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 December, 2008

ICBC Insurance Claims and Wilfully False Statements

December 31st, 2008

If you are insured with ICBC and are making a claim for benefits you have a duty to act in good faith in your communications with ICBC.   Similarly, ICBC has a duty to process your first party insurance claim in good faith.

What happens if you make a false statement to ICBC?  Can this cause a breach of your insurance?  The answer is yes, depending on whether the statement is willful and if it was material in processing the claim.

Reasons for judgement were released today by the BC Supreme Court addressing this issue.  The Plaintiff owned a 2000 Porshe Boxter which was allegedly stolen in 2005.  The Plaintiff purchased the vehicle in 2004 and paid $38,000.

After the vehicle went missing the Plaintiff reported the theft to ICBC and the police.  He told the police that the vehicle was worth $45,000.  When filling out a form titled ‘Report of Automobile” to ICBC the Plaintiff he filled out the box asking ‘amount paid’ with the sun of $44,000.

ICBC refused to pay the Plaintiff for the value of the vehicle.  The Plaintiff sued.   The claim was dismissed because the court found that the Plaintiff ‘inflated’ the value of the vehicle when reporting the loss to ICBC and doing so was ‘material to (ICBC’s) assessment of the claim), thus holding the Plaintiff in breach of section 19 of the Insurance (Motor Vehicle) Act Regulations.

The court summarized the law starting at paragraph 114.  I reproduce this below:

Forfeiture Pursuant to the Provisions of the Insurance (Motor Vehicle) Act Regulations, R.S.B.C. 1996, c. 231, S. 19(1)(e)

[114]        The section reads:

19(1)    If …

(e)        an insured makes a wilfully false statement with respect to a claim under a plan,

all claims by or in respect of the applicant of the insured are rendered invalid, and his or her right and the right of a person claiming through or on behalf of or as a dependant of the applicant or the insured to benefits and insurance money is forfeited.

[115]        The leading statement of law in this matter was enunciated by McEachern C.J.B.C. in Inland Kenworth Limited v. Commonwealth Insurance Company, (1990) 48 B.C.L.R. 2d 305 at pages 309 – 311, and cited by Rowles J.A. in Brown v. Insurance Corp. of British Columbia, 2004 BCCA 254 at paras. 10-11:

10.       In Inland Kenworth, in which s. 231(1) of the Insurance Act, R.S.B.C. 1979, c. 200 was under consideration, McEachern C.J.B.C. said, at 309-311 (B.C.L.R.):

I agree that a wilfully false statement which is not material may not usually be relied upon by the insurer. Materiality is, however, one of the fundamental principles of insurance law and it manifests itself in many ways. The classic test of materiality in insurance law is whether a statement is capable of affecting the mind of the insurer.

* * *

It is sufficient, in my view, if the fraud or wilfully false statement is capable of affecting the mind of the insurer either in the management of the claim or in deciding to pay it. It is unnecessary to speculate about what the insurer would have done if the fraud had not occurred but I point out that the insurer may have waived appraisal and decided to pay Blue Book value. On the other hand, the insurer may have done exactly what it did in this case, that is submit the question to appraisal.

A contract of insurance is one of utmost good faith and one cannot commit frauds or make wilfully false statements about the subject matter of the claim for any purpose without risking the loss of the right to indemnity if it turns out to be material on any issue.

* * *

I do not say that any wilfully false statement will be sufficient to vitiate coverage. It must be material. I think the wilfully false statement about the subject matter of the insurance, intended to comply with the warranty, but which also related to the question of value, and was capable of affecting the mind of the insurer, destroyed the integrity of the claim, and was material at least to the latter question. Under the Act, and at law, this forfeits the right of the insured to indemnity.

11.       In Peterson v. Bannon , supra, s. 18(1)(e), which is now s. 19(1)(e) of the Act, was under consideration,.  In that case, Finch J.A., as he then was, said at para. 59:

Inland Kenworth therefore affirmed that if an insured makes a wilfully false statement about the subject matter of his or her claim, that person risks forfeiture if the statement is material to any issue arising in the claim. Although the respondent argued otherwise, there is no real distinction between the language of s. 231(1) and s. 18(1)(e). I consider myself bound by Inland Kenworth, a judgment with which I respectfully agree. A wilfully false statement will invalidate an insured’s claim only if the statement is material to the claim at risk of forfeiture.

[Underlining added

[116]        Mr. Chahal correctly argues that there has to be a wilfully false statement and secondly that it was material to the processing of the claim.

[117]        As well, he relied on the decision of Cullen J. in DeCastro v. I.C.B.C., oral reasons given October 2, 2006, which had some similarities in a central issue arising from the effectiveness of the immobilizer in a BMW that had been apparently taken from outside a pub on March 31, 2004, and subsequently found without tires and wheels, various front-end components and destroyed by fire.

[118]        Cullen J. noted the initial burden falls on the plaintiff to show that loss falls within the coverage but that is not onerous and that secondly, the onus then shifts to the defendant to prove on a balance of probabilities intentional material conduct by the plaintiff that is in breach of one of the sub-sections of s. 19(1).

[119]        The principal arguments about representations made with respect to the claim are: (1) the statement made as to the price paid; (2) the number of keys provided by Mr. Leach.

[120]        Mr. Chahal paid $38,000 to Mr. Leach by official cheque on November 10, 2004.

[121]        From the outset of Mr. Chahal’s report to the Delta police, through the reports of loss to I.C.B.C., the initial recorded statement of August 31, 2005 and the statement on oath in December 2005, Mr. Chahal spoke of the price paid or value as $44,000 or $45,000.  Only in the case of the Proof of Loss form sworn on November 8, 2005, did he say he had researched the value.

[122]        I am unable to accept that he would not have known precisely the amount he paid as reflected in the official cheque.

[123]        I accept the reported value of the vehicle was material to the insurance corporation’s assessment of the claim and that the plaintiff sought to inflate the value of the vehicle.  Further, no evidence was led by Mr. Chahal to support the alleged value.


ICBC Claims, Medical Experts and Evasive Opinions

December 29th, 2008

Reasons for judgement were released today awarding a Plaintiff $50,000 for non-pecuniary loss (pain and suffering) as a result of injuries sustained in a 2004 rear-end BC car crash.

The Plaintiff suffered various injuries including chronic pain, a disc herniation in her neck, a soft tissue injury to her neck, anxiety and depression.  The chronic pain was the most significant symptom that was focused on at trial.

The Plaintiff called various witnesses to support her injuries including her family doctor.  The Defendant, on the other hand, relied on the opinion of an ‘independent medical examiner’ who ICBC frequently uses in the defence of car accident injury claims (Dr. Schweigel).

In awarding $50,000 for pain and suffering the Court made the following findings:

[26]            I am satisfied that as the result of the Defendants’ negligence, the Plaintiff suffered an injury to her shoulder and knee, a soft tissue injury to her neck and back which included a disc herniation; and an aggravation of her anxiety disorder and depression symptoms.

[27]            Specifically, with respect to her psychological injuries, I am satisfied that as a result of the collision her anxiety disorder and depression symptoms worsened, and that the worsening included the development of additional phobias such as a fear of crowds, social interaction, and driving.  There has been some improvement with respect to these symptoms.  For example, the Plaintiff is now able to drive her vehicle and her fear of social interactions has lessened some.

[28]            There has also been some improvement in her physical injuries.  In particular, her knee and shoulder injuries resolved within a short period.

[29]            As far as her chronic pain injury is concerned, I am satisfied that it arises primarily from the soft tissue injuries to her neck and back and from her disc herniation.  However, the severity of the pain from these injuries is aggravated or intensified by her anxiety disorders.  As her anxiety or stress levels increase, her chronic pain also increases in severity.

In ICBC injury claims judges and juries are often asked to pick between competing medical opinion evidence.  It is not uncommon to read reasons for judgment in ICBC injury claims where a Plaintiff’s treating physicians support injuries while ICBC’s doctors testify that the injuries are not related to the trauma or that the injuries are not as severe as presented by the Plaintiff.

In today’s case Madam Justice Sinclair Prowse gave the following reasons in preferring the treating doctor’s opinion over Dr. Schweigel’s.  Cases such as this one are worth reviewing for anyone preparing to take their ICBC injury claim to trial where there is competing medical evidence:

[34]            In any event, on all material issues, the Plaintiff’s evidence was consistent with and supported by other evidence.  In particular, the evidence of her injuries was supported by the evidence of her family doctor, Dr. Leong – a witness whom I found to be credible and on whose evidence I relied.

[35]            As the Plaintiff’s treating physician, Dr. Leong had seen the Plaintiff over a long period of time. Dr. Schweigel, on the other hand, only saw the Plaintiff on one occasion for about an hour to an hour and a half.

[36]            Throughout her testimony, Dr. Leong presented as a measured person who was endeavouring to be clear, accurate and fair.  Her answers were thoughtful and balanced.  Her testimony was both internally consistent and consistent with the other evidence.

[37]            For example, it was Dr. Leong’s opinion that the collision caused the Plaintiff’s disc herniation in one of two ways:  (1) either the collision caused the herniation completely; or (2) if the herniation pre-dated the collision, then the collision caused the herniation to become symptomatic.  This evidence was based on the fact that the Plaintiff did not display any symptoms of cervical disc herniation prior to the collision.  Although she had experienced some pain in her neck which had occasioned the earlier x-ray, that pain was occasional rather than chronic.  It was also different in kind from the type of pain that can arise from disc herniation and that the Plaintiff experienced after the collision.  Furthermore, the x-ray taken shortly before the collision did not show a disc herniation.

[38]            Dr. Schweigel, on the other hand, was evasive and argumentative in his evidence.  He gave opinions in this trial that were inconsistent with opinions that he had tendered in other trials, demonstrating that he was not impartial but, rather, tailored his evidence to favour the party that had called him.  For example, in this trial he opined that arthritis could not be triggered by trauma whereas in another action he gave the opposite opinion.

[39]            Dr. Schweigel opined that the Plaintiff had suffered a mild soft tissue injury to her neck and back as a result of this collision and that that injury had probably resolved itself within 3 to 4 months.  He opined that the disc herniation pre-dated the collision as such conditions can arise from a longstanding arthritic condition and that, in any event, the Plaintiff’s chronic pain arose from neither the herniation specifically nor the collision generally but, rather, from her psychological or psychosomatic problems.

[40]            However, during cross-examination, he did concede that trauma could trigger further degeneration. He further went on to testify that if this injury did not pre-date the collision, that it would probably have arisen within 2 to 3 years to a maximum of 5 years.  In my view, this opinion contradicts his initial opinion that a disc herniation cannot be caused by trauma or become symptomatic because of trauma.

[41]            For all of these reasons, I found Dr. Schweigel’s evidence to be unreliable.  I preferred the opinion of Dr. Leong.  Where her opinion differed from the opinion of Dr. Schweigel, I relied upon her opinion.

ICBC Injury Claims, Criminal Charges and Police Records

December 22nd, 2008

What kind of disclosure are you entitled to from the police if you are injured in a BC Car Accident that resulted from a criminal act?  For example, say you were injured by a drunk driver or someone fleeing from the police.  Are you entitled to the police departments records documenting their investigation in your ICBC claim or do you have to wait until criminal charges are finally dealt with?  Reasons for judgement were released today dealing with this issue.

In this case the Plaintiff was killed in a motor vehicle accident.  Charges were brought against the alleged operator of the vehicle alleging criminal negligence causing death.  In the ICBC claim the identity of the Defendant driver was put in issue.  The Plaintiff’s estate brought a motion seeking production of the Vancouver Police Departments documents concerning this accident.  The Attorney General, on behalf of the VPD,  opposed this motion.  Mr. Justice Pitfield ordered that the documents be disclosed finding that ‘the accused’ should not be in a better position with respect to the police evidence (such evidence typically gets disclosed to the accused as part of the criminal disclosure process) than the Plaintiff.  His key analysis can be found at paragraphs 43-47 of the judgment which I reproduce below:

[43]            The issue in the present application then is whether the actual or implied undertaking to refrain from using Crown disclosure documentation for any purpose other than making full answer and defence should be modified to permit disclosure to a plaintiff in a related civil action in which the accused is a defendant.  A number of factors must be considered:

1.         As with any request for production, the requested documentation or the information that may be derived from it, must relate to an issue in the proceeding in which use of the documentation is intended.

2.         The information likely to be obtained from the documentation must not be available from other sources, thereby necessitating production.

3.         The public interest in ensuring the conduct of a prosecution in a manner that is fair from the perspective of both the Crown and the defence must be balanced against the private interest of ensuring the capacity of a plaintiff to advance a bona fide and meritorious claim in a civil action.  In other words, the balance of convenience must favour disclosure.  As the Ontario Court of Appeal said in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, [2004] O.J. No. 2053, at para. 53:

53.       …Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court.  The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.

[44]            The court may be required to engage in a screening process conducted with the participation of Crown, police and defence in order to identify the documentation that must be produced and to ensure that the preconditions to production have been satisfied.  The screening process will only be avoided in the event that consent to production is forthcoming.

[45]            I am persuaded by the affidavit evidence that documents in the VPD file that may afford evidence of, or point to the source of evidence regarding, the operator of the vehicle involved in Mr. Wong’s death and its manner of operation, are relevant and material in so far as the family compensation action is concerned.  I am also satisfied that the evidence cannot be obtained by the plaintiff from other sources available to him.  The plaintiff does not possess any of the investigative tools that were likely employed by the VPD in its attempts to identify the driver.

[46]            The remaining question is whether the balancing of the public and private interests should result in production of the relevant documents at this point in time.  The Crown has tendered affidavit evidence suggesting that the criminal prosecution might be jeopardized by disclosure of any documents to the plaintiff because the material might find its way to potential witnesses, to the jury pool, or to persons who could seek to subvert the course of justice.  While the affidavit evidence contains general statements of possible adverse effects resulting from premature disclosure, it does not identify any specific concerns in the context of the Antunes prosecution.  Moreover, the possibility of any adverse effect can be materially reduced, or eliminated, by an appropriate undertaking from counsel and the plaintiff in the civil action.

[47]            In sum, I can see no reason why, in the circumstances, the accused should be in a position to know of the police evidence or sources of evidence pertaining to the identity of the driver and the allegation of negligent operation of a motor vehicle, but the plaintiff who sues on behalf of the victim of the operator’s negligence should not.  

ICBC Injury Claims, Trials and Disbursements

December 22nd, 2008

Generally speaking it can be very expensive to bring an ICBC injury claim to trial in British Columbia.  I’m not talking about lawyers fees here.  There are many very well qualified personal injury lawyers in BC who handle ICBC injury claims on a ‘contingency basis’ and most Plaintiffs with a good claim have the luxury of shopping around finding a lawyer that is the right fit for them.  What I’m referring to is the actual out of pocket cost of bringing a case to trial in the British Columbia Supreme Court.  These are called ‘disbursmemnts’.

Most ICBC injury claims focus heavily on the nature and extent of car accident related injuries.  To properly present such a case in court expert opinion evidence is necessary.  Doctors are entitled to charge fees for providing this service and these fees can quickly get into the thousands of dollars, particularly with complex injury cases such as brain injury claims and chronic pain disorders.  Other fees, such as court filing fees, witness fees, process servers fees, photocopying expenses (these can quickly add up particularly in ICBC jury trials where multiple copies of all exhibits must be made) are also commonly incurred.

Most lawyers that advance ICBC injury claims on a contingency basis fund the disbursements to bring the case to trial.  After judgement the court has certain powers set out in the Rules of Court to award the victorious party their ‘costs and disbursemnts’.  If the parties can’t agree on which disbursements were reasonable an application can be made to the Court to make a ruling.

Reasons for judgment were released today dealing with the issue of ‘reasonable disbursements’ following a BC personal injury claim.  Some of the more interesting expenses allowed, from my perspective, were 3 MRI scans paid for privately through Canadian Medial Imaging.  These were allowed because “(a doctor) clearly did recommend an MRI to try to assess the cause of (the Plaintiff’s) ongoing problems”.  Also, the Trust Administration Fee (a fee lawyers must charge in BC when opening a new file) was held to be reasonable and the Defendant was ordered to pay this cost.  

While this judgement does not create any new law it is worth reviewing to see the types of expenses that are sometimes incurred in prosecuting ICBC injury claims and to see how the BC Supreme Court deals with the issue of reimbursement of these expenses.  If you are advancing an ICBC injury claim in the BC Supreme Court you should keep judgement such as this one in mind when deciding what expenses you will incur while preparing your case for trial.

ICBC Injury Claims "Collateral Benefits" and the Rule Against Double Recovery

December 20th, 2008

Imagine if you are injured through the fault of another BC motorist and become disabled from work.  You are lucky enough to have wage loss disability benefits through your employment (or your spouse’s employment). When you advance your ICBC injury claim are you entitled to claim your past wage loss or will you be prohibited in claiming this money from ICBC because you already received money for past wage loss from your private insurer?  The short answer is you can claim this money provided that you paid some consideration for receipt of your private insurance benefits.  

Reasons for judgment were released this week by the BC Supreme Court dealing with the ‘private insurance’ exception to the rule against ‘double recovery’ in BC tort claims.

In this case the Plaintiff was injured in a BC car crash.  She needed therapies to treat her injuries.  The cost of these therapies were covered largely through an extended health plan through her husband’s employment.   The issue to be decided at trial was whether the Plaintiff could recover the actual costs of her therapies or only that portion not covered by the private insurer.

Madam Justice Bruce summarized the law addressing the ‘private insurance’ exception to the rule against double recovery as follows:

[7]                The general rule in an action for damages arising out of negligence is that the plaintiff is only entitled to be restored to the position she would have been in had the accident not occurred. The plaintiff is awarded damages for her actual loss and no more: Cunningham at para. 5 per McLachlin J. (dissenting in part)

[8]                The law has recognized a limited exception to the rule against double recovery which is referred to as the “private insurance” exception. In Cunningham at para. 75 Mr. Justice Cory, speaking for the majority, adopts the following passage from Bradburn v. Great Western Rail Co., [1874-80] All E.R. 195 as accurately describing the underlying rationale for the exception:

… I think that there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is, “laying away for a rainy day”. He pays the premiums upon a contract which, if he meets with an accident, entitles him to receive a sum of money. It is not because he meets with the accident, but because he made a contract with, and paid premiums to, the insurance company, for that express purpose, that he gets the money from them. …and I think that it ought not, upon any principle of justice, to be deducted from the amount of damages proved to have been sustained by him through the negligence of the defendant.

[9]                Whether the plaintiff has paid for private insurance or has obtained these benefits through an employment contract, the exception will apply. It is also irrelevant that it is the plaintiff’s husband who secured these benefits. See, Brennan at para. 182-3. However, the onus rests with the plaintiff to prove he or she has paid for the provision of insurance benefits in some fashion. As Cory J. says in Cunningham at para. 94:

In my view, Ratych v. Bloomer, supra, simply placed an evidentiary burden upon plaintiffs to establish that they had paid for the provision of disability benefits. I think the manner of payment may be found, for example, in evidence pertaining to the provisions of a collective bargaining agreement just as clearly as in a direct payroll deduction.

[10]            There is no evidence before the court as to what, if any, consideration passed between Mr. Napoleone and his employer in respect of the extended health benefits. There is no evidence of whether Mr. Napoleone pays all or a portion of the insurance cost or whether it was negotiated as a part of a collective bargaining scheme. The only evidence before the court is that the plan was secured through Mr. Napoleone’s employer and it covers 80% of Mrs. Napoleone’s health related expenses.

[11]            Without an evidentiary foundation to support the claim, I am unable to apply the private insurance exception to the case at hand. As Cory J. says at para. 93 of Cunningham, it is only when this evidentiary requirement is met that the court may be satisfied the plaintiff has shown the prudence and corresponding deprivation that underlies the exception and permits double recovery.

[12]            For these reasons, I must dismiss Ms. Napoleone’s claim for the gross cost of the special expenses.

This case shows that it is essential to lead evidence at trial that there was some cost associated with being entitled to receive the collateral benefits to be able to receive compensation for the losses those benefits covered in an ICBC tort claim.  This can be done in any number of ways such as showing deductions from a paycheque to pay for a private insurance plan or showing that the private insurance was negotiated from the employer at the expense of some salary.  This is a particulary important matter to think about when preparing for trial if you signed a ‘reimbursement agreement’ with you private insurer to pay back the benefits.  

Pain and Suffering and Your ICBC Claim

December 19th, 2008

One of the most common questions asked of me through this blog is “how much is my Pain and Suffering worth in my ICBC personal injury tort claim?”.  The answer to this, of course, depends on various factors and who better to discuss these than a BC Supreme Court judge?

On that point, reasons for judgement were released today discussing the law of ‘pain and suffering’ in tort claims.  Pain and Suffering is awarded under the legal head of damage called “Non-Pecuniary Loss”.  Non Pecuniary Loss includes damages for “pain and suffering, loss of enjoyment of life and loss of amenities”.

In today’s case $70,000 was awarded in non-pecuniary damages as a result injuries sustained in a 2005 BC car crash.  In doing so Madam Justice Russell summarized the law of non-pecuniary damages ar paragraphs 104-105 of the judgment as follows:

Non-pecuniary damages

[104]        The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[105]        There are a number of factors that courts must take into account when assessing this type of claim.  The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering; and

(f)      loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

Cases such as this one are key in helping one understand the principles behind awards for pain and suffering in ICBC tort claims.  Once the general principles of this head of damage are understood, the extent of injuries and prognosis known, and cases with similar injuries are canvassed the easier it will be to value the potential range of damages for pain and suffering in an ICBC personal injury (tort) claim.

ICBC Personal Injury Claims, Lawyers and Trust

December 18th, 2008

I have previously written about some practical things to consider for people wishing to  fire their ICBC Injury Claims Lawyer.

Today while stuck at the Kelowna Airport waiting to fly back to Victoria and got to chatting with a fellow traveler who was contemplating firing his accountant.  Hearing this and the reasons for it made me think of sharing some further thoughts on the topic of hiring/firing an ICBC Claims Lawyer.  And being stuck in an airport I have plenty of time to do so!

Trust.  Trust is the most important factor in having a successful relationship with your ICBC Injury Claims Lawyer.  Trial experience, past settlement results, experience with your type of case, whether your lawyer sometimes acts for ICBC, whether your lawyer signed the SAA are all very important factors to consider when hiring an ICBC Injury Claims Lawyer but nothing can undo a relationship between a lawyer and client faster than lack of trust.

Your ICBC Injury Claims Lawyer will have to give you advice on many topic most importantly, advice on what a fair range of settlement is.  If you don’t trust that your lawyer is taking your claim seriously and don’t trust his/her advice it will be difficult if not impossible to make an informed decision regarding whether to settle your ICBC injury claim or proceed to trial.

Settlement offers are made in almost all ICBC personal injury claims.  Your lawyer’s job is to give you advice on the merits of any offer and to offer a ‘risk assessment’ about the potential benefits and pitfalls of trial.  You must trust that your ICBC Injury Lawyer is giving you good advice otherwise you risk making a poor decision.  If you don’t trust your lawyer your decision-making ability will be compromised and this can lead to very unfair results.  For example you may take a settlement offer that your lawyer says is unfair because you don’t trust his/her judgment or on the other hand you could proceed to trial, lose and face significant ‘costs’ consequences after failing to heed advice that an ICBC settlement offer is fair and should be seriously considered.

Trust goes to the heart of a lawyer/client relationship and if this is missing then a claim may be compromised.  So what can be done?  If there is a lack of trust the first and most important thing you should do is communicate this to your lawyer.  Try to work through the problem.  Make your lawyer make time for you.  Most ICBC Injury Claims Lawyers work on a contingency basis meaning they don’t bill you for every phone call, e-mail or meeting.  Make time to sit down and speak with your lawyer and work through any perceived problems.  This will likely cost you nothing and can go a long way to building up a mutual trust which will help your lawyer get a good result for you.

 If, after all reasonable efforts, you still can’t build a level of trust in your lawyer you will need to seriously consider retaining new counsel.

The bottom line is this: If you run into problems in your legal relationship you should talk to your lawyer.  He/she works for you and you are entitled to have all of your questions answered.  Put effort into working things through.  If things can’t be worked out consider moving on.  You don’t want to second guess yourself when you decide if and how you resolve your ICBC Personal Injury Claim.

Rule 37 Dies a Natural Death

December 17th, 2008

As most frequent visitors to this blog know, Rule 37 of the BC Supreme Court Rules (the rule that dealt with formal settlement offers and costs consequences in BC Supreme Court trials including ICBC personal injury claims) was replaced this summer with Rule 37B.  Rule 37B builds in a lot of judicial discretion in the process of awarding ‘costs’ to litigants where a formal offer was made compared to the old Rule 37 which had strict consequences resulting when a formal offer was made and beat at trial.

In what will likely be one of the last BC court cases dealing with the old Rule 37, unanimous reasons for judgment were released today by a 5 member panel of the BC Court of Appeal ruling that the old Rule 37 is not incompatible with the Negligence Act and both can work in harmony.

In this case the Plaintiff sued for injuries sustained as a result of a motor vehicle collision.  Pre-Trial the Defendant made a settlement offer under the old Rule 37 for $150,000.    The Plaintiff rejected this offer and proceeded to trial.  The trial judge found that the Plaintiff was 50% at fault and awarded damages of just over $56,000.

Having found that the Plaintiff was 50% at fault he awarded her 50% of her costs to the date the formal offer was made by the Defendant.  Since the Defendants ‘beat’ their formal offer the Court ordered that the Plaintiff pay all of the Defendants Tariff costs from the date of the formal offer through to trial.   This award of costs was apparently so significant that the Plaintiff ended up owing the Defendant money.

The Plaintiff appealed arguing that Rule 37 was in conflict with the Negligence Act, the relevant portions of which read as follows:

2.         The awarding of damage or loss in every action to which section 1 applies is governed by the following provisions:

(a)        the damage or loss, if any, sustained by each person shall be ascertained and expressed in dollars;

(b)        the degree to which each person was at fault shall be ascertained and expressed as a percentage of the total fault;

(c)        as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss shall be entitled to recover from that other person the percentage of the damage or loss sustained as corresponds to the degree of fault of that other person;

(d)        as between 2 persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled shall be set off one against the other, and if either person is entitled to a greater amount than the other, he shall have judgment against that other for the excess.

3.         Unless the court otherwise directs, the liability for costs of the parties to every action shall be in the same proportion as their respective liability to make good the damage or loss. The provisions of section 2 governing the awarding of damage or loss apply, with the necessary changes and so far as applicable, to the awarding of costs, with the further provision that where, as between 2 persons, one is entitled to a judgment for an excess of damage or loss and the other to a judgment for an excess of costs there shall be a further set off of the respective amounts and judgment shall be given accordingly.

The relevant of the old Rule 37 read as follows:

R. 37(24) read:

37(24)  If the defendant has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted,

(a)        if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered, and the defendant is entitled to costs assessed from that date.

(b)        if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

The Plaintiff asked the Court of Appeal to find that Rule 37 was trumped by the Negligence Act and to adjust the costs award accordingly.

The Court of Appeal dismissed this argument finding that Rule 37 and the Negligence Act are not in conflict with each other and can stand together.  The Courts key analysis is set out at Paragraph 29 of the Reasons which I set out below:

[29]            I do not find this analysis altogether persuasive.  I would have thought that the Act, as superior legislation to the Rules, would be looked to first to determine each parties’ liability for costs in a situation to which s. 2 of the Act applies, and that R. 37, as an item of subordinate legislation, would then be applied if possible. Applying the classic definition of “conflict” – whether the two laws can “stand together and … operate without either interfering with the other” (see Tabernacle Permanent Building Society v. Knight [1892] A.C. 298 (H.L.) at 302, and the leading Canadian case, Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1 at para. 42) – however, I agree with the Court’s conclusion in Smith v. Knudsenthat s. 3 of the Negligence Act and R. 37(24) do not conflict.  I reach this conclusion not only on the basis of the opening phrase of s. 3, but also on a close construction of the Act.  As was held in Flatley, the phrase “person sustaining the damage or loss” in s. 2(c) is apt to refer only to the plaintiff in any case in which the defendant sustained no injury or damage.  Section 3 states that each party’s liability for costs shall be in the same proportion as his or her liability to make good the damage or loss.  Having sustained no damage or loss, the defendant has no ‘entitlement’ to recovery under s. 2(c) and thus his or her liability for costs does not “track” under s. 3.  As McFarlane J.A. stated in Lutes, s. 2(c) “does not provide for the awarding of damages as between persons who are at fault.  This sub-section cannot apply to entitle [a defendant] to recover anything because he has sustained no damage or loss.”  (Supra, at 466.)

This will be, in all likelihood, one of the last judgements dealing with the old Rule 37.  I look forward to continue reporting on judgements dealing with the new Rule 37B particularly in the context of ICBC injury claims.

More on ICBC Injury Claims and Low Velocity Impacts

December 15th, 2008

Reasons for judgement were released today awarding a Plaintiff $21,500 for pain and suffering plus ‘special damages’ (accident related out of pocket expenses) as a result of a 2005 motor vehicle collision.

While the judgement does not mention ICBC directly (BC personal injury tort judgements rarely mention who the insurer for the defendant is) this case appears to me to be one which was defended on the basis of ICBC’s Low Velocity Impact (LVI) program.  The reason why I reach this conclusion is because the defence lawyer argued that “this was such a minor motor vehicle accident that no damages should be awarded”.  This is a standard argument behind ICBC’s LVI program.

The accident did not occur at a significant rate of speed and resulted in little vehicle damage.  The Plaintiff’s vehicle cost approximately $1,500 to repair.

The Plaintiff’s injuries are discussed at paragraphs 5-16 of the reasons for judgement which I reproduce below:

[6]                She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw. 

[7]                The doctor told her to “take it easy”.  She went home and put an ice pack on her wrist and shoulders. 

[8]                The pain in her wrist resolved within a month of the accident.  The pain in her neck lasted for approximately a year and a half.  Massage therapy helped with the pain in her neck; she developed better range of motion.

[9]                She also began to experience headaches which resolved within a year and a half of the accident.

[10]            The muscles in her jaw tightened and she experienced pain.  She described the jaw pain starting after the accident as minor, though it continued to get worse.  She still has some symptoms of jaw pain but it has improved with the use of a night guard.

[11]            Three weeks after the accident she developed chest pains.  She first noted the chest pains when she was jogging.  She did not have this pain prior to the accident.  When she developed the pain she stopped jogging.  She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.

[12]            Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.

[13]            She did not play tennis for almost a year and a half because the right side of her body was sore.

[14]            She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions.  She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays.  Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.

[15]            She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.

[16]            The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments.  She had approximately 10 physiotherapy treatments between June and November 2006.  She also had chiropractic treatments on 6 occasions in February and March 2006.

The court, in awarding damages, made the following findings:

[26]            Here, however, I am satisfied that the plaintiff is a credible witness.  She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate.  Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements….

[28]            I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness.  There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment.  I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216.  I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982.  The plaintiff is also entitled to her costs.

More Judicial Interpretation of Rule 37B

December 15th, 2008

I have blogged many times about the relatively new BC Supreme Court Rule 37B (the rule dealing with formal settlement offers).  You can search the archives of this blog to find my previous entries.

Useful reasons were released today by the BC Supreme Court providing further clarity and development of this rule.  

The key facts are as follows:

1.  The Defendant delivered a formal offer under the old Rule 37 on August 27, 2007 (rule 37B was not in force at the time).  That offer complied with Rule 37.

2.  The offer was for a monetary amount within the Small Claims Court jurisdiction.

3.  On August 21, 2007 the Plaintiff accepted the offer.

4.  The Plaintiff and the Defendant could not agree to the costs consequences of the acceptance and brought application to court.

5.  The applicaiton was heard after Rule 37B came into force.

One of the issues that was decided was whether under these facts Rule 37B applied or should the court consider the costs consequences under the old Rule 37?  Madam Justice Garson held that Rule 37B applied because:

[10]            Whether R. 37B applies to the Offer in question is determined by the definition of “offer to settle” in R. 37B(1).  Rule 37B(1) provides three alternative situations that fall within the meaning of “offer to settle.”  The situation applicable to the case at hand is R. 37B(1)(a) and thus paras. (b) and (c) are not applicable.

[11]            Rule 37B(1)(a) requires three criteria to be met to satisfy the definition of “offer to settle”:  first, the offer to settle must have been made and delivered before July 2, 2008; second, the offer to settle must have been made under R. 37 as that rule read on the date of the offer to settle; and third, there must have been no order made under R. 37 in relation to the offer to settle.

[12]            Applying R. 37B(1)(a) to the facts in this case, I note, the Offer was drafted on August 28, 2007, and delivered on August 29, 2007.  This is prior to July 2, 2008; therefore the first criterion is met.  The Offer was made pursuant to R. 37 as that rule read on August 28, 2007, and thus the second criterion is met.  Lastly, no order was made under R. 37 in relation to the Offer.  Thus, R. 37B applies to the offer made by the defendants and the new regime applies.

[13]            In Bailey v. Jang, 2008 BCSC 1372 at para. 10, Hinkson J. held that R. 37B “… applies to offers to settle made both before and after July 1, 2008 where no order as to costs has been made.”  (See also Brewster v. Rominn Laboratories Inc., 2008 BCSC 1463 at para. 13.)

[14]            In this case the defendants argue that because the offer was made and accepted pursuant to R. 37, R. 37 should continue to apply.  I cannot accede to that argument in the face of clear legislation to the contrary as well as the two authorities of this Court just mentioned.

Having decided that Rule 37B applies to these facts (even though the offer was made and accepted before Rule 37B came into force) The court went on to award the Plaintiff her ‘costs’ despite the fact that the offer was within the small claims courts jurisdiction.  In doing so the court provided the following reasons:

[19]            The defendants contend that the plaintiff is not entitled to her costs of the entire proceeding because the settlement is within the monetary jurisdiction of the Provincial Court.  Old R. 37(37) provided that a plaintiff was not entitled to costs if the offer accepted was within the jurisdiction of the Provincial Court under the Small Claims Act and could have been appropriately brought in the Provincial Court.  Rule 37(37) was not carried forward to R. 37B.

[20]            I turn back to R. 37B(5).

Cost options

37B (5)            In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a)      deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b)      award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[21]            On the basis, that I have already decided that the words “after the date of delivery of the offer to settle” means costs incurred from and after the day following delivery, subsection (b) is inapplicable because no costs were incurred by either party after delivery of the offer to settle.

[22]            The “Cost options” as it is put in R. 37B are prescribed by the rule.  In this case the defendants argued that the plaintiff should be disentitled to all her costs because the case was one that ought to have been brought within the monetary jurisdiction of the Small Claims Court.  Even if that is one of the factors that could be taken into account under ss. (6), ss. (5) of R. 37B does not permit a court the option of depriving a party (in this case the plaintiff) of her costs before the date of delivery of the offer.

[23]            The rule only permits the Court to deprive a party, “in whole or in part” of her costs to which she “…would otherwise be entitled….after the date of delivery of the offer to settle;” [emphasis added].

[24]            Accordingly, there is no basis in R. 37B on which this Court could deprive the plaintiff of costs incurred before the date of the delivery of an offer regardless of whether the ultimate settlement is within the monetary jurisdiction of the Provincial Court.

Application of Rule 57(10)

[25]            Rule 57(10) of the Supreme Court Rules states as follows:

(10)        A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[26]            The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of the monetary jurisdiction of that Court.  If the plaintiff proceeds in the Supreme Court, and the resulting monetary judgment falls within the jurisdictional limits of the Provincial Court, the plaintiff must justify his choice of forum or be denied costs other than disbursements.

[27]            However, as the action did not actually proceed to trial, R. 57(10) has no application to the case at hand.

As an ICBC claims lawyer I welcome this judgement and all other judgements giving clarity to Rule 37B.  The more consistency this rule receives in its interpretation from the BC Courts the better position all ICBC claims lawyers will be in advising clients about the potential costs consequences of accepting or rejecting formal ICBC settlement offers.  I intend to continue to blog about this rule as it receives further judicial interpretation.