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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.
October 30th, 2014
When advancing a personal injury lawsuit it is common for BC lawfirms to fund the lawsuit related expenses on behalf of clients (disbursements such as court filing fees, the cost associated with ordering medical records and expert reports). Today the BC Law Society’s Ethics Committee provided an opinion that this practice is acceptable with certain conditions, however, if a lawfirm funds expenses beyond disbursements (ie clients medical costs, client out of pocket expenses etc) they must do so on an interest free basis unless they send the clients for independent legal advice first. Below the full Ethics Opinion can be found on page 12 of this link .
For Disbursement funding with interest charges to be Ethical the lawyer must
1. disclose the charge in writing in a timely fashion
2. ensure the charge is fair and reasonable
3. ensure the client consents to the charge
If the funds advanced are for anything other than disbursements and interest is charged the requirements are greater and are as follows:
1. disclose the charge in writing in a timely fashion
2. ensure the charge is fair and reasonable
3. ensure the client consents to the charge after receiving independent legal advice
4. be in compliance with the BC Code rule 3.4-26.1, which prevents a lawyer from advancing funds to a client if there is a substantial risk that the lawyer’s loyalty to or representation of the client would be materially and adversely affected by te lawyer’s relationship with the client or interests in the client or the subject matter of the legal services.
October 29th, 2014
Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope and timing of objections required under Rule 11-6(10).
In today’s case (Pausch v. Vancouver Coastal Health Authority) the Plaintiff tendered the report of an expert discussing the standard of care of MRI technologists. The Defendant failed to raise an objection of the expert’s qualifications under the timelines set out in Rule 11-6(10). The Defendant argued that this rule was “limited to objections on the contents of the report” and did not apply to expert qualifications. Madam Justice Sharma disagreed and found the rule did apply to qualification objections. In reaching this conclusion the Court provided the following reasons:
 Turning to the question of whether Rule 11-6(10) and (11) applies to objections of qualifications, I conclude that it does.
 In my view, no difference can be drawn between an objection to the admissibility of the report, and an objection to an expert’s qualification with regard to Rule 11-6(10). In order to be admissible, any opinion evidence must come from a properly qualified expert. Qualification is a prerequisite to admissibility.
 The wording of Rule 11-6(10) and (11) is mandatory. In my view, the phrase “objection to the admissibility of the expert’s evidence” necessarily includes objections based on inadequate qualifications of the expert. Indeed, the expert’s qualifications are required to form part of his or her report: Rule 11-6(1)(a) and (b). I find therefore, that the defendant here ought to have given notice of the objections to the expert’s qualifications.
The Court went on to find that, despite the lack of a proper objection, the Court retains “an overriding discretion to admit opinion evidence when the rules have not been followed, or refuse to admit it when there has been compliance.” and that “It is the duty of the trial judge to ensure evidence admitted onto the record is both relevant and admissible but the plaintiff has the burden of establishing that Mr. Myszkowski is qualified as an expert.” whether or not a timely objection was raised.
October 27th, 2014
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting a request for double costs following a trial where a Plaintiff beat her formal settlement offer by a slim margin.
In today’s case (Griffith v. Larsen) the Plaintiff suffered an injury in a collision. Prior to trial the plaintiff provided a formal settlement offer of $85,000 which was rejected. At trial she was awarded $85,159. The Plaintiff asked for double costs but Mr. Justice Affleck refused to award these finding it would not be appropriate in the face of credibility concerns and further with the Defendant enjoying some success at trial on one of the most contentious issues. In rejecting the request for double costs the Court provided the following reasons:
 I have considered two factors which have influenced my decision against awarding double costs. The first is my findings of credibility which were not favourable to the plaintiff. While I concluded the plaintiff had suffered soft tissue injuries of some duration which were deserving of an award of damages, I also concluded that she had not given her evidence with candour. An award of double costs is meant in part to penalize a party for failing to accept a reasonable offer. On the other hand a party who has not been candid with the court at least in some instances ought not to be rewarded with double costs even if her damage award exceeds the offer. This is one of those instances.
 The second factor I have considered is the defendants’ relative success on the most contentious issue at the trial. The plaintiff advanced a claim far exceeding the award which was largely predicated on the proposition she would need surgery to overcome a disabling thoracic outlet syndrome. I did not accept the plaintiff’s evidence on that issue. The defendants largely succeeded in persuading me that the thoracic outlet syndrome, if the plaintiff actually experienced it, had little effect on her physical condition. That is a further reason for concluding it is not appropriate to penalize the defendants with an award of double costs.
 In Mudry v. Minhas, 2010 BCSC 1110, Kelleher J. discussed apportionment of an award of costs for relative success on an issue under the then Rule 57(15). While the court concluded the plaintiff had not met the test for apportionment, the plaintiff’s success in that case on the issue of fault (although no damage was found and the action dismissed) was a relevant factor under Rule 37B(6)(d), now Rule 9-1(5)(b), on considering if the defendant was entitled to double costs when there had been a defence offer, which in Mudry obviously exceeded the damage award which was nil..
 I acknowledge there is some merit to the plaintiff’s submission that, notwithstanding the absence of success on the issue of thoracic outlet syndrome, the plaintiff’s offer took into account the risk of failure on that issue. Nevertheless, in the circumstances of this action I am unwilling to penalize the defendants in costs when they largely succeeded on that question. The usual rule will prevail that party and party costs on Scale B follow the event.
October 27th, 2014
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, excluding an expert report for failing to disclose a list of documents reviewed.
In today’s case (Lawrence v. Parr) the Plaintiff was involved in a 2010 collision and sued for damages. The Plaintiff alleged that the collision caused some hearing loss. Prior to trial the Defendant served a report from an otolaryngologist which opined that the hearing loss was not from the collision. The report was criticized for a number of reasons including being served beyond the timelines required under the Rules of Court. The report as ultimately excluded from evidence with Mr. Justice Tindale noting that the expert’s failure to list documents reviewed and relied on was a fatal error. In excluding the report the Court provided the following reasons:
 Rule 11-6 (1) states a number of mandatory requirements of an expert report. Dr. David’s report did not contain the certification required under Rule 11-2 (2) though that was remedied at a later date. It does not contain the instructions provided to Dr. David. His report is not clear as to the nature of the opinion being sought and the issues in the proceeding to which the opinion relates. But most importantly it does contain a description of the factual assumptions on which his opinion is based. There is not a comprehensive list of the documents that he relied on. Where he does discuss a document that he relied on he either makes vague, inaccurate or misleading references to that document.
 I am mindful of Rule 11-7 (6) however. The admission of this report will cause prejudice to the plaintiff because despite a very lengthy cross-examination it is not clear what the purpose of Dr. David’s report was and what his factual assumptions were.
 In my view, for all the above noted reasons Dr. David’s report and evidence at the video deposition are inadmissible.
October 24th, 2014
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding Prince Rupert Grain Ltd. (PRG), who operated a deep sea terminal, negligent for failing to meaningfully warn the Plaintiff about an automated gangway.
In the recent case (Ranjabar v. Islamic Republic of Iran Shipping Lines) the Plaintiff was a cook on a foreign commercial vessel. It docked at the Defendants deep sea terminal. After a brief time at shore, as the Plaintiff was attempting to board the vessel, the automated gangway lifted and the Plaintiff fell onto the ship below fracturing his femur.
The Defendant PRG was found liable with the court finding the gangway was “both unusual and dangerous“. The court noted that the English language warning signs were insufficient notice of this danger in the circumstances where occupants of foreign vessels were expected to encounter it.
At paragraphs 81-101 the Court sets out a lengthy list of applicable legal principles in occupiers liability cases concerning the use of a gangway. In finding PRG liable Madam Justice Dillon provided the following reasons:
 Did the gangway pose an unusual danger? Yes, it did. The automatic gangway was both unusual and dangerous. It was unusual because none of the seamen who testified, including Ranjbar, Salmannia and Malayeri, had ever seen such a gangway in all of their combined years at sea around the world. Usually, a ship (and certainly the Iran Mazandaran) used its own gangway to access a terminal. Usually, it was continuously monitored and operated manually. Based upon this evidence, it is concluded that the average crew member would not have expected the gangway to rise automatically, especially with someone on it. Salmannia thought that “automatic” meant that the ladder remained at all times on the ship deck. The alarm cycle and sequence before lifting of the gangway was both unusual and dangerous if not known. None of PRG’s personnel who testified could interpret the record of the alarm sequence exactly and could not explain why or when the sequence was altered from the original operations manual. It was not obviously visually apparent to either Ranjbar or to Salmannia that the gangway automatically lifted…
 PRG acknowledged this danger by placing the signs and using the horn to warn of danger from movement of the automatic gangway if someone was on it. Whether they were adequate is another question. The assistant maintenance superintendent for the terminal admitted that the gangway was dangerous, especially if one was on the ladder when it lifted. He had never attempted to experience the ladder when the gangway lifted because of the danger…
 Did the failure of PRG to adequately warn of the danger cause Ranjbar to fall from the ladder? The answer is yes. If Ranjbar had known that the gangway would lift automatically, raising the stepladder off of the deck of the ship, he would not have waited while he threw down the backpack to Heidar and then proceed down the ladder. Heidar did not change his conduct as a result of the signs or horn, indicating that he, too, did not appreciate the danger. When the gangway started to lift, Ranjbar did not know what was happening and did not know what to do. Even if he had seen them, the warning signs were inadequate to transmit the danger to him. Ranjbar was aware of dangers generally at the terminal and took care, but relied upon others to inform him about specific dangers. He was a new visitor to this terminal and was given a security pass, but was not told anything about this gangway. The nature of the gangway as automatically lifting regardless that someone was on it was not obvious. It cannot be said in all of the circumstances that the plaintiff’s misunderstanding of the signs and horn was the cause of his injury…
 In conclusion, following careful consideration of all of the facts and the guidance of the law, PRG is 100% liable for the injuries caused to the plaintiff.
October 22nd, 2014
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether a formal settlement offer open for only 3 days could trigger costs consequences.
In today’s case (Henry v. Bennett) the Plaintiff was involved in a 2008 collision and sued for damages. The claim was ultimately dismissed with the Plaintiff being at fault for the crash. Prior to the trial the Defendant provided a formal offer of $30,000 which was only open for acceptance for three days.
The Plaintiff argued that the offer should not attract double costs in part due to its short window. Madam Justice Ballance disagreed finding given the significant liability risks at trial it was a reasonable offer. In addressing its short lifespan not being a barrier the Court provided the following reasons:
 I would ordinarily regard a three-day fuse attached to an offer that was delivered close to the eve of trial, where it would be expected that the party would be engrossed in the demands of trial preparation, as posing an unreasonable time constraint within which to give it meaningful evaluation. The difficulty facing Mr. Henry, however, is that due mainly to his own damaging discovery evidence, he ought reasonably to have anticipated that he faced significant exposure of not only faring poorly on the issue of liability, but losing his case altogether. Knowing, as he did, his harmful evidence, Mr. Henry should have appreciated the deep weakness of his claim and the risk of significant apportionment against him or the outright dismissal of his suit and his exposure for an adverse costs award. All things considered, the 2011 Offer was one that ought reasonably to have been accepted by Mr. Henry.
 With respect to other the pertinent factors, in dismissing Mr. Henry’s case, the Court placed heavy emphasis on his discovery evidence concerning liability for the accident. Relatively little is known about Mr. Henry’s specific financial circumstances. Based on the evidence at trial, it is reasonable to infer that his financial situation is modest. However, that, of itself or in combination with any other factor, is not reason enough in this case to refuse the defendant an award of double costs.
 The defendant is entitled to costs of this proceeding at Scale B up to and including March 8, 2011, and double costs thereafter.
October 17th, 2014
Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry rejecting the evidence of a defence expert on the basis of advocacy.
In today’s case (Davidge v. Fairholm) the Plaintiff was involved in a 2009 rear end collision. Fault was admitted. The Plaintiff suffered a chronic back injury which interfered with both his vocational and recreational abilities. ICBC had the Plaintiff assessed by an orthopaedic surgeon who largely discounted the crash as playing a role in the Plaintiff’s chronic symptoms. In criticizing this evidence as ‘advocacy’ Madam Justice Griffin provided the following reasons:
 ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial. Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him. He characterized the symptoms as subjective but did not offer a reason to believe they were not real. He recommended that the plaintiff undertake a regular activity, or exercise, program.
 Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.
 However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident. This opinion was offered even though it was not responsive to the question being asked, and was not in his report. I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.
 Dr. Sovio’s off-hand opinion in relation to causation was not well explained. From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record). This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later.
 Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time.
 Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain. According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields. If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.
 In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work. Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”. In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.
 Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident. It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.
 Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning. He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.
 Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial. He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job. When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding.
 In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work.
October 14th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing contributory negligence for a passenger who rides with an impaired motorist involved in a collision.
In today’s case (Telford v. Hogan) the Plaintiff was a passenger in a vehicle operated by the Defendant. Both were drinking throughout the day. As the vehicle was travelling at excessive speed on a highway the driver lost control resulting in a serious single vehicle collision. The Plaintiff apparently interfered somehow with the steering wheel moments before the loss of control and the Court found the driver 75% at fault with the passenger shouldering 25% of the blame for this interference. In addition to this the Court apportioned the Plaintiff’s contributory negligence at 35% for riding with an impaired motorist. In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:
 Despite the efforts of Ms. Telford’s counsel to distinguish the above cases, all of them bear some resemblance to this case in that the passenger and the driver embarked on a drinking exercise or “hazardous enterprise” where both knew or should have known that the intoxication of the driver was inevitable. I would repeat that Ms. Telford was well aware that Ms. Hogan was drinking over the course of the day and she had particular knowledge of the quantity of what Ms. Hogan consumed as the majority of it came from her own drink container. Although she may not have been aware of exactly what Ms. Hogan consumed from Ms. Ettinger’s cup, she would also have been aware that Ms. Ettinger’s beverage was alcoholic and that Ms. Hogan was sharing that too.
 It does not follow that since Ms. Hogan was not exhibiting overt signs of impairment, one need not consider Ms. Telford’s lack of judgment in both offering her drink to Ms. Hogan and then getting in the vehicle being driven by Ms. Hogan for the trip home. To the extent that later in the day, Ms. Telford drank alcohol to the point of being severely intoxicated herself confirms that she failed to take reasonable steps to ensure her ongoing ability to assess her safety over the course of the trip home.
 The cases cited by ICBC support the suggested range of apportionment of 30-35% for such a passenger who voluntarily rides with a drunk driver. The higher end of this range is amply supported, particularly by the fact that Ms. Telford herself provided most of the alcohol consumed by Ms. Hogan that day.
 I assess Ms. Telford’s contributory negligence to be 35%.
October 9th, 2014
Important reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing the entitlement of a claimant to ‘revive‘ ICBC disability benefits after an attempted return to work.
In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008. She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year. The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.
The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits. Mr. Justice Baird rejected this argument and set out the following reasons clarifying when an insured is entitled to revive TTD benefits with ICBC:
 Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:
1. Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period.
2. Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability.
3. Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.
 Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies.
 In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)…
 I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs under s. 80; b) they can demonstrate that they are totally disabled as defined in s. 80; and c) they can show that the total disability is due to injury sustained in the original accident.
October 8th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries from a motor vehicle collision.
In today’s case (Farbatuk v. Lagrimas) the Plaintiff was rear-ended in a 2011 collision. The Defendant admitted fault. The Plaintiff sustained moderate to severe soft tissue injuries to his neck and back. The Plaintiff’s physician gave evidence that the prognosis for recovery was extremely guarded although the Court rejected this finding that any lingering symptoms did not “debilitate or impair” the Plaintiff in any meaningful way. In assessing non-pecuniary damages at $60,000 Madam Justice Kloegman provided the following reasons:
 It appears from the medical evidence that all three expert witnesses agreed that the plaintiff suffered a moderate to severe whiplash to his neck and back in the accident. It also appears that the medical experts agree there is evidence of a pre-existing degenerative condition in the plaintiff’s back and neck, whether D.I.S.H. or something else.
 Dr. Miki described the plaintiff’s prognosis as “extremely guarded”, particularly in relation to the work the plaintiff has done for the previous 25 years. Dr. Richardson’s prognosis for the plaintiff’s neck and back was moderate, with no increasing risk of developing osteoarthritis. Dr. Werry stated in his report that the plaintiff will probably continue indefinitely to experience variable neck and low back pain and stiffness, but that he probably has not reached maximum medical improvement.
 As stated earlier, Dr. Miki’s evidence was given in an advocational manner and he relied heavily on the plaintiff’s self-reporting. His prognosis of “extremely guarded” was not consistent with some of his clinical notes that had been omitted from his report. These showed steady and continuous improvement in the plaintiff’s position. His prognosis was also not consistent with the evidence of Louise Craig, functional capacity evaluator, who opined that the plaintiff’s main limitation is in his range of motion in his neck. She reported that the plaintiff felt an increase in symptoms from sustained sitting and stooping, but that he showed a tolerance for exertion of low to upper range of heavy physical strength, very good core strength and aerobic fitness, no limitation in standing, walking, crawling, kneeling, crouching, managing stairs, balancing, reaching, gripping and most importantly; he was able to carry a medium load of 50 lbs on a frequent basis which placed his ability to work in the Heavy category of occupations.
 In my view, the plaintiff’s prognosis is more optimistic than either Dr. Miki or he would admit. Although 2½ years have passed since the accident and the plaintiff still complains about neck pain, back pain and limited range of motion, I am not satisfied, on a balance of probabilities, that these subjective complaints are sufficiently supported by any objective evidence of continuing injury. Simply put, he has not established that his ongoing complaints are serious enough to debilitate or impair him in any way…’
 I find that the plaintiff’s situation is closer to those of the plaintiffs in the above cases cited by defence. In my view, an award of $60,000 is fair compensation for the plaintiff’s non-pecuniary losses.