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.

Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

March 21st, 2017

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.

In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff.  The Defendant was uninsured at the time and represented himself in court.  As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason.  On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant.  The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[47]         This turn of events significantly undermined the reliability of the defendant’s evidence.

[84]         … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.


$85,000 For Chronic Myofascial Pain From Three Collisions

March 16th, 2017

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

In today’s case (Dhillon v. Singer) the Plaintiff was involved in three collisions which the Defendants admitted  fault for or were found liable.  The collisions resulted in chronic myofascial pain with a poor prognosis for further improvement.  In assessing non-pecuniary damages at $85,000 Madam Justice Fleming provided the following reasons:

[134]     Regarding the plaintiff’s physical injuries and symptoms my analysis and findings are as follows:

·       After the first accident, Mrs. Dhillon experienced fairly intense pain arising from soft tissue injuries to her neck, upper back and right shoulder that interfered with her sleep, as well as headaches. Prior to returning to work, her pain symptoms had reduced significantly but they were not fully resolved. The plaintiff certainly felt well enough to work full-time. I accept that after she returned to work as a parking lot attendant, pain symptoms in her neck and her shoulder sometimes worsened causing her sleep difficulties.

·       I find the plaintiff continued to experience some pain in her shoulder and neck prior to the second accident although her symptoms were not as intense or constant as she described, and were likely mild. Mrs. Dhillon testified that despite telling her doctor she was still in significant pain in January 2012, he provided her with a medical note to submit along with her application to the pharmacy assistant program confirming she was in good physical and mental health. I am not persuaded the doctor would have written such a note if the plaintiff was at that time complaining of significant ongoing pain symptoms. I also put limited weight on the gap in his clinical records from May 20, 2011 to March 2, 2012 which demonstrate the plaintiff otherwise attended appointments regularly in relation to the accidents. I consider the gap, bearing in mind the decision of Justice N. Smith in Edmondson v. Payer, 2011 BCSC 118, aff’d 2012 BCCA 114, regarding the admissibility and use of clinical records. At paras. 36 and 37 he concluded the absence of any record cannot be the sole basis for an inference about whether an injury or symptom existed or not.

·       I find the second accident likely reinjured the soft tissues in the plaintiff’s neck and upper back as well as the other shoulder area, worsening and broadening her pain symptoms to some extent.

·       I accept the plaintiff experienced some increased pain and discomfort while studying for prolonged periods, particularly after the second accident, given the posture required. This may have affected her ability to concentrate to some extent. Her timely, very successful completion of the pharmacy assistant program satisfies me, however, that both before and after the second accident, those symptoms were not meaningfully disabling. I do not accept her evidence that she was required to study twice as much to achieve such high grades.

·       I find that by September 2012 the plaintiff’s pain symptoms were mostly mild, not modest as she testified.

·       I accept the plaintiff suffered from a flare up in her pain symptoms, accompanied by fatigue and some psychological symptoms in May 2013 which lasted for at least two weeks. The date on a medical note prepared by her family doctor corroborates her evidence regarding the timing of the flare up. Employment records confirm she worked less for a two week period during that month.

·       Following the third accident, I find the plaintiff experienced a significant increase in the level and scope of her pain caused by new soft tissue injuries that extended to her low back and an aggravation of previous soft tissue injuries in her shoulders, upper back and neck, along with worsened headaches. I also find that as a result of the third accident and her increased pain symptoms, previously transient psychological and cognitive symptoms including feelings of sadness or depression, irritability, anxiety, low energy and difficulties with concentration intensified markedly, particularly after she returned to work in November 2013. Although her pain symptoms had lessened considerably by then, I accept they worsened during the course of the work day, disrupting her sleep. I have no doubt the plaintiff was discouraged by the experience of working with ongoing pain and fatigue, particularly given the demands of her job as a pharmacy assistant, namely the need for accuracy. Although, I accept the plaintiff worked as much as she could, I do not accept that her pain symptoms were severe. Severe pain is inconsistent with her evidence that she worked 32 to 34 hours per week. In fact she worked more than that, except for the months in 2016 leading up to trial in August. Her employment records for 2014 indicate she rarely worked less than 35 hours per week and most often between 35 and 39 hours, not 32 to 34. I infer from the amount she actually worked that her symptoms were not as intense or as disabling as she suggested.

·       I accept the plaintiff’s testimony that she attended the emergency department and received an injection in June 2014 because of increased pain, but conclude the flare up was relatively brief given her hours of work were reduced for a two-week period only. She attended the Change Pain Clinic in the fall of 2014 and declined the proposed injection series because she had less pain by then. I find her pain symptoms at that point were mostly mild and sometimes moderate. At the same time her psychological symptoms had subsided due to Pristiq allowing the plaintiff to cope more effectively.

·       By 2015 or early 2016, the plaintiff’s sleep was less disrupted and she was no longer taking over the counter pain medication as frequently, indicating her pain symptoms had become intermittent although ongoing.

[143]     After each of the three accidents, the first and third in particular, Mrs. Dhillon endured significant pain symptoms and headaches. Following the first and third accidents, her pain symptoms were severe enough to prevent her from working at all for some months. Her sleep was very disrupted. Since her return to work in November 2013, Mrs. Dhillon has continued to experience variable levels of pain in her neck, shoulders, upper and lower back and psychological and cognitive symptoms, all of which have improved and are likely intermittent, but now chronic. Ongoing pain has affected Mrs. Dhillon’s intimate relationship with her husband. She has also been somewhat less able to play badminton with her children and she avoids more elaborate cooking, something she loved to do before the accidents. Mrs. Dhillon has and will continue to experience some pain while working although not to the extent she claims. Mrs. Dhillon’s mood symptoms are reasonably well managed, although she continues to have low moments and feelings of anxiety in response to pain and fatigue. On the whole, however, the plaintiff is able to enjoy her family and everyday life and take pride in her work.

[144]     Applying the factors identified in Stapley to the facts of this case and bearing in mind my review of the authorities provided by the parties, I conclude an award of $85,000 is fair and reasonable.


“Meagre” Plaintiff Income Keeps Court From Awarding Costs to Successful Defendant

March 15th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.

In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages.  The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result.  At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries.  Prior to trial ICBC offered to settle the case for $150,000.

The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself.  In the end the court ordered that each party bear their own costs of the trial.  In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.

In reaching this decision Mr. Justice Affleck provided the following reasons:

[12]        The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.

[13]        The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.

[14]        When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.

[15]        The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.

[16]        My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.


Pub Found Partly At Fault for Crash Caused by “Visibly Intoxicated” Patron

March 9th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a Pub jointly and severally liable for a collision by a patron who was served alcohol to the point of visible intoxication.

In today’s case (Widdows v. Rockwell) the Defendant drove a vehicle and collided with the Plaintiff pedestrian.  The crash caused severe injuries, including brain damage.

At the time the Defendant was “quite literally, falling-down drunk.“.

Prior to the crash the Defendant was drinking at a local pub. In finding the pub jointly and severally liable for over serving a patron and failing to take reasonable steps to ensure he was not driving Mr. Justice Kent provided the following reasons:

[58]         Insofar as Rockwell’s consumption is concerned, I do not accept his evidence that he only consumed 2 1/2 beers at the pub.  Rather, I find as a fact that each of the co-workers bought at least one round of drinks for the other members of the group (and possibly more) and that Rockwell himself bought at least two rounds that included beer (for himself and Sauve), vodka (for Sahanovitch) and Fireball whiskey shooters (for all).  I find as a fact that by the time he left the pub to retrieve his truck, Rockwell had consumed at least five to six drinks, a combination of beer and liquor, and that he was significantly intoxicated by alcohol.  I also have no doubt, and I find as a fact, that the influence of alcohol on Rockwell was exacerbated by both a lack of food in the preceding 12 to 15 hours (and probably longer), and a high level of fatigue caused by extremely long work hours and inadequate sleep over an extended period of time.  His ability to drive safely was significantly impaired when he left the pub.

[59]         I recognize another possible theory of Rockwell’s intoxication is that he drank only two to three beers at the pub and in the two-hour period thereafter, he consumed substantial quantities of beer and/or liquor, whether at home or elsewhere, before the accident occurred.  While it certainly appears that Sahanovitch was an aggressive and irresponsible drinker of a sort who might engage in such behaviour, there is no evidence to support such a characterization of Rockwell.  When one subtracts the amount of time that it would have taken for Rockwell to drive home, this theory would require him to have consumed an enormous amount of alcohol in less than an hour, a proposition which is not consistent with his previous conduct and which, assessed from the perspective of robust logic and common sense, amounts to nothing more than wishful thinking and unfounded speculation on the part of Cambie Malone’s.

[60]         I am also satisfied however, and find as a fact, that Rockwell did indeed consume further alcohol after he departed the pub.  On the balance of probabilities, I find that this occurred at his residence and included consumption of vodka or other liquor in quantities more than Rockwell claims in his evidence.

[61]         It is not necessary to ascribe a precise figure to the amount of alcohol that Rockwell consumed after he left the pub.  It is sufficient to find that he was significantly intoxicated when he left the pub and that he became even more severely intoxicated through the consumption of additional alcohol before the accident happened…

[73]         In this particular case the affidavits from the pub employees all referred to the employees having successfully completed the “Serving It Right”, which is British Columbia’s mandatory “Responsible Beverage Service Program”.  This is a program sponsored by the provincial government and the hospitality industry which offers information about intoxication, as well as guidelines and suggestions for, as the tagline suggests, “responsible beverage service”.  Rather cleverly, none of the employee affidavits expressly disclosed the information and conduct guidelines suggested in the “Serving It Right” program.  Instead, all that was proffered was what was said to be Cambie Malone’s written “Policies and Procedures” which included the following paragraph:

It is your responsibility to ensure patrons do not become intoxicated while in the establishment.  You must refuse entrance and/or service to any person who is apparently under the influence of alcohol or drugs.  Moreover, persons visibly under the influence of drugs or alcohol may not be permitted to remain in the establishment.  You must refuse the person service, have the person removed and see that they depart safely.  Intoxicated persons must NOT be permitted to drive.  It is your duty to ensure that a safe ride home is used.  This is a crucial responsibility of everyone in the alcohol service industry.

[74]         While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

·       ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;

·       ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;

·       ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);

·       inquire if the patron is driving and identify any “designated driver” for groups of patrons;

·       know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;

·       display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;

·       ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;

·       display posters advertising free ride-home services available in the neighbourhood; and

·       if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.

[75]         None of these things occurred in the present case.  Rather, the pub’s employees utterly failed in abiding by their own employer’s directive that “intoxicated persons (e.g., Rockwell) must not be permitted to drive”.  I have no hesitation in concluding that the employees, and therefore Cambie Malone’s, did not meet the requisite standard of care in the circumstances of this particular case and that their conduct was accordingly negligent.


$217,500 in Damages Ordered Following Suckerpunch Assault

March 8th, 2017

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering the payment of $217,500 in total damages after the Plaintiff was injured in an assault/battery.

In today’s case (Rycroft v. Rego) the Plaintiff alleged he was injured in an altercation with the Defendant.  Although the Court heard differing versions of events the Court concluded the Defendant through an “unexpected” punch to the Plaintiff which began a brief physical scuffle.

In finding the Defendant culpable for the assault and the injuries that arose Mr. Justice Williams made the following findings of fact:

[30]         Based on my examination of all of the evidence, my conclusions with respect to what occurred are as follows.

[31]         In order to investigate the reported damage caused to the bike park, shortly after returning home, the plaintiff entered the yard behind his residence. Immediately before the altercation, while Mr. Rycroft was walking at a moderate pace in the general direction of his own home, Mr. Rego, walking quite briskly, approached him.

[32]         I accept that the plaintiff said words to the effect of “you must be the dad; I do not want kids playing there anymore.”

[33]         I find that, at that point, the defendant struck the side of the plaintiff’s head. The version of events which most sensibly and logically explains the resulting bruise is that, when he was struck, Mr. Rycroft had his head turned to the right. The punch was of significant force and unexpected.

[34]         As a consequence of the blow, the plaintiff went down in a forward direction, ending up on his knees. He had his hands on the ground. The defendant immediately applied some type of headlock to Mr. Rycroft from behind.

[35]         The two men struggled, with Mr. Rego behind and above Mr. Rycroft. No significant blows were landed.

[36]         The physical engagement ended fairly quickly. The defendant let go of the plaintiff and moved away, and the plaintiff got to his feet.

[37]         The defendant said something to the effect of “do you want round two?” or “do you want some more?” The plaintiff responded in the affirmative, I expect probably more reflexively than seriously, but did nothing physically to further engage with the defendant. Instead, the plaintiff reached into his pocket, took out his phone, and called 911.

[38]         At that point, the defendant and his wife left and went home.

[39]         In the course of the altercation, the plaintiff sustained an injury to his left temple area, an injury which is depicted in the photo marked Exhibit 6. I find that bruise was caused by a blow from the defendant.

[40]         It is also reasonable to conclude that Mr. Rycroft sustained minor injuries to his arm, his elbow area, and his hand, likely from going to the ground.

[41]         Finally, I accept that the plaintiff incurred some injury to his knees, also resulting from going to the ground.


$40,000 Non-Pecuniary Assessment for Intermittent, Lingering Soft Tissue Injuries

March 7th, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for lingering intermittent soft tissue injuries.

In today’s case (Erwin v. Buhler) the Plaintiff was involved in a 2011 rear end collision that the Defendant was responsible for.  The Plaintiff alleged that he suffered from bursitis in his hip due to the crash but the Court found this condition was most likely caused by other factors.  The Court did find the Plaintiff suffered various soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.

In assessing non-pecuniary damages at $40,000 Mr. Justice Armstrong provided the following reasons:

[117]     I am, however, satisfied that the plaintiff suffered neck, low back and shoulder injuries as a result of the car accident. Notwithstanding Dr. McGraw’s assessment that the plaintiff no longer experiences headaches or neck pain, I find that he has in fact been troubled by these symptoms on an intermittent basis. His low back was really sore for about a month after which Dr. McGraw assumed the pain was resolved. I also accept that he has intermittent low back and neck pain.

[122]     I have concluded from all of the evidence that the plaintiff suffered neck, shoulder and low back injuries at the time of the accident. Although the symptoms seem to have mostly resolved within one year of the accident, he has continued to experience intermittent back, neck and shoulder problems related to activity.

[123]     It is difficult to discriminate between the impacts on the plaintiff’s life arising from the trochanter bursitis and the other soft tissue injuries he suffered. Nonetheless, I accept that he is at an age where the severity and duration of ongoing pain, albeit intermittent, is troublesome for him. His compensable injuries co-exist with his non-compensable injuries. I am satisfied that the demands of his work elevate his trochanter bursitis symptoms but also his neck and back symptoms. It is hard to estimate whether he will eventually become asymptomatic in his neck and back areas but I find that they will continue to impact his life in the near future. The defendant need not compensate the plaintiff for his hip complaints but, his overall quality of life seems to be affected by the compensable injuries on an intermittent but troublesome basis for him.

[124]     The cases cited by the plaintiff did not provide much assistance in assessing the plaintiff’s non-pecuniary damages. In my view, the circumstances described in Stein are most helpful to my assessment of the plaintiff’s claim in this case.

[125]     Overall, I am satisfied that the plaintiff is entitled to non-pecuniary damages of $40,000.


Plaintiff Ordered to Pay Double Costs After Having Injury Claim Dismissed

March 2nd, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs after the dismissal of an injury claim.

In today’s case (Ross v. Andrews) the Plaintiff was involved in a 2011 collision, alleged injury and sued for damages.  Prior to trial the Plaintiff declined two formal settlement offers, the first for $41,000 the second for $75,000.

After 15 days of trial “the jury deliberated and determined that the plaintiff had not been injured in the motor vehicle accident”.

Under the loser-pays BC Supreme Court rules the Plaintiff was ordered to pay the Defendant’s costs and double costs from the time of the second offer onwards.  After a 15 day jury trial it is a safe bet that the costs consequences would be in the tens of thousands of dollars.  In finding double costs appropriate Mr. Justice Ball provided the following reasons:

20]         The evidence aforesaid created significant areas where the credibility of the plaintiff was subject to negative findings by a jury. When those areas are added together the plaintiff ought to have actively considered any offer which offered a positive return without the risks of a trial.

[21]         Based on a review of the evidence at trial, described in part above, and the cases cited, as well as a review of the submissions of counsel, I find that the offer to settle in the amount of $75,000 ought reasonably to have been accepted by the plaintiff having given consideration to the foreseeable credibility problems and the negative verdict of the jury. The offers to settle both included positive returns whereas at trial the plaintiff’s action was dismissed. The relative financial circumstances of the parties do not preclude an order for double costs in this situation. As a result, applying Rule 9-1 of the Supreme Court Rules, the defendants are entitled to the costs of this action generally and double costs of this action commencing on May 26, 2016. This date is seven days after the second offer to settle was delivered to the plaintiff; a reasonable period of time for the plaintiff to consider the offer. Double costs are awarded from May 26, 2016 until the end of the trial and will include the costs of the application to fix costs. The defendants are also entitled to disbursements but not doubled.

[22]         If the parties are unable to agree on the quantum of costs and disbursements, there shall be a reference to the registrar to assess costs pursuant to Rule 14-1(4) of the Supreme Court Rules.


Limitation Period Not Postponed Where “Injuries Prove to be More Severe Than Initially Believed”

March 1st, 2017

Today the BC Court of Appeal published reasons for judgement upholding the dismissal of a medical malpractice claim that was brought out of time.

In today’s case (Bell v. Wigmore) the Defendant “ performed a syringing procedure, irrigating and flushing” the Plaintiff’s ear.  The Plaintiff alleged this was done negligently and as a result the Plaintiff went on to suffer from long term dysfunction.   The Plaintiff started the lawsuit almost 6 years after the incident when the applicable limitation period was two years.

The case was dismissed at trial and the Plaintiff appealed arguing the limitation period should have been postponed because in the initial period “he had every reason to believe that his injuries were transient and relatively minor”.

The BC Court of Appeal dismissed the appeal finding there was no good reason to postpone the running of the limitation period.  In reaching this conclusion the Court provided the following legal summary:

23]        The mere fact that injuries prove to be more severe than initially believed will not serve to postpone the running of the limitation period: Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Craig v. Insurance Corporation of British Columbia, 2005 BCCA 275. On the other hand, where it can be shown that the injuries were not, initially, sufficiently serious that a reasonable person would seek advice concerning a lawsuit, the running of the limitation period may be postponed to a time when the seriousness of the injuries became evident.

[24]        In Brooks v. Jackson, the plaintiff experienced a hemorrhage following the birth of her child. She was advised that “she should expect to be unwell for approximately two years, the length of time it would take to get her blood back and recover from the delivery.” Some four years later, she was diagnosed with Sheehan’s Syndrome, and soon after determined that the syndrome could have been brought on by the hemorrhage.

[25]        This Court found that the limitation period did not start to run until the plaintiff was diagnosed with Sheehan’s Syndrome:

[32]        In my opinion, a reasonable person in the position of Ms. Brooks would not have sought legal advice or further medical advice prior to the diagnosis of Sheehan’s Syndrome. She was advised in January 1998 she had no physical sequela from the delivery and she was satisfied with the answers Dr. Jackson gave to her questions. A reasonable person, in those circumstances, would not seek legal advice to determine whether there was a cause of action against Dr. Jackson. Ms. Brooks had no reason to believe that the temporary loss of blood had caused a permanent injury of a qualitatively different nature. It is my view that a reasonable person would not have sought legal advice until realizing the damage was more than transient in nature. Accordingly, the running of time in the limitation period was postponed until Ms. Brooks was diagnosed with Sheehan’s Syndrome, and the limitation period had not expired prior to the commencement of the action.

[26]        Brooks does not stand for the proposition that the running of a limitation period is postponed whenever a plaintiff has reason to believe that a condition will eventually subside. The question of whether a reasonable person would seek further advice turns on a number of factors. A court must consider the apparent severity of the injury and the duration and magnitude of its impact on the plaintiff’s lifestyle. A court will also consider whether, in the circumstances of the case, the plaintiff had good reason to suspect that someone was at fault in causing their injuries.

[27]        In Brooks, legal and medical advice, if taken early on, might have led the plaintiff to understand that she had a reasonable cause of action. It would not, however, have been reasonable for her to take such advice, as she was unaware that she had suffered serious harm, and had little reason to suspect that the harm she had suffered was a result of negligence.


$50,000 Assessment for 6 Years of Back Pain

February 27th, 2017

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

In today’s case (Harder v. Poettcker) the Plaintiff was involved in a 2009 collision.  The matter proceeded to jury trial where a jury found the Plaintiff 85% at fault for the crash with the Defendant shouldering the rest of the blame.

The Plaintiff suffered a back injury.  He suffered from pre-existing back problems and fibromyalgia.  The court found that while the Plaintiff’s symptoms lingered at the time of trial after the 6 year mark these symptoms were due to the pre-existing issues.  In assessing non-pecuniary damages at $50,000 Mr. Justice Sigurdson provided the following reasons:

[77]         The plaintiff suffered a moderate soft tissue injury to his lower back and neck in the motor vehicle accident. Those soft tissue injuries were more painful and discomforting to the plaintiff than they otherwise would have been because he has a troublesome back that had in the past required surgery on two occasions.

[78]         However, the evidence does not disclose that the accident caused the need for the plaintiff’s back surgery. In that respect I prefer the evidence of the surgeon Dr. Splawinski to the evidence of the rheumatologist.

[79]         I expect that Mr. Harder became more uncomfortable as a result of the accident and decided to have the surgery privately. I think that he had the surgery more quickly than he otherwise would have had it because of the soft tissue injuries he suffered. That finding is relevant to whether the cost of the private surgery with a shorter waiting list is recoverable.

[80]         I have also concluded that on the evidence the plaintiff has not demonstrated that his fibromyalgia was brought on by the trauma in the motor vehicle accident. However, like his pre-existing back condition, it was an aspect of his pre-existing condition that on the evidence waxed and waned in any event and I think was an aspect of his condition that probably made his injuries from the accident more uncomfortable and debilitating when he had fibromyalgia.

[81]         How long did the injuries from the accident to his lower back and his neck persist?

[82]         Dr. Shuckett thought (as she described in 2015) that they probably continued as he had probably achieved maximum medical improvement. Dr. Splawinski thought that he suffered a soft tissue injury to his neck and lower back and that the symptoms of neck and lower back pain settled down relatively quickly. Dr. Wade described his injury as a mild to moderate soft tissue injury.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.

[90]         Considering all of the evidence, I assess the plaintiff’s non-pecuniary damages at $50,000.


Double Costs Awarded After Trial Judgement Nearly Doubles Plaintiff Formal Offer

February 20th, 2017

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs after obtaining judgement nearly doubling her pre trial formal settlement offer.

In the recent case (Risling v. Riches-Glazema) the Plaintiff was inured in a motor vehicle collision and prior to trial made a formal settlement offer of $315,000.  The Defendants rejected the offer and proceeded to trial where damages of $622,500 were awarded.  The Plaintiff sought and was granted post offer double costs.  In agreeing these were warranted Mr. Justice Affleck provided the following reasons:

[7]             In my view:

a)              The plaintiff’s case was well known to the defendants at the time of the offer. The plaintiff had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place in June 2016;

b)              the offer was made one week before the trial began which gave the defendants a full opportunity to consider it;

c)               the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and

d)              the offer was expressed in plain language and thus easily evaluated.

[8]             The final judgment of the court greatly exceeded the offer. The plaintiff submits her offer was a true attempt to reach a reasonable compromise of the claim and that the rationale for the double cost rule is to encourage parties to settle by taking a realistic view of the probable outcome of a trial. The plaintiff submits that rationale would be thwarted if in the present circumstances she is not entitled to double costs.

[10]         The defendants submit their limited understanding of the case made it difficult to quantify the claim and that, while the rationale for the rule for double costs is acknowledged, the defendants ought not to have been deterred from defending the claim for fear of a “punishing costs award”. Currie v. McKinnon, 2012 BCSC 1165 is relied on in support of that argument.

[11]         The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.

[12]         I do not agree that no rationale was provided. The plaintiff described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”. Furthermore, the defendants had an opportunity on the mediation to canvas fully with the plaintiff’s legal advisers the extent of the plaintiff’s claim and the evidence at trial which would be advanced to support the claim.

[13]         I am also mindful that in Hartshorne the Court of Appeal expressed the view that the list of factors described in para. 27 of its reasons need not be relevant in every case.

[14]         Currie v. McKinnon does not help the defendants on this application. That case involved a personal injury claim with an award of damages which fell within the monetary jurisdiction of the Small Claims Court. Double costs were not awarded. In short Currie v. McKinnon is distinguishable on its facts from the matter before me to such an extent that it cannot usefully be called in aid of the defendants’ argument.

[15]         The plaintiff is entitled to the costs of this action including double costs from the date of the offer.