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.

Archive for May, 2008

$86,967.02 Awarded for Chronic Soft Tissue Injuries and Anxiety

May 30th, 2008

Reasons for judgement were released today following a 3 day trial in Vernon, BC in which Mr. Justice Cole awarded a 35 year old plaintiff close to $90,000 in compensation for her losses and injuries as a result of a motor vehicle accident.

This case is worth a read for anyone advancing an ICBC claim or involved in ICBC settlement negotiations concerning the issue of ‘indivisble injuries’. That is, where an event other than the accident has contributed to the injuries sustained in the accident. I will say more about this below.

The Plaintiff was involved in a rear-end accident in Kelowna BC on June 30, 2005. Her vehicle was rearended by a truck driven by the Defendant. As a result of this incident she suffered from various soft tissue injuries and anxiety.

In early 2007, the Plaintiff was almost struck by a vehicle while she was in a cross-walk. This added to her anxiety issues.

The court heard from several medical experts who commented on the Plaintiff’s injuries. This is quite common in ICBC injury claims that proceed to trial as there is often 2 sides to the medical story. In this case, however, the medical evidence addressing the physical injuries was quite similar.

Dr. Laidlow, a physiatrist who often conducts ‘independent medical exams’ for ICBC, testified that the Plaintiff will be “prone to mechanical lower back pain…and may require the odd use of anti-inflammatories during times of flare up“.

Dr. Travlos, another physiatrist well versed in diagnosing and treating injuries related to ICBC claims, stated that “(the plaintiff’s) current residual neck and shoulder symptoms are a result of tjhe accident. It is likely that these symnptons will slowly continue to improve and ultimately resolve….the Plaintiff’s tailbone symptoms are clearly an ongoing issue…..the nature of her current low back / pelvic symptoms is intermittent and this bodes well for further recovery.”

The court also heard from the plaintiff’s family doctor who testified that there was room for improvement in the Plaintiff’s condition.

Possible future treatments for the injuries included trigger point injections, diagnostic injections, a facet joint rhizotomy and medicaitons.

In the end the court concluded that the Plaintiff sufferd a soft tissue injury “that would be described as the upper end of a moderate soft tissue injury that should resolve itself over time“. The court also found that the Plaintiff suffered from anxiety as a result of the collision in 2005 and the near collision in 2007. The Plaintiff claimed she suffered from Post Traumatic Stress Disorder (PTSD) as a result of the collision and this was supported by the evidence of Dr. Neilson. The court, however, held that the Plaintiff did not make out this claim as the Plaintiff did not prove all the facts that were underlying Dr. Neilson’s diagnosis of PTSD.

The court awarded damages as follows:

Pain and Suffering (non pecuniary damages) $60,000

Special damages: $6,045

Past wage loss: $19,522.02

Future medical care: $400

Future Therapy: $1,000

This case did a great job reviewing 2 areas of law which frequently come up in many ICBC claims, namely claims for ‘loss of future earning capacity’ and claims where intervening events add or contribute to accident related injures.

As in many ICBC claims the Plaintiff had an intervening event which added to her anxiety. When valuing the injuries the court did a great job in summarizing how a court is to do so when the subsequent event caused an ‘indivisble injury’.

The court referenced some of the leading authorities in concluding the PTSD claim gave rise to an ‘indivisble injury’.   Most experienced ICBC claims lawyers are familiar with these authoritative cases which the court referred to, particularly:

Athey v. Leonati

EDG v. Hammer

Ashcroft v. Dhaliwal

The court concluded that “I am satisfied, in this case, that the two incidents that the plaintiff was involved in are indivisble. The anxiety caused to the plaintiff by the second incident is directly connected to the accident involving the defendant. Since the individual that caused the second accident was not before the court, as was the case in Ashcroft, where there was a settlement of the claim, the defendant is liable for all of the plaintiff’s damages

Do you have questions about this case or a similar ICBC case involving soft tissue injuries, post traumatic stress or an intervening event?  If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.


Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

May 29th, 2008

Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.

The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.

A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.

Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.

With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.

The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:

Athey v. Leonati

Resurfice Corp. v. Hanke

The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.

The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.

For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”

For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.

The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).

If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.

Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.


BC Supreme Court Awards $16,324 For Soft Tissue Injuries in an LVI Accident

May 27th, 2008

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.

The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.

The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.

The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.

This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.

The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.

In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”

Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.

The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.

In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.

Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.


BC Court of Appeal Orders New Trial in Left Hand Turn Accident Case

May 27th, 2008

Today the BC Court of Appeal overturned a jury verdict finding a left hand turning motorist completely at fault for a motor vehicle collision and awarding the injured Plaintiff over $1.2 Million in compensation for serious injuries.

The car accident happend in 2000 in Coquitlam BC. The Plaintiff was travelling southbound in the right hand lane on North Road. There was stopped traffic in the two southbound lanes to his left. The Defendant was travelling North on North Road and attempted to make a left hand turn into the Lougheed Mall parking lot. At this time he collided with the Plaintiff’s vehicle.

The jury found the left-hand driver 100% at fault for this collision.

The jury went on to award damages as follows:

Non-pecuniary damages (pain and suffering) $300,000

Past Loss of Income: $275,000

Loss of Future Earning Capacity: $650,000

Cost of Future Care: $15,000

At trial the defence lawyer asked the judge to instruct the jury on the provisions of s. 158 of the Motor Vehicle Act. This section prohibits a driver from overtaking and passing a vehicle on the right when the movement cannot be made safely. The trial judge chose not to instruct the jury about this section.

The BC Court of Appeal held that it was an error in law not to do so, specifically that:

[11] In my opinion it was, in the circumstances of this case, a serious non- direction, amounting to a misdirection, to fail to draw the provisions of s. 158 to the attention of the jury. Section 158(2)(a) prohibits a driver from overtaking and passing another vehicle on the right when the movement cannot be made in safety. The jury could not have had a proper understanding of the parties’ relative obligations, and the standard of care each was to observe, without an instruction on the meaning and application of that section.

[12] I do not think this Court could properly decide how, if at all, fault should be apportioned. That question requires an appreciation of all the evidence, as well as a consideration of the credibility of the two drivers and the other witnesses.

[13] In my opinion, there must be a new trial on the issue of contributory negligence.

The Court ordered that the jury’s judgement be set aside and that the proceeding be generally returned to the BC Supreme Court for a new trial.

The result is, over 8 years after a very serious accident with serious injuries, If the Plaintiff is not able to come to a settlement of his ICBC Claim he will have to be involved in a second trial to address the allegations that he was partially at fault for his injuries and to prove the value of his losses all over again.

Section 158 of the BC Motor Vehicle Act is a rarely cited section but one of significant importance. Simply because you are in a through lane and are not governed by a stop sign or stop light does not mean you always have the right of way. If vehicles in your direction of travel have stopped and it is not clear why they have stopped it may not be safe to proceed. In this case it appears that vehicles may have stopped to permit the Defendant to turn left and the Plaintiff continued on. This case illustrates the potential use Section 158 of the Motor Vehicle Act may have for left hand turning motorists involved in a collision.

Do you have questions about this case or fault for an accident involving a left-turning vehicle that you wish to discuss with an ICBC Claims Lawyer? Click here to arrange a free consultation with ICBC Claims lawyer Erik Magraken.


$19,840 Awarded for 15 Month Soft Tissue Injuries

May 23rd, 2008

In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.

The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.

A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.

The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”

The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.

In the end the court awarded damages as follows:

Pain and Suffering: $15,000

Past Wage Loss: $4,790.50

Mileage Expenses for treatments: $50

This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.

Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.


Access to Justice – Where is the Nearest BC Supreme Court Registry?

May 23rd, 2008

Do you need to know where the nearest BC Supreme Court or BC Provincial Court (small claims court) registry is to you? This informtion can be found on the BC Courts website. For the convenience of my readers I reproduce the full list of BC Supreme Court registries below.

If you are advancing an ICBC claim, are approaching your limitation period, and are not represented by an ICBC claims lawyer the first thing you will need to know is where the closest court registry is. Well, if you’re looking to file your claim in Supreme Court here you go:

ATLINFiling  P.O. Box 100
3rd Street
Atlin, B.C.
V0W lA0
(250) 651-7595 (250)651-7707
CAMPBELL RIVER  500-13th Ave
Campbell River, B.C.
V9W 6P1
(250) 286-7650 (250)286-7512
CHILLIWACK  46085 Yale Rd.
Chilliwack, B.C.
V2P 2L8
(604) 795-8350 (604)795-8393 (Civil)Fax Filing: (604)795-8397(604)795-8345 (Criminal)
COURTENAY  Room 100
420 Cumberland Road
Courtenay, B.C.
V9N 2C4
(250) 334-1115 (250)334-1191
CRANBROOK  Room 147
102 – 11th Avenue South
Cranbrook, B.C.
V1C 2P3
(250) 426-1234 (250)426-1352Fax Filing: (250)426-1498
CRESTONClosed Contact Cranbrook      
DAWSON CREEK  1201 – 103rd Avenue
Dawson Creek, B.C.
V1G 4J2
(250) 784-2278 (250)784-2339Fax Filing: (250)784-2218
DUNCAN  238 Government Street
Duncan, B.C.
V9L 1A5
(250) 746-1227 (250)746-1244
FERNIE
(Sparwood)
Closed
Contact Cranbrook
     
FORT NELSON Bag 1000
4604 Sunset Drive
Fort Nelson, B.C.
V0C 1R0
(250) 774-6990 (250)774-6904
FORT ST. JOHN  10600 – 100 Street
Fort St. John, B.C.
V1J 4L6
(250) 787-3266 (250)787-3518
GOLDEN  837 Park Drive
P.O. Box 1500
Golden, B.C.
V0A 1H0
(250) 344-7581 (250)344-7715
GRAND FORKSClosed
Contact Rossland
     
INVERMEREClosed
Contact Cranbrook
     
KAMLOOPS  223 – 455 Columbia Street
Kamloops, B.C.
V2C 6K4
(250) 828-4344 (250)828-4332Fax Filing: (250)828-4345
KELOWNA  1355 Water Street
Kelowna, B.C.
V1Y 9R3
(250) 470-6900 (250)470-6939Fax Filing: (250)979-6768
KITIMATClosed
Contact Terrace
     
LILLOOETClosed
Contact Kamloops
     
MERRITTClosed
Contact Kamloops
     
NANAIMO  35 Front Street
Nanaimo, B.C.
V9R 5J1
(250) 741-3805 (250)741-3809
NELSON  320 Ward Street
Nelson, B.C.
V1L 1S6
(250) 354-6165 (250)354-6539Fax Filing: (250)354-6133
NEW WESTMINSTER  Begbie Square
651 Carnarvon Street
New Westminster, B.C.
V3M 1C9
Chambers:
(604) 660-0686Civil:
(604) 660-0571Criminal:
(604) 660-8517Divorce:
(604) 775-0671Finance:
(604) 660-8532Probate:
(604) 660-0579Trial Scheduling:
Supreme: (604) 660-8551
(604)660-8977 (Criminal)(604)660-1937 (Civil)
100 MILE HOUSEClosed
Contact Williams Lake
     
OLIVERClosed
Contact Penticton
     
PENTICTON  Room 116
100 Main Street
Penticton, B.C.
V2A 5A5
(250) 492-1231 (250)492-1378Fax Filing: (250) 492-1290
PORT ALBERNI  2999 – 4th Avenue
Port Alberni, B.C.
V9Y 8A5
(250) 720-2424 (250)720-2426
PORT HARDY 9300 Trustee Road
Mailbag 11000
Port Hardy, B.C.
V0N 2P0
(250) 949-6122 (250)949-9283
POWELL RIVER  103 – 6953 Alberni Street
Powell River, B.C.
V8A 2B8
(604) 485-3630 (604)485-3637
PRINCE GEORGE   J.O. Wilson Square
250 George Street
Prince George, B.C.
V2L 5S2
(250) 614-2700 (250)614-2737
(250)614-2717Fax Filing: (250)614-7923
PRINCE RUPERT  100 Market Place
Prince Rupert, B.C.
V8J 1B8
(250) 624-7525 (250)624-7538
PRINCETONClosed
Contact Penticton
     
QUESNEL  305 – 350 Barlow Avenue
Quesnel, B.C.
V2J 2C1
(250) 992-4256 (250)992-4171
REVELSTOKEClosed
Contact Salmon Arm
     
ROSSLAND P.O. Box 639
2288 Columbia Avenue
Rossland, B.C.
V0G 1Y0
(250) 362-7368 (250)362-9632Fax Filing: (250)362-7321
SALMON ARM  BOX 100, Rm. 203
20 Hudson Avenue N.E.
Salmon Arm, B.C.
V1E 4S4
(250) 832-1610 (250)832-1749Fax Filing: (250)833-7401
SMITHERS  No. 40, Bag 5000
3793 Alfred Avenue
Smithers, B.C.
V0J 2N0
(250) 847-7376 (250)847-7710Fax FIling:
(250)847-7344
TERRACE  3408 Kalum Street
Terrace, B.C.
V8G 2N6
(250) 638-2111 (250)638-2123Fax Filing: (250)638-2143
VANCOUVER   800 Smithe Street
Vancouver, B.C.
V6Z 2E1
Administration:
(604) 660-2847Accounting:
(604) 660-2866Chambers:
(604) 660-2849Criminal:
(604) 660-2874Civil:
(604) 660-2845Divorce:
(604) 660-2486Probate:
(604) 660-2876
(604) 660-2877Registrar’s Booking Desk
(604) 660-2853Trial Scheduling:
(604) 660-2853 (Civil)
(604) 660-2854 (Civil)
(604) 660-9201 (Criminal)
Administration:
(604)660-2420Civil:
(604)660-2429Criminal:
(604)660-2418Registrar’s Booking Desk
(604)660-0623Trial Scheduling: (604)660-0623
VANDERHOOFClosed
Contact Prince George
     
VERNON  3001 – 27th Street
Vernon, B.C.
V1T 4W5
(250) 549-5422 (250)549-5621Fax Filing: (250)549-5461
VICTORIA  Location:
850 Burdett Avenue
Victoria, B.C. Mailing Address:
PO Box 9248
Stn Prov Govt
Victoria, BC
V8W 9J2
(250) 356-6634 (250)356-6279 (Criminal)
(250) 356-6862 (Civil)
WILLIAMS LAKE  540 Borland Street
Williams Lake, B.C.
V2G lR8
(250) 398-4301 (250)398-4459Fax Filing: (250)398-4264

 

Are you looking for an ICBC Claims lawyer that services your community? If so contact ICBC Claims lawyer Erik Magraken to arrange for a free consultation.


Supreme Court of Canada Clarifies Law Relating to "Forseeability"

May 22nd, 2008

In reasons for judgement released today, the Supreme Court of Canada dismissed the appeal of a very peculiar case. In doing so they clarified the law regarding ‘forseeability of injury’ which is a necessary ingredient to prove in negligence cases.

While this case does not involve an ICBC claim, this case is important because ‘forseeability’ must be proven in all negligence cases, and this includes ICBC car accident tort claims.

The facts of this case are unusual. The Plaintiff allegedly sustained a psychiactric injury as a result of seeing dead flies in a bottle of water supplied by Culligan. He had used Culligan’s services for many years. As a result of this “he became obsessed with the event and its revolting implications for the health of his family”. He went on to develop a major depressive disorder with associated phobia and anxiety.

At trial he was awarded over $300,000 in compensation. The Ontario Court of Appeal overturned the verdict and thus this case was brought to the Supreme Court of Canada.

When suing for negligence (and this is the case in most ICBC car accident claims) a Plaintiff must prove 4 things:

1. That the defendant owed the Plaintiff a duty of care

2. That the defedant’s behaviour breached the standard of care

3. That the Plaintiff sustained damages

4. That the damages were caused, in fact and in law, by the Defenant’s breach.

The Supreme Court of Canada held that the Plaintiff met the first three tests to succeed in his action. It is the 4th test that the Plaintiff failed on and in explaining why the Supreme Court of Canada added some clarity to this area of law. The important portion of the judgement can be found at paragraphs 11- 18 which read as follow:

[11] The fourth and final question to address in a negligence claim is whether the defendant’s breach caused the plaintiff’s harm in fact and in law. The evidence before the trial judge establishes that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury. We are not asked to revisit this conclusion. The remaining question is whether that breach also caused the plaintiff’s damages in law or whether they are too remote to warrant recovery.

[12] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).

[13] Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendant … and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617, at p. 643).

[14] The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”

[15] As the Court of Appeal found, at para. 49, the requirement that a mental injury would occur in a person of ordinary fortitude, set out in Vanek, at paras. 59-61, is inherent in the notion of foreseeability. This is true whether one considers foreseeability at the remoteness or at the duty of care stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317, [2002] HCA 35, per Gleeson C.J., this “is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm” (para. 16). To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

[16] To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damages, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damages at law.

[17] I add this. In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant. In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha’s particular sensibilities.

[18] It follows that in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do. The only evidence was about his own reactions, which were described by the medical experts as “highly unusual” and “very individual” (C.A. judgment, at para. 52). There is no evidence that a person of ordinary fortitude would have suffered injury from seeing the flies in the bottle; indeed the expert witnesses were not asked this question. Instead of asking whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude, the trial judge applied a subjective standard, taking into account Mr. Mustapha’s “previous history” and “particular circumstances” (para. 227), including a number of “cultural factors” such as his unusual concern over cleanliness, and the health and well-being of his family. This was an error. Mr. Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.

If you are advancing and ICBC tort claim (a claim for damages against an at fault motorist insured by ICBC) you will have to keep the ‘forseeabilty’ test in mind and know the law as set out in this judgement.

The court also made an interesting comment about how the law views physical as compared to psychological injuries. At Paragraph 8 of the judgement, the court adopted the reasons from a 1996 case from the House of Lords which stated that “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.

It is good to know that the Supreme Court of Canada does not separate physical injuries from phychological injuries and treats both as real and compensable.

Do you have questions about this judgement or an ICBC injury claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC Claims lawyer Erik Magraken for a free consultation.


PTSD and Chronic Pain Claims Dismissed, $36,260 Awarded for Soft Tissue Inuries and Anxiety

May 22nd, 2008

BC Courts have heard many ICBC claims involving PTSD and Chronic Pain Syndrome. In reasons for judgement released this week Mr. Justice Cullen heard and dismissed a PTSD claim and Chronic Pain Syndrome claim as a result of a motor vehicle collision.

In 2004 the Plaintiff, who was a passenger in her boyfriend’s vehicle, was involved in a collision where her vehicle rear-ended the vehicle in front of her. The accident occurred on Nanaimo Street in Vancouver, BC. She advanced a tort claim against her boyfriend who was deemed to be the at-fault driver (a tort claim is the legal term used to describe a civil action, such as an ICBC claim for damages against an at fault driver).

ICBC, on the boyfriend’s behalf, admitted fault but disputed the alleged injuries. The Plaintiff claimed to suffer from soft tissue injuries to her neck and back, a myofacial pain syndrome and/or a pain disorder and post-traumatic stress disorder.

As in alsmost all ICBC claims involving alleged chronic pain, the court heard from a number of expert witnesses including the Plaintiff’s family doctor, a physiotherapist, a physiatrist (rehabilitaiton specialist) a psychologist and an orthopaedic surgeon. The orthopaedic surgeon was a defence witness who conducted an ‘independent medical exam’ of the Plaintiff pursuant to the BC Rules of Court.

In the Plaintiff’s case evidence was led that she suffered from a ‘myofacial pain syndrome’ which was described as ‘a central nervous system disorder with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points…areas in the muscles that are rich in nerve endings’.

A psychologist testified that the Plaintiff suffered from a Post Traumatic Pain Disorder (PTSD) and also that she suffered from ‘many symptoms of a pain disorder’.

The orthopaedic surgeon, who is often used by ICBC, testified that the Plaintiff suffered from soft tissue injuries to her neck, upper back and shoulders, along with some cuts and bruises. He dismissed the connection of the Plaintiff’s low back complaints to the accident by stating “There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA”. He then testified that his physical examination of the Plaintiff was ‘completely normal’ and he regarded any soft tissue injuries sustained by the Plaintiff as resolved.

In the end the court rejected the Plaintiff’s claim for PTSD and Chronic Pain Disorder and found that the Plaintiff suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder. The court also found that the Plaintiff’s low back symptoms which developed 3 months post accident were causally connected to the accident either through compensatory back pain of through myofacial pain syndrome. The court also found that the Plaintiff suffered from anxiety as a result of the accident and awarded $35,000 for pain and suffering, $560 for past out of pocket expenses and a further $700 to permit the Plaintiff to attend further counselling sessions with her pscyhologist to treat her anxiety.

This judgement is worth a quick read if you are advancing an ICBC claim involving chronic pain or PTSD to see some of the factors courts look at when weighing competing medical evidence. The judgement seems to be a compromise between the competing evidence accepting that the Plaintiff’s injuries, while not PTSD or Chronic Pain Syndrome, were not resolved by the time of trial. When considering settling an ICBC claim it is good to become familiar with how courts treat similar injuries and what the various outcomes at trial can be.

Do you have questions about an ICBC claim involving PTSD or Chronic Pain that you want to discuss with an ICBC Claims Lawyer? If so, click here to contact ICBC Claims Lawyer Erik Magraken for a free consultation.


$1.065 Million Awarded to Brain Injured Plaintiff

May 21st, 2008

In highly anticipated reasons for judgement released today, following a 4 week trial in late 2007, Mr. Justice Maczko awarded a severely injured Plaintiff over $1,000,000 in compensation as a result of a motor vehicle accident.

The issues to be decided at trial were liability (who was at fault) and quantum (the value of the injuries) as a result of a significant accident which occurred in West Vancouver, BC in 2004.

The Plaintiff, who was 26 years old at the time, was standing in a roadway in West Vancouver when he was struck by a Hummer SUV driven by the Defendant. The Plaintiff sustained serious injuries including a traumatic brain injury, scalp wound, bilateral wrist and jaw fractures, the loss of several teeth, and soft tissue injuries to the neck and back. The traumatic brain injury was the most significant of these in terms of the Plaintiff’s employability and need for future medical care.

In the end the court found the Defendant entirely at fault an awarded over $1,000,000 in damages to the Plaintiff.

Addressing the issue of liability at paragraph of 127 of the judgement, the court held as follows:

[127] The Hummer travelled too quickly for the existing conditions. Mr. Samieian was negligent in moving his vehicle too quickly and travelling around the cube van when his view of his path was obscured. It is more likely that the accident arose from driver error than from a complete failure of all controls on the Hummer. It is unlikely that steering, braking and acceleration all malfunctioned at once, and without leaving anything detectable on inspection after the accident.

[128] As a result, the defendants are entirely responsible for the accident and for the losses it caused Mr. Dikey.

As is often the case in ICBC claims involving brain injuries, the court heard from numerous expert physicians including neurologists, a neuropsychologist, and a Physiatrist (physical medicine and rehabilitation specialist).

In the end the court made the following findings regarding the Plaintiff’s injuries:

[109] In summary, Mr. Dikey suffered many injuries as a result of the accident. The most significant injury in terms of functioning was the traumatic brain injury. The preponderance of evidence suggests that the injury was moderate when it occurred, but this is of little assistance in determining the long-term impact of the injury.

[110] Mr. Dikey’s continuing cognitive problems include significant limitations with memory, planning, organizing, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations. He forgets to eat and take his medications regularly, and forgets appointments. He also suffers depression, isolation and limited social support and interactions. He has minimal initiation and motivation.

[111] Mr. Dikey suffered serious head and jaw injuries. Dr. Goldstein recommends investigating jaw reconstruction, likely requiring refracturing the jaw on both sides, and tooth replacement. Mr. Dikey and his family were undecided for several years about whether to pursue that treatment, owing to the risk of damage to a facial nerve. The evidence suggests that the risk is small and any damage that might occur would probably be temporary.

[112] Mr. Dikey suffered two broken wrists. His left wrist healed appropriately, but the right wrist did not. He does not have pain-free full range of motion of his right wrist owing to the way the fracture healed. The suggested surgery will give him a very good chance of increased range of motion without pain.

[113] Mr. Dikey suffered injury to his right knee. The recommended surgery for his right knee would have a good likelihood of relieving his right knee pain.

[114] Mr. Dikey has continuing pain from his soft tissue injury to his neck and back. His cuts and bruises have healed, but he has a visible scar on his forehead and in his scalp. His primary complaint is of headaches, which can be so bad at times that they lead to vomiting. They are his most frequent and significant cause of pain.

The court summarized the profound effects of the injuries as follows:

[142] Mr. Dikey’s life has changed profoundly as a consequence of the accident. He is unlikely to work, and has lost the self-esteem, enjoyment and income that is available from work. While he retains the ability to walk and talk and engage in the activities of daily living, his cognitive problems are such that he will require some assistance for the rest of his life. His most significant loss is the loss of cognitive abilities. He also suffers severe headaches. He has chronic pain in the neck. His pain and the lost function of his right wrist are likely to improve following surgery. He will likely have on-going problems with his neck and back.

In the end damages were assessed as follows:

$215,000 for non-pecuniary damages (pain and suffering)

$500,000 for lost future earning capacity

$350,000 for cost of future care

If you have questions about an ICBC claim or a brain injury claim that you would like to discuss with an ICBC claims lawyer feel free to contact Erik Magraken for a free consultation.


BC Supreme Court Awards $50,000 Non-Pecuniary Damages for Dislocated Elbow

May 20th, 2008

In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.

The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.

The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:

[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.

The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement.  This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury.  The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss.  After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.

Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.

This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow.  The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement.  If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.

Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.