Court Awards Our Client $729,457 in Complex Injury Case

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce Associate Lawyers Thomas O’Mahony and Aron Chitsaz’s success after a two week trial in BC Supreme Court.

In Gill v Borutski, 2021 BCSC 554 the Court awarded $729,457.13, significantly more than what ICBC offered prior to trial for a very complex case. Prior to the collision the Plaintiff was a physically and psychiatrically vulnerable person, having been diagnosed with fibromyalgia. However, the Court found that she was also high functioning, “fully employed and fully engaged with family and friends, almost all of whom were unaware of her physical complaints”.

As a result of the collision the Plaintiff suffered soft tissue injuries, which resulted in her psychiatric health deteriorating:

[41]      In the accident, Ms. Gill suffered soft tissue injuries to her back and shoulder, giving rise to headaches and back and shoulder pain.  She was a vulnerable personality who came to believe that she had also suffered neurological injuries. This sent her into a downward spiral of unsuccessful treatments and anxiety concerning her treatments, which led her to subjectively experience further symptoms. She became focused on her treatment, and the focus made her worse.  As Dr. Travlos puts it:

The result now is that her entire daily being is focused on her symptoms and she in turn is highly focused on every aspect of her symptoms, obstructing her recovery.

ICBC argued at trial that the Plaintiff’s predisposition to injury would have led to her condition deteriorating regardless of the collision. Thanks to the evidence assembled by the team at Mussio Goodman, the Court made short shrift of this argument:

[48]      I am not persuaded that there is a real and substantial possibility that Ms.  Gill’s condition would have deteriorated in any event.  In September 2017, her condition was stable.  She seldom missed work and was not complaining to her family and friends.  It is highly unlikely that her condition would have deteriorated spontaneously, without a trigger of some kind, such as a motor vehicle accident.  I should not take into account the possibility of a trigger in the form of an event caused by the negligence of a third party.

[49]      I find that the accident was the cause of Ms. Gill’s injuries and her damages should not be discounted by reason of her predisposition to injury.

ICBC also argued that the Plaintiff’s presentation was not credible, and that the Court should deny her compensation on that basis. The Court noted that it was more complicated than this, and pointed out that her presentation was actually a part of her condition:

… One of the physicians, Dr. Gillian Simonette, remarked on a disconnect between Ms. Gill’s complaints of pain at a very high level (at 9 on a 10 point scale) and her apparent presentation.  Some of this correlates with the psychiatric diagnoses that offer the best explanation for her current condition.

This case provides a good example of how sometimes a person’s physical and psychiatric health can very impacted by an accident in complex ways. An insurance company will always want to boil the case down to the most basic and simplistic terms, and will point to any cause for an injured person’s condition other than the accident. Mussio Goodman will ensure that the full story gets put before the Court.