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.

Expert Witness Judicially Drubbed for Showing “a Lack of Willingness to Be Frank, Open and Honest With The Court”

April 17th, 2014

In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.

In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision.  The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries.  In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments:

 [1]             This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court…

[75]         Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.

[76]         During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.

[77]         Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so….

[82]         In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.

[83]         In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.

 


Negligence Claim Dismissed Following Vehicle / Sled Collision

April 16th, 2014

Reasons for judgement were released today (Scott v. Brown) by the BC Court of Appeal addressing motorist liability following a vehicle collision with a two children who were “riding their sled westbound on 4th Street (in Nakusp, BC) down a gentle slope.“.   The Defendant motorist was driving eastbound.  It was “snowing heavily and visibility was poor“.     The trial judge found that while the vehicle, travelling with its lights on, should have been visible to the Plaintiffs they may not have been visible to the Defendant with sufficient time to react.  The claim was dismissed.  In upholding this result the BC Court of Appeal provided the following reasons:

30]         Visibility was the most contentious issue. The trial judge found that the truck’s headlights would have been visible to the girls when they were on the dark hill and that there was no explanation for why they did not see the truck approaching. Mr. Brown testified that visibility was limited to 100-200 feet. He also testified that the light from his headlights projected 100-200 feet. He kept them on dim, as high beams reflected brightly off the snow. He could see streetlights several blocks ahead, but he could not see anything in between them. Critically, as he passed under a streetlight, the downward light reflected off the snow and made it difficult to see. He described his vision was blanketed, a whiteout, some of the worst conditions he had ever seen. Mr. Brown testified that he did not see the sled until he was halfway through the streetlight just west of the intersection. The trial judge found that if Mr. Brown was travelling 47 kph and visibility was 100 feet, he would not have been able to stop when an object came into view. However, he would have been able to stop in time if visibility was 200 feet. The trial judge found that it was not possible to determine which estimate of visibility was more accurate. The trial judge weighed the evidence and found she was unable to establish Mr. Brown was driving too fast for the road conditions. The plaintiffs had not met their burden. ..

32]         The evidence was unsatisfactory. The trial judge was alive to the “paucity of the evidence and its obvious frailties” (para. 95) and the difficulty faced by Ms. Armstrong and Ms. Scott in the circumstances as they bore the burden of proof. 

[33]         At the end of the day, the trial judge could not decide the very issues that had bearing on negligence. She could not say Mr. Brown was driving too fast for the road conditions having regard to all the circumstances. There was insufficient evidence to make key findings. She decided the case on the basis of who bore the burden of proof. The appellants failed to prove their case.

[34]         I find the trial judge made no palpable and overriding errors, and did not misapprehend evidence regarding visibility and speed. I would dismiss the appeals.

 


$80,000 Non-Pecuniary Assessment For Mild, Chronic Thoracic Outlet Syndrome

April 15th, 2014

In the latest addition to this site’s Thoracic Outlet Syndrome caselaw database, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for mild but chronic TOS.

In this week’s case (Minenko v. Minenko) the Plaintiff was injured in a 2009 intersection collision.  The at fault driver admitted responsibility.  The Plaintiff developed a mild but persistent Thoracic Outlet Syndrome which remained symptomatic at the time of trial.  In assessing non-pecuniary damages at $80,000 Mr. Justice Truscott provided the following reasons:

[27]         Dr. Shuckett saw the plaintiff on August 2, 2013 and says that the plaintiff has probably achieved maximum medical recovery and will be left with her current symptoms.

[28]         She says the plaintiff is not disabled from work although it may be more difficult for her and she should do regular walking and some regular aerobic exercises that do not over-use her upper body and arms.

[29]         Dr. Shuckett also suggests flexeril pills to decrease muscle spasm and assist the plaintiff in sleep, along with local trigger point injections and/or Botox injections into the area of muscle spasms in the right neck and shoulder girdle region could be considered.

[30]         Injection therapy, if it works, in her opinion has to be repeated every six months or so which applies to any Botox injections as well…

[38]         At trial, she says she believes she is qualified to diagnose thoracic outlet syndrome but defers to Dr. Salvian for the ultimate opinion on this as he is the primary expert on it.

[39]         At trial, she strengthens her opinion somewhat by saying she believes the plaintiff has mild thoracic outlet syndrome.

[40]         The plaintiff says she also initially suffered from anxiety attacks in the night, but only occasionally does so now. Currently, she says she has headaches and constant dull pain in her right arm, as well as the right shoulder and right upper back area. Any physical activities cause her pain in her right arm and this increases over a busy day.

[41]         She takes Advil during working hours but continues working…

[81]         There is no evidence her injuries can be alleviated through surgery but some of the pain may be ameliorated through the use of Botox…

[100]     I have reviewed all of the cases cited to me by both counsel on the issue of non-pecuniary damages and in my view, the sum of $80,000 is an appropriate amount to award the plaintiff for her pain and suffering and loss of enjoyment of life and as well for her loss of housekeeping ability.

 


Court Finds Dr. Koch “To Be More of An Advocate For ICBC”

April 14th, 2014

Adding to this site’s archived posts highlighting judicially rejected expert witness evidence reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, criticizing the evidence of a defense medical opinion.

In last week’s case (Kristiansen v. Grewal) the Plaintiff was injured in a 2009 collision.  Fault was admitted.    The Plaintiff alleged a host of consequences from the crash.  Although the Court found that some of the Plaintiff’s difficulties originated from issues other than the collision the crash was causative of some of her difficulties.

In the course of the trial the Court heard from a variety of physicians.  Once expert, Dr. Koch, hired by ICBC, was found to be an advocate and his evidence was not accepted for this reason.  In rejecting his evidence Mr. Justice Romilly provided the following brief comments:

 [14]         Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.

 


The Contractual Nature of Accepted Formal Settlement Offers

April 11th, 2014

As previously discussed, when a formal settlement offer dealing with costs consequences is accepted the BC Supreme Court had no discretion to make a different order with respect to costs.  Reasons for judgement were released this week confirming this principle.

In this week’s case (Tomas v. Mackie) the Defendant made a formal settlement offer $77,400.   The offer included the usual term that, if accepted, the Plaintiff would be entitled to reasonable costs and disbursements up to the date of the offer and the Defendant would be entitled to their costs and disbursements from that time onward.

The Plaintiff accepted the offer 13 days after it was derived.  During this period further costs were incurred.  The Plaintiff argued that the Defendant should be responsible for these as the Plaintiff should have the benefit of a reasonable period of time to consider the offer.  District Registrar Cameron was sympathetic to this argument but ultimately disagreed noting there is no judicial discretion to deviate from the terms of the accepted formal offer.  In reaching this conclusion the Court provided the following reasons:

[9]             Mr. Loewen submitted that the acceptance of the settlement offer constituted a binding agreement and as a result the court has no discretion to vary the terms of that agreement under Rule 9-1 or 14-1 of theSupreme Court Civil Rules.

[10]         Mr. Loewen referred to a number of authorities in support of his argument that clearly were not before Registrar Sainty…

[14]         Applying these authorities, it is clear that I do not have the discretion to vary the terms of the settlement agreement made by the parties and they should obtain a date from the Registry for the assessment of both the Plaintiff’s and the Defendants’ costs pursuant to Rule 14-1 of the Supreme Court Civil Rules.

 


“All-Inclusive” Formal Settlement Offers Can Trigger Costs Consqeunces

April 10th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an “all inclusive” formal settlement offer is capable of triggering costs consequences.

In today’s case (Wettlaufer v. Air Transat A.T. Inc.) the Plaintiff sued for damages after an “aircraft touched down and then braked, an unsecured food cart struck, with force,(struck) the back of the plaintiff’s seat.”.   Prior to trial the Defendant made an offer, inclusive of costs and disbursements, of $250,000.  The Plaintiff rejected this offer, proceeded to trial and sought damages of over $1 million.  Much of the Plaintiff’s claimed damages were rejected with an award of approximately $110,000.

The Plaintiff argued the all inclusive offer should not trigger costs consequences.  Mr. Justice Funt disagreed finding there is no prohibition to formal offers which have costs and disbursements built into them.  In reaching this decision the Court provided the following reasons:

[18]         The present Rules of Court provide greater discretion to the Court and avoid the formulaic approach reflected in the older rules set forth above.  Justice Masuhara in Dodge v. Shaw Cablesystems, 2009 BCSC 1765, described the rationale for the rejection of all-inclusive offers under Rule 37 (the old rule in Helm):

[22]      The old Rules provided a complete code which determined the costs consequences of an offer to settle:  Cridge v. Harper Grey Easton, 2005 BCCA 33 at para. 20, 37 B.C.L.R. (4th) 62.  Under the old Rule 37(24)(a), if the defendant made a monetary offer to settle which the plaintiff did not accept, and the plaintiff obtained a judgment equal to or less than the settlement amount, the defendant was entitled to costs from the date the offer was delivered.  With such rigid cost consequences from which the judge had no discretion to depart, the rationale for the rule against “all-in” offers in Helm was engaged.  Where the judge was unable to discern what part of the settlement offer was for costs and what part was for discharge of the action, the judge could not precisely evaluate whether or not the plaintiff obtained judgment more favourable than the settlement offer, leading to potentially drastic consequences.

[Footnote omitted.]

[19]         In his October 18, 2012 letter, defendant’s counsel, Mr. Dery, rejected the plaintiff’s offer to settle for $996,025 plus taxable costs and countered with the $100,000 all-inclusive offer.  The plaintiff did not provide a bill of costs and disbursements.

[20]         Absent a bill of costs, the defendant’s further all-inclusive offer of $250,000 is understandable.  Most litigants seeking to resolve a dispute prefer finality.

[21]         With Helm decided on the significantly different rules, the Court is not bound by the rule in Helm that all-inclusive offers cannot be considered.  The Court’s consideration of the $250,000 all-inclusive offer accords with the text, context and purpose of the current Rule 9‑1.

 


Credibility Concerns Lead to Outright Rejection of Personal Injury Claim

April 7th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, outright rejecting a personal injury claim as a result of credibility concerns.

In today’s case (Fancy v. Gareau) the Plaintiff was involved in a 2008 rear end collision.  Fault was admitted.   At the time of the collision the Plaintiff was on a WCB claim.  She claimed the collision caused a neck injury and that this was not a pre-existing problem.  In the course of the trial this claim proved unreliable and the Court ultimately dismissed the claim.  In reaching this result Mr. Justice Parrett noted as follows:

[69]         Perhaps the most startling reversal in her evidence was the cross-examination of the plaintiff about a portion of Exhibit 8.

[70]         This document was a spreadsheet prepared by the plaintiff and her husband as a part of their submission to the Workers Compensation Board to help establish that she had suffered “an upper back injury”.  In item 11 on page 2 of the spreadsheet the plaintiff specifically refers to the August 5, 2008 Physiotherapy Initial Notification (Exhibit 10) referred to above.  The excerpt contained in item 11 specifically notes that the “Injury Recorded on Claim: Neck” and then records the following submission regarding the document:

Corroborating Documentation of stiff neck from workplace injury (July 8, 2008) – this injury is NOT from the MVA as suggested by CD in Item 32.

[71]         The last column of this spreadsheet is entitled “Proof of:” and is divided into two columns, the first of which is “Upper back/left arm injury”.

[72]         The plaintiff entered “Yes” in this column with respect to Item 11.

[73]         When confronted with this document the plaintiff conceded that when the Workers Compensation Board case manager said that the neck injury was not as a result of the workplace injury but from the motor vehicle accident she disagreed and said ‘no, I injured my neck in the workplace accident’.

[74]         When pressed on this point she advised the court that:

The upper back, to me, includes the neck.

[75]         This evidence was given without the faintest embarrassment or apparent realization that the previous day she had testified that:

When I say upper back I do not mean my neck.

[125]     This is a personal injury action in which the issue is causation.  Simply put the question amounts to this – Was the plaintiff injured or did she have existing injuries or conditions aggravated by the motor vehicle collision on September 30, 2008?

[126]     The evidence presented to the court by the plaintiff is devoid of medical evidence and opinion touching on the issue of causation.

[127]     The only expert opinion placed before the court is that of Dr. McKenzie who first saw the plaintiff some 28 months after the motor vehicle collision.  In providing Dr. McKenzie with the history he used as the foundation of his opinion the plaintiff misrepresented and altered the facts and withheld critical information about her physiotherapy treatments and pre-existing symptomology.

[128]     The effect of her actions destroyed any value of Dr. McKenzie’s opinion…

[139]     The plaintiff’s action is dismissed.

 


$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

April 4th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for chronic soft tissue injuries.

In this week’s case (Lewis v. Scheer) the plaintiff was involved in a “significant” collision in 2010. The Defendant admitted liability. The collision caused various soft tissue injuries and headaches which lingered at the time of trial.  The Plaintiff had some pre-existing symptoms which left her susceptible  to developing chronic pain.  Her symptoms were expected to carry into the future with optimism that they can be reduced with weight loss and exercise.  In assessing non-pecuniary damages at $70,000 Mr. Justice Funt provided the following reasons:

[9]             In general terms, the plaintiff’s injuries involve her back, spine, shoulders and neck.  She has daily headaches and has chronic pain…

[18]         The three doctors were in general agreement that the plaintiff’s ongoing symptoms of daily headaches and pain affecting her neck, chest, shoulders and spine were caused by the MVA.  Dr. Travlos noted in his November 14, 2011 report that the plaintiff “was likely vulnerable to injury and the development of more chronic symptoms, given some of the pre-accident complaints she had”…

[22]         The medical evidence recognizes that the pain will be ongoing although it may reduce as a result of the recommended steps to be taken.  These steps include losing weight, a focus on functionality and not on pain, a regimen of exercise and activity, and the reduction of the medication the plaintiff is currently taking…

[35]         As noted, the plaintiff will have ongoing pain.  The focus for the future is on improving function.  In particular, the pain has affected and will affect her enjoyment of life, family and social relationships, and lifestyle.  The Court will award $70,000 inclusive of housekeeping capacity.  The plaintiff will be able to perform housekeeping functions, albeit with degrees of pain depending on the particular activity.

 

 

 


Bus Driver Liable Following Injury to “Elderly, Frail and Hunched” Passenger

April 2nd, 2014

Adding to this site’s archived cases addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding a bus driver partly liable after putting the bus in motion when an elderly passenger was attempting to exit.

In this week’s case (Bideci v.Neuhold) the 93 year old plaintiff boarded a bus.  When the bus came to his stop he “spent several seconds in the process of attempting to rise from his seat“.  The bus driver failed to see this, closed the door and put the bus in motion prior to the plaintiff exiting.  This caused the Plaintiff to fall resulting in injury.

In finding the bus driver liable Mr. Justice Abrioux provided the following reasons:

[72]         The standard of care to which Mr. Neuhold was subject included taking a careful enough look into the rear-view mirror as was appropriate under the circumstances in existence at the time. As he candidly admitted in his evidence, he was under no specific time constraints: “If you’re late, you’re late”. Safety of his passengers was his primary consideration.

[73]         Mr. Neuhold’s evidence was that photograph 8 of Exhibit 7 was the most accurate approximation of what he would have seen as he looked in his rear-view mirror, with a caveat being that he would not have been able to see the wheel well on the passenger side of the bus.

[74]          Mr. Bideci’s seat is clearly visible in this photograph and there were no obstructions such as someone standing or moving which would have obscured Mr. Neuhold’s view of this area.

[75]         I appreciate that Mr. Neuhold is not subject to a standard of perfection nor is he the plaintiff’s insurer. But when I apply the legal principles to which I have referred above to my findings of fact, I conclude that the defendants have not satisfied the burden on them to establish that Mr. Neuhold used all due, proper and reasonable care and skill to avoid or prevent injury to the plaintiff.

[76]         Based on my review of the video, I am of the view that Mr. Neuhold did not look carefully enough in his rear-view mirror before deciding to perform his final outside mirror check, which preceded his putting the bus in motion. Had he in fact taken a “long hard look” or a “pretty significant look” in his rear-view mirror as Ms. Trott stated that he did, he would have seen his elderly, frail and “hunched” passenger in the process of slowly rising from his seat.

[77]         Accordingly, I conclude the defendants have not satisfied the burden on them to answer the prima facie case of negligence and I find them liable for the Accident.

 


Negligent RCMP “Bait Car” Pursuit Results in nearly $1 million in Damages

April 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, resulting in a nearly $1 million judgement following the RCMP’s negligent response to a ‘bait car’ theft.

In today’s case (Watkins v. Dormuth) the Defendant RCMP officer was responding to a bait car activation call.  He proceeded North in the southbound lanes to get around traffic.  At the same time the Plaintiff was making a left hand turn at an intersection.  A t-bone collision occurred which resulted in serious injuries whith profound consequences and were expected to have a permanent disabling effect on the Plaintiff.  Damages of close to $1 million were assessed.

The RCMP argued the Plaintiff was to blame for the collision.  Mr. Justice Blok disagreed finding the RCMP were entirely at fault.  In reaching this conclusion the Court provided the following reasons:

[78]         The provisions show there are certain prerequisites that must be met before a police officer may exercise the privileges set out in s. 122 of the Motor Vehicle Act.  In particular, the police officer must have reasonable grounds to believe that the risk of harm to members of the public from the exercise of those privileges is less than the risk of harm to the public should those privileges not be exercised.  Even where the prerequisites are met, the driving privileges afforded by the Motor Vehicle Act must be exercised with due regard for safety, having regard to certain factors.

[79]         I conclude that Cst. Dormuth did not have reasonable grounds to believe that the risk of harm to the public from exercising emergency vehicle privileges was less than the risk to the public should he not exercise those privileges.  All he knew was that there had been a bait car activation.  An activation did not mean that there was a risk of harm to the public because an activation signal could be caused by the mere opening of the bait car door or trunk.  It did not necessarily mean the car was being driven, let alone driven in a manner dangerous to the public.

[80]         This conclusion is consistent with the detachment’s bait car policy, which provides that the normal response level to a bait car activation is Code 2, that is, by proceeding immediately but without using lights or siren.  In other words, the detachment’s own policy recognizes that a bait car activation is a non-emergency event.

[81]         The defendants assert that Cst. Dormuth was not negligent in responding at a Code 3 level because that is how he had been trained, erroneous as it was.  However, I do not see that this absolves the defendants of liability since it is plain that the training given to Cst. Dormuth was faulty….

[95]         Emergency vehicles do not have free rein in exercising the driving privileges accorded by s. 122 of the Motor Vehicle Act.  They may only do so within the limits set by the Emergency Driving Regulation and they are constrained by the duty to drive with due regard for safety: Frers, at para. 89.  I conclude that Cst. Dormuth had no basis to exercise any emergency vehicle driving privileges, and I conclude that in exercising those privileges he did not drive with due regard for safety in the circumstances of this case.

[96]         For these reasons I conclude that the responsibility for this accident rests entirely with the defendants.

 


 

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