ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Driver 25% At Fault For Being Rear Ended Due to “Sudden Stop”

May 23rd, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.

In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.


212,000 Reasons not to Drive Drunk

May 23rd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, illustrating the potentially steep financial consequences of impaired driving.

In today’s case (Hamman v. ICBC) the Plaintiff was involved in a rear end crash.  He was the offending motorist.  He was insured by ICBC but was denied coverage for the crash due to allegations of impaired driving.  An occupant in the faultless vehicle was injured and ICBC ultimately settled the claim for $212,000.

ICBC then sought repayment from the Plaintiff.  The Plaintiff sued ICBC arguing they should not have denied coverage.  Mr. Justice Kent disagreed and ordered the plaintiff pay back ICBC the full amount, plus interest and court costs.  In upholding the breach of insurance the Court provided the following reasons:

[64]         I have no hesitation in concluding that Mr. Hamman was severely impaired by alcohol at the time of the accident.  His explanation of his activities that day and the amount of alcohol he had consumed is confused and unconvincing.  At the scene of the accident he appeared “out of it”.  He smelled of alcohol and he displayed significant comprehension difficulties.  He failed the roadside alcohol screening test.

[65]         It was a relatively clear night and the road surface was dry.  The highway was relatively straight.  The construction zone was illuminated by lights and a flashing arrow merger sign.  There was nothing to diminish the visibility of either the construction zone or the numerous vehicles that had come to a stop before it without incident.

[66]         At the police station he was noted to have slurred speech, flushed complexion, and blood-shot eyes.  He was falling asleep both in the police car and eventually at the police station itself.

[67]         And then, of course, there are the blood-alcohol readings obtained through the Data Master breath testing.  Those readings, .17% and .18% reflect substantial intoxication by alcohol.  They also put the lie to Mr. Hamman’s claim that he had only consumed a couple drinks on the evening in question.  That level of intoxication also explains Mr. Hamman’s difficulties with visual perception (depth and distance) and inability to first notice and then react to the otherwise clearly visible vehicles stopped on the highway ahead of him at the construction zone.

[68]         The evidence is overwhelming, and I have no hesitation in finding as a fact, that at the time of the accident Mr. Hamman was driving his vehicle under the influence of alcohol to such an extent that he was incapable of its proper control.  In doing so he breached the terms and conditions of his insurance policies and his liability coverage for the accident was rightly denied by ICBC.

[69]         Mr. Hamman’s action is dismissed.  ICBC’s counterclaim is allowed and damages are awarded to ICBC against Mr. Hamman in the amount of $212,000 together with interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.


$100,000 Non-Pecuniary Assessment for Breast Pain and Chronic Neck Pain

May 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a collision.

In today’s case (Kingston v. Warden) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The crash resulted in chronic neck pain along with a breast injury that did not subside until surgical intervention.  The Plaintiff chose to have breast augmentation during the surgery and the Court found that only a percentage of the cost of the procedure was compensable.

In assessing non-pecuniary damages at $100,000 for these injuries Madam Justice Duncan provided the following reasons:

[126]     I find on a balance of probabilities that the accident caused an injury to the plaintiff’s neck which has not fully subsided. With a focussed exercise program and possibly some injection treatments, the plaintiff may improve but there was no evidence the neck pain would ever go away. The complaint of neck pain is subjective, but the medical experts for both parties largely agreed that the plaintiff presented with soft tissue injury to her neck.  

[127]     I find on a balance of probabilities that the accident caused the plaintiff to feel pain in her left breast which was not alleviated until after the revision surgery. I acknowledge Dr. Malpass’s expert report was not as detailed as it should have been, in that he did not include with it the depiction of asymmetry he described in his evidence. I also acknowledge that the plaintiff appears to have taken advantage of surgical intervention to increase the size of the implants and re-position her nipples, rather than simply seek to be restored to her pre-accident appearance. Nonetheless, I do not accept the plaintiff was making up the pain or concerns about asymmetry to take advantage of surgery that might be eventually covered by a damage award stemming from the accident.

[128]     I find on a balance of probabilities that the accident intensified the plaintiff’s headaches and caused them to be more frequent, but that in the time since the accident they have essentially returned to the pre-accident level, based on her report to Dr. Sovio…

[136]     Before the accident the plaintiff was an active, fit person. While the defendant, Mr. Warden, characterized the accident as fairly minor, I accept the plaintiff’s perception of the accident as frightening to her. The plaintiff suffered soft tissue injuries in addition to a worsening of headaches. Her neck pain continues to limit her activities, although the experts have said she can return to her usual activity level, bearing in mind she may not be able to snowboard or do other activities for as long or as vigorously as before the accident. 34

[137]     The plaintiff underwent surgery to address pain and the appearance of her left breast, which conditions resulted from the accident. The plaintiff suffered a loss of self-esteem and increased her consumption of alcohol to cope with her pain, although I cannot find she has proven an addiction to alcohol stemming from the accident. I accept that the plaintiff has isolated herself from her formerly active social life and her relationship with her husband is not as close as it was before the accident.

[138]     In all the circumstances I am satisfied an award of $100,000 for non-pecuniary damages is fit in the plaintiff’s case.


$120,000 Non-Pecuniary Assessment for Chronic Pain with Somatization Issues

May 2nd, 2017

Adding to this site’s archived postings of ICBC chronic pain cases, reasons for judgement were released this week by the BC Supreme Court, reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain in a Plaintiff pre-disposed to somatization.

In the recent case (Alafianpour-Esfahani v. Jolliffe) the Plaintiff was involved in a 2012 rear end collision that the Defendant was responsible for.  The Plaintiff alleged brain injury altogether this claim was not proven at trial.  The court found the plaintiff was pre-disposed to somatization and suffered from a chronic pain disorder following the collision.  In assessing non-pecuniary damages at $120,000 Madam Justice Sharma provided the following reasons:

[123]     In light of the following factors, I find Ms. Alafianpour-Esfahani is entitled to $120,000 in non-pecuniary damages:

a)    the accident caused soft tissue injuries to her neck, back and shoulder that resulted in headaches and developed (in combination with her predisposition to somatization) into chronic pain;

b)    she has not likely reached maximum medical improvement of her physical symptoms, but any further improvement depends upon the success of addressing the reactivity of her nervous system, which will be challenging;

c)     her physical symptoms have been prolonged because of her psychiatric condition characterization by a vulnerability to somatization and pathological nervous system reactivity;

d)    her prognosis for improving her condition by following a thorough program of desensitization is fair, but that is tempered by the chronicity of her condition because it has been left untreated fro 3 ½ years;

e)    the accident has negatively impacted all aspects of her life, including her relationship with her family, her social interaction, her ability to work, her recreational activities, her ability to maintain her home and yard, her ability to cook for family and friends; her ability to provide emotional support to her children, especially her daughter and her ability to travel.


Court Discusses “Aggregate Effects” Of Joining Multiple Fast Track Cases

April 28th, 2017

Helpful reasons for judgement were released recently by the BC Supreme Court, Vancouver Regisry, discussing how matters such as trial length, the quantum cap and discovery timelines are aggregated when multiple fast track cases are joined.

In the recent case (De Jesus v. Doe) the Plaintiff was involved in two collisions and sued for damages.  The cases were scheduled for trial at the same time.  The Defendants brought an application to remove them from Rule 15 arguing that with a total of 7 days for trial these cases were no longer fast track appropriate.

The court disagreed and in doing so Master Baker provided the following helpful reasons about “aggregate effects” of joining fast track cases together:

De Jesus screenshot 1

 

De Jesus Screenshot 2

 

 


Court Finds Careless Driving Admission Not Binding in Subsequent Injury Lawsuit

April 25th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a motorist faultless for a collision even though that same motorist entered a guilty plea to a charge of driving a vehicle without due care and attention.  While this is not the first noted circumstance of this occurring the Court provided helpful reasons setting out the circumstances where the prior admission will not be an abuse of process to re-litigate.

In today’s case (Chand v. Martin) the Plaintiff was operating a vehicle struck by a train.  He was injured and a passenger in his vehicle was killed.  The Plaintiff was charged with “driving a vehicle without due care and attention” and plead guilty (meaning an admission that he did so beyond a reasonable doubt).

The Plaintiff then sued a host of parties including the train conductor alleging they were at fault for the incident.  The Court found that the train conductor was indeed negligent for the incident noting that he proceeded into the train crossing when the signal lights were not working and this created an unreasonable risk of harm.

The Defendants argued that the Plaintiff was also partly at fault and cannot escape this given the previous admission of careless driving.  Madam Justice Russell disagreed and in allowing the issue to be re-litigated despite the previous guilty plea noted as follows:

[86]        The key decision regarding the effect of a guilty plea in a subsequent proceeding involving the same facts is Toronto (City) v. CUPE Local 79, 2003 SCC 63. In that case, the Supreme Court of Canada was considering whether the grievance of a dismissal following a conviction for sexual assault amounted to an abuse of process. The Court provided the following comments at paras. 51-53:

[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

[Emphasis added]

[87]        I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]        Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.


$90,000 Non-Pecuniary Assessment for Chronic Neck Injury With Headaches

April 19th, 2017

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing non-pecuniary damages of $90,000 for a long standing neck injury with associated headaches.

In today’s case (Willett v. Rose) the Plaintiff was involved in a 2010 collision.  At trial, some 7 years later, the Plaintiff continued to suffer from neck pain with associated headaches.  In assessing non-pecuniary damages at $90,000 Mr. Justice Smith provided the following reasons:

[42]         In summary, the evidence is undisputed that the plaintiff’s headaches, including migraine headaches, are more frequent since the accident. The events with which those headaches were associated before the accident–monthly menstrual periods–no longer occur. I also accept the plaintiff’s evidence that her headaches are more severe and usually associated with neck pain. All of the medical evidence acknowledges the mechanism by which neck pain can evolve into headaches, including migraines and confirms the existence of objective signs of neck injury.

[43]         All of that evidence leads to the conclusion that, on the balance of probabilities, there is a causal link between the plaintiff’s neck pain and stiffness and her migraines. I find the neck pain and stiffness to have been solely caused by the accident.

[44]          As for the migraines, the governing principle is that stated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458: causation is established if an injury was caused or contributed to by the accident. Given the plaintiff’s long history of migraines, it may well be that some other factor is also playing a role in their onset, but I find that the injuries the plaintiff suffered in the accident are at least a major contributing cause of the migraines she now has. Or, to use the language of the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, “but for” accident, the plaintiff’s migraines would not be as frequent or severe as they now are.

[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future…

[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.


Damages for Surrogacy Fees Awarded in BC Injury Claim

April 18th, 2017

In what I believe is the first case of its kind in British Columbia, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages for surrogacy fees for future potential pregnancies after a collision compromised the Plaintiff’s ability to safely carry a child.

In today’s case (Wilhelmson v. Dumma) the Plaintiff was “the sole survivor of a horrendous, high-speed, head-on collision that killed three other people”.  The collision caused profound injuries leading to permanent disability.  Included in the aftermath of this collision was an inability of the Plaintiff to safely carry a child.  In awarding damages for surrogacy fees should the Plaintiff wish to have a child by such means Madam Justice Sharma provided the following reasons:

[375]     Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child — the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.

[376]     I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.

[377]     The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox, [2000] A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):

I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned…..I prefer … to assess quantum for infertility discretely, by reference to the circumstances of each case.

[378]     The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.

[379]     Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.


Proven Cases of ICBC Fraud Almost Non Existent

April 13th, 2017

Insurance Companies often talk about the high cost of fraud and ever rising claim rates.  These discussions are often abstract or accompanied with large numbers.  When you look behind the data there is often little to substantiate the numbers.

This pattern seems to be the case with ICBC’s claims that fraud costs policy holders $600 million per year.  The reality, however, is there is no data to substantiate this.

Recently ICBC revealed, pursuant to an information request, the number of successful convictions against fraudsters.  The numbers are negligible.

Richard McCandless, a self described “retired senior BC government public servant” made an information request for the number of fraud charges laid and the number of resulting convictions.  ICBC replied and the data revealed that there are very few successful prosecutions and the trend, if anything, is moving downward.

McCandless Screenshot

Fraud is real and insurers and ratepayers have to pay the price.  Insurers overstating fraud, however, is equally real and the public is entitled to be aware that proven fraudulent claims make up a small percentage of what insurers would have us believe.

Mr. McCandless’ full article can be found here.


Court Denies Defendant Costs to Prevent “Pyrrhic Victory” for Plaintiff

April 11th, 2017

Reasons for judgement were released today demonstrating the Court’s discretion for costs following trial where formal settlement offers were exchanged.

In today’s case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendant presented a formal settlement offer of $185,000.  The Court noted that “some of the plaintiff’s initial negotiating positions were clearly inflated” but ultimately it was reasonable for the Plaintiff to refuse the Defendant’s offer and proceed to trial in the face of medical evidence supporting her alleged claim of chronic pain and related disability.

The decision proved costly with a jury awarding the Plaintiff damages of $37,800.  The Defendant asked to be awarded post offer costs and to strip the Plaintiff of her post offer costs.  The Court refused noting the Plaintiff is of modest means and having her pay Defendant costs would reduce the verdict to a Pyrric victory.  In awarding the Plaintiff costs Madam Justice Power provided the following reasons:

[36]         It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.  Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

[37]         As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.

[38]         I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5).  Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application.  The defendants’ application is dismissed.