ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for September, 2009

Hyperextension Knee Injuries from Car Crashes Discussed

September 30th, 2009

Reasons for judgment were released yesterday by the BC Supreme Court, Vancouver Registry (Cabrera v. Sandhu), awarding a Plaintiff close to $350,000 in total damages for injuries and loss as a result of a 2003 BC Car Crash including an award of non-pecuniary damages of $60,000.

The collision occurred in Coquitlam, BC.    It was a near head on collision for which the Defendant admitted fault.  The issue at trial was quantum of damages (value of the Plaintiff’s claim).

The Plaintiff suffered various injuries including a “medial meniscus tear” which was stabalized through arthroscopic surgery.  The Plaintiff also had a ‘partial tear of her ACL which had scarred back to her PCL” which required a second surgery to correct.  The Plaintiff did not fully recover from these knee injuries by the time of trial and it was accepted that she was plateaued and “left with a significant and permanent disability.”  It was also found to be probable that the Plaintiff would need further knee surgery in the future.

One of the key issues at trial was weather the knee injury was related to the collision because the Plaintiff’s knee complaints did not come until sometime after the crash.  In accepting that the knee injuries were related to the crash Mr. Justice Rice accepted the evidence of the Plaintiff’s surgeon, Dr. Guy, who gave evidence that “it is common that passengers seated in the front of a car sustain knee injuries after having their foot braced against the pedal or floor board at the time of an accident.  In that position, injuries occur as a result of hyper extension of the knee during the collision

In addition to the knee injury Mr. Justice Rice found that the Plaintiff suffered from various soft tissue injuries described as a “mysofacial pain of the neck, upper and low back regions“.    These injuries had ‘resolved somewhat” by the time of trial but caused occasional pain to the Plaintiff.    The Plaintiff’s non-pecuniary loss was valued at $60,000 for these injuries.


BC Injury Claims and Your Choice of Counsel

September 29th, 2009

If you are advancing an ICBC or other BC Personal Injury Claim you have the right to hire whatever lawyer you want.  What if you live in a smaller community in BC and don’t have access to a lawyer who can take on your case?  What if you live in a larger centre in BC but want to be represented by a specific lawyer from another community?  Is it convenient or cost effective for a lawyer from another city to advance a personal injury claim on a contingency basis in these circumstances?

The answer is often yes because in British Columbia a lawyer can file a claim in a BC Supreme Court registry which is convenient for them and set down the trial in a registry that is convenient for you.  Practically speaking this provides personal injury victims meaningful and Province-wide access to their top choice of lawyers regardless of where that lawyer primarily resides.

Reasons for judgement were released today by the BC Supreme Court discussing this practice of lawsuits being launched out of one registry for the convenience of the lawyer and set for trial in anther registry for the convenience of the parties/witnesses involved.

In today’s case (Cooper v. Lynch) the Plaintiff was involved in a Vernon, BC Car Crash.  She lived in Salmon Arm.  In advancing her personal injury claim she hired a lawyer who practices in Victoria.

The Lawyer launched a lawsuit in the BC Supreme Court.  As a matter of convenience the lawyer started the lawsuit in the Victoria Registry and set the place of trial at a location convenient for his client (Kelowna,  BC).

The Defence lawyer brought an application to have the case moved to Kelowna for all purposes.  The Defendant relied on Rule 64(13) which holds that:

At any time after a proceeding is commenced, the court may on application order it to be transferred from the registry in which it was commenced to any other registry of the court for any or all purposes.

At the initial hearing the Master who presided agreed with the defence lawyer and transferred the entire file to Kelowna holding that since the place of trial was to be Kelowna, BC the entire matter should proceed out of the Kelowna registry.

The Plaintiff’s lawyer appealed the Master’s decision and succeeded.  In overturning the Master’s decision Mr. Justice Barrow held that there was nothing wrong with a lawyer in a BC Personal Injury Claim filing out of one registry for the convenience of pre-trial applications and to have the trial itself in a different registry for the convenience of the parties and witnesses who will testify.  Specifically Mr. Justice Barrow summarized and applied the law as follows:

[9] It is appropriate first to identify the practical significance of the master’s decision. It is that, by operation of Rule 44(10), interlocutory and pre-trial applications will generally be heard in Kelowna. There are exceptions to this rule. Rule 44(14) permits a registrar, in some situations including to accommodate the convenience of the parties, to allow a chambers application to be heard elsewhere than in the location that Rule 44(10) would otherwise require. In the proceeding at hand, the effect of moving the file to Kelowna for all purposes will be that, absent agreement or an order under Rule 44(14), interlocutory and pre-trial applications will be heard in Kelowna, where neither counsel practice.

[10] The test to be applied to an application to transfer a file for all purposes under Rule 64(13) is the same as the test that governs an application to change the place of trial under 39(7) (see Nicholls v. McLean, [1996] B.C.J. No. 1160 (S.C.) and Roberston v. Zimmer, 2001 BCSC 1067, 12 C.P.C. (5th) 131 (B.C. Master)). An early and often cited expression of the test is found in Armstrong v. Revelstoke (City) (1927), 38 B.C.R. 253, [1927] 2 W.W.R. 245 (C.A.). In Armstrong, the chambers judge dismissed an application to move the place of trial. The Court of Appeal dismissed an appeal from that decision. McDonald C.J.A. wrote at p. 256:

…There is a preponderance of convenience in favour of a change of venue, but nothing short of a great or considerable preponderance of convenience and expense would justify the taking from a respondent the right which the law has given him to select his own place of trial.

In McPhatter v. Thorimbert (1966), 56 W.W.R. 497, Kirke Smith L.J.S.C. (as he then was) adopted this statement of the law. He also adopted the rationale for it as set out inMcDonald v. Dawson (1904), 8 O.L.R. 72, namely that the plaintiff, as the dominant litigant, has the right to control the course of the litigation. Controlling the course of the litigation extends to choosing the place of trial and choosing the registry out of which proceedings are taken. The right is not absolute, however, as the Rules of Court make plain but overriding the plaintiff’s decisions as to the course of the litigation by, for example, changing the place of trial or moving the proceeding from one registry to another, is only to be done where the “great preponderance” of convenience supports doing so.

[11] Although the test is the same whether considering moving the place of trial or changing the registry out of which proceedings are taken, the application of the test in these two contexts will not always yield the same result. That is so because circumstances which may prove inconvenient or greatly inconvenient for purposes of trial may be inconsequential for purposes of pre-trial applications. The most obvious example involves witnesses. The degree to which one place or another is convenient for purposes of trial will be affected by where the bulk of the witnesses reside. On the other hand, where the witnesses reside will usually have little bearing on whether it is appropriate to move a proceeding. That is so because generally witnesses are not required and rarely attend pre-trial or interlocutory applications.

[12] In Okayasu v. Poulsen, 2001 BCSC 729, Cullen J. heard an application by the defendants to transfer a file from the Vancouver registry to the Kamloops registry for all purposes, including trial. He ordered that the trial take place in Kamloops but declined to order that the file be transferred to the Kamloops for other purposes. He reached that conclusion, at least in part, because the circumstances that warranted a change in the place of trial were less significant in the assessment of the preponderance of convenience of pre-trial and interlocutory matters.

[13] In Smith v. Shabutura, the master observed that most pre-trial proceedings involve only lawyers. He concluded that the action was entirely connected to Kelowna (save for the fact that plaintiff’s counsel practiced in Victoria) and concluded that the circumstances that favoured holding the trial in Kelowna also militated in favour of the file being transferred to the Kelowna registry for all purposes. In so concluding, it seems to me that he conflated the effect on the trial of the various circumstances to be weighed in the balance with the effect of those same circumstances on pre-trial and interlocutory matters.

[14] It remains to be determined whether the master was clearly wrong in concluding that the great preponderance of convenience favoured moving this proceeding to the Kelowna registry for all purposes. In my view, and with the greatest of respect, I think he was. There is nothing in the record to suggest that the defendant, or the plaintiff for that matter, would be so interested in pre-trial or interlocutory matters as to wish to attend the hearing of them. Moreover, should that prove to be the case with respect to any particular application, it is open to counsel to apply to have that application heard elsewhere than in Victoria. There is no doubt some administrative convenience to having the file located where the trial will take place. Further, transferring the file to Kelowna has the effect of distributing or dividing the burden of travel as between counsel, given that neither resides nor practices in Kelowna. These circumstances whether taken individually or in combination do not support the conclusion that the great preponderance of convenience favours moving the proceeding or file from Victoria.

The practical consequence of this decision is that it makes it easier for British Columbians to hire their choice of lawyer in personal injury claims.  This is a great result advancing consumer rights by making it easier for all British Columbians to hire a lawyer that best suits their needs whether or not that lawyer resides in their community.

As readers of this blog may know, whenever possible I am referencing the current BC Supreme Court Rules with the New Rules which will take effect on July 1, 2010.  I am doing this to get a head start in determining which BC Supreme Court cases ought to retain their value as precedents under the soon to be in force overhauled Rules.

The rule relied on and interpreted in today’s case (Rule 64(13)) remains largely intact under the new Rules.  The rule can be found at section 23-1(13) of the New Civil Rules and reads almost identically to the current rule.  Specifically the new rule reads as follows:

(13) At any time after a proceeding is started, the court may on application order the proceeding to be transferred from the registry in which it is being conducted to any other registry of the court for any or all purposes.

Given the minor changes between the current rule and the new rule today’s case will likely retain its value as a guiding precedent after July 1, 2010.


More on Facebook and BC Injury Claims

September 28th, 2009

Further to my previous posts on the subject, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, showing that the use of Facebook photos by Defence Lawyers is a trend that is becoming well entrenched in ICBC and other BC Injury Claims.

In today’s case (Mayenburg v. Yu) the Plaintiff was injured in a 2006 BC Car Crash.  Liability (fault) for the crash was admitted by the Defendant.  The Plaintiff’s non-pecuniary damages were valued at $50,000.  In arriving at this figure Mr. Justice Myers accepted the evidence of Dr. Apel, an expert in physical and rehabilitation medicine.  Dr. Apel opined that the accident caused a soft tissue injury to the Plaintiff’s upper trapezius muscles described as a “myofascial pain of mild severity“.  Additionally the Plaintiff was found to have “myofascial chronic regional pain syndrome of the gluteus medius” and “mechanical back pain“.

The court accepted that the Plaintiff’s injuries were likely permanent, specifically noting that her “prognosis for complete symptom resolution is guarded“.

At trial the Defence Lawyer challenged the credibility of the Plaintiff and to this end tried to introduce 273 photos from the Plaintiff’s Facebook wall.

Mr. Justice Myers noted that “the bulk of these photos showed no more than (the Plaintiff) enjoying herself with her friends“.   He ruled that over 200 of these photos were inadmissible only permitting the photos that showed the plaintiff “doing a specific activity which she said she had difficulty performing”, he did not let the other photos in because they “had no probative value“.

Mr. Justice Myers did not agree with the Defendant’s challenges to the Plaintiff’s credibility noting that the admissible photos did not contradict the Plaintiff’s evidence, specifically he stated as follows:

[40]    This left a subset of approximately 69 photographs.  These showed Ms. Mayenburg doing things such as hiking, dancing, or bending.  However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them.  Rather, she said she would feel the consequences afterwards.

[41]    In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident.  That was not the evidence of Ms. Mayenburg.

[42]    As indicated above, I accept the conclusions of Dr. Apel.  That said, Ms. Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand.  Her damages must be assessed on that basis.

[43]    In terms of the facts relevant to assessing non-pecuniary damages (as opposed to loss of capacity) this case is remarkably similar to Henri v. Seo, 2009 BCSC 76, in which Boyd J. awarded the plaintiff $50,000.  I find that to be a suitable award in this case.

The Defence also tried  to minimize the extent of the Plaintiff’s injuries by pointing out that there was a “limited number of times she visited physicians to complain about her pain”  Mr. Justice Myers quickly disposed of this argument noting

[37]    I do not accept those submissions, which have been made and rejected in several other cases:  see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63.  Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation.  Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time.  Dr. Ducholke testified how her time with patients was limited.

[38]    In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

Lastly, this case is also worth reviewing as it contains a useful discussion of ‘rebuttal’ expert medical evidence at paragraphs 29-35.


Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

September 24th, 2009

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.

In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.

The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.


More on Low Velocity Impacts and a Legal History Lesson

September 23rd, 2009

Yet another “Low Velocity Impact” Injury Claim went to trial and yet again the Court found that a compensable injury existed despite the minimal vehicle damage.

In today’s case (Bourdin v. Ridenour) the Plaintiff was involved in a 2005 Car Crash in Kamloops, BC.  This was a crash that apparently fell into ICBC’s LVI Program as the minimal amount of vehicle damage was stressed at trial by the defence lawyer (the Plaintiff’s vehicle damage cost only $316 to repair). Despite this Madam Justice Hyslop found that the Plaintiff was injured in the crash.  In valuing the Plaintiff’s non-pecuniary damages at $22,500 the Court summarized the Plaintiff’s injuries as follows:

[87] Ms. Bourdin had constant pain for approximately five months after the accident.  However, she acknowledged some improvement during that period.  She was plagued with headaches, the severity of which she had never experienced before.  Dr. Vlahos’ clinical records note that Ms. Bourdin, on February 8, 2008, complained of having a “…new onset of headaches.  Head feels like it is in a vise”.  This description is a similar description of the headaches Ms. Bourdin suffered as a result of the motor vehicle accident.

[88] I do accept that Ms. Bourdin suffered from headaches and that they occurred as a result of the accident.  She has been nauseous and vomited with such headaches, the last of which was two weeks before this trial.  According to Ms. Bourdin, headaches of this nature occurred after the accident.  However, Ms. Bourdin did not describe headaches of this nature to either Dr. O’Farrell or Dr. Travlos.

[89] Ms. Bourdin’s neck, shoulder and mid-back were injured as a result of the accident.  She continues to suffer pain from these injuries today, but they are occasional.  At trial, Ms. Bourdin stated that her neck and shoulder pain are now triggered when she is reaching for something, and sometimes everyday events caused neck and shoulder pain without explanation.  She acknowledged improvement in the spring of 2006 and that this has been ongoing from 2006 to the date of trial.  Her chiropractors, her massage therapists and her comments to Dr. O’Farrell and Dr. Travlos confirm this.  She told Dr. O’Farrell that at the time he examined her, her pain was intermittent.

In discussing the LVI Defence to Injury Claims Madam Justice Hyslop quoted a 2006 case (Jackman v. All Season Labour Supplies Ltd.) in which Mr. Justice Smith of the BC Supreme Court pointed out that the LVI defence is not a principle of law but rather “a creature of policy created by ICBC“.  Specifically Mr. Justice Smith held

[12]      On the issue of vehicle damage, I note the comments of Madam Justice Ballance in Robbie v. King 2003 BCSC 1553, at paragraph 35:

The proposition that a low velocity accident is more or less likely to have a propensity of injury is a creature of policy created by ICBC. Although lack of impact severity is by no means determinative of the issue as to whether a person could have sustained an injury, it is nonetheless a relevant consideration particularly with respect to soft tissue injury. Ultimately, the extent of Ms. Robbie’s injuries are to be decided on the evidence as a whole.

[13]      Although lack of vehicle damage may be a relevant consideration, it has to be balanced against the evidence of the plaintiff and the medical evidence, including the complete lack of any medical evidence to support the assertion that the injuries are inconsistent with vehicle damage.

Now for the legal history lesson:

While it is well accepted by BC Courts that ICBC’s LVI Policy is not a legal defense to a tort claim, rather, vehicle damage is just “a relevant consideration” ICBC Defence Lawyers often quote a 1982 case from the BC Supreme Court (Price v. Kostryba) in which Mr. Justice McEachern quoted another BC Supreme Court decision (Butlar v. Blaylock) in which the Court held that:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a contuining injury.

However, this often cited quote comes from a case that was overturned on appeal.  In 1983 the BC Court of Appeal overturned the trial decision of Blaylock and held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.

14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.

I hope this ‘history lesson’ helps anyone confronted with ICBC’s LVI Program denying a tort claim because of little vehicle damage.


$90,000 Non-Pecuniary Damages for PTSD and Chronic Pain

September 22nd, 2009

Reasons for judgment were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $142,000 in total damages as a result of a 2005 BC Car Crash.

In today’s case (Quinlan v. Quaiscer) the Plaintiff suffered various injuries including PTSD and a Chronic Pain Disorder.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000 Mr. Justice Cole summarized the Plaintiff’s injuries and their effect on her life as follows:

[61] There is evidence that the plaintiff has suffered from depression off and on since 1994, including post-partum depression after the births of her children. Additionally, the plaintiff has had a tumultuous relationship with her now ex-husband, which has certainly affected her emotional state. There is evidence, however, that the plaintiff’s prescription for depression medication a few months prior to the Accident was not filled. Dr. Pirolli stated in her report that the plaintiff’s current emotional problems include PTSD and low mood. The PTSD, as I have stated above, is a consequence of the Accident. Regarding the plaintiff’s low mood, Dr. Pirolli stated that it could not “be directly attributed to the accident itself. There is the possibility, however, that any psychological issues present at the time of the accident may have been exacerbated by the accident and its sequelae”. In my view, the plaintiff’s depression prior to the Accident was not significant, and I find that the plaintiff was not suffering from debilitating depression at the time of the Accident.

[62] As mentioned above, the plaintiff’s cuts and bruises resolved within three to six months after the Accident. She is left with a permanent one-inch scar on her elbow, a three and a half inch c-shaped scar on her left knee, and a dark scar on her left shin. Her nose was broken and she had dizziness and headaches. As described in the medical evidence above, the plaintiff’s right wrist pain, right shoulder and right chest area injuries have persisted. Though Dr. Travlos was of the view that the plaintiff would continue to improve over the next 18 months (from his report of April 2007), he stated: “To what extent she recovers is difficult to say at this time and a definitive prognosis cannot be made”. The plaintiff’s problems have not improved to any great extent over the course of the 18 months following that report.

[63] Dr. Travlos was of the view that the plaintiff’s problems of chronic pain syndrome related to the diffused soft-tissue pain that the plaintiff suffered in the right arm and shoulder. In cross-examination he stated that it was unlikely that the plaintiff will fully recover and there is no guarantee that participation in treatment recommendations will result in improvements of those symptoms. The plaintiff’s injuries restrict her ability to participate in physical activities that she formerly enjoyed, such as skiing and baseball. I believe, however, that part of the reason the plaintiff does not participate in these sports is because of a lack of financial resources.

[64] I am satisfied that taking into consideration the plaintiff’s PTSD and her multiple injuries, an appropriate award for non-pecuniary general damages would be $90,000.


More on Costs and "Sufficient Reason" for Suing in Supreme Court

September 21st, 2009

I’ve previously posted on the topic of costs consequences when a Plaintiff succeeds in a BC Supreme Court lawsuit but is awarded damages within the small claims court jurisdiction.

For the Plaintiff to be entitled to costs it must be found that the Plaintiff had “sufficient reason for bringing the proceeding in the Supreme Court”.  Reasons for judgement were released today dealing with this issue.

In today’s case (Johannson v. National Car Rental) the Plaintiff was injured in a 2005 BC Car Crash.  The Defendant admitted fault.  At trial Mr. Justice Barrow found that the Plaintiff suffered soft tissue injuries which he summarized as follows:

I am satisfied that the plaintiff suffered a mild to moderate soft tissue injury to her upper back and neck in the accident. She followed all of the medical advice she was given and was, I am satisfied, motivated to overcome her injuries. Between the date of the accident and the end of the year, she saw her chiropractor approximately 25 times. I am satisfied that the frequency of these visits was due to the pain and discomfort she was experiencing. The injuries caused her considerable discomfort, moreso than similar injuries might cause to other persons because of her pre-existing condition.

Mr. Justice Barrow awarded the Plaintiff just over $15,000 in total damages (well below the Small Claims Court’s current monetary jurisdiction of $25,000).  One of the central issues at trial was weather the Plaintiff suffered a frozen shoulder in the car accident on top of her soft tissue injuries.  Ultimately the Court found that the Plaintiff did suffer from a frozen shoulder but this was not caused by the accident.

The Plaintiff brought a motion to be awarded Supreme Court Costs arguing she had sufficient reason to bring her claim in the Supreme Court.  Specifically it was argued that if the Plaintiff’s expert evidence was accepted with respect to the cause of her frozen shoulder her claim was well within the Supreme Court’s jurisdiction.  The Defence lawyer argued otherwise stating that there was no sufficient reason to sue in the Supreme Court and that “the Plaintiff should have realized at the time she commenced her action that her frozen shoulder was not caused by the motor vehicle accident”.

The Court concluded that there was sufficient reason for this Plaintiff to sue in Supreme Court.  In reaching this conclusion Mr. Justice Barrow summarized and applied some of the principles in these types of cases as follows:

Rule 66(29) is, by its terms, subject to Rule 57(10). Rule 57(10) provides as follows:

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.

[4] The onus is on the plaintiff under Rule 57(10) to justify her choice of forum (Bhanji v. Quezada, 2003 BCCA 445). Until the Court of Appeal’s decision in Reimann v. Aziz, 2007 BCCA 448; 286 D.L.R. (4th) 330, there was some uncertainty as to whether the plaintiff’s obligation to justify its choice of forum was a continuing one or rather one to be assessed only at the time the action was commenced. Chaisson J.A. resolved that issue, concluding that a plaintiff must only demonstrate that it had sufficient reason to bring the proceeding in the Supreme Court at the time the action was commenced.

[5] The “sufficient reason” referred to in the rule is often, but not invariably, related to whether the anticipated judgment will exceed the monetary jurisdiction of the Provincial Court. If, at the time the action was commenced, there was sufficient reason to conclude that the judgment would likely exceed the Provincial Court’s monetary jurisdiction, then the decision to proceed in this court will usually be found to be justified. There may be other reasons for proceeding in the Supreme Court. Some of those other reasons were identified in Kuehne v. Probstl, 2004 BCSC 865. Where those other reasons are present then, even if the anticipated monetary award is likely to fall within the jurisdiction of the Provincial Court, there may still be “sufficient reason” to proceed in this court.

[6] In the case at bar, the only basis advanced for proceeding in the Supreme Court is that the reasonably expected award was likely to exceed the monetary jurisdiction of the Provincial Court…

[12] In effect the plaintiff took the position when she launched this action that her frozen shoulder was the consequence of the defendant’s negligence. I am satisfied that she has always honestly believed that. While that conclusion was not free from doubt when the action was launched, it was not an unreasonable position to take at the time. The fact that her own doctor came to share that view is some indication that the position was not unreasonable, even though there is no evidence that she had the benefit of that opinion at the time the action was started.

[13] In summary, I am satisfied that there was sufficient reason for the plaintiff to bring this proceeding in the Supreme Court. The plaintiff is, therefore, entitled to her costs which, given the length of trial and the provisions of Rule 66(29)(b), I set at $6,600 plus disbursements.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.


More on Rule 37B – Offers to Multiple Defendants and Reality of Insurance Discussed

September 21st, 2009

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with several issues under Rule 37B.

In this case (Towson v. Bergman) the Plaintiff was involved in 2 BC motor vehicle collisions, the first in 2002, the second in 2004.    At trial liability was found as against a Defendant in the first trial.  The second case was dismissed.  Leading up to trial the Plaintiff made a formal offer to all of the Defendants for $500,000.  Following trial over $1.1 million dollars in damages were awarded (click here for my previous posting on the trial judgment).

The court was asked to consider whether the Plaintiff can have double costs when her formal settlement offer under Rule 37B was made to multiple defendants.  The liable defendant argued that “the offer under 37B was invalid…because it was made to multiple defendants…and could only have been accepted by all the defendants, including the defendant’s against whom (the Plaintiff’s) claim was eventually dismissed by the court”.

Madam Justice Gray disagreed with this submission and held that there is no reason why costs consequences can’t follow a formal offer made to multiple defendants under Rule 37B.  Her reasoning was as follows:

[59] Aspen Enterprises Ltd. v. Quiding, 2009 BCSC 50, is the only case I located which considered the effect of a global offer to settle made under Rule 37B.  The plaintiffs inAspen argued that Rule 37B is “intended to be broader in application than the former rules, and therefore should apply to global offers”.  They argued that the fact that a global offer has been made should not preclude a court from considering the factors set out in subrule 37B(6) and exercising its discretion to award double costs.

[60] Fenlon J. appeared to accept this argument, although she found, on consideration of 37B(6)(a), that the offer to settle was not one that ought reasonably to have been accepted by the defendants.  The offer as framed could not have been accepted by Aspen or Kingsway without the consent of the other, and without the further consent of Landmark, which was not even a party at trial.

[61] Rule 37B places no restrictions on the court’s discretion in relation to global settlement offers.  The purpose of the rule is to facilitate and encourage reasonable offers to settle.  It requires a settlement offer to be delivered to all parties of record.  The law developed under Rule 37 regarding global offers is of little assistance.  Pursuant to Rule 37B, the consideration for the court pertaining to global settlement offers is whether the offer was one that ought reasonably to have been accepted.

[62] In considering the effect of an offer to settle on an award for costs under Rule 37B, the court may consider the following factors:

(a)      whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)      the relationship between the terms of settlement offered and the final judgment of the court;

(c)      the relative financial circumstances of the parties;

(d)      any other factor the court considers appropriate.

[63] The Offer Under 37B was one that ought reasonably to have been accepted by MPS.  Despite the fact that the Offer Under 37 was addressed to all defendants, it was evident at the time that MPS was the party facing the greatest risk of liability to Ms. Towson.  When the Offer Under 37B was made, it was apparent that the liability, if there were any, of Ms. Chan, Mr. Ko, and Mr. Bergman was likely to be very significantly less than the liability of MPS.

[64] Although MPS could not accept the Offer Under 37B on behalf of Ms. Chan, Mr. Ko, or Mr. Bergman, MPS could have agreed to pay the $500,000 in full settlement of the claim against it.  The eventual judgment was for roughly $1.2 million, being more than double the amount Ms. Towson offered to accept.

[65] In this case, Ms. Towson’s award against the single unsuccessful defendant, MPS, is far greater than the amount she offered to accept. Global offers made in circumstances where there is more than one unsuccessful defendant may give rise to different considerations.

[66] Ms. Towson, at the time of trial, was in difficult financial circumstances.  She was unemployed, living with her parents, and receiving social assistance and disability payments.  MPS is a government ministry.  Ms. Towson’s financial circumstances were significantly worse than those of MPS.

[67] In all these circumstances, Ms. Towson is entitled to double costs, although when the double costs should begin is discussed below.

Madam Justice Gray went on to hold that double costs should begin one week following the delivery of the offer as that was a reasonable period for the Defendants to consider their response.

The other Rule 37B issue that was addressed was whether the existence of insurance should be considered when weighing costs consequences.  Our courts are currently split on this issue.  Madam Justice Gray held that Insurance should not be considered and set out the following reasons:

[113] The British Columbia Supreme Court has divided on the issue of whether insurance should be considered in assessing the relative financial circumstances of the parties.  InBailey, Hinkson J. considered that insurance should not be taken into account:

33.       While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage. There may be good policy reasons for this. Insurance coverage limits with ICBC are not universal, and will vary from insured to insured. Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC. A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

34.       The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[114] Conversely, Madam Justice Boyd in Radke v. Perry, 2008 BCSC 1397, 90 B.C.L.R. (4th) 132, did consider the fact that the defendants were insured by ICBC, stating, at para. 42:

It is also clear that there is a substantial disparity in financial circumstances between the parties. The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[115] Bailey was released on October 16, 2008, six days before the October 22, 2008 release of Radke.  Radke does not refer to Bailey, and Bailey was likely not brought to the court’s attention.

[116] In my view, the reasoning in Bailey should be preferred, and the court should consider the “relative financial circumstances of the parties” without considering the insurance benefits available to the defendant.  Here, however, there was no evidence concerning the insurance benefits available to Ms. Chan and Mr. Ko.

I will continue to post about Rule 37B cases as they come to my intention despite the fact that the current BC Civil Rules are being repealed on July 1, 2010.  The reason for this is after July 1, 2010 formal settlement offers in the BC Supreme Court will be dealt with under Rule 9-1 which has language that is almost identical to the current Rule 37B making these precedents useful.


The Art of Valuing Pain and Suffering in ICBC Injury Claims

September 18th, 2009

Today reasons for judgment were released by the Vancouver Registry of the BC Supreme Court in 2 separate Injury Claims where Pain and Suffering was valued.  In each case the Plaintiffs suffered different injuries which affected their respective lives to different degrees.  Yet both Plaintiffs were awarded exactly $55,000 for their non-pecuniary damages.  How can this be?  The answer is that valuing claims for pain and suffering is an art, not an exact science.

When asking a personal injury lawyer how much a claim for pain and suffering is worth it is difficult  if not impossible to value a claim at an exact dollar figure.  The only accurate answer is “whatever the judge or jury gives you“.  Instead of attaching an exact dollar figure to any claim personal injury lawyers learn that claims can best be valued within an approximate range of damages.  One judge can award a plaintiff $50,000 for a disc herniation and another can award a plaintiff with the exact same injuries $80,000 and there is nothing wrong in law with this so long as the award falls within the accepted range of damages for similar injuries.

Today’s cases demonstrate this quite well.  In the first case (Morrison v. Gauthier) the Plaintiff was injured in a 2006 BC Car crash.  Her vehicle was rear-ended in Coquitlam BC.  The Defendant was fully at fault for the crash.

The Plaintiff suffered fairly severe injuries which included an L4-5 disc herniation which from time to time “puts pressure on the L4 nerve root and that the result for the plaintiff is not just pain in the low back – which is always her lot – but intense pain that, amongst other things, travels down the back of her leg“.  In addition to this the Plaintiff suffered soft tissue injuries and a concussion in the collision.

Mr. Justice Stewart found that the effects of the Plaintiff’s back injuries were likely permanent and had a rather profound impact on her.  He stated that “the effect…on the Plaintiff’s life was dramatic…her capacity to (keep her work and home environment in order) has been severely reduced . ”  He went on to find that the Plaintiff was incredibly athletic before the collision and “was a woman who on the basis of the evidence placed before me, I can only describe as a dynamo” and as a result of the car crash “she became…ornery.  She withdrew from her friends.  She became moody and – stunning for her – one who sat idly watching television and gaining unwelcome weight.  To some extent she became – utterly new to her – a chronic complainer.”  Lastly he stated that (the defendant) “managed to reduce a woman operating at an athletic level undreamt of by 99% of the population to a woman who must now, often, be helped out of a chair.  (the Plaintiff’s) compensable loss if overwhelming“.

Mr. Justice Stewart awarded the Plaintiff $55,000 for her non-pecuniary damages.,

In the second case (O’Rourke v. Kenworthy) released today by the BC Supreme Court the Plaintiff was involved in a 2004 BC Car Crash.  The Defendant was 100% at fault.  Madam Justice Wedge found that the Plaintiff was injured in the crash.  Specifically the court found that the Plaintiff suffered from neck and back pain which was “severe for several months, which then alleviated considerably over the next year or so.”  The Plaintiff curtailed many of the physical activities which she enjoyed by after about a year she “resumed most of these activities despite continuing ot experience pain“.   By the time of trial she “continued to have pain in her neck and back, but it is not disabling.  She has been able to work, and she is currently able to work.  She participates in numerous sporting activities and continues to hike, which is her first love.  She has continued to travel extensively.   No medical professional offered the opinion that (the Plaintiff’s) pain is chronic in nature, or that it is caused by anything other than soft tissue injuries.  They all agreed that her symptoms are expected to improve and will likely resolve gradually over time…At most (the Plaintiff) is at risk of suffering exacerbation’s of her pain if she engages in certain rigorous activities.”

Scrutinizing the facts of the above two cases the first Plaintiff appears to have suffered more severe injuries which had a more profound effect on her life.  Yet both were awarded the exact same figure for pain and suffering.  This does not necessarily mean that either award was wrong in law, rather the difference can readily be explained by the fact that pain and suffering awards are assessed within rather large ranges of acceptable damages.  A more severe injury valued on the lower end of its respective range of damages can equal a more minor injury valued on the generous end of its range.

In the end, cases like this speak to the art of assessing pain and suffering in BC Injury Claims.  As with any art ‘feel‘ becomes important and this is gained through time and experience.  The more cases you read, the better you will get at the art of valuing non-pecuniary damages and determining the potential value of any given BC Injury Claim.


I Want a Jury Trial, Wait a Minute, No I Don't

September 17th, 2009

Reasons for judgement were transcribed yesterday and released on the BC Court’s website dealing with an interesting issue, specifically can a party who elected trial by jury change their mind once the trial starts.

In this case (Chapelski v. Bhatt) the Plaintiff was involved in a 2004 BC Car Crash.  In the course of the lawsuit the defence lawyer filed a Jury Notice and paid the Jury Fees.  On the first day of Trial the Jury was empaneled and the Plaintiff’s lawyer made his opening statement.  The next day the Defence Lawyer advised the Court that he intended to proceed with the trial without the Jury.

Mr. Justice Hinkson ruled that once the Jury was empanelled it was too late for the Defendant to re-elect the mode of trial to that of Judge alone and that the Defendant would have to continue to pay the Jury Fees for the duration of the trial.

Mr. Justice Hinkson’s reasoning was set out in paragraphs 17-20 which I reproduce below:

[17] The reference by Williams J. to Rule 39(26) is significant.  Based upon his reasoning, a party who has served a Notice Requiring Trial by Jury can elect not to proceed with that mode of trial at least until the required jury fees are paid.  But that reasoning does not address a point in time past the point of payment of the required fees.  The reasoning implies that once the point has been passed “the issue of whether a trial is going to be heard by a jury would be conclusively settled”.

[18] I do not take the reference by Williams J., to “late in the day”, to extend past the empanelment of the jury nor the commencement of trial, nor do I accept that it should.  Once empanelled, a civil jury are the triers of fact.

[19] I conclude that absent misconduct of a party, a witness, or a juror once a civil trial has begun without the consent of the opposing party, it is not open to a party who has filed a Notice Requiring Trial by Jury pay the required fees pursuant thereto and participate in the selection of the jury to opt out thereafter for trial by judge alone.

[20] To permit such a re-election smacks a forum shopping and cannot be permitted.  I need not and I do not decide if a jury on a civil trial can be discharged absent misconduct of a party, a witness, or a juror once a civil trial has begun even with the consent of all parties.