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 August, 2010

"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered

August 31st, 2010

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).

In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.

Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).


Pain and Suffering Damages Discussed for Severe Post Traumatic Migraine Headaches

August 30th, 2010

Reasons for judgement were released today awarding a Plaintiff damages for post accident migraine headaches.

In today’s case (Ward v. Klaus) the Plaintiff was involved in a rear-end collision in Chilliwack, BC.  Fault was admitted by the rear-motorist focusing the trial on the value of the claim.

The Plaintiff suffered various injuries the most serious of which were post-traumatic migraine headaches.  These were so invasive that they required surgical intervention with the installation of a “neurostimulator” in the back of her head.  The Court provide the following summary of the Plaintiff’s surgeries:

[16]         In May 2008, the plaintiff consulted Dr. Kumar, a neurosurgeon in Regina, for an assessment on the suitability for neurostimulator implants.  She qualified and in September, at Regina Saskatchewan, a neurotransmitter was implanted in the back of her neck.  It had two leads and an external remote that connected the wires under her skin.  From September to mid-October 2008, she had two more operations in Regina and two more temporary implants were imbedded.  In December 2008, two permanent implants were installed in the back of her head in the same area as before.  To deal with the pain of the operation, she took more medication.

[17]         In January 2009, the plaintiff had permanent leads installed at the front of her head.

[18]         The implant battery has to be recharged, usually once a week.  She keeps it on at all times other than when she is driving.  She has a device that plugs into an electrical outlet.  It tells her if the battery needs to be recharged.  Sometimes it has to charge for up to four hours, but usually it takes an hour or an hour and a half.  When pain flares, she can increase the strength of the current from the stimulator.  Again, she does not see it as the answer.  It simply “takes the edge off”.

Mr. Justice Rice assessed the Plaintiff’s non-pecuniary damages at $150,000.  In arriving at this figure the Court provided the following reasons:

[52]         In this case, counsel on both sides agree that this was a soft-tissue injury to the neck resulting in continuing neck pain, and continuing generalized moderate headaches with severe migraine headaches, occurring two or three times per week.  The pain during such migraine headaches is excruciating, and her pain and suffering as a whole have affected very negatively almost every aspect of her life.  According to doctors’ recommendations, she has taken medications that only partially help, and at one point led her to addiction to narcotics.  She has undergone surgeries to implant a neurostimulator which has only been moderately successful at best as a means of alleviating the pain.  The consensus of the medical experts has been that the plaintiff has reached the point of maximum medical improvement, and that the headaches and pain will continue indefinitely.

[53]         At the same time, observing her demeanour as she gave evidence, as well as seeing the videotape evidence shown in court, and considering her inability to answer many questions on the basis that she could not remember, I am afraid there is room for mild caution in accepting her testimony unreservedly.  Her frequent inability to recall answers to questions leads me to doubt the reliability of her memory when giving testimony.  By this, I do not mean to resile from the impression that she was generally honest and truthful in explaining the excruciating pain she had suffered.  It is only in respect of a few details, particularly her work capacity and motivation, that her evidence was not completely satisfactory…

[56]         The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis v. Tin, 2008 BCSC 862 at para. 136.

[57]         Taking all of the foregoing into account, my view is that the appropriate award for non-pecuniary loss is $150,000.  In this amount I take account of all aspects of general pain and suffering, including a reasonable portion attributable to the effect of diminished capacity in her homemaking role.


What Stephen Colbert Can Teach Lawyers About Cross Examination

August 26th, 2010

Cross examination is one of the more powerful tools at a lawyers disposal.  It allows a lawyer to use leading questions to suggest the answer to the opposing witness.   Knowing what admissions will help or hurt the case, a lawyer can tailor a series of leading questions designed to advance their clients interests.  So what can Stephen Colbert teach a lawyer about cross-examination?  The answer is a lot.

Many lawyers fail to use leading questions when cross examining.  In failing to use this advantage lawyers let witnesses control the flow of information and potentially allow for more damaging answers to come out.  Controlling a witness with leading questions can minimize this risk.

Few people use leading questions better than Stephen Colbert.  When interviewing his guests he often gets them to admit to ridiculous facts.  These ‘admissions’ are obtained through leading questions.  The guests often agree even when the substance of the admission is outrageous and not accurate.  You can click here to access Stephen’s Interviews and see how leading questions can lead to helpful (or in Stephen’s case, amusing) answers.


ICBC Claims and Requests for "Particulars"

August 25th, 2010

When suing for compensation in an ICBC claim the BC Supreme Court Rules contain various ways to force disclosure of information.  From requiring the exchange of relevant documents, permitting the parties to attend an examination for discovery and even forcing an ‘independent medical exam’ in certain circumstances there are many tools which can be used to learn about your opponents case.

One further tool is the request for “particulars“.  If a party to a lawsuit is not clear what the other side is formally putting in issue they can ask for clarification by making a demand for particulars under Rule 3-7(23) of the Rules of Court.  There are, however, limits to the use of this Rule and this was demonstrated in reasons for judgement released this week by the BC Supreme Court.

In this week’s case (Yousofi v. Phillips) the Plaintiff was injured in a motor vehicle collision.  He sued for damages seeking compensation for, amongst other things, past and future wage loss, past and future medical expenses, past and future disability and out of pocket expenses.  ICBC’s lawyer demanded that the Plaintiff provide particulars of these claims.  The Plaintiff refused arguing that this was an inappropriate request.  Mr. Justice Hinkson agreed with the Plaintiff and in dismissing the Defence motion made the following useful comments about the limited use requests for particulars should have in ICBC injury claims:

The entitlement of a party to particulars…is discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

[4] In that case, His Lordship makes the point that:

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

[5] In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11:

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

[6] Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

(a)      The Plaintiff’s Past and Prospective Loss of Enjoyment of Life

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

(b)      The Plaintiff’s Past and Prospective Physical Disability

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff’s Past and Prospective Loss of Earnings

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

(d)      The Plaintiff’s Past and Prospective Loss of Earning Capacity

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

(e)      The Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

(f)       The Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

(g)      The Trust Award on Behalf of the Plaintiff’s Friends and Family

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

(h)      The Plaintiff’s Special Damages

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.


Medical and Transportation Costs Need To Be Assessed "In The Real World"

August 24th, 2010

When suing an at fault party in a personal injury claim the Plaintiff is entitled to compensation for their reasonable medical expenses.  These expenses may include the cost of driving to and from various medical and therapy appointments.  How much is a reasonable amount to claim for transportation costs?  Reasons for judgement were released today addressing this topic.

In today’s case (Greewal-Cheema v. Tassone) the Plaintiff was injured in a 2007 BC motor vehicle accident.  Her vehicle was rear-ended.  Fault was admitted by the rear motorist.  The trial focused on the value of her ICBC claim.

The crash caused soft tissue injuries which largely recovered by the time of trial and the Plaintiff was awarded $25,000 for her pain and suffering.  In the course of recovering from her injuries the Plaintiff attended various therapies and claimed reimbursement at $0.50 per kilometer for the travel incurred in driving to and from these appointments.  ICBC argued that this was excessive and that no more than $.30 per kilometer should be allowed.  Mr. Justice Stewart disagreed with ICBC and found that the Plaintiff claimed a reasonable amount for her mileage related expenses.  In reaching this conclusion the Court provided the following useful comments:

[60] The plaintiff claims special damages of $2,683.50.  The defendants take issue with only a few things.  The defendants say that the amount allowed for mileage should be $.30 per kilometre not $.50 per kilometre.  Both counsel refer to the Schedules that form part of the Rules of Court.  I am not bound by the Rules on this point.  I say that what matters is that judges live in the real world.  In this day and age $.50 per kilometre is, if anything, too little.  I am against the defendants.  $.50 per kilometre it will be.  The defendants also made a submission about the period June 5, 2008 to August 25, 2008 and what the plaintiff was about during her “voluntary work strengthening program”.  Simply put, I found the defendants’ submission unconvincing.  I accept the plaintiff’s testimony to the effect that she worked hard and diligently and treated what she was about as if it were her job.  In the result I award the plaintiff $2,683.50 by way of special damages.


More on ICBC Claims, Fault and Credibility

August 23rd, 2010

After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault.  If there are no independent witnesses to a crash it can be difficult to decide which version is more believable.  When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say.  Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.

In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC.  The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel.  He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”

The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries.  There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence.  Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit.   The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“.  These were some of the reasons which caused the Court to prefer the Defendant’s version of events.  In dismissing the lawsuit the Court held as follows:

[48]        The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49]        The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50]        I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision.  For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.


Non-Pecuniary Damages Discussed for "Waxing and Waning" Soft Tissue Injuries

August 20th, 2010

As I’ve previously discussed, some of the most important factors to consider when valuing a claim for pain and suffering are the severity and duration of the injury.

Not all injuries have the same course of recovery.  Some soft tissue injuries never heal.  Sometimes they cause constant chronic pain.  Other times these injuries largely recover but ‘wax and wane’ with activity.   What is the fair value of a soft tissue injury with symptoms that come and go over the years?  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.

In this week’s case (Schmidt v. Hawkins) the Plaintiff was involved in a 2005 BC motor vehicle collision.  The crash happened at near highway speed when the Defendant pulled into the Plaintiff’s lane of travel resulting in a significant T-bone type collision.  The Defendant admitted fault for the crash focusing the trial on the value of the Plaintiff’s ICBC claim.

The Plaintiff suffered soft tissue injuries.  These affected her neck and upper back and caused headaches.  her symptoms improved somewhat by the time of trial but were expected to ‘wax and wane‘ over the course of her lifetime.   Madam Justice Hyslop assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000.  In arriving at this figure the Court made the following findings about the nature and severity of the Plaintiff’s injuries:

[78]         Drs. Waller, Raghavan and Lau, for the most part, agree in their diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more optimistic. For the most part, the doctors agree on the nature of Mrs. Schmidt’s injuries.

[79]         They all agree that Mrs. Schmidt should participate in a gym conditioning program. This was initially recommended by Dr. McDougall on February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that Mrs. Schmidt could return to full-time employment….

[96]         At the time of trial, Mrs. Schmidt was age 39. The accident resulted in causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck, pain in her upper back and, in particular, between the shoulder blades and headaches.

[97]         Mrs. Schmidt believes that her condition was not getting any better causing Mrs. Schmidt to have some minor depression.

[98]         It impacted her social life and some of her activities. At trial, for the most part, she was back to her regular activities.

[99]         As a result of her injuries, she required some assistance from family members and neighbours to meet some of her household and gardening responsibilities…

[141] I assess Mrs. Schmidt’s non-pecuniary damages at $45,000.00.


More on ICBC Claims and Lack of Objective Signs of Injury

August 17th, 2010

As I’ve previously written, objective signs aren’t always present to verify an injury.  Often times victims of motor vehicle collisions experience pain and limitations but the source of the injury can’t be documented through objective tests such as X-rays, CT Scans and MRI’s.  If an injury can’t be objectively verified does that prevent a successful lawsuit for compensation?  The answer is no and reasons for judgement were released today demonstrating this fact.

In today’s case (Sandher v. Hogg) the Plaintiff was involved in a 2006 motor vehicle collision.  Her vehicle was rear-ended by the Defendant’s.  The Defendant admitted fault for the crash.  The trial focused on the nature and extent of the Plaintiff’s injuries.

The Plaintiff’s doctors gave evidence that she suffered injuries to her connective tissues (often referred to as soft tissue injuries) and that these have not fully healed.  The Plaintiff went on to experience chronic pain as a result of these injuries with a chance that the pain would continue indefinitely.

The Defendant’s lawyer argued that all of the Plaintiff’s complaints are subjective and can’t be verified.  He argued that the Plaintiff was exaggerating her symptoms to advance her personal injury claim.  Madam Justice Dardi rejected these arguments and awarded the Plaintiff $40,000 for her non-pecuniary damages.  In doing so the Court provided the following useful comments illustrating that objective signs are not necessary in a personal injury lawsuit:

[67]         The absence of objective physical findings is not determinative of whether Ms. Sandher continues to suffer from chronic pain. Since pain may well be a subjective phenomenon not easily measurable by independent objective indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain extent turns on the assessment of her subjective complaints and reported symptoms:  Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro v. Dailey, 2010 BCSC 770 at para. 35.

[68] The defence contends that the minor damage to Ms. Sandher’s vehicle is inconsistent with the severity of her reported injuries. While evidence of vehicle damage is relevant to the assessment of injuries, ultimately the extent of her injuries is to be assessed on the evidence as a whole:  Robbie v. King, 2003 BCSC 1553 at para. 35….

[70] I accept the evidence of Ms. Sandher that her back and shoulder pain has not resolved. I reject the defence suggestion that she is exaggerating her symptoms to advance her litigation objectives; the evidence does not support such a finding. The overarching frustration and emotional distress she has experienced as a result of her persisting discomfort and pain was evident in her testimony. I find her complaints of continuing shoulder and back pain generally consistent with the surrounding circumstances and evidence…

[72]         On the totality of the evidence, I conclude that there is a realistic prospect for significant improvement in the foreseeable future, but there is also a realistic prospect that Ms. Sandher may never recover to her pre-accident levels of fitness.

[73]         In summary, having considered Ms. Sandher’s own evidence and all of the medical evidence, I conclude that as a result of the accident Ms. Sandher sustained soft tissue injuries to her shoulder and upper and lower back, and that these injuries have caused her pain and suffering. I accept that Ms. Sandher continues to experience pain from her injuries. I find on balance that there will be some continuing chronic pain suffered by Ms. Sandher in the future for an uncertain period of time….

[84] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Sandher’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $40,000.


BC Court of Appeal: Hiring Multiple Lawyers not a Reasonable Disbursement

August 16th, 2010

When a party succeeds in a BC Supreme Court lawsuit the losing party usually has to pay the winner’s ‘costs and disbursements‘.  Disbursements are the out of pocket expenses incurred in moving the lawsuit forward.  (common disbursements include Court filing fees and the costs of medical reports).

What if your case is complex and your lawyer needs to hire an additional lawyer to properly advance your case?  Is this extra legal expenses a reasonable disbursement?  Reasons for judgement were released today by the BC Court of Appeal addressing this topic.

In today’s case (Baiden v. Vancouver) the Plaintiff was injured at the hands of the Vancouver Police.  Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”.   A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course  of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment.  In these circumstances the Plaintiff must turn to WCB for compensation.

Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action.  This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit.  That is exactly what happened in today’s case.

Before heading to WCAT the Plaintiff’s lawyer hired an additional lawyer to assist with the process.  Ultimately the WCAT hearing was successful for the Plaintiff and the case proceeded to trial.  After judgmenttThe trial judge awarded the Plaintiff $8,400 to compensate him for the additional fee of hiring a second lawyer to deal with the WCB issue.  (You can click here to read my article summarizing the trial judge’s reasons)

The Defendants appealed arguing that the judge was wrong in awarding this as a disbursements.  The BC Court of Appeal agreed with the Defendants and overturned the trial judge.  In doing so the BC High Court provided the following reasons making it clear that the expense of multiple lawyers will rarely be considered a reasonable disbursement:

[25]         The limited authority on this issue in this province supports the view that if counsel retains another lawyer to perform a specialized function due to his or her own lack of experience, it does not follow that such fees are recoverable from the opposing party, but remains a matter between the original lawyer and his client: Noble v. Wong, Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.). That is a practical and appropriate approach, and should have been followed here. Outsourcing portions of legal work during litigation and then permitting recovery of that lawyer’s fees as a disbursement undermines the policy of party and party costs. While there may be cases in which this can be justified, they would be limited and exceptional.

[26]         This is not such a case. I would therefore allow the appeal, and set aside the order permitting Mr. Baiden to recover Mr. Ishkanian’s fees of $8,400 as a disbursement.


$75,000 Non-Pecuniary Damages for Ruptured Posterior Cruciate Ligament

August 16th, 2010

Reasons for judgement were released this week by the BC Supreme Court, Port Alberni Registry, awarding a Plaintiff just over $220,000 in total damages for injuries and loss sustained as a result of a 2007 BC motor vehicle collision.

In this week’s case (Haley v. Gust) the Plaintiff was operating her motorcycle when she was struck by a left-turning motorist.  The Defendant admitted full fault for the crash.  The trial focused on the extent of and value of the Plaintiff’s injuries.

The Plaintiff’s most serious injury was a tear to her posterior cruciate ligament in her left knee.  The injury was expected to lead to long term pain and limitations with the possibility of a total knee replacement in the years to come.  In awarding the Plaintiff $75,000 for her non-pecuniary damages Madam Justice Dardi made the following findings about the extent of the injury and it’s interference with the Plaintiff’s life:

[50] In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…

[57] She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….

60] While she attempts to remain as active as possible (she now participates in “quadding”), she remains limited when compared to her pre-accident activities. Since the accident, she has become very cautious about any activity that might injure her knee. She is no longer able to participate in mini-triathlons and dirt-biking with her family. She cannot ski or participate in water sports. It is likely she will continue to be restricted for the rest of her life to some degree in respect of the scope of the activities she would have enjoyed but for the accident.

[61] I have also considered as a factor in my assessment the adverse emotional impact of Ms. Haley’s inability to pursue a line of work which she clearly enjoyed…

[65] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Haley’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $75,000.