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 June, 2008

More on LVI's, ICBC Claims and Soft Tissue Injuries

June 30th, 2008

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.

The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.

In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.

The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.

As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.

The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.

The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.

The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.

One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:

In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.

All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.

For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.


ICBC Did Not Pay Enough For My Car! Don't Look To Court For Help…

June 26th, 2008

While this blog is primarily concerned about ICBC injury claims against at-fault drivers (tort claims) written reasons for judgment were released today that are of interest to anyone caught up in a dispute with ICBC with respect to their own insurance coverage and the value of damage to their car.

Master Young of the BC Supreme Court clarified the fact that courts do not have jurisdiction to deal with an ICBC dispute regarding the value of vehicle loss.

In this case the Plaintiff’s vehicle was damaged in an accident. The vehicle was a write off. The Plaintiff had collision coverage with ICBC and asked for fair value. ICBC paid $18,000. The Plaintiff said the vehicle was worth $40,000 because it had a new engine and 2 extra large gas tanks installed prior to the accident and this had to be considered when determining fair value.

ICBC argued that the BC courts have no jurisdiction to deal with such a dispute. ICBC relied on section 142 of the Insurance (Motor Vehicle) Act and said this section requires such disputes to be dealt with by mandatory arbitration. For the sake of being accurate, I should point out that this section has since been repealed but been replaced with an almost identical section in the Insurance (Vehicle) Act.

The court held that, under s. 142, ‘the courts have no jurisdiction to deal with coverage disputes, given that there is mandatory arbitration set up by s. 142‘ In reaching this conclusion the Master cited a previous decision from a BC Supreme Court Judge where it was held that “the statute imposes a mandatory forum for the resolution of these disputes, and this Court is excluded from the process‘. Master Young also noted that the BC Supreme Court judge ‘goes on to caution that the claimant, if he wishes to pursue arbitration, must move quickly because he is statue barred two years after the date of loss‘.

The court concluded that this Plaintiff should have gone to mandatory arbitration. Given that the arbitration remedy was not exercised in 2 years the Plaintiff was out of luck, not being able to have the matter decided by a court or by arbitration.

This case serves of an example of the consequences people with ICBC claims can face if they do not comply with the limitations governing their claim. If you are in an ICBC dispute and don’t have a lawyer be sure to know your limitation periods! This is sometimes easier said than done as even Master Young acknowledged that in this case the legislation was ‘confusing‘.

The court obviously sympathized with the Plaintiff and said that she wished she could extend the deadline and if she could she made it pretty clear that she felt that ICBC’s materials showed ‘nothing..to indicate that (ICBC) gave any consideration to the fact that the vehicle had a new engine‘.


ICBC, Chronic Pain, and Fair Settlement

June 25th, 2008

With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.

If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.

The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.

The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.

The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work

Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed

a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.

She went on to state that:

(the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.

The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’

This doctor made some interesting comments about chronic pain, namely that:

Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.

The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:

[24] I accept that as a result of the motor vehicle accident Mr. Niloufari suffered moderate strains to his neck and back which have caused him substantial pain and suffering over the two years and several months since the accident. I find these injuries have disabled him from any activities, including his work. As it stands now, more than two years have passed since the date of the accident with little hint of improvement in his pain and suffering or capacity to work.

[25] I am satisfied that the plaintiff suffers chronic pain with both physical and psychological components. I am not entirely satisfied that he has done his best to mitigate his loss by exercising and seeking psychiatric and/or psychological advice and treatment. I am not satisfied based on the medical evidence, that Mr. Niloufari should expect to be permanently disabled or disabled at all after a few years from now with diligent attention to his rehabilitation. I would expect him to gradually recover, as Dr. Hill suggested, over the next three or four years, with the expectation he could return to work in a limited capacity within one year.

The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.

The non-pecuniary damage award (pain and suffering) was $63,000.

This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.


More on Intersection Crashes, ICBC, and Fault

June 23rd, 2008

In another example of our courts dealing with the issue of fault and intersection crashes, reasons for judgment were released last week faulting a ‘through driver’ 100% for a crash involving a left hand turner in Langley, BC.

I have previously blogged about this and will blog more on this topic in the future. The issue of fault is probably the most litigated when it comes to intersection crashes involving left hand turning vehicles.

In this case the Plaintiff was attempting to turn left. The Defendant, approaching in the opposite direction, was attempting to go through the intersection. The light was amber or red. This is a common recipe for disaster and indeed they crashed with each other. As is often the case in ICBC claims involving intersection crashes the 2 sides had different versions of evidence, particularly as to whether the light was red or amber at the time.

The court found that the light was red at the time of the crash. While both vehicles where, therefore, in the intersection on a red light, only the ‘through driver’ was found at fault because the Plaintiff was clearing the intersection.

The court quoted a case that is well known to ICBC claims lawyers which is helpful to left hand turning motorists in such a situation. The cases is Kokkinis v. Hall from the BC Court of Appeal where the court held that:

9 This discussion, however, detracts from the more important question of law, which is whether Mrs. Kokkinis was on one hand entitled reasonably to assume that Mr. Hall would stop before entering the intersection or on the other hand, whether she can be faulted for failing to see his van “until it was on top of her”, i.e. constituted an immediate hazard. In this regard, Mr. Johnson cites Feng v. Graham [1988] 5 W.W.R. 137 (B.C.C.A.), (not a left turn case), for the principle that the plaintiff’s entitlement to assume that other traffic will obey the law, is “subject to the proviso” (in counsel’s phrase) that where it is apparent or should be apparent that an oncoming driver is not going to yield the right-of-way, then at that point the other driver must act reasonably and cannot simply proceed into the collision, as it were. At the least, Mr. Johnson says, it was open to the trial judge to find that in the circumstances, Ms. Kokkinis failed to exercise reasonable care for her own safety and the safety of others, and that she must therefore bear some responsibility for the accident.

10 I must say this argument has given me pause; but ultimately I resolve it by asking whether in law Mrs. Kokkinis should be faulted for diverting her attention momentarily from oncoming traffic to check cross traffic at the point in time in question, i.e., as she prepared to start her turn – to see if any of those cars had jumped the light or were going to pose a threat to her turn. Was this an unreasonable or careless thing to do? I think not, given both the realities of the situation (which of course occurred over only a few seconds) and past decisions of this Court that have imposed on left-turning drivers the duty to be aware not only of oncoming traffic, but also of cross traffic, pedestrians, and whatever else may be present in the intersection. To say that the plaintiff can be found at fault because she relied on the assumption that Mr. Hall would stop, and because she checked cross-traffic, would in my view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the amber light as the other traffic did. An amber light is not, as the current witticism suggests, a signal to accelerate or to pass traffic that is slowing to a stop. Indeed, as Mr. Justice Esson noted in Uyeyama, in a busy city like Vancouver and at a busy intersection like 25th and Granville, an amber is likely the only time one can complete a left turn. Drivers approaching intersections must expect that this will be occurring. Putting a burden on a left turning driver to wait until he or she sees that all approaching drivers have stopped would, in my view, bring traffic to a standstill. We should not endorse such a result.

11 Accordingly, notwithstanding the principle (which I do not doubt) that questions of apportionment are generally questions of fact with which we should interfere only in exceptional cases, I would conclude that the issues I have referred to are ones of law and that the learned trial judge erred in law in placing too high a standard on the plaintiff and in failing to consider the assumptions she was entitled to make. I would not apportion any of the fault to her and would apportion 100 percent to Mr. Hall.

The court held that this was a similar case to Kokkinis and found the through driver at fault.

In terms of injuries the Plainitff suffered from general body trauma, bruising and soreness, soft tissue injuries to the neck, chest wrist and knee. The most significant injury was to the back and the court found that “3 years post-accident the Plaintiff continues to have significant pain from his back. Any prolonged activity, such as sitting in a lecture hall or travelling in a sitting position over 45 minutes causes soreness and pain. The Plaintiff is not recommended to pursue recreationbal activities of a physical nature such as football, which he had formerly done.”

The court awarded damages totalling $74,978.13 including $45,000 for non-pecuniary damages (pain and suffering).


Rule 68, ICBC Claims and Chronic Pain

June 20th, 2008

In one the first ICBC claims to head to trial under Rule 68 that I’m aware of reasons for judgment were released today awarding a Plaintiff over $180,000 in compensation including $75,000 for pain and suffering as a result of 2 motor vehicle accidents.

For those of you not aware of Rule 68, it initially started out as a ‘pilot project’ and has now been adopted Province wide. It applies to many lawsuits including personal injury actions and ICBC claims where the amount sought is under $100,000. It is supposed to be mandatory for such claims but many BC personal injury lawyers avoid the rule due to perceived short-comings.

I am keeping an eye on how the courts treat this rule with respect to ICBC claims and will blog on any judgemetns involving this rule and ICBC that come to my attention in the upcoming months.

The facts of the case briefly are as follows: The Plaintiff was in 2 accidents. She was 24 years old on the date of the first accident. It was a rear-end crash which resulted in significant vehicle damage. Her car was rendered a total-loss.

The Second crash happened in 2006. This time she was a passenger and again her vehicle was involved in a rear-end collision. Her injuries from the first accident were aggravated in this crash.

The Court found that the Plaintiff ‘did indeed suffer a severe flexion-extension injury (whiplash), with acute symptoms lasting approximately one week, but continuing moderate symptoms which have persisted to today’s date, a full 4.5 years post accident. Her symptoms include not only pain and restriction of movement, but an overlap of psychological symptoms (pain disorder) including anxiety, irritability, frustration, anger, and difficulty modulating her behaviour in the face of day-to-day challenges. I accept Dr. Lamius’ evidence that there is some interplay of her physical and psychological symptoms. As he noted the pain activity triggers ongoing anxiety symptoms, while at the same time, the pain activity is worsened by the increased arousal pattern secondary to her anxiety. The pain and anxiety work together to create a vicious cycle.”

The court awarded compensation for both accidents as follows:

1. Non Pecuniary Damages (pain and suffering) $75,000

2. Loss of homemaking capacity: $11,744

3. Past loss of income: $$6,658.44

4. Future loss of earning capacity: $40,000

5. Cost of Future Care: $50,000

6. Special Damages: $6,211.08

What was interesting about this case is the fact that the court did not hesitate to consider a total award above $100,000. Rule 68 has a ‘soft cap’ meaning it is to be used for claims worth less than $100,000. In this case the Plaintiff sought total damages well in excess of this.

The reason why rule 68 has a ‘soft cap’ is because Rule 68(4) says that ‘nothing in this rule (rule 68) prevents a court from awarding damages to a plaintiff in an expedited action for an amount in excess of $100,000.

One thing ICBC is interested in, and ICBC claims lawyers should be interested in this as well, are the ‘precedents’ that will come out of the upcoming rule 68 ICBC claims judgements. In this case the defence lawyer argued that ‘since the Plaintiff elected to use Rule 68…the court ought to infer that this claim, including all heads of damage, does not exceed $100,000, thus resulting in a much reduced award for non-pecuniary damages.”

The court rejected this logic stating that “I am unaware of any authority which suggests the Court may draw such an inference.” The court went on to cite rule 68(4) and then stated that “no defence motion was ever brought to remove the action from the rule 68 procedure. I am unable to draw the inference suggested.”

This case seems to be a positive development for anyone advancing an ICBC injury claim under Rule 68 whose total value may exceed $100,000. I hope the courts continue to adopt a flexible approach in awarding damages above the ‘cap’ in ICBC claims where the evidence justifies such a result.


BC Supreme Court Awards $75,000 Pain and Suffering for Soft Tissue Injuries – Disc Herniation Claim Dismissed

June 19th, 2008

In reasons for judgment released today, the BC Supreme Court valued a Plaintiff’s pain and suffering at $75,000 for soft tissue injuries.

The Plaintiff was a nurse’s aid. She was injured in a BC car accident which occurred in 2004 in New Westminster. The crash occurred at an intersection and both liability (fault) and quantum (value of injuries) were in dispute at trial. This is often the case when ICBC injury claims resulting from an intersection crash go to trial.

The Plaintiff was making a right hand turn. When starting her turn she felt it was safe to do so. At about the same time the Defendant was proceeding through the intersection and had recently changed into the right hand lane. Both motorists failed to recognize the hazard they posed to each other until it was too late.

The court found that both drivers were at fault. The Plaintiff was liable for ‘not keeping a proper lookout’ and that she should have seen the Defendant travelling in the curb lane prior to the collision.

The defendant was also found at fault for changing lanes at an unsafe time. The key finding is made at paragraph 70 where the court held that:

I find that at the time that the defendant changed lanes on Braid from the eastbound inside lane to the curb lane, 80 feet west of the intersection of Garrett and Braid, the plaintiff had already left the stop sign on Garrett and was in the process of making a right hand turn into the eastbound curb lane on Braid. I find that in making his lane change at this point on Braid the defendant was in such close proximity to the plaintiff’s car that his lane change could not be made safely. The weight of the evidence leaves no doubt that the defendant’s van was far too close to the plaintiff’s car for the defendant’s change of lanes to be made safely.

When 2 or more people are responsible for a BC car accident the Negligence Act requires a court to apportion fault between the parties. In this case the court held that both the Plaintiff and Defendant were 50% at fault for the accident. In doing so the court stated that “I do not think it can be found that blame for the accident rests more with one party than the other. In my opinion, they are equally guilty of breaching the rules of the road.”

The Plaintiff was a nurse’s aid. She claimed that as a result of the accident she became disabled from not only that job but also from ‘any other employment at a competitive level’

The Plaintiff’s doctor diagnosed the following injuries:

1) New large left central parracentral disc herniation posterior to the L5 vertebral body secondary to new onset degenerative L5/S1 disc change. This would be rated severe.

2) Left L5/S1 nerve root compression, also rated severe.

3) Milder degenerative changes at L3/L4, L4/L5 levels with early neural foraminal stenosis at L4/L5 and L5/S1, which are rated moderate to severe.

4) New onset degenerative CT spine changes rated moderate.

5) Musculoskeletal changes within the left side of her body, left arm, left chest, left hip and left leg, resolved within a week or two after the motor vehicle injury, rated mild.

6) Iatrogenic hypertension secondary to COX-2 inhibitor use for the treatment of the patient’s back injuries.

The bulk of the reasons for judgement focused on causation, that is, whether the above injuries were related to the accident or to other causes. As with most ICBC injury claims, the court heard from several ‘expert witnesses’ who commented on the plaintiff’s injuries and their cause.

In the end the court found that the Plaintiff failed to prove that the accident caused her disc herniation. The key findings can be found at paragraph 317 where the court held that:

[317] In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery. In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation. She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.

[318] In arriving at this conclusion I accept the opinion of Dr. Maloon, in preference to that of the plaintiff’s medical experts, that the soft tissue injuries the plaintiff sustained in the accident would not have been “significant enough to alter the natural history of her neck or low back condition” and that the “disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in [the accident].”

Since the court did not find the disc herniation related to the accident damages were assessed for soft tissue injuries. The court made the following finding prior to valuing the injuries at $75,000 for pain and suffering:

[327] I find that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back as a result of the accident which have had an affect on her personal, employment, social and recreational pursuits and activities. However, I also find that the plaintiff has failed to establish that the injuries sustained by her in the accident have caused her disability from employment.

[328] In the result, I find that the plaintiff’s award for general damages should be based on the fact that her condition had improved and recovered to the stage that by March 4, 2005 he felt well enough to return to work on a gradual basis. Moreover, I find that the fact her physical and emotional condition deteriorated after her fall on March 5, 2005 cannot be attributed to the injuries she sustained in the accident.

The Plaintiff’s award was then cut by 50% to reflect the fact that she was 50% responsible for the accident. This is the direct result of ‘contributory negligent’ in ICBC injury cases. If a Plaintiff is any percent at fault then the value of what can be recovered in tort is reduced by that percentage.

Do you have questions about this case or about an ICBC injury claim involving soft tissue injuries or a disk herniation? If so please click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)


Mild Trauamtic Brain Injury (MTBI) Claim Dismissed by BC Supreme Court

June 18th, 2008

In a striking example of how complex brain injury litigation can be, lengthy reasons for judgment were released today dismissing a Plaintiff’s claim that 2 accidents caused/contributed to a Mild Traumatic Brain Injury (MTBI).

The trial lasted over 30 days of court time spanning between November, 2006 – July 2007. The reasons for judgement give insight into just how complex the brain injury trial was. The reasons are well over 300 paragraphs long.

The Plaintiff was involved in 2 accidents. She sued for both and the trials for both claims were heard at the same time. The first accident happened in 2001 in Abbotsford BC when the Plaintiff’s vehicle was struck by a driver who failed to stop at a stop sign. Liability (fault) for this accident was admitted by the defence lawyer. The second accident happened in 2005 when the Plaintiff’s vehicle changed lanes and collided with the defendant vehicle who was pulling out from a parking lot. Liability was denied and the trial judge found the defendant was solely responsible for the accident.

With the determination of fault out of the way the court had to decide what injuries the Plaintiff suffered in both these crashes and their value. The Plaintiff said she suffered from a Mild Traumatic Brain Injury in the first accident and this injury was made worse in the second accident. This allegation was hotly contested by the defence lawyers.

The court heard from numerous witnesses including over 10 doctors. It is very common for ICBC brain injury claims to include opposing medical evidence and numerous ‘lay witnesses’ who give evidence of changes in a Plaintiff’s level of functioning after the accident. ICBC claims lawyers often refer to these witnesses as before and after’ witnesses.

The expert medical evidence included

1. The Plaintiff’s GP who diagnosed a ‘closed head injury

2. A Physiatrist who diagnosed ‘a head injury that has resulted in some brain dysfunction‘ along with ‘soft tissue aches and pains

3. A psychiatrist who treated the Plaintiff since 2002 who diagnosed ‘impairments…as a result of the accidents‘ and a ‘significant concussive injury in both accidents (which have gone on to become) a post-concussion syndrome, now persistent type…a personality change due to MTBI….a pain disorder that relates to (the Plaintiff’s) headaches and other chronic pain complaints…a post-trauma seizure disorder‘ He concluded that the Plaintiff ‘will continue to have significant disruption of her life and her ability to work is permanently compramised’.

4. A neuropsychologist who accepted the diagnosis of ‘closed head injury, possible seizure activity, chronic pain and post-concussive syndrome.’ He performed numerous tests and concluded that the Plaintiff ‘was suffering from psychological turmoil which was sufficiently severe to affect her score on neuropsychological tests’ and lastly that ‘the pattern of neurological test results was consistent with diffuse brain injury attributed as likely being caused by the car accident‘.

5. A urologist

6. A psychologist who saw the Plaintiff regularly since 2003

7. a Neurologist from the University of Colorado School of Medicine who diagnosed a ‘concussion with amnesia in the first accident and that she subsequently developed post-concussion syndrome’.

8. Another physiatrist who assessed the Plaintiff after the second accident and ‘attributed (her) symptoms after the first accident to post-concussive syndrome’. He also diagnosed various soft tissue injuries.

9. A psychologist who assessed the Plaintiff in 2006 who stated that ‘the plaintiff suffered from a brain injury based personality change arising from a frontal-lobe related impairment and emotional disturbance reactive to the trauma of the accidents

10. An orthopaedic surgeon who was hired by the defence lawyer. His opinion differed largely from most of the previous experts and gave evidence that:

Based on my assessment of Ms. Abma on May 9, 2003, she presented as an extremely symptom focused individual whose clinical examination strongly suggested a significant non-organic component to her various musculoskeletal/neurologic complaints. I base this latter opinion, that Ms. Abma has significant nonorganic illness, on the following findings:

1. Multiple areas of complaint.

2. No reported pain free interval.

3. Failure of all treatment modalities to date.

4. Significant pain behaviour and reaction on clinical examination.

5. Multiple areas of non-anatomic pain.

6. Regional numbness affecting her right arm.

7. Abnormal pain diagram.

All of these factors would suggest that there is a significant psychological social component influencing the reporting scenario and duration of Ms. Abma’s multiple musculoskeletal/neurologic complaints. In addition, Ms. Abma’s clinical records indicate that she suffered from anxiety/depression preceding her November 2001 motor vehicle accident, both of which can negatively influence an individual’s pain experience and their self perception of disability.

11. A Psychiatrist hired by the defence lawyer who noted that ‘there is no objective evidence to support the fact that this woman suffered any type of concussion or brain injury.’

12. An otolaryngolgist hired by the defence lawyer who ‘concludes that the plaintiff suffered a mild/modest neck sprain in the first motor vehicle accident classified as whiplash-associated disorder (WAD) Type 1. He considers that this may have re-activated the neck sprain from her 1996 motor vehicle accidents which demonstrated that her complaints continued for more than three years. Dr. Sinanan states “but for that factor, recovery from a Grade 1 WAD Type neck sprain usually is within six to eight weeks, 12 weeks at most

13. Lastly the court heard from a neurologist also hired by the defence lawyer and it was ‘uncontested’ that this doctor is the ‘foremost epilepsy expert in the Province of BC’. he concluded that the Plaintiff did not have a brain injury.

After all of this the court sided largely with the defence medical evidence. The key findings were made starting at paragraph 308 where the court held that:

[308] The most persuasive view of the plaintiff’s post-accident experience is described by Drs. Anton and Smith. Dr. Anton suggests that the plaintiff is suffering psychological injuries. Dr. Smith is also of a similar view: adjustment disorder with anxiety, which does not result from injuries sustained in either of the accidents, but arising from her belief that she is cognitively impaired as a result of the accident.

[309] I am not finding that the plaintiff is acting dishonestly. She believes that she is suffering from a brain injury. She is relying on the information she has been provided by her treating physicians. She has not proven on a balance of probabilities that she suffered a brain injury in the first accident. I find it much more likely that the psychological difficulties, including the cognitive, emotional and behavioural problems which the plaintiff has experienced, arose from her reaction to the brain injury diagnosis made by Dr. Ancill in April 2002. I do not accept the plaintiff’s assertion that all of her symptoms had their “genesis” in the motor vehicle accidents.

[310] Ultimately, I find that the injuries suffered by the plaintiff in the first accident are the physical injuries and to some extent the depression described in the evidence. The plaintiff suffered the following injuries as a result of the first motor vehicle accident on November 14, 2001:

1. aggravation of previous soft tissue injuries to her neck, back, shoulders and hips;

2. a contusion to the area above her left knee; and

3. some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries.

As a result of this finding the court largely dismissed the Plaintiff’s claims for loss of income past and future, future care needs, and her in-trust claims for voluntary services provided by her family.

Ultimately little more than compensation for pain and suffering for soft tissue injuries was awarded.

As an ICBC Injury Claims Lawyer, one of the highlights of this case for me was found at paragraph 204 of this judgement where the court discussed its view of some of the neuropsychological test results.  These tests, which can be used to see if a pattern of cognitive defecits are consistent with brain injury, have some built in ‘fail-safes’ in them.  These measures are built in to help the neuropsychologist gauge whether the patient is applying their best effort.  In other words, these built in to see if the Plaintiff may be faking the injury.

In this case the “Fake Bad Scale‘ disclosed some ‘suspicious results‘.  The various doctors placed varying levels of importance on this fact.  Madam Justice Gropper made her views quite clear at paragraph 304 where she stated that “If the testing is invalid it does not mean there is something wrong with the test,; it suggests that there is something suspicious about how the individual is responding to the testing and whether she is applying her best effort to it.  It is a factor to be considered, not simply ignored.’

This case, while perhaps lengthy and difficult to read through, is worth reviewing for anyone involved in an ICBC claim alleging Mild Traumatic Brain Injury. This is one of the most aggresively litigated injuries and this case shows just how involved these trials can be, not just from the medical side of things but from the involvement of ‘before and after’ witnesses and many intimate details of a Plaintiff’s life.

Do you have questions about this case or an ICBC claim involving Mild Traumatic Brain Injury?  Do you need advice from an ICBC claims lawyer?  If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)


$35,000 Pain and Suffering Awarded for Wrist and Soft Tissue Injuries

June 18th, 2008

Written reasons for judgment were released today by Madam Justice Stromberg-Stein of the BC Supreme Court awarding a Plaintiff just over $60,000 for her losses and damages as a result of a 2005 BC Car Accident.

The Plaintiff was in her mid 20’s when she was involved in an intersection crash involving a left turning vehicle. The lawyer for the offending driver admitted liability (fault) for the accident leaving the issue of quantum of damages (value of the injuries) to be addressed at trial.

The Plaintiff suffered several injuries including soft tissue injuries to her neck and lower back. Her most significant injury was a fibro-cartilage tear of her right wrist and a possible scapholunate ligament injury as well.

The Plaintiff had 14 sessions of physiotherapy which created ‘some improvement’ of her neck injury. The Plaintiff had an MRI of her wrist which revealed a tear of the triangular fibro-cartilage complex (a “TFC tear”). The Plaintiff had a cortisone injection in her wrist which offered some temporary relief. Arthroscopic surgery was also recommended by an orthopaedic surgeon but the Plaintiff elected not to have this procedure done until her son was older.

The Plaintiff’s lawyers sought just over $150,000 in damages as a result of these injuries. The defence lawyers suggested numbers were significantly lower. Such a discrepancy is common in most ICBC injury claims that go to trial.

After hearing the evidence the court awarded damages as follows:

a) $35,000.00 for non-pecuniary damages;

b) $7,812.00 for past wage loss, subject to Part 7 and statutory deductions;

c) $486.99 for special damages;

d) $20,000.00 for diminishment of earning capacity; and

e) $1000.00 for cost of future care.

The court’s discussion relating to ‘diminshed earning capacity’ is worth reading for anyone advancing an ICBC injury claim concerned with future wage loss. In this case the Plaintiff was able to return to work for a period of time following the accident before leaving the workforce on maternity leave. By the time of trial the Plaintiff was retraining for a different profession. The court agreed with the defence lawyers point that this change of careers ‘is a natural progression for somebody (in the Plaintiff’s) position‘ and the court also put weight in the defence lawyer’s position that the Plaintiff ‘never worked a full year.’

The court cited one of the better known quotes from the BC Court of Appeal addressing ‘diminished earning capacity‘ which states:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

The court concluded that only a ‘modest award‘ was appropriate for the Plaintiff’s diminished capacity and awarded $20,000 for this loss.

Do you have questions about an ICBC wrist injury claim or an ICBC claim involving ‘diminished earning capacity‘ (future wage loss)?  Do you need advice from an ICBC claims lawyer?  If so, click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)


Mistrial Declared for Opening Statement that Went "Over the Line"

June 17th, 2008

In March, 2008, Mr. Justice Cole declared a mistrial after he found that the Plaintiff’s lawyer went “over the line” in his opening statements. The judges oral reasons were released in writing today.

Negligence (fault for the accident) was admitted by the defence lawyers. The Plaintiff lawyer, in the opening address to the jury, stated that ‘the defendant must pay for breaching the rules of the road.’ and referred to the defendant as falling asleep at the wheel of his car, causing the accident‘. The court characterized the general theme of the opening comments “such as to create an atmosphere of sympathy for the Plaintiff.”

The court concluced that the Plaintiff lawyer ‘did go over the line‘ and that ordering a mistrial is the ‘only fair thing to do.’

The result of the mistrial is that the jury is dismissed and the matter has to be reset for trial on a later date. Such a result brings with it delay and expense, commonly referred to as the ‘twin evils’ in the BC civil justice system.

Reading this case made me wonder whether jurors would be inflamed by such opening statements. Personally I struggle in thinking that a reasonable jury would be inflamed to such a degree by this statement that their whole view of the case would be unjustly prejudiced.

Even the judge acknowledged that ‘no one can ever tell’ if this statement caused damage to the juries ability to fairly hear the case.

In BC it is improper for lawyers to talk to jurors after the fact and poll them about their decision.  Specifically, in 1967 the BC Court of Appeal stated that lawyers who poll jurors after verdict would be in contempt of court.  This has been severely critisized by many including fellow blogger and former BC Supreme Court judge John Bouck.

Since the jurors can’t be polled I thought I’d ask my readers. What do you think? If you were sitting on a jury involving an ICBC injury claim, and the plaintiff’s lawyer told you that the Defendant fell asleep at the wheel and ‘must pay for breaching the rules of the road’ would your judgment be compromised? Would your ability to fairly value the plaintiff’s injuries be compromised? Would you feel a need to punish the defendant by awarding the Plaintiff an overly generous amount of compensation?

Please feel free to leave comments or e-mail me privately.

Do you have questions about this case or an ICBC injury claim? If so click here to arrange your free consultation with Victoria ICBC claims lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)


BC Court of Appeal Dismisses "Black Ice" Claim

June 17th, 2008

Today reasons for judgment were released by the BC Court of Appeal dismissing the appeal of a very seriously injured Plaintiff who was involved in a single vehicle collision in 1998.

The Plaintiff was involved in a terrible motor vehicle accident. While driving from Tsawwassen to Vancouver on a January morning, his vehicle “left the road and overturned in the adjacent field. (he was) seriously and permanently injured, and had no recollection of the accident”.

There were, unfortunately, no witnesses to the accident itself.

When advancing a personal injury tort claim in BC, the Plaintiff has the burden of proof to prove why someone else is at fault for the accident. That is certainly difficult if the accident results in injuries that are so serious that they leave a person ‘with no recollection’ and even more difficult if there are no witnesses.

The Plaintiff sued the Ministry of Transportation and Highways and the contractor responsible for that particular stretch of roadway. The allegation was that they failed to adequately perform their maintenence duties. In other words, saying they should have and could have removed black ice from the scene of the accident.

The trial judge concluded that the Plaintiff failed to prove that the accident was caused by black ice and the claim was dismissed. The BC Court of Appeal dismissed the appeal concluding that “the trial judge made none of the errors alleged (on appeal). His findings of fact were well supported by the evidence.”

In reaching this conclusion the Court stated that:

The trial judge made no error by failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident. He considered the evidence for and against the appellant’s theory and determined that he had not proven, on the balance of probabilities, the essential fact that black ice was present on the highway, and therefore could not prove causation. The trial judge was under no obligation to compare the relative probabilities of the theories, and his conclusion would not have differed had he done so.

The Court does a good job in discussing the burden of proof in personal injury tort claims in BC. This case is a strong illustration of the fact that Plaintiff’s must prove, on a balance of probabilities, that someone else is at fault for their injureis to succeed in a tort claim in BC.

This case is certainly worth reading for anyone advancing a claim against the Ministry of Highways in BC alleging that they or their contractors failed to safely maintian the roads under their watch.