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This 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.
December 4th, 2013
While the law in BC presently does allow interest on disbursements to be recoverable in the right circumstances, a prerequisite for recovery is an evidentiary foundation proving that it was necessary to incur the interest claimed. Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry (Babb v. Doell) rejecting such a claim due to a lack of evidence. In reaching this decision Master McDiarmid provided the following reasons:
 A claim for interest by a party entitled to costs might in some circumstances be characterized as necessary, for example, in a situation where the incurring of disbursements such as filing fees or daily hearing fees could only be done by obtaining some funding. Interest could also be a proper disbursement when it was reasonably incurred in the conduct of the proceeding even if, strictly speaking, avoidable. In Franzman, evidence was led which satisfied me that the disbursement interest which the plaintiff agreed to pay to her lawyers as part of a fee agreement was proper and I allowed, as a disbursement, the amount of interest calculated at 6%.
 Most written retainer agreements contain provisions for payment of interest on unpaid accounts. Many retainer agreements contain provisions which are binding as between lawyer and client, for the payment of some disbursements at a rate higher than the rate allowed by registrars when assessing party/party costs. Even in contingency retainer agreements, plaintiffs often agree to and have the means to pay disbursements and do so.
 Unlike in Franzman and in Chandi (Guardian ad litem) v. Atwell, 2013 BCSC 830, the decision relied on by the plaintiff, there is no evidence before me to assist in me establishing either the necessity or the propriety of the plaintiff’s claim for interest.
 As noted above, the onus of proving either the necessity or propriety of disbursements is on the party claiming those disbursements. Absent such evidence, I am unable to make a determination that the interest claimed was either necessary or proper. Accordingly, the claim by the plaintiff for interest is denied.
December 2nd, 2013
Reasons for judgement were released today by the BC Court of Appeal addressing the proper role of mathematical evidence in assessing damages for diminished earning capacity.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision. The Plaintiff was awarded $110,000 in past wage loss at the time of trial for a period that spanned over 6 years. The Court awarded a figure modestly above this for future losses despite findings that the Plaintiff would be limited for the duration of her working career, some 20 more years. The Plaintiff appealed arguing the trial assessment was inordinately low. The BC Court of Appeal agreed and substituted a substantially greater figure. In addressing the proper role of mathematical/statistical evidence in diminished capacity assessments the BC Court of Appeal provided the following reasons:
 This process is “an assessment rather than a calculation” and “many different contingencies must be reflected in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, supra, at para. 70.
 With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure to consider an economist’s projections of a plaintiff’s lost future earning capacity contributed to the judge committing an error in principle, which “resulted in a wholly erroneous estimate of the damages”.
 In cases where the future is hard to predict, a global approach to assessing the loss of future earning capacity is preferable. However, in this case, given the trial judge’s findings of fact, the future is not hard to predict. Ms. Jurczak intended to become a DIR consultant prior to her injuries and because of those injuries she can only work 15 hours per week. The trial judge found as fact that if she was physically able to work 23 hours per week, there was sufficient demand for her skills that she would be able to bill for those hours.
 Additionally, the award for loss of future earning capacity is supposed to compensate Ms. Jurczak for the next 20 to 22 years but is only $10,000 higher than the award for past wage loss.
 In my view, there is a reversible error in the trial judge’s assessment of future loss of capacity. The trial judge’s award bears no correlation to the award for past income loss; nor does it accord with the trial judge’s findings regarding the effect of her injuries on her future ability to work
 Ms. Jurczak does not dispute the trial judge’s findings of fact. Rather, she maintains the trial judge offered no explanation as to why he departed so significantly from the findings in the economist’s report, which he appeared to accept as credible and reliable. Her argument is premised on the assumption the trial judge pulled the figure of $120,000 out of thin air, without having regard to the economist’s calculations.
 It is obvious from the trial judge’s analysis and reasoning that he rejected a purely mathematical approach to calculate Ms. Jurczak’s loss of a capital asset. Instead, it appears he followed the approach in Brown v. Golaiy and awarded Ms. Jurczak $120,000. While the award represents two to three times Ms. Jurczak’s average earnings before the accident and almost double her annual earnings afterwards, the amount has no foundation in the evidence.
 The trial judge was entitled to reject a mathematical approach in the circumstances of this case. However, given his factual findings, in my view the award for loss of future earning capacity is so inordinately low as to amount to an error.
 Having regard to the award for loss of future earning capacity or $110,000 representing a 6 year loss, and considering Ms. Jurczak has about 20-22 years to age 65 and possible retirement, I would increase the award for loss of future earning capacity to $400,000.
December 1st, 2013
What’s a Clawbie? You can click here for a lengthy explanation, or if you want to skip all that pesky reading what you really need to know is that Clawbies are annual law blog awards handed out following a top secret meeting between Steve Matthews, Jordan Furlong and Simon Fodden. I don’t know what all goes on there but suspect it may involve drawn straws or sizable kickbacks. Whatever the deal I know it’s not all shady business as these legal power mongers must select their winners based on peer endorsements. Here are mine for 2013 -
1. Eric Turkewitz’s New York Personal Injury Law Blog – I know, Turkewitz isn’t Canadian. New York’s close enough though right? Eric gets the nod as he is a personal injury lawyer who has been in the law blogging business as long as anyone. Additionally he avoids the usual sins of personal injury law blogs such as self promotion and mind numbing key word spamming. On top of this he stays current and has remained interesting over the years. Plus his first name is kind of like mine. Well done Eric.
2. Eric Macramalla’s OffSide Sports Law Blog – okay, this guy is Canadian and his name is also like mine. If that isn’t enough he also qualifies based on merit with timely articles of interest on all things sports law.
3. Last but not least I nominate David Bilinsky’s ThoughtfulLaw Blog. I’ve said it before but David was a strong influence behind the launch of this blog back in 2008. For this reason alone David gets my annual nod. Plus his site looks kind of barren with no 2012 Clawbie recognition so the power brokers would be wise to fill the void in 2013 or risk being paid a friendly ‘visit’ by my Canadian MMA Law Blog to remind them what’s good for them.
Happy nominating everyone!
November 29th, 2013
Reasons for judgement were released earlier this month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010. She sustained soft tissue injuries to her low back and sacroiliac region. These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons:
 Ms. Hatch continues to have back pain. She finds it particularly bothersome after physical exercise and towards the end of the work week. She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy. Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis.
 All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse. The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve.
 It is now more than three years since the Accident. Ms. Hatch has reached a plateau in her recovery. Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012. This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time. The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time. The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times. As such, there is no mitigation issue.
 In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury. The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores. The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. ..
 As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar.
 Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages.
November 28th, 2013
While ICBC actively seeks a rate hike from BC motorists the government continues to raid the Crown corporation’s coffers.
As previously reported, the 2013 BC Government budget anticipated scooping a total of $257 million from ICBC in 2013. The BC Government’s Second Quarterly Report has now been released and reveals that “The outlook for commercial Crown corporation net income is up $91 million mainly reflecting an increase in ICBC net income due to improved investment returns.”
In fact by the end of September 2013 the Government already scooped $137 Million more than projected from ICBC. There can be no delusions that ICBC is, has been and is expected to continue to be financially profitable. If the government left those profits intact there would be no need for a hidden tax hike in the guise of increased insurance premiums. Here is the raw data:
November 28th, 2013
Adding to this site’s archived case summaries addressing C5/6 disc injuries, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Levens v. Lehman) the Plaintiff was injured in a rear end collision. She had pre-existing neck and back pain. The collision caused a herniated disc which remained symptomatic at the time of trial and had a 50% likelihood of needing future surgical intervention. In assessing non-pecuniary damages at $48,000 Madam Justice Hyslop provided the following reasons:
 I have concluded, based on all of the medical evidence and the evidence of Ms. Levens, that as a result of the accident Ms. Levens suffered a herniated disk as seen in the MRI ordered by Dr. Singh in 2011.
 I also conclude that Ms. Levens, due to her pre-existing condition, was more susceptible to a disk herniation as a result of the degenerative changes in her cervical spine.
 I further conclude that Ms. Levens’ back injury was due to myofascial pain which put her into the hospital in November of 2009. Ms. Levens has spinal stenosis in her back unrelated to the accident which was aggravated by the accident. As a result of the accident, I conclude, for about a year, Ms. Levens had additional pain that she would not have had but for the accident…
 At the time of the accident, Ms. Levens was 65 years old and at the time of the trial was age 69. Her most significant injury is the disc herniation in her neck. The pain has been severe. The myofascial pain and arthritis in her back would have been ongoing and not related to the accident. The motor vehicle accident caused increased pain which landed her in the hospital.
 She is disabled as she does not always have a full ROM in her neck. She has been unable to engage in some of her recreational and sporting activities that she engaged in prior to the accident.
 In coming to the amount of her non-pecuniary damages, I take into consideration that Ms. Levens had a pre-existing condition in her neck which was described by Dr. Singh as “the car accident did cause the final blow to the patient’s disc bulging at a spot that was already weak and had some problems previously.”
 I award the plaintiff $48,000.00 in non-pecuniary damages.
November 27th, 2013
If you are injured in a collision and sell your house for more suitable accommodations can the realtor commission fees be claimed as damages? Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry addressing this.
In this week’s case (Brown v Bevan) the Plaintiff was injured in a 2009 intersection collision. The Defendant was found fully at fault. The Plaintiff suffered various injuries which continued to impact her at the time of trial. She ultimately sold her multilevel townhouse and moved into a one level apartment. The Plaintiff moved in part because she struggled walking up and down the stairs in her former residence. She sought damages for the realtor’s commission charged in the sale arguing that this expense was incurred due to the collision. In refusing these damages Mr. Justice Weatherill provided the following reasons:
 The largest and only disputed item is the claim for $33,801.79 representing the net commissions on the sale of the plaintiff’s Gilford Street town home ($20,680), storage ($599.55), costs associated with purchasing the Homer Street property including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16).
 The issue is whether the costs related to moving are reasonable expenses that can be claimed. But for her injuries and resultant difficulty she had negotiating the stairs inside and outside of home, the plaintiff argues she would never have sold, moved and incurred those expenses. She relies on Rodger v. McDowell,  B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189…
 In Rodger, an award for commission expenses was made in similar circumstances where a plaintiff moved from a two level home to a one level home. The basis of the award is unclear. It apparently was based on defence submissions that “Ms. Rodgers would be adequately and appropriately compensated if she is reimbursed for real estate commission and moving expenses.”
 In Piper, a claim for real estate commissions, moving costs and taxes related to changing residences was dismissed because the plaintiff’s low back injury was not proven to have been caused by the motor vehicle accident.
 In this case, the plaintiff argues the expenses associated with changing residences are directly attributable to the collision and the plaintiff’s prolonged distress from having to use multiple stairs in the Gilford residence on a daily basis. She could not manage them and a move to a single level home was necessary.
 In my view, these expenses are not recoverable from the defendant because:
a. the principles of compensatory damages in tort require the plaintiff to be compensated for all reasonably foreseeable losses directly or indirectly caused by the tort (BG Checo International Ltd. at para 47);
b. the plaintiff is not to be placed in a position better than his or her original one. The court must determine the plaintiff’s “original position” before the tort and her “injured position” after the tort. It is the difference between these two positions that is the plaintiff’s loss (Athey at para 32).
 While the accident indirectly caused the plaintiff’s left heel pain and that moving residences was a foreseeable risk, on the Athey test, the plaintiff’s claim under this head must fail. I find that the plaintiff would have moved residences to a one story home in the future in any event. These expenses would have been incurred regardless, albeit sooner (perhaps a year or two) than otherwise expected. In other words, these expenses were not incurred “but for” the collision.
November 26th, 2013
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision. The Defendant admitted fault. The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back. Her symptoms carried on to the time of trial and were expected to continue indefinitely. Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function. In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
 I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
 I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
 With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
 However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
 It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
 Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
 In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
 Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.
November 25th, 2013
While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC. ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries. Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician. The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination. In dismissing the application the Court provided the following reasons:
 In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
 On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
 More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
 Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
 On the basis of the material before me, the application is dismissed.
November 22nd, 2013
Adding to this site’s archived case summaries addressing collision liability, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorcyclist wrongly assumed a vehicle was going to come into his path of travel.
In this week’s case (Vance v. Cartwright) the Plaintiff motorcyclist was travelling southbound when the Defendant approached a stop sign. After stopping the Defendant proceeded forward then stopped after seeing the Plaintiff. The Plaintiff “reacted by deciding to go to his right…believing she was going to continue to make her left hand turn and that this would lead to a collision“. In finding the Plaintiff fully at fault for the collision Mr. Justice Saunders provided the following reasons:
 I find that the accident happened through no fault on the part of the defendant. She did what was reasonably expected of her. She stopped at the line, checked for traffic, moved forward slowly giving her improved sight lines, and when she saw the oncoming motorcycle stopped again. She cannot be held responsible for his decision to veer to the right.
 The plaintiff says that the defendant was moving into his lane and that he felt she was committed to making her left turn. That evidence struck me as a post hoc rationalization of the plaintiff’s actions. There was nothing in the defendant’s actions to indicate she was doing anything other than proceeding forward slowly before committing to a turn.
 I find this accident happened solely due to the plaintiff’s fault. He approached an intersection which he ought to have known had limited visibility, travelling not out towards the centre line where he would have been more easily seen, but far to the right, making him less visible to the defendant. He was speeding which cut his reaction time and would have cut the reaction time of other drivers as well.
 The evidence of how he reacted when he saw the defendant’s car is, at least, equally consistent with him having panicked when he saw the defendant’s car or with him having made a poor reactive choice reflecting his lack of training and experience.
 The action is, therefore, dismissed.