and the fact that at the time of trial Mr. H was not permitted to work in any capacity, including locomotive engineer, because he asked for accommodation for his back pain, easily passes the threshold of a real and substantial possibility of a future loss. 

Summary: Non-pecuniary damages – $105,000.00; Past loss of earning capacity – $75,000.00; Future loss of earning capacity – $650,000.00; Cost of future care – $3,000.00; Special damages – $1,857.49

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF. 

If you would like to book an assessment with Dr. Harpreet Sangha, Physiatrist, please contact us at Integra

Written by Stella Gowans, Paralegal 

Judge orders Plaintiff to attend Defendants’ medical assessments in person despite Covid-19 pandemic

AM v. MB 2021 ONSC 2295

The Reasons for Decision of Master Jolley – March 25, 2021

The defendants brought on a motion on March 22, 2021, to compel the plaintiff to attend a neuropsychology assessment and a physiatry assessment they had scheduled at a medical assessment facility, approximately two months before the June 2021 trial.  The issue in both cases is the form the examinations will take.  Ms. AM does not consent to attending examinations in person, given the pandemic and what she describes as her compromised health situation.   

Master Jolley accepted the evidence that the necessary COVID-19 protocols are in place at the medical assessment company.  She also noted that the plaintiff has attended other necessary medical and legal appointments.  She accepted the evidence that these assessments cannot be carried out virtually.  The plaintiff was ordered to attend both the physiatry and neuropsychological assessments in person.

The full text of this Decision can be found here

For further analysis and reporting of the decision please download the linked PDF.

Written by Stella Gowans, Paralegal

Judge finds plaintiff’s pre-existing condition was stable and applied the “thin skull” principle

CB v. NX 2021 BCSC 1324

The Reasons for Judgment of the Honourable Mr. Justice G.C. Weatherill were given on July 7, 2021, at Vancouver, BC.

On May 31, 2015 the plaintiff, now 36 years of age, was a front seat passenger in a Honda Civic that was rear-ended by the defendant’s vehicle.  The Honda Civic was stopped at the time of the collision and the impact propelled it into the vehicle that was stopped in front of it.  The plaintiff, Ms. B, claims that she has suffered both physical and psychological injuries as a result of the collision.  The defendant has admitted liability but disputes the extent of the plaintiff’s injuries attributable to the collision.

In 2001 the Plaintiff suffered arteriovenous malformation (“AVM”) bleed in her brain causing paralysis on the left side of her body and loss of vision in her left eye.  After intensive embolization and radiation as well as rehabilitation she regained almost all of her functionality, but not her vision.  In March 2003 she suffered a recurrence of her AVM bleed.  Once again, she became paralyzed on her left side. This time she required extensive treatment and rehabilitation, but she was left with foot “drop” and “hammertoes” and very little functionality in her left hand and arm. She was unable to continue her studies in nursing at UBC.  She began to receive disability benefits. Corrective surgery on her foot and toes in 2011 was successful and she could walk with a normal gait and without pain. Ms. B testified that in the three years prior to the collision she was happy and doing well both physically and emotionally.  Her physiotherapy had ended.  She did not suffer from headaches or other bodily pain symptoms.  She was sleeping well.  She was moving forward with her life and was thinking about finding a full-time career.

As a result of the accident the plaintiff suffered neck, shoulder and low back pain as well as a recurrence of her foot drop and toe curl.  Her left arm has become clenched with constant intense tightness as well as with “pins and needles”.  She has undergone three surgeries – two on her foot and toes and one on her hand and arm – with limited success.

Dr. Rehan Dost, neurologist, testified for the plaintiff.  Dr. Dost acknowledged that the “persistent deficit in the plaintiff’s functionality due to her AVM bleeds was unlikely to improve, but opined that it was also unlikely to worsen other than slowly over time as the plaintiff aged.”  The Court accepted this evidence noting that “There is no question that the plaintiff had a pre-existing AVM condition, but it had stabilized after her 2011 operation. She was doing well. The weight of the medical evidence supports a causal connection between the Collision and the increase in her spasticity and decrease in function due to the trauma from the Collision.”  Counsel for the defendant submits that this case is an example of a “crumbling skull” plaintiff in that there is a measurable risk that her pre-existing condition would have affected her regardless of the collision.  The Court found that the applicable principle to be applied in this case is that of the “thin skull”, making the defendant liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing yet stable condition.

Mr. Justice Weatherill made the following award to the plaintiff:

Non-pecuniary damages – $150,000.00; Past loss of earning capacity – $20,000.00; Future loss of earning capacity – $45,000.00; Cost of future care – $10,500.00; Special damages – $11,015.00;  For a total award of $236,515.00

The full text of this Decision can be found here

For further analysis and reporting of the decision, please download the linked PDF.

If you would like to book an assessment with Dr. Rehan Dost, please contact us at Integra

Written by Stella Gowans, Paralegal