Results, from trial experience.

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.”

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.

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.

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.

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.