In this physical and Psychiatric injury case( Jokhadar v. Dehkhodaei) the claimant was driving east along Marine Drive through the Lions Gate Bridge interchange when she suddenly saw headlights coming toward her. She braked and shut her eyes on impact. She recalls little of the collision, but says that when she got out of the car and walked to the nearby curb she was shaking and felt cold, she was not sure she was alive. she got to the Lions Gate Hospital in North Vancouver she began crying hysterically and felt pain all over.
The other driver does not deny responsibility for the accident but says it was minor accident and the claimant could not have been seriously injured. The other driver was driving on the Lions Gate Bridge at about 60 km/h in heavy rain, intending to turn east on Marine Drive to proceed to Capilano Road. As he began to turn he lost control of his vehicle. The left front wheel of his car hit the concrete median, causing his car to spin. He bounced over the median and travelled into the other eastbound lane of traffic, that coming from West Vancouver, where he collided with the injury claimant’s vehicle and a second median, separating westbound from eastbound traffic.
The personal injury lawyer representing ICBC say the injury claimant is entitled to non-pecuniary damages to compensate for a mild to moderate soft tissue injury and special damages relating to pecuniary losses in the months after the accident but argue that the claimant did not prove any more significant loss. The court however accepted the evidence of the injury claimant’s treating physicians that she sustained injury to the musculoligamentous structures of her right neck and shoulder area and that she now suffers from a disk protrusion at the C5-C6 level that may become symptomatic.
As the judge pointed out, “In the case at bar the plaintiff clearly suffered from a manifest pre-existing condition that was likely to have affected her whether or not the motor vehicle accident had occurred. That condition must be taken into account in measuring damages. Any measurable risk established by the evidence that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence must be considered.”
The lawyer for ICBC and the other driver say that injury claimant only suffered a mild to moderate soft tissue injury and out-of-pocket expenses relating to that loss in the months after the accident but argue that the claimant has not proven any more significant loss. An ICBC estimator described the damage as not insignificant and most of the damage was to the front and right front corner.
In rejecting the post traumatic stress disorder the judge pointed out:
“I accept Dr. Koch’s opinion that the accident, as described to him, was an event capable of causing post-traumatic stress, particularly in a person affected by bipolar disorder. The evidence of Drs. Koch and Termansen to the effect that this incident might have a more pronounced effect upon a person with a mood disorder stands to reason. Given that Ms. Jokhadar’s own description of her symptoms does not meet the diagnostic criteria for diagnosis of PTSD, and given the absence of reported symptoms, for example when she was treated by Dr. Abdel-Fattah, I cannot find a sufficient basis for Dr. Koch’s opinion that “overall” her symptoms are consistent with such a diagnosis. There is certainly evidence of longstanding depression and mood swings, but from these it is difficult to isolate specific symptoms of PTSD. As Dr. Termansen noted, her fairly severe psychotic problems make chronic pain and PTSD difficult to assess. Despite the fact I reject most of Dr. Solomons’ opinion, I share his conclusion that Ms. Jokhadar’s description of her “flashbacks” is not a description of that symptom as commonly understood but, rather, a description of an unhappy recollection, more consistent with depression than PTSD.”
After reviewing cases for pain and sufferring and the other claims the judge awarded as follows:
|Non-pecuniary damages for pain and suffering and loss of enjoyment of life||$90,000|
|Past Income loss||$30,000|
|Loss of Income Earning Capacity||$95,000|
|out of pocket expenses||$35,100|
|Interest||Pre-judgment interest in an amount to be determined by the lawyers|
Posted byMr. Renn A. Holness