Why you need to seek treatment for your injuries in personal injury cases.

Seeking both proper and ongoing treatment for injuries in personal injury cases is extremely important for a multitude of reasons. Not only will proper treatment help you recover from your injuries, but it will significantly improve the strength of your case.

In this recent Supreme Court of British Columbia case, the judge commented multiple times on the plaintiff’s lack of ongoing medical treatment:
http://www.courts.gov.bc.ca/jdb-txt/sc/18/06/2018BCSC0635.htm

At paragraph 21:

[21] It was pointed out to the plaintiff on cross-examination that, since the end of 2013, the only treatment she has received for what she described during her evidence-in chief as “significant” and “constant” pain was six massage therapy sessions between January 8, 2015 and September 3, 2015. The plaintiff insisted that she was “using other forms of treatment” for her other symptoms such as the exercise regime she had learned from some kinesiology sessions she attended in 2013.

[22] It was also pointed out to the plaintiff during her cross-examination that her doctor had recommended she seek counselling for her driving anxiety. She agreed that it was unreasonable for her not to have done so.

The plaintiff had also attended only 4 treatments with their family doctor for treatment related to their motor vehicle collision injuries. The plaintiff had seen their family doctor more regularly, but had not mentioned her injuries from the collision during these visits. In his discussion, the judge further stated:

[89] On cross-examination, the plaintiff became less than steadfast about her pain symptoms and had difficulty explaining why most of the clinical records made no mention of many of them. The best she could do was to say “I don’t remember” or “I was focused on other things”. Moreover, it became clear from the evidence of both Ms. Kilmer and Ms. Lahti, which I accept, that the plaintiff had exaggerated her ongoing pain symptoms and inability to work at Gulfstream.

[90] As this Court has previously noted, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom. However, where, as here, a plaintiff’s description of her symptoms is clearly inconsistent with her failure to seek medical attention and is consistent with improvement in her condition, the court is entitled to draw an adverse inference as to her credibility: Edmondson v. Payer, 2011 BCSC 118, at paras. 36–37.

As stated, while the absence of medical treatment cannot be the “sole” basis for an inference about the existence or non-existence of a symptom, the court can consider these absences when drawing inferences about credibility. In English, a judge can use the presence or absence of medical treatment as a factor when deciding whether or not they believe you.

Making Waves: How much are concussion cases involving entrepreneurs worth?

http://www.courts.gov.bc.ca/jdb-txt/sc/18/02/2018BCSC0229cor1.htm

In this recent Supreme Court of British Columbia case, a successful owner of a brand devoted to the production of surf boards and clothing was injured in a motor vehicle accident. The injured party was riding a motorcycle when they were struck by an oncoming car making a left turn. This was a significant crash that involved the oncoming vehicle deploying both of its front airbags. The plaintiff was thrown violently to the ground and remembers waking up in the intensive care unit of the hospital. He was left with long lasting injuries including a concussion and a knee injury.

Prior to this accident, the plaintiff had, per the judge’s own words, “achieved more by the age of 32 than many people achieve in an entire lifetime”. His line of clothing and surf boards had, despite some ups and downs, grown greatly.

The courts were left with the difficult task of assessing the plaintiff’s income losses, both past and future. As in many cases involving business owners, the plaintiff’s income fluctuated dramatically, and his future income was even more uncertain, as recent financial restructuring resulted in dramatically increased possibilities of both failure and success.

The plaintiff, following his accident, was left partially impaired. He was able to continue working in his business, but did so with less confidence and vigor. He had to delegate tasks to others. The judge, however, concluded that the plaintiff still managed to demonstrate above average business skill and great creativity. In other words, the plaintiff was found to have a “partial impairment”. The judge ultimately decided that the best way to access the plaintiff’s losses was under the “replacement approach”, as the plaintiff had already hired employees to perform some of his tasks. The plaintiff was given an award for the likely costs of replacement labour for tasks he would have performed himself but for the accident.

The plaintiff was ultimately awarded a total award of approximately $1,000,000.00. This case demonstrates that even though the assessment of wage losses can be difficult, the courts will continue to do their best to assess those losses.

 

 

 

Who is at fault for a rear end collision?

Generally, the driver of the rear vehicle is at fault. Motorists have a duty to look ahead and keep a proper look out. Additionally, Section 162 of the Motor Vehicle Act has been interpreted to mean that drivers have a duty to leave significant space in front of them to allow them to stop safely without hitting the vehicle in front:

Following too closely

162(1) A driver of a vehicle must not cause or permit the vehicle to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the amount and nature of traffic on and the condition of the highway.

(2) The driver of a commercial motor vehicle or a combination of vehicles, when driving on a roadway outside a business or residence district, must not follow within 60 m of another commercial motor vehicle or a combination of vehicles, but this must not be construed to prevent one commercial motor vehicle or a combination of vehicles overtaking and passing another.

(3) The driver of a motor vehicle in a caravan or motorcade, other than a funeral procession, outside a business or residence district, must leave sufficient space between his or her vehicle and another vehicle or combination of vehicles to enable a vehicle to enter and occupy that space without danger.

The courts have also stated that there is a presumption that the rear driver is at fault, unless they can prove they are not. Defenses do, however, exist. Examples of situations where the lead driver may be found partially or totally at fault include, where:

1. The lead driver has stopped in a place they were not permitted to.
2. The lead driver has stopped suddenly and without sufficient reason.
3. The lead driver has stopped in a place where their vehicle is not easily visible.
4. The lead driver has made an unsafe lane change and “cut off” the rear driver.
5. The lead vehicle does not make proper use of their turn signals or brake lights or has malfunctioning turn signals or brake light.

As per the above, there is a heavy onus on the rear vehicle to demonstrate why they are not at fault for a motor vehicle accident. Only in exceptional circumstances will a lead vehicle be found 100% at fault for a rear-end collision and, thus, be unable to recover damages for a personal injury case.

 

 

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

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

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

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

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

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

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

Wage Loss Claims and Pre-Existing Injuries.

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

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

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

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

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

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

 

Plaintiff given award for Early Retirement.

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

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

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

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

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

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

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

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

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

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

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

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

 

Evasive Actions: personal injury claims without actual collisions.

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

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

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

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

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

What is Whiplash?

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

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

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

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

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

Injured party awarded $80,000 for a partial disability affecting her ability to work in the family restaurant.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/11/2017BCSC1103.htm

The issue of wage losses is complicated and becomes more complicated when dealing with self-employed individuals with variable incomes. In this case, a 42 year old woman suffered right ankle and whiplash like injuries to her neck/upper back after her car was struck by another vehicle that was exiting a driveway. This plaintiff was left with ongoing and chronic pain. Additionally, the plaintiff had gone on to develop symptoms of thoracic outlet syndrome and psychological injury, including depression.

The plaintiff in this case was not given an award for past wage losses, but was given an award of $80,000 for loss of future earning capacity. Once again, the capital asset approach was used. The capital asset approach provided the plaintiff with an award despite the fact that her future wage losses were not capable of being quantified. The plaintiff, in this case, ran an Italian restaurant with her family. The courts acknowledged that despite the fact that she was unable to prove that she had suffered any past wage losses, it was probably that she would suffer from an impairment that would affect her ability to earn income going forward.

This case once again illustrates the difference between the two ways in which future losses can be assessed: the earnings approach and the capital asset approach. The earnings approach relies on actual calculations of wage loss and requires the use of mathematical formulas and relatively certain quantification of wages. The capital asset approach is a much looser approach, which relies on hypothetical and more general guess work. Once again, merely because there is uncertainty about future wages, that doesn’t mean you can’t be awarded fair compensation for them.