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 November, 2008

ICBC Claims, Low Velocity Impacts and Engineering Evidence

November 28th, 2008

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.

When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision.    This can be done in many ways.  Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court.  Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.

British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims.  Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible.  Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1]                The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary. 

[2]                Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists.  The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3]                Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4]                None of this material is before me.

[5]                The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle.  The vehicles were not examined by the engineer.  He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6]                Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7]                The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity.  The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon. 

[8]                The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour. 

[9]                The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident). 

[10]            The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff.  However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11]            It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven.  Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA.  There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments.  It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions.  Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12]            I find that the report is not admissible.

$60,000 Pain and Suffering for Chronic Soft Tissue Injuries

November 26th, 2008

Reasons for judgment were released today awarding a Plaintiff just over $73,000 in total damages as a result of injuries and loss sustained in a 2005 BC vehicle collision.

The Plaintiff’s vehicle was rear-ended.  The collision was significant with enough force to brake the seat assembly in her vehicle.  She was 59 years old at the time of impact. The Plaintiff suffered injuries to her neck, shoulder, wrists, knee and elbow. Most of her injuries healed in short order.  The Plaintiff’s neck and shoulder injuries did not and she testified that those areas were painful everyday  some 3 years after the collision.

The Plaintiff’s injuries and their effect are summarized well at paragraph 14 of the judgment which I reproduce below:

[14]            The main complaints of the plaintiff are that she has suffered significant, ongoing, chronic and permanent left neck and shoulder pain, and continuing anxiety, all caused by the motor vehicle accident.  She has kept working throughout, for the most part.  She has continued to work long hours, and at the same time has, on the advice of her doctor, tried a number of different kinds of therapy.  She has gone for two different kinds of physiotherapy, massage therapy, acupuncture, and has sought the services of a kinesiologist, a certified personal trainer.  She also went once for counselling to a psychologist with regard to her anxiety.  She applies ice and heat to alleviate her pain, and uses medications, with apparently limited results.

The Plaintiff called her husband to give ‘before and after’ evidence along with her treating chiropractor and family physician.  The defence called no evidence which is somewhat unusual in a contested injury claim.  In most ICBC injury claims that proceed to trial the court hears from both Plaintiff and Defence expert medical witnesses who provide opinion evidence as to the extent of injury and its relationship to the trauma in question.  It appears here that the defence was content to simply rely on their cross examination of the Plaintiff’s physicians.

The court found that the Plaintiff and her husband were ‘extremely credible’.   The court accepted that the Plaintiff’s ongoing complaints were caused by the collision.  In justifying an award of $60,000 for pain and suffering Madam Justice Morrison made the following comments:

[58]            In my view, there has been a significant loss of enjoyment of life for this plaintiff.  She suffers the pain and discomfort that she has described while working, and particularly while sitting at a computer, which involves much of her day.  She will continue to work.  Perhaps even more significantly, she has and will continue to suffer the loss of enjoyment of life that has occurred in her life beyond work.  There has been a significant and negative change in the lifestyle of Mrs. Larlee, ranging from her day-to-day household activities, her passion for gardening, her lifelong involvement with the piano and the accordion, and an active lifestyle which involved vacations and other activities.  Her pain is chronic and ongoing.

$50,000 Punitive Damages Award Against LawFirm Upheld

November 26th, 2008

Reasons for judgment were released today dealing with a fee dispute between a personal injury plaintiff and his lawfirm.

The Plaintiff was involved in a serious motor vehicle collision in 1995.  The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.

A fee dispute arose after this settlement and litigation ensued.   At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm.  This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.

The lawfirm appealed for various grounds.  In a split decision, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.

The award of punitive damages was based on a finding that ‘the totality of the actions and conduct of the appellant (lawfirm) in its abuse of power in its relationship with its clients, as well as in its approach to the litigation, established the need for an award of punitive damages to express the court’s disapproval of such conduct and to serve as a general deterrent

The court summarized the actions of the lawfirm as follows:

[99]            I think that any legal professional would find the conduct of the appellant in this matter to be most disquieting.  The appellant took substantial legal fees after deceiving the respondents and without addressing the position of conflict it was in.  It placed its own interests ahead of those of its unsophisticated clients.  The appellant provided inadequate supervision of Mr. Shaw with full knowledge of the requirements of the Law Society.  Instead of denouncing the obviously reprehensible conduct of Mr. Shaw and setting matters right, it sought to take the benefit of that conduct.  The appellant is vicariously liable for the conduct of Mr. Shaw and is directly liable for its own failure to take remedial action when such action was obviously called for.

The BC Court of Appeal did not disturb the trial judge’s award of $50,000 in punitive damages.

This case is worth reviewing in its entirety for anyone interested in the law dealing with contingency fee agreements and the duties of lawyers to their clients in British Columbia.


ICBC Claims and Formal Admissions

November 24th, 2008

ICBC personal injury claims lawyers know all too well that the true issues in an ICBC injury claim are not always narrowed down at the beginning of a claim.

Typically, after a Writ of Summons and Statement of Claim are filed, rather boiler-plate Statements of Defence are filed.  Oftentimes not only is the issue of fault not admitted but allegations are made that the Plaintiff was not injured, if injured the Plaintiff is at fault for such injuries, if injured the injuries are not connected to the trauma and on and on.  Such defences can significantly broaden the scope of a lawuit.  As the lawsuit progresses the true focus of the claim often times becomes narrower.  

One of the tools in a litigants arsenal in the BC Supreme Court to help narrow the focus of a lawsuit is the Notice to Admit.  Rule 31 permits either side in a BC Supreme Court lawsuit to ask the other side to make formal admissions.  This tool can be effective in helping narrow the scope of an ICBC injury claim.  If a side fails to make reasonable admissions in a BC lawsuit the court can penalize that party with a costs order pursuant to Rule 31(4).

Rule 31 reads as follows:

Rule 31 — Admissions

Notice to admit

(1)   In a proceeding in which a statement of defence, answer or answer and counter petition has been filed, a party may, by delivery of a notice to admit in Form 23, request any party of record to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document specified in the notice.

[en. B.C. Reg. 143/94, s. 6.]

Effect of notice to admit

(2)   Unless the court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless, within 14 days, the party receiving the notice delivers to the party giving the notice a written statement that

(a) specifically denies the truth of that fact or the authenticity of that document,

(b) sets forth in detail the reasons why the party cannot make the admission, or

(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal.

Copy of document to be attached

(3)   Unless the court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when it is delivered.

Unreasonable refusal to admit

(4)   Where a party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty additional costs, or deprive a party of costs, as the court thinks just.

Withdrawal of admission

(5)   A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading

except by consent or with leave of the court.

Application for order on admissions

(6)   An application for judgment or any other application may be made to the court using as evidence

(a) admissions of the truth of a fact or the authenticity of a document made

(i)  in an affidavit or pleading filed by a party,

(ii)  in an examination for discovery of a party or a person examined for discovery on behalf of a party, or

(iii)  in response to a notice to admit, or

(b) admissions of the truth of a fact or the authenticity of a document deemed to be made under subrule (2)

and the court may, without waiting for the determination of any other question between the parties, make any order it thinks just.


(7) to (9)   Repealed. [B.C. Reg. 95/96, s. 14.]


The reason why I author this blog post is because interesting reasons for judgement were released today dealing with the issue of when ‘deemed’ admissions can be set aside.

In this case the Plaintiff delivered a Notice to Admit.  The Defendant failed to deliver a response as required by Rule 31thus deeming that the facts noted in the Notice to Admit being admitted by the Defendant.

The Defendant brought a motion asking that the deemed admissions be set aside.  The court granted the motion noting that ‘the interests of justice require that the Defendants be at liberty to withdraw (their admissions)

In doing so the court summarized the following factors which can be considered when considering whether deemed admissions should be judicially set aside:

1)         That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact.

2)         That in applying that test, all the circumstances should be taken into account including the following:

3)         That the admission has been made inadvertently, hastily, or without knowledge of the facts.

4)         That the fact admitted was not within the knowledge of the party making the admission.

5)         That the fact admitted is not true.

6)         That the fact admitted is one of mixed fact and law.

7)         That the withdrawal of the admission would not prejudice a party.

8)         That there has been no delay in applying to withdraw the admission.

If you are involved in an ICBC injury claim in the BC Supreme Court and beleive the focus of your lawsuit can be narrowed you may wish to consider delivering a Notice to Admit under Rule 31.

More on ICBC Claims, Impaired Driving and Civil Consequences in BC

November 23rd, 2008

Reasons for judgment were released on November 21, 2008 awarding a Plaintiff just over $230,000 in damages as a result of injuries and losses sustained in a 2004 Vancouver Island motor vehicle collision.

The Defendant was impaired by alcohol when the collision occurred.   As a result the Defendant was in breach of his ICBC insurance and ICBC defended the action as a statutory Third Party.  In such situations the issue of fault is rarely admitted and although that was the case here liability was not seriously contested at trial and the court found the impaired driver wholly liable for the crash.

It was a significant crash and the Plaintiff sustained various injuries.  The most contentious injury of the Plaintiff was a hip injury and the reasons for judgment focus largely on whether the Plaintiff’s hip ongoing hip problems were causally related to the collision.  The court found in the Plaintiff’s favor with the key findings being made at paragraphs 75-79 which I reproduce below:

[75]            The findings of Dr. Leith indicate a causal connection between the plaintiff’s hip injury and the Accident.  Dr. Leith found that Mr. Hartnett’s left hip injury is a soft tissue injury to the left greater trochanter region of the hip.  Dr. Leith concluded, at pages 4 and 5 of his report, that Mr. Hartnett’s hip symptoms are “most likely the result of the subject MVA based on the temporal relationship to the Accident and the fact that there is no indication that Mr. Hartnett had any pre-existing conditions to these areas”.

[76]            Dr. Leith’s finding that Mr. Hartnett had no prior injuries to his hip is consistent with the evidence led at trial.  The evidence did not disclose that Mr. Hartnett had any hip problems, or physical limitations in performing road service prior to the Accident.  Further, the evidence of Mr. Hartnett and his wife demonstrates Mr. Hartnett’s willingness to work through pain and his stoic nature.  Mr. Hartnett’s reluctance to disclose his hip injury to his physicians does not indicate a lack of connection between the Accident and the injury.  Rather, it simply demonstrates that Mr. Hartnett was reluctant to complain about his hip injury based on his personality and his hope that it would gradually heal on its own. 

[77]            I find Mr. Hartnett’s hip injury is casually related to the Accident since the evidence demonstrates, on a balance of probabilities, that he would not be suffering a hip pain but for the Accident.


[78]            The reports of Drs. Leith and Gilbart both indicate the prognosis for Mr. Hartnett’s injuries is positive and that surgery will not be required.  Neither examination finds any substantive problems in Mr. Hartnett’s hip, which is his principal, ongoing complaint, along with his shoulder and lower back.  Based on an initial review of these reports, it may seem that the severity of Mr. Hartnett’s injuries is minimal and any corresponding impacts on his work and personal life would also be negligible.  However, I am persuaded, based on the evidence of Mr. Hartnett and his wife, that the injuries to his hip, lower back and shoulder are in fact significant and continue to cause him considerable pain during various physical activities, especially certain aspects of his employment, recreation and home maintenance activities.  I found that both Mr. Hartnett and his wife gave their evidence in a straightforward and honest manner with respect to their recollections and assessments of the Accident and its impact on Mr. Hartnett and the family.  I also agree with the conclusion reached by Dr. Leith, that given the time elapsed since the Accident and the extent of Mr. Hartnett’s pain, it is likely that these injuries will continue to affect him in the future.

[79]            It is clear that Mr. Hartnett experiences greater amounts of pain while working road service, as compared to yard service.  He has twice attempted to work road service since the Accident, for a total of 12 months, and found the job duties resulted in a significant increase in pain.  As a result, he was forced to elect yard service because the job requirements in that position, while still painful, were more manageable.  Based on all of the evidence, I find these injuries will continue to adversely affect Mr. Hartnett for the foreseeable future.  

The court awarded the following damages:

·         Non-pecuniary damages:                                 $60,000

·         Loss of income-earning capacity:                  $150,000

·         Loss of home maintenance capacity:                          $10,000

·         Past wage loss:                                                 $16,280

  • Future cost of care:                                             $1,000

I have previoulsy blogged about the civil consequences of impaired driving in BC and cases like this serve a stark reminder that the financial consequences can be significant.  As an ICBC personal injury claims lawyer I have unfortunately seen the long term impact of impaired driving too many times.  If a person drives drunk in BC and negligently causes injury to another they can be held in breach of their insurance.  If this happens ICBC (assuming they follow the statutory protocol) have the right to defend resulting tort claims as a ‘statutory third party’ and after they pay the settlement or judgement can come after the Defendant directly for repayment.  Unlike most creditors ICBC enjoys certain statutory rights which give them greater teeth to collect from a breached defendant.  This case shows that the financial consequences of impaired driving causing injury in BC can easily be in the hundreds of thousands of dollars.

ICBC Claims, CPP Disability and Deductibility of Wage Loss Awards

November 21st, 2008

Reasons for judgement were released today dealing with the issue of whether a defendant ordered to pay a plaintiff money for future wage loss as a result of a BC motor vehicle accident can deduct from such an award disability benefits the Plaintiff will receive from the Canada Pension Plan (CPP).

The Plaintiff was injured in a 2005 motor vehicle collision.  Liability was not seriously contested and the Defendant was found 100% at fault at trial.  The Plaintiff suffered serious injuries including a

1. Fractured sternum; and

2. Head injury with probable significant cerebral concussion; and

3. Contused lower thoracic spine and upper lumbar spine; and

4. Multiple rib contusions.

The most contested injury was whether the Plaintiff suffered from on-going problems as a result of a brain injury allegedly sustained in the collision.  The court found for the Plaintiff noting that 

[71]            On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition.  The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood. 

The Court assessed damages as follows:

Non-pecuniary damages:


Past wage loss:


Future earning capacity loss:


Future care costs:


Special damages:




ICBC argued that money the plaintiff has/will receive from CPP should be deducted from his awards for past wage loss and future wage loss awards.  The court dismissed this argument concluding that  “the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss”

The key discussion took place at paragraphs 102 – 111 which I reproduce below:

[102]        Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award.  The thrust of their argument is that this is necessary to prevent double recovery.  The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.

[103]        The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10.  In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings.  As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.

[104]        In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery.  This line of authority includes Canadian Pacific v. Gill,[1973] S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4th 254 (Ont.C.A.).

[105]        Like Powers J, I do not see the reasoning in M.B. as effecting a change in the law as it applies to CPP disability payments.  The analysis undertaken in that case was outlined in ¶24 of the decision:

The first question is whether social assistance is a form of income replacement.  If it is not, no duplication arises.  If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.

[106]        The court determined that social assistance was a form of income replacement and then stated in ¶28:

It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.

[107]        After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception.  The court decided that it should not do so.  Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.

[108]        The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit.  There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery.  The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.

[109]        The defendant’s book of authorities included, in fairness, the case of Sulz v. Minister of Public Safety and Solicitor General 2006 BCCA 582, which was decided shortly after theMaillet decision.  In Sulz, the British Columbia Court of Appeal quotes from Mr, Justice Iacobucci in Sarvanis v. Canada 2002 SCC 28 at ¶33:

….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability.  See Canadian Pacific Ltd. v. Gill; Cugliari, supra.  This rule is passed on the contractual or contradictory nature of the CPP.  Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.

[110]        The issue in Sulz was the deduction of superannuation pension from a tort award.  The British Columbia Court of Appeal, in a decision written by Madam Justice Levine, (who was the trial judge in M.B. whose deduction of social assistance payments was upheld by the Supreme Court of Canada) said, at ¶65:

The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.

[111]        I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.

NOTE – the reasoning of this case may not apply to all ICBC claims.  For example in ICBC UMP Claims where ICBC is entitled to certain statutory deductions from the damages they need to pay to an insured.

Pain and Suffering for Dislocated Shoulder / Elbow and Soft Tissue Injuries

November 20th, 2008

Reasons for judgement were released today awarding damages as a result of injuries and loss from a 2002 BC motor vehicle collision.

The Plaintiff was a passenger.  He was involved in a single vehicle accident.  The collision was significant and is described at paragraph 2 of the reasons for judgment as follows:

                The thirty-two year old plaintiff was travelling from Prince Rupert to Terrace as passenger with three children in a car driven by the defendant, Crystal Caroline Bird (“Bird”), when Bird lost control of the vehicle after encountering ice on the highway.  The vehicle, a 1998 Toyota van owned by Bird, crossed the centre line of the highway and rolled twenty feet down an embankment, flipping over before it landed.  According to Wilson, he lost consciousness briefly in the accident and felt pain in his shoulder, elbow and left knee immediately.  He bled from his head, having hit the window.  His back hurt.  A passing driver was hailed and managed to open the passenger door.  Wilson got out of the vehicle and sat, waiting for the ambulance.  The vehicle was very significantly damaged.

The Plaintiff sustained some fairly serious injuries and these, along with their recovery, are summarized well at paragraph 31 of the judgement which I reproduce below:

The plaintiff suffered a dislocated right shoulder, dislocated left elbow, contusion and sprain of the left knee, mild sprain of the cervical spine, and multiple contusions and bruises in the motor vehicle accident of November 30, 2002.  I accept Dr. Kokan’s assessment that the plaintiff’s left knee was not dislocated in the accident but was probably sprained and has fully recovered.  The right shoulder had largely resolved by August 2003 but remains vulnerable to re-injury.  The left elbow has been the greatest problem, heightened by the lengthy wait for surgery.  The plaintiff has lost about ten percent of the movement in this elbow and has residual tenderness.  The incapacity is, however, mild and the plaintiff still has a good range of motion in the elbow.  The left knee had largely resolved to its pre-accident state by June 2005.  It is difficult to ascribe continuing lower back pain to the accident.  I conclude that there was some accerbation of the historical back pain in the accident but do not find that continuing problems can be attributed to the accident.  The plaintiff’s scalp laceration and facial abrasions have healed.

In awarding $85,000 for the Plaintiff’s Pain and Suffering the court made the following observations:

[34]            Wilson’s injuries here are more significant that in either Thorp or Foreman.  The plaintiff required two surgeries for the left elbow dislocation (including a closed reduction) and a closed reduction of the dislocated right shoulder, among other injuries described above.  Wilson has greater permanent restriction in movement of the left elbow than did the plaintiff in Thorp and still has nagging pain.  He is stoical about the continuing pain and discomfort.  Although I do not find that the permanent elbow restriction hinders recreational activity, the plaintiff’s right shoulder injury caused pain when swimming until June 2005.  The plaintiff suffered while he waited for surgery between 2003-2006.  I assess non-pecuniary damages at $85,000.

ICBC Claims and Recording 'Independent' Medical Exams

November 20th, 2008

Reasons for judgement were released today dealing with several motions before the BC Supreme Court in a motor vehicle accident claim.

The Plaintiff was self represented in this Supreme Court action.  (This case is worth reviewing on this point alone as the judgment illustrates some of the challenges courts sometimes face when dealing with unrepresented parties in Supreme Court actions).

One of the motions before the court was to compel the Plaintiff to attend an independent medical examination with a doctor of ICBC’s choosing.  While the Plaintiff did not object to being examined, she wished for several conditions to be set including the right to record the examination.

In not granting this condition Master Young reviewed several authorities dealing with the issue of recording independent medical exams.  Master Young concluded that in this case there were no cogent reasons to permit audio recording.  She referred to the leading BC Court of Appeal case on this topic of  Wong v. Wong, 2006 BCCA 540 which discussed the the factors BC Courts should consider when hearing such applications, namely:

(a)        the absence of evidence that an audio tape recording would inhibit or impair the examination;

(b)        evidence that the plaintiff had a poor memory or was forgetful;

(c)        the absence of evidence that the examining doctor objected to the use of a tape recorder;

(d)        evidence that the plaintiff had difficulty communicating and understanding, perhaps related to lack of fluency in English or the language of the examining doctor;

(e)        the likelihood that a tape recording might lead to settlement short of trial; and

(f)         the likelihood that an audio tape recording would contribute to the fairness of the trial.

In the same case the Court of Appeal noted the following about recording independent medical exams:

While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

$55,000 Non-Pecuniary Damages for Musculoligamentous Injuries

November 19th, 2008

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.

Both collisions were rear-end crashes.  The first occurred in February, 2004, the second in July of the same year.  Fault was admitted by ICBC on behalf of the Defendants in both accidents.  This trial dealt with quantum of damages (value of these injury claims).

The Plaintiff had generally good health before the collisions.   After the collisions she suffered from various symptoms.  The extent of her injuries and their relationship to the crashes was at issue at trial.

The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions.  The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.

The court awarded damages as follows:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

More Judicial Consideration of Rule 37B

November 19th, 2008

Reasons for judgement were released today by Mr. Justice Butler providing more commentary on the new BC Rule 37B.  (search this site if you wish to read my numerous previous posts on Rule 37B precedents).

In this case the Plaintiff witnessed a severe motor vehicle collision.  He was not involved in the crash nor did he know any of the people involved.   He claimed that he suffered from Post Traumatic Stress Disorder (PTSD) and sued for damages for nervous shock.  The claim succeeded and damages in the amount of $11,100 were awarded.

That in and of itself was a first in BC as far as I am aware as previous successful nervous shock cases involved circumstances where the allegedly injured party knew or had family connections to the victims of the collision.

The Defendants delivered a formal offer of settlement which was greater than the judgement amount.  The issue now was, what, if any, costs consequences should there be under the new Rule 37B.

In awarding the Plaintiff costs up to the point that the offer was made an in awarding the defendant costs from then onwards the court made the following comments:

[16]            One of the goals of Rule 37B, like the former Rule 37, is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted.  That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle….

[20]            While the case was novel for the reason noted above, it was not particularly complex.  The foreseeability, proximity and public policy questions have been the subject of other decisions of both this court and the Court of Appeal.  Ultimately, my decision rested upon the evidence of the three psychiatrists regarding causation.  This should not have surprised the parties, as all three psychiatrists concluded that Mr. Arnold suffered Post Traumatic Stress Disorder (“PTSD”) as a result of the nervous shock he experienced at the scene of the motor vehicle accident.  The real issue was whether the psychiatric difficulties he encountered approximately a year after the accident were caused by the motor vehicle accident induced PTSD.

[21]            Mr. Arnold received supportive medical legal opinions from two treating psychiatrists.  However, the report of Dr. Smith concluded that Mr. Arnold’s subsequent disability was not related to the PTSD or the motor vehicle accident.  Once Mr. Arnold was in receipt of that report, he had all of the information he required to properly consider the offer to settle.  Within a reasonable period after receipt of the report and the offer to settle, the offer to settle was one that ought reasonably to have been accepted.  This is the most significant consideration for me in deciding how to exercise my discretion in this case.

[22]            A reasonable period of time to consider an offer to settle is seven days:  Bailey v. Jang, 2008 BCSC 1372.  I do not know when Dr. Smith’s medical legal report was delivered to Mr. Arnold.  If it was delivered prior to the delivery of the offer to settle, then the offer to settle is one that ought reasonably to have been accepted seven days after the date it was delivered.  However, if Dr. Smith’s report was not delivered until some later date, I conclude that the offer to settle was one that ought reasonably to have been accepted seven days after delivery of the report.

[23]            Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion.  I find that I am unable to do so.  First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action.  Rule 37B gives this Court greater discretion than it had under the old Rule 37.  It specifically allows the Court to consider the relative financial circumstances of the parties.  However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[24]            In the present case, Mr. Arnold has put forward no evidence of special circumstances regarding his finances.  He has put forward no evidence of other factors that should be taken into consideration in the exercise of my discretion.  Accordingly, I will leave it to other courts to consider when it is appropriate to deprive a party of costs when that party has delivered an offer that ought reasonably to have been accepted.

Rule 37B precedents are being handed down at a very fast pace by our BC Courts and I will continue to discuss these judgments as they come to my attention, particularly in ICBC or personal injury claims.