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 July, 2009

ICBC Injury Claims and Credibility

July 30th, 2009

Reasons for judgment were released today by the BC Supreme Court, Prince George Registry, dealing extensively with Plaintiff credibility in ICBC Injury Claims.

In today’s case (Willing v. Ayles) 2 Plaintiffs were involved in a 2005 crash that was described as a ‘significant rear end collision causing some significant physical damage to the vehicle occupied by the plaintiffs

The court found that both Plaintiffs sustained injuries and non-pecuniary damages of $20,000 and $35,000 were made for various soft tissue injuries.

The lion’s share of this 43 page judgement focuses on the Plaintiff’s credibility.  I reproduce some highlights of the courts discussion on this topic below.   Anyone interested in seeing how BC Courts deal with Plaintiff credibility in ICBC injury claims in encouraged to read this judgment in full:

[75] For reasons which will become apparent these statements are demonstrably inaccurate and untrue.  Of more concern, they appear to be repeated consistently to create a particular impression, namely that she was far more active before the accident and that her injuries had restricted her activities and resulted in a major weight gain…

[153] I am satisfied that both Dr. Haskins and Dr. McKenzie suffered in the preparation of their reports and opinions from information that was, at best, exaggerated and inaccurate.

[154] This factor alone diminishes the value of their reports and opinions but when it is combined with the absence of evidence from either family doctor the difficulties become even greater.

[155] Ms. Willing struggled to fill the void created by the absence of her family doctor by repeatedly offering her own opinions on a wide variety of topics ranging from the reason for notes found in Dr. Scott’s clinical records to the cause of her weight gain after the accident.  These opinions, though revealing, are of extremely limited evidentiary value and do not supplement the actual medical evidence before the court.

[156] In the absence of medical evidence based on a proper foundation I am not prepared to accept Ms. Willing’s opinions as to causation.  To be clear, I am satisfied that, above all, Ms. Willing demonstrated a remarkable capacity to blame the collision in question for virtually everything which crossed her path.  This included attributing her weight gain to the accident, her move to Smithers, and complaints of headaches with orgasm which appears to have surfaced on March 21, 2007, approaching two years post-accident, and that of lower back and hip pain after sex which appears to have been reported to Dr. Haskins on February 11, 2008.

[157] This penchant for exaggeration and attribution appears to have been passed on to her husband who, at least in the reports of Dr. Haskins, attributes the change from his job as a mechanic to a salesman to the after effects of his injuries.

[158] Perhaps the most troubling aspect of the evidence in this case arises again in the reports and the opinion of Dr. McKenzie about the plaintiff, Kristina Willing.

[159] This report is replete with qualifications which make it clear that Dr. McKenzie’s opinion that her reported complaints were caused by the collision in question were based on the fact that she had recovered completely from previous injuries and she was asymptomatic from the degenerative disc condition prior to the accident.

[160] Those qualifications include the following –

(a)      For approximately 10 years following her last pregnancy however she had no significant back pain;

(b)      She was involved in a previous motor vehicle accident with some neck and right shoulder pain.  By her history the neck pain completely resolved although she had some mild residual shoulder pain;

(c)      The degenerative disc disease almost assuredly pre-existed but was minimally or completely asymptomatic.

[161] It seems clear that Dr. McKenzie’s opinion as to causation, even couched as it is on the various contributing factors, is based on his acceptance of her evidence of her health and condition prior to the accident.

[162] Clinical records produced apparently from the Glover Physiotherapist Corporation (Exhibit 3, Tab 10) contain an intake form dated April 9, 2002.  The symptoms recorded include neck problems, headache and problems with her right shoulder area.  After the initial assessment Ms. Willing is recorded as attending for three treatments – April 16, 2002; April 18, 2002; and April 25, 2002, before apparently discontinuing physiotherapy.

[163] A second intake form on February 17, 2004 references an “old mva” and contains a similar pain diagram to that found in the earlier intake form.  This assessment goes on to record constant pain and a series of difficulties mainly centred on her right shoulder.

[164] On this occasion Ms. Willing apparently attended four physiotherapy treatments over a period of some 16 days from February 21, 2004 to March 9, 2004 before discontinuing her attendances.

[165] During the course of her evidence Ms. Willing was insistent that she recovered completely from these symptoms and that they had completely resolved after March 9, 2004.

[166] Coincidently her claim arising from the 2002 motor vehicle collision was settled on February 27, 2004.

[167] The third intake form is dated August 19, 2005 and follows the present collision.  The pain diagram in this case covers a somewhat larger area of the neck and upper back and includes the lower back.

[168] On this occasion Ms. Willing apparently attended on some 26 occasions from August 29, 2005 until April 7, 2006 before apparently discontinuing the treatments.

[169] Upon arriving in Smithers Ms. Willing began attending at the Bulkley Valley Chiropractic Clinic.  These attendances began on August 9, 2006 and concluded on October 18, 2006 after some 16 visits which apparently included two acupuncture sessions.

[170] On July 27, 2007 Alpine Physiotherapy in Smithers completed an initial assessment form which records, amongst other information, that she had just returned from a trip to France.

[171] The physiotherapist, Graham Pollard, notes in a letter dated July 14, 2008 that he has treated her on five occasions since her initial assessment.

[172] What is interesting about this entire sequence of events in Smithers, I hesitate to describe it as a pattern, is the gaps in what she now claims are necessary therapy treatments.

[173] When Mr. Pollard refers to five treatments after her initial assessment he is not speaking about the July 27, 2007 initial assessment, because after that assessment she did not attend a single physiotherapy treatment until she returned for another initial assessment on June 3, 2008, some eleven months later.

[174] Dealing initially with the initial assessment on July 27, 2007, this appointment took place immediately after the plaintiffs retained counsel to pursue the present claims.  The writs were prepared and signed on July 25, 2007, and they were filed and these actions commenced on July 26, 2007.  The next day she attended Alpine Physiotherapy.

[175] On June 3, 2008 she returned, was assessed and began a series of five treatments.  This followed her attendance at her examination for discovery some weeks before.

[176] Once again I am forced to conclude that this is not a pattern that supports the recital of symptoms and problems presented by Ms. Willing in her evidence.

[177] The adverse credibility findings in this case go to the heart of the factual underpinnings of Dr. McKenzie’s opinion.

[178] The absence of evidence from Dr. Scott and, indeed, from the time of the accident until Ms. Willing first saw Dr. Haskins leaves the court without any medical assessment from the time of the accident until nearly two years later.  More importantly, it leaves the court without any evidence from her doctor concerning the extent of her recovery at the time of the present accident.

[179] There is, in the body of evidence before the court, little in the way of objective evidence let alone convincing evidence of any significant injury.

[180] A medical/legal report or evidence from Dr. Scott may have provided a clearer picture and the basis for a factual finding of continuing pain and discomfort related to the accident; but we do not have the benefit of any such evidence.

[181] A decision must not be based on speculation, supposition or facts not placed in evidence.  While this may possibly result in Kristina Willing being under-compensated she has only herself to blame.

[182] The absence of evidence from Dr. Scott in this case fulfills the circumstances necessary for the drawing of an adverse inference.  The inference in this case is, that if his evidence had been called, Dr. Scott’s evidence would not have supported the ‘complete recovery’ scenario found in Ms. Willing’s evidence and on which, to a significant extent, Dr. McKenzie’s opinion is based.

Can Injuries in an ICBC Claim be Worth Less for Failing to Lose Weight?

July 28th, 2009

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.

Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.

In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.

The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:

The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.

In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

Vehicle Damage and the Law of "Accelerated Depreciation"

July 28th, 2009

When a vehicle is damaged in a BC car crash and subsequently repaired, the repaired vehicle may have a lower market value than it otherwise would have.  Can the owner of such a vehicle be compensated for this loss?  The answer is yes and is dealt with under a head of damage known as ‘accelerated depreciation’.  Reasons for judgment were released today by the BC Supreme Court dealing with this legal principle.

In today’s case (Cummings v. Daewoo Richmond) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff purchased a used vehicle from the Defendant Daewoo.  Seven days later she lost control of her vehicle and was injured as a result of the crash.  Madam Justice Gerow found that the Defendant sold the Plaintiff a vehicle with defective tires.  The court then concluded that “the accident was caused by a loss of friction due to the wear on the rear tires of the vehicle, and that Daewoo has failed to establish that Ms. Cummings’ operation of the vehicle either caused or contributed to the accident.”

The court went on to award the Plaintiff just over $38,000 in total damages including $7,600 for ‘accelerated depreciation’ of her vehicle.  I set Madam Gerow’s discussion out of this area of the law below:

Accelerated depreciation

[70] Ms. Cummings is claiming the amount of $7,600 for accelerated depreciation of the Nissan due to the damage it sustained in the accident. For the following reasons, I have concluded that an award in that amount for accelerated depreciation is appropriate.

[71] The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.

[72] Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73] It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.

BC Injury Claims and the Local Government Act

July 24th, 2009

Limitation periods can be complex.  Typically if a person is injured through the negligence of another in British Columbia a 2 year limitation period applies to bring a claim for damages in Court.  However, there are numerous exceptions and restrictions to this general rule and one restriction is contained in the Local Government Act.

If you are injured and can bring a claim against a municipality you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:

Immunity Unless Notice Given To Municipality After Damage

(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place, and manner in which the damage has been sustaibed, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2)        In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

This limitation arises in many different cases including BC Car Crash cases.  For example, if you are injured by a Municipal worker in the course of his employment or someone driving a Municipal owned vehicle at the time of a crash this limitaiton can be triggered.  This obscure and very short limitaiton has been the death of many personal injury claims over the years and reasons for judgement were released today by the BC Suprene Court showing this ‘immunity’ in action.

In today’s case (Persall v. Bond) the Plaintiff was injured in a 2006 motor vehicle collision.  The Plaintiff brought a claim against the City of Surrey claiming that “the City failed to design, inspect and maintain the Intersection properly“.

The Plaintiff did not give the City written Notice in 2 months as required by the Local Government Act.  The City of Surrey brought an application to dismiss the Plaintiff’s claim against them for this failure and this motion was granted.

In granting the motion Madam Justice Dickson summarized and applied the law as follows:

[16]         When notice is not given to a municipality within two months in accordance with the statutory obligation, the onus is on the plaintiff to prove a reasonable excuse:  Keen v. City of Surrey, 2004 BCSC 1161, ¶ 17.

[17]         What may constitute a reasonable excuse will depend on the circumstances of each case.  Courts in British Columbia have taken various factors into account in assessing whether a plaintiff has a reasonable excuse for providing late notice.  They include:

a)       The plaintiff’s knowledge of the statutory obligation to provide notice;

b)       Actions or representations by the local government which have the effect of lulling the plaintiff into a false sense of security;

c)       The plaintiff’s awareness of his/her injuries and awareness of the seriousness of his/her injuries;

d)       The plaintiff’s awareness of the involvement of the local government in the matter giving rise to the litigation; and

e)       The plaintiff’s capacity to provide notice.

Griffiths v. New Westminster (City of), 2001 BCSC 1516
Keen v. City of Surrey, supra
Teller v. Sunshine Coast (Regional District of), 1990 CanLII 2131 (B.C.C.A.)

[18]         In Keen, Burnyeat J. held that ignorance of the law alone will not constitute a reasonable excuse for failure to provide timely notice pursuant to s. 286 of the Act.  Rather, it is but one of the factors to be taken into account:  Teller.

[19]         When a plaintiff acts through a solicitor, responsibility for providing a municipality with timely notice of a damages claim is shared.  In Horie v. Nelson (1987) Can LII 2508 (B.C.C.A.), a majority of the British Columbia Court of Appeal held that a solicitor’s negligent failure to deliver timely notice does not necessarily constitute a reasonable excuse.  In response to an argument that the appellants relied on their solicitor to deliver notice, but the solicitor inexplicably failed to do so, MacDonald J.A. stated:

[18]      … That approach can only help the appellants if they can put forward their own reasonable conduct and dissociate themselves from the failure of their solicitor.

[19]      I agree with Locke J. when he said in the course of his reasons [p. 112]:  “I am driven further by the wording of the section of our statute to hold that the responsibility for delivering the notice is collective in that, if the notice is not delivered, it does not matter by whose hand the failure occurred”.  The section requires reasonable excuse for “failure to give the notice”.  That means that when a party acts through a solicitor the conduct of both must be examined to determine whether there was reasonable excuse for failure to give the notice.

[20]      In my opinion the judge was correct in his conclusion. I would dismiss the appeal.

[20]         When a plaintiff is able to establish a reasonable excuse for failing to provide timely notice, the Court must go on to consider whether the municipality has nevertheless been prejudiced in its defence.  If so, the action against it cannot be maintained despite the existence of a reasonable excuse.

[21]         The onus is on the municipality to prove it has suffered prejudice as a result of receiving delayed notice.  Prejudice may be presumed on the basis of inordinate delay.  In such circumstances, however, it is open to the plaintiff to rebut the presumption of prejudice:  Griffiths.

[22]         In most cases, the issue of prejudice cannot be determined until the end of the trial.  This is so because whether a defendant has, in fact, been prejudiced will depend on the allegations pursued by the plaintiff at trial and the conclusions the Court is asked to draw:  Teller.


[23]         The City submits that Mr. Persall has not provided an excuse, reasonable or otherwise, for his failure to provide timely notice of his damages claim to the municipality.  It argues that knowledge of the statutory obligation should be imputed to Mr. Persall, given his failure expressly to deny it, and presumed of his previous solicitors.  Taking into account Mr. Persall’s apparent ability to instruct counsel from the outset despite his injuries, in the City’s submission there is no basis for a finding of reasonable excuse.

[24]         The City also submits that it has been demonstrably prejudiced by the long delay in notification.  The Intersection’s condition at the time of the Accident is presently unknown and would likely have been easier to ascertain had timely notice been received.  In addition, the 18-month delay at issue is excessive and inordinate.  In these circumstances, prejudice should be presumed.

[25]         Mr. Persall responds that his serious injuries, together with his reasonable conduct in leaving the matter of notification to his solicitors, constitute a reasonable excuse.  He submits the Court should infer he was personally unaware of the notification requirement and unable fully to instruct counsel until he was released from GF Strong in January, 2008.  He emphasises that notice was provided shortly after his present solicitors were retained, but concedes his previous solicitors’ failure to provide timely notice is unexplained.  In the event a reasonable excuse is found, he submits the issue of prejudice should be determined at trial as evidence of the Intersection’s condition at the relevant time may well come to light.

[26]         I accept that Mr. Persall’s discovery evidence as to his knowledge of the statutory notice requirement is less than crystal clear.  I am nonetheless satisfied that an absence of personal knowledge can be reasonably inferred and conclude he was personally unaware.  This does not, however, constitute a reasonable excuse, given Mr. Persall’s demonstrated capacity to instruct counsel within weeks of the Accident and his previous solicitors’ unexplained failure to notify the City of his damages claim.

[27]         It is not difficult to posit various explanations for the failure of Mr. Persall’s previous solicitors to provide the City with written notice of his damages.  One is that they formed the view the City would not be held liable and chose consciously not to notify.  Another is that they were unaware of, or insufficiently attentive to, the statutory notice obligation.  In the absence of evidence on the point, however, a factual conclusion simply cannot be reached.

[28]         As stated by MacDonald J.A. in Horie, when a plaintiff acts through a solicitor responsibility for delivering notice of damages in accordance with the Act is collective.  Accordingly, the Court must examine the conduct of both to determine whether there was a reasonable excuse for late notification.  In my view, the reason is obvious.  A plaintiff will not be excused from the statutory notification obligation merely because he or she retains a new solicitor who adopts a new approach to a potential claim for damages against a municipality.  Were it otherwise, the Legislature’s decision to impose a short limitation period for such claims would be easily overcome.

[29]         In this case, I am satisfied that Mr. Persall acted through his previous solicitors from no later than October 10, 2006 in connection with the Accident.  I am unable to reach a conclusion, however, as to why those solicitors did not provide the City with written notice of his damages as required by the Act.  That being so, I am unable to determine whether Mr. Persall does or does not have a reasonable excuse for his failure to comply with his statutory obligation to provide timely notice to the City.  The onus is on Mr. Persall to establish a reasonable excuse.  The onus has not been met.

[30]         If I am wrong and Mr. Persall does have a reasonable excuse as a result of his injuries and the unexplained inaction of his previous solicitors, I agree with him that the issue of prejudice cannot be determined until the end of the trial.

$125,000 Non-Pecuniary Damges Awarded for MTBI, Chronic Pain and Depression

July 23rd, 2009

After what appears to be a hard fought trial, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just over $536,000 in total damages as a result of injuries and loss as a result of a 2001 BC Car Crash.

In today’s case (Zhang v. Law) the Plaintiff was injured when she was a passenger in a vehicle that was T-boned on the driver’s side by another vehicle.  As a result of this collision she suffered various injuries including a Mild Traumatic Brain Injury (MTBI), Chronic Pain and Depression.

The Court heard a lot of evidence about the potential causes for the Plaintiff’s Depression.  The Defendants argued that the Plaintiff’s ongoing problems and depression was not caused by the accident, but rather by a series of unfortunate events that followed including a miscarriage and serious health problems suffered by her husband.

In navigating this evidence Mr. Justice Sewell did a good job discussing the law of ‘causation’ in BC personal injury claims.  In awarding $125,000 for the Plaintiff’s Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court concluded as follows about the Plaintiff’s injuries, their cause, and their effect on her life:

In summary I find that Ms. Zhang did experience a decline in her cognitive abilities after the accident.  I have already found that this decline was due in part to the MTBI.  I now turn to a consideration of the extent to which depression contribute to these difficulties and to the etiology of that depression…

I conclude that Ms. Zhang continues to suffer depressive symptoms, pain and fatigue.  I find that there has been cognitive impairment caused by the MTBI and the depressive symptoms.  I also find that the chance of any significant improvement in her condition in the future is remote….

In my view this case is governed by the principles enunciated in the Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  On the issue of causation I have already found that the injuries suffered in the motor vehicle accident were a necessary cause of the depression.  To paraphrase paragraph 41 of Athey, I have found that it was necessary to have both the injuries from the accident and the non-tortious causes for the depression to occur.  As in Athey, I have concluded that it was the combination of the accident, the effect of Mr. Chen’s illness, the loss of the foetus and the termination of the second pregnancy which caused the major and continuing depression.  The depression and continuing depressive symptoms are, in my opinion, an indivisible injury.  The other sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of course entirely attributable to the accident…

The analysis of damage does not end with causation.  It is still necessary to consider whether there was some realistic chance that the depression would have occurred without the motor vehicle accident.  This does not go to the issue of causation but rather to the question of assessing damages which will restore Ms. Zhang to her original position.  If her original position included a realistic chance that she would have suffered a depression in any event, the principles of compensation  require some reduction in the damages awarded to avoid putting her in a better position than she would have been in had she not received compensation for the accident.  It goes without saying that “better” does not mean better in fact but better notionally because she will have received adequate monetary compensation for the damages caused by the defendants’ negligence.

In this case the analysis is further complicated.  Of the three causes of Ms. Zhang’s ongoing problems, pain, MTBI, and depression, only depression could be said to have been a realistic chance in the absence of the accident.  On the evidence before me I find that, although the accident was a necessary cause of the depression, there was never the less a realistic chance that Ms. Zhang would have suffered a major depression in any event.  That realistic chance must be taken into account in assessing damages…

Given my findings as to the extent of Ms. Zhang’s injuries from the accident a substantial award for non-pecuniary damages is appropriate. As I have already indicated, my task is to make an award of damages which, so far as money is able, will restore Ms. Zhang to her original position.  The evidence before me is that before the accident Ms. Zhang was an outgoing and intelligent person with a positive attitude to life.  She was able to combine long hours of work with numerous activities which gave her pleasure.  She enjoyed walking and socializing with friends.  She and her husband went to movies and went ballroom dancing.  She enjoyed music.  Ms. Zhang and Mr. Chen also had fulfilling marital relations.

All of the above activities have been profoundly affected by the injuries Ms. Zhang suffered in the accident.  Ms. Zhang is no longer outgoing but reclusive.  Most of her energy is devoted to working her shift at Safeway.  At the end of each shift the combination of pain and fatigue preclude her from engaging in social activities.  She can no longer tolerate music.   The couple no longer goes to movies or dancing.  There has been a significant decline in marital relations.  While some of these outcomes are undoubtedly related to Ms. Zhang’s ongoing depressive symptoms, they are largely the result of the other injuries suffered in the accident.  Taking into account the impact of these injuries on Ms. Zhang’s life while at the same time recognizing the realistic chance that Ms. Zhang would have had to cope with depression in any event, I award non-pecuniary damages of $125,000.

One other interesting part of this case is the Court’s discussion of the various experts called at trial.  Many expert physicians testified for the Plaintiff and the Defence with substantially differing views of the cause and extent of the Plaintiff’s injuries.  This is often the case in serious ICBC injury claims.

When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted, ‘independent’ medical examinations can be a lucrative trade for doctors.   When experts are retained to testify at trial, however, their duty is to the court to give fair and impartial evidence, not to advocate for the side that hired them.  Occasionally expert witnesses stray from this duty and give ‘partisan’ evidence.

This duty has been recognized in the common law and now the New BC Supreme Court Rules have been amended to require doctors to certify that they understand this duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness

(1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2) If an expert is appointed under this Part by one or more parties or by the court, the  expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr. Tessler, was found to be ‘advocating for the defence’ when testifying.  Specifically the Court said as follows about his evidence at trial:

Dr. Tessler was somewhat dismissive of Ms. Zhang’s symptoms after the accident.  He described them as being the “mildest of the mild”.  I found this comment, as well as certain remarks he made during his evidence, as being indicative of an attitude on his part that Ms. Zhang’s complaints should not be taken too seriously.  I was particularly troubled by a comment made by Dr. Tessler in cross examination to the effect that Ms. Zhang’s symptoms may settle after litigation.  Apart from the fact that Dr. Tessler was not qualified as an expert in psychiatry or psychology, the comment was gratuitous.  On the whole I formed the impression was Dr. Tessler was straying into the area of advocating for the defence point of view in his evidence.   I do not think he was doing so deliberately but he did seem to show a lack of balance and perspective in his evidence.

BC Court of Appeal Weighs in on ICBC's LVI Program and Human Rights

July 23rd, 2009

In reasons for judgement released today the BC Court of Appeal dealt with the issue of whether ICBC’s LVI Program violates Human Rights in BC.

In today’s case the Appellant was involved in a BC Car Crash.  He allegedly was injured and brought a tort claim against the other motorist.  ICBC, as is often the case in BC Car Crash cases, was the insurer for both the Appellant and the other motorist.  In the course of defending the tort claim ICBC relied on their LVI Program and denied that any compensable injury took place.

The Appellant brought a human rights complaint claiming that ICBC’s LVI Program was a ‘discriminatory practice’.   In response ICBC brought a motion seeking to have the complaint dismissed on the basis that it had ‘no reasonable prospect of success”.  The Human Rights Tribunal dismissed ICBC’s application. ICBC appealed to the BC Supreme Court and the Court held that the Tribunal was wrong and indeed the Appellant’s complaint had no reasonable chance of success.

The appellant brought this matter to the BC Court of Appeal.  The Court of Appeal agreed that the claim was ‘patently unreasonable’ and that the Appellant’s Human Rights Tribunal Complaint should have been dismissed.

Below I reproduce the key portions of the Court of Appeal’s reasoning:

[16] The issue before the Tribunal was a straightforward one. Mr. Yuan’s claim was placed in the LVI program because he was involved in a low-speed collision. As the chambers judge pointed out, nothing in the Human Rights Code serves to protect people from being treated differently by reason of the speed of collision that they are involved in.

[17] The tribunal member confused the issue by referring to the matter as one that might be characterized as discrimination on the basis of physical disability. This characterization was erroneous for two reasons. Firstly, the Code does not protect anyone from being discriminated against on the basis that he or she suffers no disability. It does not, in other words, prevent anyone from treating the disabled better than those who are not disabled.

[18] Just as importantly, it cannot be said that an insurance company, whose contractual and statutory duties are to compensate those who suffer disabilities as a result of motor vehicle accidents, “discriminates” when it treats those who it perceives as having compensable injuries differently from those who it perceives as uninjured. That sort of differentiation is the very function of the corporation; it does not constitute discrimination.

[19] In the result, it is obvious that Mr. Yuan’s claim had no reasonable prospect of success. Indeed, it had no prospect of success at all; it was entirely misconceived. That, however, is not the issue that was before the Supreme Court on judicial review.

Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

July 17th, 2009

Reasons for judgment were released today by the BC Supreme Court dealing with compensation for serious injuries including Mild Traumatic Brain injury and Chronic Pain.

In today’s case (Slocombe v. Wowchuck) the Plaintiff was injured in a 2005 rear-end BC Car Crash.  Liability was admitted so the trial focused solely on quantum of damages.  The Plaintiff suffered serious injuries.   Total damages of over $940,000 were awarded by Madam Justice Morrison including an award of $125,000 for non-pecuniary damages.  In assessing the this head of damage the court summarized the Plaintiff’s injuries and their effect on his life as follows:

[197] This was an accident that has caused serious injuries to the plaintiff.  He suffered a mild traumatic brain injury that he appears to have recovered fully from at this point in time.  Dr. Kaushansky did testify that the plaintiff could be at risk if there were a further blow to his head.

[198] The injury to the plaintiff’s sternum no longer poses problems.  There has been a full recovery.

[199] The plaintiff still experiences headaches following the accident.  However, the serious headaches have been resolved, and the headaches the plaintiff now gets are certainly real, but they are not of the serious and disabling nature that they were initially.

[200] Mr. Slocombe still complains of some neck problems, but these complaints are periodic, and are not the cause of his serious complaints at this time.

[201] The second worst injury was to the thoracic spine area.  This pain continues, and has been referred to as a soft tissue type of injury.  Dr. Rothwell was of the opinion that the degenerative disc disease processes have been generated in the spine, including the thoracic spine area by the motor vehicle accident.  It is unlikely that there will be further recovery in this area.  I accept this opinion.

[202] The most serious area of injury is to the lumbosacral spine area.  This injury began at the instant of the double impact of the accident, and has continued to a painful degree to this day.  I conclude that the chronic pain has had a profound effect on the plaintiff’s life in all areas, and will continue to do so.  I accept the evidence of the plaintiff’s medical experts who find the motor vehicle accident was the cause of this injury.

[203] Mr. Slocombe had a pre-existing asymptomatic spondylolisthesis, and in my view, this became symptomatic as a result of the accident.  That is the only conclusion that can be reached, from all the evidence, on a balance of probabilities.

[204] There was medical evidence at trial that there are other areas of injury in the lumbar spine area in addition to the spondylolisthesis that have now been rendered symptomatic.

[205] When working at his carpentry, Mr. Slocombe is making mistakes that he was not making prior to the accident.  He is experiencing some cognitive difficulties which the doctors, including Dr. van Rijn and Dr. Mok as well as Dr. Kaushansky attribute to the pain and mood difficulties that he has been experiencing since the accident.  These difficulties are particularly apparent the longer Mr. Slocombe works.  They have been confirmed by testing and also by the evidence not only of the plaintiff but also of his father and Mr. Graham, one of his clients.  These cognitive difficulties are continuing…

[229] Tom Slocombe’s life has changed dramatically due to the accident.  He no longer has the high energy, endurance and health to perform the work that he loves, carpentry, or to take part in the social and sporting activities that gave him such pleasure.  He is in constant pain, and will probably be for the rest of his life.  He was an active, fun-loving 25 year old with a good job, good prospects, and a steady girlfriend who became his fiancée.  He had a vehicle that he was making sure he was paying for, and a life that included active sports, travel and social activities with friends and family; he was usually the initiator.

[230] He is no longer able to be independent financially, he has no vehicle, and he has the added difficulty of not being able to sit for any length of time.  His passion for carpentry has been lifelong.  It is apparent he will not be able to earn his living and continue with this line of work.

[231] His family and others testified to his change in disposition and mood, his inability to join their normal activities, and his difficulties in coping with his pain and sleeplessness.  His enjoyment of life has been dramatically altered.  There will be an award for non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

July 16th, 2009

Reasons for judgement were released today (Testa v. Mallison) by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for injuries and losses suffered as a result of a 2004 BC Car Crash.

The Plaintiff’s vehicle was rear-ended while stopped in traffic.  The issue of fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s claim).  The Plaintiff suffered injuries to her low back, her neck, shoulders, chest and headaches.

Some of the Plaintiff’s injuries fully resolved, others did not.  By the time of trial the Plaintiff complained of the following ongoing problems “constant pain in her neck from the base of her skull up and down the neck to her shoulders and radiating into her head and temple area.  The pain is lowest first thing in the morning but builds up by afternoon and can get quite severe.  She experiences crying from the pain while in her car driving home.  She can’t stand even the sound of having the radio on.  Her sleep is most often disturbed and intermittent.”

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000, Mr. Justice Holmes accepted the following evidence:

[48] I accept Dr. O’Connor’s opinion that the 2004 motor vehicle accident caused the plaintiff:

1.       aggravation of a pre-existing neck condition and aggravation and worsening of her existing cervical spondylosis.

2.       cervicogenic headaches, with a migrainous component, and most likely triggered by neck pain.

3.       low mood, deconditioning and sleep disturbance.

[49] Dr. O’Connor’s prognosis is that the plaintiff’s ability to function is primarily determined by her ability to cope with her chronic pain.  That pain level has remained constant over a 2 to 3 year period and she rates it as severe.  Dr. O’Connor is of the opinion that the plaintiff’s pain symptoms are going to persist indefinitely.

[50] Treatment options are very limited.  Exercise with emphasis on core conditioning is paramount. A regime of pain and sleep medication is needed.

[51]         Dr. Shuckett examined the plaintiff September 10, 2008 and as with Dr. O’Conner was provided with comprehensive historic health care provider records of the plaintiff’s treatment for neck, shoulder, back and hip pain and headaches.  Dr. Shuckett’s diagnoses of injury in the 2004 accident are:

1.               cerviogenic headaches with migraine features

2.               whiplash injury of the neck mainly left sided neck pain but also with painfull trigger points

3. myofacial pain syndrome of neck and shoulder girdle region with painful trigger points.

[52] Dr. Shuckett considered causation and concluded at page 11 of her report:

Thus, I believe that her current pain in the neck and shoulder girdles and her headaches are predisposed to by her pre-existing history, but it sounds to me like this pre-existing history was not that significant in the three years before the subject motor vehicle accident of March 23, 2004.  She had mainly left hip girdle pain before the subject motor vehicle accident.

[53]         Dr. Shuckett’s opinion is that the plaintiff “…will be dealing with her symptoms in the long term future.

[54]         I prefer the opinions of Drs. Deernsted, O’Connor and Shuckett to that of Dr. Sauvio in regard to the plaintiff’s March 23, 2004 related injuries, their causation and consequence.

[55]         Dr. Deernsted and Dr. O’Connor have a significant advantage of treating the plaintiff over time.  Dr. O’Connor and Dr. Shuckett concluded a careful review of historic medical clinical records and specifically considered causation issues.

[56]         The plaintiff’s neck and shoulder pain and headaches prior to the March 23, 2004 accident were mainly related to her hip problem that occurred in 2001.  The neck and shoulder pain and headaches by the time of the 2004 accident were much diminished.  They had become only intermittent but she was left more susceptible to injury by subsequent trauma.

[57] The accident of March 23, 2004 aggravated those diminished but active symptoms as well as triggering some that were asymptomatic.  The combined injuries to the shoulder and neck are now very severe in their effect and likely permanent.

[58] The plaintiff’s low mood is a consequence of the injuries and their duration.  The plaintiff had a history of migraine headache experience but hey were generally stress related.  The constant migraine type headache she presently experiences is a consequence of her present injuries and triggered by her neck and shoulder pain.


[59]         The plaintiff’s life has been severely impacted by the result of her injuries sustained in the March 23, 2004 accident.  She has constant pain and headaches and suffers from sleep disturbance and altered mood.  She has experienced a substantial quality decline in her ability to work and in both her leisure and social life activities.

[60] The plaintiff is a motivated lady who will persist in using her long standing fitness and running activity to assist in controlling her chronic pain condition.  Unfortunately at most she may only be able to reduce her pain levels to more tolerable or manageable levels and is unlikely to enjoy a full recovery.

[61] I award general damages of $75,000.

BC Injury Claims and "Responsive" Expert Opinion Evidence

July 15th, 2009

Currently the law relating to the disclosure of expert opinion evidence is governed by Rule 40A of the BC Supreme Court Rules.   (click here to read my previous posts about the upcoming changes to the Rules of Expert Opinion Evidence).

If a party wishes to introduce expert opinion evidence at trial Rule 40A requires that “a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.”

One noteworthy exception to this is the rule of “responsive” opinion  evidence.  If the defence in a personal injury trial obtains a report that does not offer a fresh opinion but rather is an opinion that is ‘truly responsive to evidence introduced by the opposing party”  the 60 day notice period does not apply.

Reasons for judgement were released today by the BC Supreme Court dealing with this area of law.  In today’s case (MacEachern v. Rennie) “the plaintiff suffered traumatic brain injury when her head struck the side of a large tractor-trailer as she was walking or riding a bicycle along the side of King George Highway” in 2005.  One of the Defendants in the Plainitiff’s injury claim sought to introduce the report of a toxicologist which concluded that “the plaintiff was cognitively impaired from the ingestion of drugs at the time of the accident, and that she had permanent brain damage from drug abuse prior to the accident.”

This report was served outside of the requirements of Rule 40A.  The defendant tried to rely on the ‘responsive‘ evidence exception to Rule 40-A and have the report introduced into evidence despite its late disclosure (the report in fact was exchanged after the Plaintiff concluded her portion of the trial).

In refusing to enter the report into evidence Mr. Justice Ehrcke gave the following consice and handy definition of the law of rebuttal opinion evidence in the BC Supreme Court:

The right to introduce opinion evidence without notice is limited to rebuttal evidence that is truly responsive to evidence introduced by the opposing party, and cannot be used as a masquerade for introducing a fresh opinion: Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (C.A.); Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (C.A.). Where a defendant elicits opinions in cross-examination of a plaintiff’s witness that were not in that witness’s report, the defendant cannot use his own elicitation to justify calling a defence expert to give an opinion on the topic without notice.

Can You Record an "Independent Medical Exam" In an ICBC Injury Claim?

July 15th, 2009

When ICBC sends you to an ‘independent’ medical exam for the purposes of litigation in the BC Supreme Court are you permitted to record the examination?

This issue was dealt with by the BC Court of Appeal in a 2006 decision (Wong v. Wong) in which the Court held that BC Courts do have the authority to permit audio recording as part of an order for an independent medical exam but that this discretion should be exercises sparingly.  Specifically the BC Court of Appeal said the following about the courts ability to permit audio recording as a term of an independent medical exam:

[44]           One would think that if the tape recording of a medical or psychiatric examination was thought likely to enhance the quality of such an examination, the medical profession would long since have adopted the use of audio tapes as a general practice.  The material before us shows that use of an audio tape recorder is not only not considered to be an advantage, but rather can be an impediment to a proper, independent examination.  Dr. Smith says that use of an audio tape recorder will alter the nature of a psychiatric exam, and may make the examinee reluctant to answer some questions.  These observations have the ring of simple common sense.  In fact, hundreds if not thousands of psychiatric examinations of both infant and adult plaintiffs have been conducted in this province under Rule 30, or its predecessors, without any suggestion that they might have been of better quality if tape recorded.

[45]           It may well be that the recollection of a plaintiff as to what was said on an examination will differ from the doctor’s notes or recollection.  As Brooke J.A. observes, “the rules proceed on the basis that there may be some disparity” in recollections.  But these differences can be tested in the usual way, as they have been for years.  As in the Bellamy case “… there is no suggestion on the record that any injustice has occurred.”

[46]           It was argued before us that an audio tape recording would provide the “best evidence” at trial of what was said in the examination, in the event of a conflict between the examinee and the doctor, and that the courts should endorse the use of technologies available to provide the best evidence.  The oral history and other information provided by the person being examined is often an important part of the foundation on which the examiner’s opinion is based.  However, any advantage to be gained by tape recording the interview must be weighed against the extent to which it would impede or impair a full and proper examination.  Absent unusual circumstances, I am not persuaded that the presumed advantage would outweigh the disadvantages.

[47]           Apart from any impairment of the examination itself, there are other concerns related to the audio taping of medical examinations.  No matter how good the technology, there will be failures.  A tape recording will no doubt be transcribed and there will be issues before and at trial over the transcription.  The transcript will add an unwarranted level of importance to the oral portion of examination, and another layer of adversarial complexity to the trial process.  None of these difficulties need be encountered.

[48]           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.

Today, reasons for judgement were released by the BC Supreme Court further dealing with this issue.  In today’s case (Kelly v. Sanmugathas) the Defendants sought to have a plaintiff examined by a psychiatrist.  The Plaintiff wished to have the examination recorded.  In permitting the recording Master Donaldson summarized and applied the law as follows:

[2] A number of authorities were cited specifically referring to Dr. Davis.  The decision of the Court of Appeal in Wong stands for the current state of law in British Columbia, namely, that if there is to be a recording it would be only in very limited situations.  Counsel on behalf of the plaintiff referred me to a number of decisions where it was concluded that Dr. Davis was an advocate for the defence and matters of that nature.  Those decisions do not concern me in this instance and do not lead me any closer to reaching the conclusion that the plaintiff should be able to record her visit with Dr. Davis.  What does give me concern are two references, Sinclair, Mr. Justice Hood in 2002, and McGowan, a 1992 decision of Madison, J. in the Yukon, both of which make reference to mistakes having been made.  Fraser, J. in the Edmonds case where he stated: “if [sic] mistakes, likely they were those of Dr. Davis”.  In the McGowan decision, Mr. Justice Madison stated “his opinion was thus based on an erroneous view of the facts.”

[3] Clearly it will be easy enough for a judge in this action to conclude how he or she should assess the opinion of Dr. Davis, but of concern to me, is whether or not Dr. Davis takes an accurate history.  Clearly the recollection of the plaintiff as to the history taken and the reliance on clinical records and the like, will assist the court in determining whether or not Dr. Davis in fact has misapprehension of the facts or he in fact was accurate so far as the facts given are concerned.

[4] I have concluded that recording is the least invasive way of ensuring that Ms. Kelly’s recollection of the facts which have been elicited from her and Dr. Davis’ recollection of the facts elicited from her are accurate.  Her evidence, by way of affidavit, interestingly enough, seems to indicate, if you will, self generated concern about Dr. Davis once she had discussions with her counsel about Dr. Davis.  It is also interesting to note that apparently her concerns only arose after she was ill and could not attend the 28 of May medical examination which had been arranged with Dr. Davis.

[5] Notwithstanding this state of affairs, I am satisfied there should be a recording.  It will be a dual recording:  one tape will be given to Dr. Davis and the other can be retained by Ms. Kelly.