Results, from trial experience.


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Wong v. Draaistra, 2019 BCSC 908

Collins Peterson LLP represented a 46-year-old woman who was injured in two motor vehicle collisions which occurred approximately one year apart. The plaintiff was diagnosed with a somatic symptom disorder (a chronic pain disorder) and major depression as a result of her chronic neck and back pain resulting from the two motor vehicle collisions.

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- Mrs Wong's Case

ICBC argued at trial the psychiatric injuries the plaintiff was suffering from were not caused by the collisions. The trial judge disagreed and awarded the plaintiff $647,160 in damages plus her costs through trial. The psychiatrist hired by ICBC, Dr. Kevin Solomons, was also rejected by the Court because of his “unexplained omissions” and his “selective view of the facts”.

In giving her written judgment, the trial judge relied on various aspects the written submissions of the plaintiff, noting “Ms. Wong’s written submissions also give a useful overview of the way in which the physical injuries from each of the two collisions began to affect Ms. Wong’s mood” and “[t]he physical injuries are nicely described in summary in Ms. Wong’s written submissions as quoted below.”

Senger v. Graham, 2018 BCSC 257

Simon represented a 23 year old woman who was in her first year of a dental hygiene program when she was hit by a vehicle that ran a stop sign in Nanaimo.

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- Ms. Senger's Case
She suffered soft tissues injuries to her neck and back in the collision which unfortunately did not resolve. The Court accepted Simon’s submission and the expert evidence that Ms. Senger would no longer be able to pursue a career in dental hygiene because of her injuries, and that she would require ongoing care and support for her injuries into the future.

The Court awarded Ms. Senger $993,813.89 for fair compensation not including the tax gross-up on the future cost of care award.

O’Brien v. Cernovec, 2016 BCSC 1881

Nick acted for the plaintiff, a 23 year-old shunt truck driver working for a national railway company. Due to a motor vehicle collision occurring over four years earlier, Mr. O’Brien was left with chronic low back pain.

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- Mr. O'Brien's Case
Mr. O’Brien returned to work and his annual income increased significantly since the collision, but following trial the Court agreed his ability to maximize overtime opportunities and those involving greater physical requirements was affected. The medical doctor hired by ICBC suggested Mr. O’Brien had no restrictions with his ability to work and that his overall prognosis for the future was favourable. Following errors revealed on cross-examination the Court held any weight given to ICBC’s medical doctor was diminished.

At trial ICBC argued there was no future wage loss owing to Mr. O’Brien:

[139] In response, the defendants emphasize that Mr. O’Brien has worked all of his regular shifts since he completed his graduated return to work in October, 2012. The defendants say the plaintiff’s claim is speculative, and fails to meet the “real and substantial probability” test.

The Trial Judge disagreed with ICBC’s position. Ultimately the Court awarded Mr. O’Brien $192,417 plus his expenses for running the trial, of which trial judgment included $100,000 for his impaired ability to competitively earn income in the future.

Downey v. O'Connor, 2017 BCSC 1459

Nick acted for Ms. Downey, an 18 year-old university student at the time of her accident in 2012. Her case was complicated by an accident two months prior to the accident in question in the case.

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- Ms. Downey's Case
ICBC argued that her damages should be reduced to account for the 2011 accident, but the judge found that her 2011 injuries had, for the most part, resolved and her ongoing complaints were due to the 2012 accident. The Court noted as follows in adopting the plaintiff’s position at trial on this point:

[88] I also agree entirely with statement the following paragraph from the written submissions of the plaintiff:

[145] Finally, on cross-examination Dr. Salvian was unmoved in his opinion on causation, and while restating what he wrote in his report that he cannot be certain as to the relationship between the December 2011 MVA and the February 2012 collision and Ms. Downey’s symptoms, it is his medical opinion that, on balance, given the absence of any notable left-sided trauma after the December 2011 MVA, it is more likely the February 2012 collision was causative. Certainty is not and has never been the legal standard. Nor does the law require a sole cause. Dr. Salvian aligns his diagnoses with the February 2012 collision.

Ms. Downey had been an excellent student in high school and was hoping to become a teacher or a counsellor. After the 2012 accident, Ms. Downey left university because of her symptoms and instead enrolled in a laboratory technician program. She completed this and worked as a lab tech for three years, but owing to her symptoms was missing shifts. Due to her ongoing symptoms she had stopped working entirely before trial. Ms. Downey’s relationship also suffered due to injuries and their impact on her mood. The Court awarded Ms. Downey $703,321 to compensate her for losses and assist her going forward.

Forder v. Linde, 2014 BCSC 1600

Nick acted for Ms. Forder who was unable to work as a special education assistant because of, among other injuries, chronic headaches suffered as a result of a rear-end motor vehicle collision. Ms. Forder was age 50 at the time of trial.

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- Ms. Forder's Case
Ultimately Ms. Forder was awarded over $835,000 plus her costs of running the trial plus an additional amount set to offset the taxes payable on her future care award and management fees.

At paragraph 710 of the judgment the Trial Judge commented as follows in relation to the written submission provided by Ms. Forder’s counsel:

[710] Plaintiff’s counsel provided me an excellent detailed 83 page brief which I found most helpful. My summary of the submissions in no way diminishes a very strong argument for Ms. Forder’s claims.

Tourand v. Charette, 2015 BCSC 2165

Nick acted for Ms. Tourand, a 48 year-old who suffered from chronic pain in her neck and back following a motor vehicle collision in years earlier.  Ms. Tourand was not working at the time of the collision but her intention was to re-enter the workforce had the collision not occurred.

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- Ms. Tourand's Case
The defence took the position at trial that Ms. Tourand’s pain was due to life stressors and not the MVA and that she suffered no impairment in her ability to work. The defence position at trial was summarized:

[4] The defendant asserts that the pain the plaintiff has experienced since the Accident is primarily due to stressors in the plaintiff’s life and her failure to follow the recommendations of medical experts. The defendant submits that the plaintiff’s losses as a result of the Accident are very modest. She denies that the plaintiff suffered any past loss of income earning opportunity or capacity because it is unlikely that but for the Accident the plaintiff would have engaged in any employment. The defendant also submits that the plaintiff has a significant residual earning capacity as compared to her pre-Accident earning capacity and that her earning capacity has not been materially affected by the Accident. The defendant denies that the plaintiff requires or is entitled to the cost of housekeeping services.

This position was not accepted by the Trial Judge and Ms. Tourand was awarded $438,893 for her impairments which included $100,000 for her pain and suffering, $220,000 for her impaired ability to competitively earn income in the future and over $50,000 for future care needs and ongoing supports.

Jamal v. Kemery-Higgins, 2017 BCSC 213

Simon represented a 36 year old registered massage therapist and mother of two who was rear-ended by a car while stopped in traffic in Vancouver.

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- Ms. Jamal's Case
As a result of the crash, the plaintiff suffered myofascial pain disorder, cervicogenic headaches, somatic symptom disorder, depression, anxiety, and an aggravation of her colitis as a result of the stress arising from the crash. The court accepted the plaintiff’s submission that her injuries were permanent, required ongoing care and treatment, and would limit her ability to work in the future.

he court also accepted the plaintiff’s submission that the use of female statistics in determining the plaintiff’s earning potential had she not been injured was inappropriate based on case law that has found that the use of female earning statistics may incorporate gender bias into the assessment of damages. Fair compensation for the plaintiff was awarded as $667,660.28 for all heads of damages claimed at the trial.

L.S. v. J.S., New Westminster M134285 (B.C.S.C.) (Jury Trial)
In a trial by jury, Simon represented a young man who was pursuing an education to become an engineer, when he was struck by a speeding pick-up truck that lost control in Kelowna, BC.
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J.S. suffered a brain injury, fractured pelvis, spinal injuries and multiple other injuries in the collision. The brain injury resulted in his personality completely transforming from a once loving and caring person and son, to a reclusive and angry person.

After hearing four weeks of evidence, the jury delivered a verdict in favour of the plaintiff in excess of $2.7 million dollars to compensate J.S. for his harms and losses caused by the driver of the pick-up truck.

Espinoza v. Espinoza, 2015 BCSC 762

Simon represented a 48 year old cement mason and father of three who was a passenger in a single vehicle crash in Vancouver, BC.

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- Mr. Espinoza's Case
The court found that the plaintiff suffered soft tissue injuries to his neck and back in the crash that had become chronic and affected his ability to work as a cement mason. In coming to it’s conclusion, the court scrutinized the opinion of the orthopaedic surgeon hired by the defence, Dr. McPherson, stating as follows:

[88] Dr. McPherson testified for the defence. He was qualified as an expert in orthopedic surgery, although he has not operated for over 20 years, and his practice has been limited to medical legal consultations since about 1997.

[89] Dr. McPherson saw Mr. Espinoza on November 13, 2014. It was Dr. McPherson’s opinion that, as of at that time, “there is no evidence of a disability related to the motor vehicle accident and none is expected in the future. There is no reason to limit his activities and he is a very active person, doing a specialized form of concrete finishing”.

[90] Chronic pain and myofascial pain do not seem to be diagnoses that Dr. McPherson recognizes. It is no surprise, then, that he concluded that Mr. Espinoza was not disabled. In a case such as this, where credibility is in issue and much depends upon the plaintiff’s evidence, a more expansive investigation and deeper consideration of the medical issues would have been useful from the defence.

[91] Dr. McPherson offered little in the way of opinion evidence that was either helpful or persuasive. Moreover, there were a number of features of his evidence that suggest a less than objective perspective. For instance, Dr. McPherson went out of his way (that is, beyond the scope of any question put to him) to suggest that Dr. Salvian, while a reputable vascular surgeon, was unethical in his approach to thoracic outlet syndrome, another diagnosis that Dr. McPherson considers dubious. Indeed, Dr. McPherson expressed the view that one third of purported thoracic outlet syndrome patients have nothing wrong with them as the problem is all in their head, another third have median nerve compression, while the remaining third have ulnar nerve compression. His gratuitous comments in this regard, including his drive-by shot at Dr. Salvian’s ethics, were neither set out in any report, nor put to Dr. Salvian in cross-examination.

[92] Dr. McPherson was also rather selective in his references to Dr. Vinnitsky’s records, and frequently went well beyond the question asked of him in order to emphasize his point of view.

The defence also argued that the plaintiff failed to mitigate his losses by not engaging in an exercise program or taking all of the medications that had been prescribed to the plaintiff. In rejecting this argument, the court stated:

[139] In my view, the evidence in this case falls short on both points. Mr. Espinoza explained that he did not take all of the medication because of its effect on his stomach, a known side effect, and undertook exercises at home as taught by his physiotherapist that he thought were complying with the instructions he had been given. Given the somewhat disjointed nature of the recommendations given by various experts who saw him only once or twice, I am not prepared to conclude that he acted unreasonably. Moreover, there is nothing that would allow me to conclude on a balance of probabilities that, had he acted differently, his damages would have been reduced. Accordingly, I make no reduction for an alleged failure to mitigate.

statistics may incorporate gender bias into the assessment of damages. Fair compensation for the plaintiff was awarded as $667,660.28 for all heads of damages claimed at the trial.

Cheema v. Khan, 2017 BCSC 974

Simon represented a disabled mother of two who was in a crash with a car that turned left in front of her.  The plaintiff suffered from severe rheumatoid arthritis and major depressive disorder before the crash.  The court accepted Simon’s submission that the plaintiff’s rheumatoid arthritis and major depressive disorder were both exacerbated as a result of the crash.

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