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

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

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

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

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

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

Estimating wage losses in personal injury cases: what are contingencies?

When estimating both past and future wage loss, the courts must take into account all positive and negative contingencies. In this context, a positive contingency is a likely event that will have a positive effect on earnings. A negative contingency is a likely event that will have a negative effect on earnings. For example, a layoff might be a negative contingency and a promotion might be a positive contingency. In order to determine which contingencies are likely, the courts will look at factors such as the specific circumstances of the individual, the nature of the industry they work in, and contingencies common to the general population as a whole.

In a recent Supreme Court of British Columbia case, the courts found that both the positive and negative contingencies were likely to “balance out” and made no deductions to future wage losses for contingencies:

“[86]         With respect to contingencies, I am of the view that no deduction should be made. Given the importance the plaintiff placed on her employment, I do not think that there is a real possibility that she would have left work before 65 or voluntarily reduced her working hours. On the contrary, she may have worked beyond that age on a full- or part-time basis. While the plaintiff may have required time off for illness in the future even without the accident, it is also possible that she would be promoted to a higher-paying position. Finally, a lay-off is possible but unlikely; her employer is accommodating and evidently thinks highly of the plaintiff as an employee. Overall, I conclude that the positive and negative contingencies balance out.”

http://www.courts.gov.bc.ca/jdb-txt/sc/16/06/2016BCSC0613.htm

This recent ruling recognized that workers now tend to work beyond aged 65 and gave the plaintiff credit for a history of devotion to her employment. Despite general negative contingencies that are likely to affect the working population as a whole – early retirement, illness, and layoffs – the plaintiff, in this case, did not have any amounts deducted from her award to reflect contingencies. This case involved a relatively small whiplash style accident. The plaintiff’s injuries, however, manifested into much larger psychological problems. This case illustrates the benefits of effective and competent counsel.

Future Costs of Care

Care costs can be one of the biggest financial worries to an injured party. The cost of even simple treatments, such as physiotherapy and massage therapy, has increased dramatically. These costs can be especially burdensome to someone who is limited in their ability to earn income. For someone with a long-term or permanent injury these expenses can continue long after their case is settled. Depending on the nature of the injury, these future care expenses can be an injured party’s largest losses. Injured parties may, therefore, be entitled to awards not only for past expenses but also for expenses they are likely to incur in the future.

A recent Supreme Court of British Columbia case awarded a plaintiff a large Cost of Future Care award:

http://www.courts.gov.bc.ca/jdb-txt/sc/16/00/2016BCSC0081.htm

Here, a plaintiff suffered a whiplash type injury, which eventually developed into chronic pain and led to various psychological injuries. The courts awarded the plaintiff costs that were deemed “reasonably necessary” costs necessary  to restore the plaintiff to their pre-accident condition to the extent that is possible. All costs had to be objectively justified by medical evidence. The plaintiff, who was likely to suffer from ongoing physical and psychological injuries well into the future, was awarded $200,000 for Cost of Future Care.

The judge in this case relied heavily on the evidence of expert witnesses who stated the plaintiff required various forms of treatment to treat his ongoing injuries. This illustrates the importance of ensuring you have effective counsel who will pick and fund the retention of these medical experts.

Sharing the road with cyclists: are cyclists obligated to ride on the shoulder?

As bicycling has become a more common way to commute, the number of personal injury actions involving cyclists has increased. Significant confusion about where a cyclist is supposed to ride remains. It is well established that bicycles do not belong on sidewalks, but are they obligated to ride on the shoulder? The shoulder is the area to the right of the fog lines on a highway. It is an area that motor vehicles are not permitted to drive on.

Section 183 of the Motor Vehicle Act provides that cyclists must “ride as near as practicable to the right side of the highway“. The Court of Appeal of British Columbia determined whether the highway included the shoulder:

http://www.canlii.org/en/bc/bcca/doc/2014/2014bcca276/2014bcca276.pdf

This case involved a cyclist who was struck by a motor vehicle. The cyclist was in the far right section of the lane but was not using a readily available and paved shoulder. The Court of Appeal decided that the “highway“, for the purpose of interpreting Section 183, did include the shoulder and that cyclists had an obligation to ride on the shoulder where “practicable“.

Despite the above, a cyclist who is struck after choosing not to ride on the shoulder may still have a very strong personal injury case. Firstly, even in the above case, the driver of the motor vehicle was found to be 70% at fault. The fact the cyclist was riding on the road did not alleviate the driver’s duty to look out for cyclists. Additionally, there may be circumstances where it is unsafe to ride on the shoulder and not “practicable“. For example, the shoulder may be covered in gravel, unpaved, or obstructed by snow or other debris. As such, any injured cyclist should always consult with an experienced personal injury lawyer as they may have a better case than they presume.

What exactly is whiplash? How do the courts deal with it? How much is a whiplash injury worth?

As this is an extremely common injury from motor vehicle accidents, I felt that the subject of whiplash required further elaboration. The issue of whiplash is a complicated one. Unlike injuries that involve broken bones or visible cuts or bruises, whiplash usually consists entirely of self-reported injuries. This puts the court in a position where they are expected to judge the severity of an injury based largely on the credibility of the injured party. The courts have struggled with this task for decades, as illustrated in this, still leading, case from 1982:

Price v. Kostryba, 1982 CanLII 36 (BC SC)

The courts in this case state that not only is credibility an issue but other factors – unique to each individual – such as how pain is experienced and the ability and willingness to talk about an injury, come into play. Some people are more “stoic” and less likely to complain, while others are more open. The courts have ruled that stoicism should not be a bar to recovery. In determining the severity of an injury and the credibility of a plaintiff, the courts will weigh the entirety of the evidence

Another major issue when assessing the value of whiplash claims arises at the beginning of cases when clients ask how much their whiplash injury is worth. The simple answer is that without a crystal ball, it’s impossible to tell. As in the above case:

“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. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation.”

In other words, until enough time has passed to get an idea of how long an injury is likely to last, it is impossible to gauge how much it is worth. Most whiplash injuries resolve on their own, but many will continue on for far longer than expected.

This all leads back to the same conclusion: It is not possible to assess the value of a whiplash claim at the beginning of a case. You can make an educated guess based on experience with previous whiplash cases. However, a minority of injured people will be part of the unlucky few that end up with a life long impairment.  This is why I never recommend settling a case too early and always recommend seeking proper legal advice.

Never settle with ICBC too early: the courts award plaintiff almost $800,000 for deteriorating soft-tissue injury.

When negotiating with ICBC there is always a temptation to settle a case earlier than later. A recent Supreme Court of British Columbia case illustrates why this can be a huge mistake:

http://www.courts.gov.bc.ca/jdb-txt/SC/15/15/2015BCSC1532.htm

Here a plaintiff initially suffered what were described as “typical” soft-tissue injuries. Over time, however, these injuries progressed into something far more life changing. The plaintiff was able to go back to work, but her return to work made her injuries considerably worse. By the time of trial, the Plaintiff was severely limited in her ability to work, and the judge found a “real and substantial” chance that the Plaintiff would lose income in the future. Accordingly, the Plaintiff was given an award of $425,000 for loss of future wages.

Now, had the plaintiff settled this case with ICBC upon her initial return to work, she would have gotten far less money. Once a case is settled and a release is signed, you cannot go back and ask for more money merely because your injury got worse. Properly compensating an injured party requires some degree of predicting the future. In situations with longer term injuries, particularly those that are affecting work, it is best to wait until a long term picture of the injury can be established before negotiating with ICBC.

As this may take several years, you should always consult with a lawyer about potential limitation dates. Be wary of any lawyer that promises a quick settlement.

How much is my whiplash claim worth?

Whiplash is the term given to neck and upper back injuries caused by the rapid movement of the neck and head backwards and forwards. These types of injuries are very common in car accidents, which involve occupants with restrained bodies and unrestrained heads.

Unfortunately, there is no easy answer to what a whiplash case is worth. The value of a “whiplash” case can vary greatly depending on the specific characteristics of both the injury and the injured person. Whiplash type injuries can result in small amounts of temporary neck pain or they can result in injuries of great severity and duration. Whiplash-type events are notorious for causing severe injuries such as mild traumatic brain injuries and fibromyalgia.

As in other assessments for pain and suffering, the courts are likely to look at the following factors when assessing the value of a whiplash case:

1.  age of the plaintiff;
2. nature of the injury;
3. severity and duration of pain;
4. disability;
5.  emotional suffering;
6. loss or impairment of life;
7. impairment of family, marital and social relationships;
8. impairment of physical and mental abilities;
9. loss of lifestyle; and
10. the plaintiff’s stoicism.

http://www.canlii.org/en/bc/bcca/doc/2006/2006bcca34/2006bcca34.html

Basically, there is nothing special about whiplash injuries. The courts will assess their value using the same methodology they would use for any injury.

A major issue with whiplash injuries is they almost always consist of just soft-tissue injuries, which unlike a broken bone, cannot usually be objectively observed – although in some cases symptoms such as muscle tightness and lack of range of motion can be objectively observed by doctors. Thus, the credibility of the injured party plays a greater role in determining the amount of the award. When dealing with injuries that are likely to attract credibility attacks, the value of hiring an experienced personal injury lawyer is increased.

Can a student, who has yet to actually work, still make a claim for wage losses?

The simple answer is yes. The entitlement to future wage losses arises a few ways for students.

Firstly, a student can be delayed in their education. This results if they miss entire semesters or are forced to drop even a single course. The courts will award a plaintiff if they can prove that they were forced to enter the work market later than they otherwise would have.

The courts will also award a plaintiff whose marks have been negatively affected, if the decrease in their school performance is likely to impact their earnings in any way. This is a common occurrence as studying requires focus and sitting for long periods of time in a fixed position. Even minor soft-tissue injuries can affect a student’s ability to study and focus.

Courts will also award a plaintiff for an ongoing disability that is likely to affect their ability to work, even if they have not starting working yet. In order to do this, the courts will have to deal with a certain degree of uncertainty. In the vast majority of cases, it is not easy to predict a person’s career path or potential earnings before they’ve worked a single day.

This issue was summarized in a recent Supreme Court of British Columbia decision:

http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc980/2015bcsc980.html

This case dealt with a 51 year old plaintiff who had taken time off work to return to school. Prior to beginning her new career, she was injured in a motor vehicle accident, which left her with disabling injuries.

Although the analysis the judge used to determine whether or not the plaintiff was entitled to an award for future wage losses was quite complex some key points from it were:

1. A plaintiff needs to prove there is a real and substantial possibility of a future event leading to wage losses; and
2. Hypothetical events should be given weight based on their relative likelihood.

There is no way to predict the future, but that doesn’t mean that you cannot claim for impairment of a future career path. Claims for future events especially require proper framing, preparation, and evidence. As always, I suggest consulting with an experienced personal injury lawyer.

Be careful what you put on the internet. It could severely affect your personal injury claim.

Many people continue to haphazardly post pictures and other personal content on the internet. This can include posted material on facebook, instragram, google +, and various other social media sites. Often it can seem like this material is posted anonymously and is, therefore, inaccessible, but this simply is not the case.

Insurance companies like ICBC frequently use this information against people making personal injury claims. They may hire teams of personal investigators with specialities in digging up dirt on the internet:

http://www.vancouversun.com/technology/Internet+reduces+ICBC+need+private+investigators/10995448/story.html

“We have our own cyber team within our Special Investigations Unit which looks into potentially exaggerated or fraudulent claims and carries out many of the activities previously performed by private investigators, such as social media searches.”

In my personal experience handling cases both for and against ICBC, the use of “cyber analysts” was extremely frequent. Not only would adjusters use this information in their analysis and quantification of a case, but this information would often become crucial during trials.

Private information that can be found on the internet can play a crucial role in determining whether or not an injured party is credible. In the event that a case goes to trial, either a judge or a jury will decide the injured parties award. Contradictory evidence can be extremely punishing to a plaintiff’s credibility, and the courts will look at statements and pictures from online sources. Although such evidence does not have the same effect as statements given under oath, it is, nonetheless, extremely influential.

What is Thoracic Outlet Syndrome?

In the context of motor vehicle accidents, Thoracic Outlet Syndrome (TOS) is typically caused by compression to the shoulder and collar bone area. This can cause damage to nerves, arteries, and veins that run through these spaces and into the arm. From my experience as a personal injury lawyer, clients typically report TOS having been caused by their over the shoulder seatbelt. In car accidents that involve sudden changes in motion, the seatbelt restrains the occupant, which causes the compression-type injury to the shoulder area.

I have had several clients report symptoms of TOS, which are characterized by numbness, pain, decreased mobility, and a lack of strength in the affected arm(s) and/or hand(s). This injury is particularly difficult to deal with for people with manual labour jobs. Although, even people with sedentary jobs that require a lot of reaching and computer work can be severely affected by these injuries.

The courts have recently affirmed that ” cases involving TOS occupy their own distinctive range of non-pecuniary damages”:

http://www.courts.gov.bc.ca/jdb-txt/SC/15/11/2015BCSC1123.htm

The substantial pain and suffering award in the above ruling indicates that the courts have accepted the disabling and long-term nature of TOS injuries. The plaintiff in that case worked as a real estate agent. She was not making a claim for wage losses, but was given an award for the effect TOS had on her overall lifestyle, which had previously included many physical activities, such as badminton, tennis, basketball, and bowling. Additionally, she was provided an award for past loss of housekeeping capacity.