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 March, 2011

BC Court of Appeal Discusses Mitigation of Damages in Injury Claims

March 31st, 2011

Reasons for judgement were released this week by the BC Court of Appeal providing a useful summary of the law of mitigation of damages in the context of a personal injury lawsuit.

In this week’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC.  She was injured and sued for damages.  At trial her damages were assessed at just over $140,000 and then reduced by 10% for an alleged ‘failure to mitigate‘.  In short the trial judge held that the Plaintiff unreasonably failed to follow her doctor’s recommendation to have cortisone injections.

The Plaintiff appealed this deduction arguing that there was no evidence before the Court that these injections would have improved the Plaintiff’s symptoms.  The BC Court of Appeal agreed and overturned this deduction.  In doing so Madam Justice Garson provide the following short but useful discussion of the law of mitigation of damages in personal injury lawsuits:

[53] In Chiu v. Chiu, 2002 BCCA 618 at para. 57, this Court set out the test for failure to mitigate as follows:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[56] I would describe the mitigation test as a subjective/objective test.  That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment.  The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment.  The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.

[57] In this case the trial judge found as a fact that the cortisone shots were “not necessarily curative, they reduce the inflammation… Sometimes the relief is only temporary but sometimes the injections bring long term benefits”.  She did not find that the treatment would have reduced the symptoms.  In addition there is the fact that the plaintiff reasonably believed the diagnosis was a tear and that the injections would have no healing effect on a tear.

[58] Regardless of whether the trial judge erred in finding on the evidence that it was objectively reasonable for the plaintiff to undergo the injections, I conclude that she erred in her application of the correct test, as articulated in Chiu.  The physicians testified only that it was a reasonable treatment to try, and it might afford some relief.  In my view such an opinion does not meet the threshold for reducing an award as described in Chiu.

[59] I would accede to this ground of appeal and reverse the judge’s decision to reduce the award by 10%.

Expert Witnesses Stripped of Immunity From Negligence Suits in the UK

March 30th, 2011

Significant reasons for judgement were recently released by the Supreme Court of the UK stripping expert witnesses of their immunity from lawsuits in negligence.  While this development is not binding in British Columbia it is noteworthy as the law in BC is often shaped or at least influenced by developments in other common law jurisdictions.

The issue of expert witness immunity is important as the outcome of a personal injury trial can largely turn on the testimony of various exeprt witnesses.  Often times there is disagreement about the extent of a Plaintiff’s injuries as between his/her treating physicians and ‘independent’ medical examiners hired by opposing parties.  If the opposing expert is negligent in providing their opinion BC Courts have held that they generally cannot be sued for any losses that follow.

The justification given for this immunity is that if experts could be sued “ there will be a chilling effect on the willingness of health care providers to deliver their necessary assistance to the Court, and to be full and frank in their opinions when doing so.”

This same rationale gave expert witnesses in the UK immunity for over 400 years.  This immunity has now been overturned by the Supreme Court of the UK in the decision of Jones v. Kaney.  In Jones, the Plaintiff was injured in a motor vehicle collision.  In the course of the damages suit he was assessed by a psychologist.  After resolving his claim he sued the pscyhologist alleging she was negligent in providing her opinion.  The lawsuit was initially dismissed based on the long standing immunity enjoyed by expert witnesses.

In overturning this immunity the UK Supreme Court held that no justification had been shown for continuing  to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings

Given that BC’s expert witness immunity is grounded in the same logic as the UK’s was it will be interesting to see if our Courts are willing to re-visit this issue.

Future Care Claims: What Expert Evidence Is Needed?

March 30th, 2011

Useful reasons for judgement were released this week by the BC Court of Appeal discussing the type of expert evidence necessary to prove damages for cost of future care in a BC injury claim.

In this week’s case (Gregory v. ICBC) the Plaintiff was injured in a 2006 collision. At trial the Plaintiff sought damages including an award of $123,000 for cost of future care.  In support of this claim the Plaintiff relied on the opinion of an occupational therapist.  This aspect of the claim was largely rejected with the Court awarding just over $8,000 for this head of damage.

The Plaintiff appealed arguing the trial judge erred in rejecting the evidence of the occupational therapist suggesting a medical doctors evidence was necessary for this aspect of the claim.   The BC Court of Appeal agreed in part and increased the assessment by $30,000.  In doing so the Court provided the following useful reasons addressing the type of expert evidence needed to advance a future care claim:

[38] Courts do accept testimony from a variety of health care professionals as to necessary and reasonable costs of future care: Jacobson v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at para. 182; in which Levine J. (as she then was) said:

[182]    The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor. In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39] I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Aberdeen at paras. 43, 63…

[46] And, there was a consensus among the physicians that Ms. Gregory has difficulty lifting above shoulder height, difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she will continue to have persistent pain and weakness.

[47] The evidence of the physicians does therefore provide some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance.  In my view the trial judge fell into error by failing to consider these claims on the basis only that, “there are no recommendations from the medical practitioners for housekeeping assistance, or home and yard maintenance … ”.

[48] Rather than remit this question to the trial judge, I am of the view that it is appropriate for this Court to substitute an appropriate award under this head of damages.

[49] That part of Ms. Percy’s recommendations in which she estimated assistance for heavy home and yard maintenance is set out above.  I would substitute an award of $30,000 over and above the amount already awarded under this head of damages.  This represents a reasonable assessment of the present value of the cost of some modest assistance with the housework, and yard maintenance, that Ms. Gregory could not perform herself in a reasonable manner, as a consequence of the impairment in her shoulder.

$70,000 Non-Pecuniary Damages Assessment for Chronic Shoulder Tendonitis

March 29th, 2011

Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding damages for injuries and loss flowing from a BC motor vehicle collision.

In this week’s case (Garcha v. Duenas) the Plaintiff was involved in a 2007 collision.  He was a passenger in a truck which was struck when the Defendant “made a sudden left hand turn across (the Plaintiff’s vehicles) path“.  Fault for the crash was admitted focusing the trial on the value of the Plaintiff’s claim.

The Plaintiff suffered various injuries, many of which recovered by the time of trial.  One injury unfortunately lingered on, specifically tendonitis in his shoulders.   This inflammation caused pain which limited the Plaintiff domestically, recreationally and vocationally.  The symptoms were not expected to improve with time.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Boyd made the following findings:

[53] Dr. Parhar holds the opinion that since the accident the plaintiff has been suffering the ongoing effects of a shoulder tendonitis, that is an inflammation of the shoulder tendons, resulting from the acute trauma suffered at the time of the motor vehicle accident.  I note here that on cross examination, Dr. Tarazi also opined that the right shoulder complaints were likely related to the injuries suffered in the motor vehicle accident.  Even if the injury was related to repetitive movements, he believed that this was due to the fact that due to his injuries, the plaintiff was likely posturally over- compensating in some way, thus giving rise to the shoulder complaints.  In the absence of the motor vehicle injuries, he doubted the shoulder complaints would have arisen. ..

[58] On a review of all the evidence I am satisfied the plaintiff has proven on a balance of probabilities that his continuing complaints are legitimate and that they are indeed causally related to the injuries suffered at the time of this motor vehicle accident…

[67] Considering all of the evidence, I find that an appropriate award of general damages for pain and suffering and loss of enjoyment of life is $70,000…

[78] In the end result, I am satisfied the plaintiff has proven that he is now permanently partially disabled.  Adopting the opinion of Dr. Parhar, I am satisfied that given the activation of his osteoarthritis, his condition will likely worsen over time.

For more on this topic you can click here to access my archived posts of other recent BC Court Cases assessing damages for shoulder injuries

Court Ordered Defence Medical Exams and the Right to Take Notes

March 28th, 2011

It is not uncommon for discrepancies to arise about the exact details of an appointment following Court ordered medical exams.  These exams can last from several minutes, to several hours, or even (in the case of Functional Capacity and Neuropsychological Exams) to several days.  If a discrepencey arises as to what was said by the Plaintiff a Trial Judge can face a he-said she-said situation.  This can lead to serious disputes because the outcome of a personal injury trial can turn largely on a Plaintiff’s reliability and consistency.

When such a dispute arises the examining physician often has access to his or her notes detailing the examination.  This can sometimes work to the doctor’s advantage when a Court is asked to decide what was actually said.   To remedy this can a Plaintiff take their own notes while attending an independent medical exam?  Reasons for judgement were recently published on the BC Supreme Court website addressing this issue..

In today’s case (Makowsky v. Jawandha) the Plaintiff was involved in two separate motor vehicle collisions. He alleged injury including brain damage and memory problems.  In the course of the lawsuit the Plaintiff was ordered to attend an independent medical exam with a psychiatrist.   Given the Plaintiff’s poor memory the Court further ordered that “someone invited by the plaintiff could observe the examination“.

The Plaintiff attended the exam with a friend.  During the exam the friend took extensive notes detailing the discussion between the Plaintiff and the Physician.  The Physician claimed this was distracting and put an end to the exam believing the extensive note-taking violated the general BC prohibition on recoding Court ordered medical exams.  The parties put the matter before the Court.

Ultimately the Court held that the Plaintiff’s observer could take notes so long as doing so did not interfere with the examination.  Madam Justice Gray provided the following useful reasons:

[15] There is a right, in my view, for the observer to take notes, but not in a manner that slows or interferes with the examination.  For example, the observer cannot ask someone to pause in what they are saying, or say, “Just a minute, I’m taking a note,” or make noise or gesture in a way that creates a distraction. …

[17] The examination can proceed on the basis that the doctor agrees that there can be an observer present and that observer can take notes, but on the basis that the observer will take notes quietly and out of view of the doctor and patient.

I should point out that although this decision was recently published it was decided in 2008 under the former BC Supreme Court Rules.  There is, however, no reason that I’m aware of to conclude that the Court’s reasoning would not apply to the current Rules.

Amending Pleadings and the New Rules of Court

March 25th, 2011

The first case that I’m aware of dealing with amendments of pleadings under the New Rules of Court was released earlier this week.  In short the Court held that the new Rules don’t change the law with respect to the Court’s discretion in permitting amendments.

In this week’s case (BRZ Holdings Inc. v. JER Envirotech International Corp.,) the Plaintiff sued various defendants for losses caused by alleged fraudulent or negligent misrepresentation.  As trial approached the Plaintiff sought significant amendments to their pleadings.  The Defendant opposed these arguing the changes would cause prejudice.  Mr. Justice Smith ultimately allowed most of the proposed amendments and in doing so provided the following useful reasons confirming the New Rules did not alter the law with respect to amendments of pleadings:

6] Amendments to pleadings are now governed by Rule 6-1 of the Supreme Court Civil Rules, B.C. Reg. 168/ 2009 [Rules], which is similar to the former rule 24 in that amendments at this stage of the proceedings require leave of the court.  Cases decided under the former rule make clear that amendments will usually be allowed unless the opposite party can demonstrate actual, as opposed to potential, prejudice, or unless the amendments would be useless:  Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) at paras. 34 and 43.  The court’s discretion is “completely unfettered and subject only to the general rule that all such discretion is to be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities” [emphasis added]: Teal Cedar Products v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282 (C.A.) at para. 45.  Nothing in the new Rules suggests any change in the court’s approach.

More on Canadian Insurance Fraud: Looking Beyond The Claimants

March 24th, 2011

An interesting question was posed earlier this month by Alan Shanoff of the Toronto Sun when he canvassed a recent Ontario case where an insurance adjuster reached an “unconscionable” settlement with a claimant which was eventually set aside by Court order.  After detailing this case he asked “just how prevalent is this sort of practice? Unlike the Canadian insurance industry’s wild claim of $1.3 billion of insurance fraud per year, there are no estimates of how widespread abusive adjuster practices might be.”

Alan hypothesized as follows “Based purely on anecdotal accounts I suspect for every claimant who tries to exaggerate his injuries there’s an adjuster trying to minimize a claimant’s true injuries or deny a rightful claim.

I can’t say whether this 1:1 ratio is right or wrong, however Alan’s question could be the beginning of an interesting discussion.  If anyone is aware of statistics addressing how often self-represented individuals receive unfair settlements and the global cost of “unconscionable” settlements on the public at large this information should be publicized.  If unfair adjusting practices short change deserving claimants anywhere near the figures the Canadian insurance industry claims fraud costs them then that is a story that needs to be told.

Now I’m no fan of insurance fraud, however, when reading stories of the high cost of insurance fraud it’s worth keeping in mind that, unlike the insurance industry, claimants who get stuck with an unconscionable settlement don’t have hundreds of millions of dollars in profits to offset the cost of a raw deal.   Also, the insurance industry (to their credit) has a good track record of pursuing civil damages to punish and discourage fraudulent conduct.  The same likely cannot be said about individuals who have their insurance claims processed in bad faith.  As always, comments and feedback are welcome.

ICBC Claims and UMP Arbitration Decisions

March 23rd, 2011

Most people that are injured in BC motor vehicle collisions have access to “Underinsured Motorist Protection Coverage” (“UMP” for short).   Vehicles licensed in BC must carry a minimum of $1 million in UMP coverage.   Some vehicles carry more UMP coverage than this.

In catastrophic injury claims it’s important to determine how much UMP Coverage is available as these claims can often exceed a Defendant’s policy limits.

Sections 148.1 – 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   One of the difficulties with arbitrations is that they result in private reasons for judgement making it difficult to access precedents.

This difficulty was addressed by a 2007 amendment which requires “An arbitrator who adjudicates a dispute under this section must publish the reasons for the decision by forwarding a copy of the reasons, with personal information that would identify the parties deleted, to the corporation for publication on its website”

If you’re looking for UMP Arbitration Decisions ICBC has been posting these online since 2007.  It would be useful if this database was expanded to include decisions from prior to 2007 as UMP cases do not arise frequently compared to judicially decided personal injury claims and many useful precedents exist that are not publicly available.  However, this database is a useful starting point when researching UMP related issues and I thought I would point out this resource for those who were unaware of it.

Happy Birthday! The BC Injury Law Blog Turns Three

March 23rd, 2011

With many legal blogs having the lifespan of a fruitfly I guess this blog is officially over the hill at the ripe old age of 3.

On March 23, 2008 the BC Injury Law Blog was launched with this initial post discussing tort claims linking MS to trauma in British Columbia.  Since then this site has grown to over 875 articles addressing personal injury law developments in BC and throughout Canada.

So how should I celebrate?  I won’t repeat my Clawbie runner-up jump in a partially frozen Canadian lake (I save that foolish move for New Year’s Day).  Instead I’ll just keep writing.  To all my visitors, thank you for making these efforts worthwhile.  I’m looking forward to another year!

Costs and Sufficient Reason to Sue in the Supreme Court: Clarity from the BCCA

March 22nd, 2011

Welcome reasons for judgement were released today by the BC Court of Appeal addressing when a Plaintiff has ‘sufficient reason‘ for suing in the BC Supreme Court.  In short the top BC Court ruled that trial judges can look beyond the value of a claim when addressing this topic.  This issue is important because generally a Plaintiff who succeeds in a Supreme Court lawsuit but is awarded below $25,000 (the current monetary jurisdiction of the BC Provincial Court) will be deprived of costs unless they have ‘sufficient reason‘ for suing in the Supreme Court.

In today’s case (Gradek v. DaimlerChryster Financial) the Plaintiff was injured in a 2006 collision.  His lawsuit was successful and he was awarded damages of just over $9,000.  The trial judge also awarded costs of $6,600.  In doing so the trial judge made the following useful findings when individuals sue an insured defendant:

[42]      The plaintiff is who he is.  As such, he would have had extraordinary difficulty presenting a case on his own.  While the defendant, represented by the insurer, suggested that in Provincial Court it might, at times, be represented by an adjuster, in my view, whether the defendant was represented by an adjuster or a lawyer the plaintiff would have been outmatched.

[43]      In my opinion the plaintiff required counsel to obtain a just result. Costs are not awarded in Provincial Court.  [Emphasis added.]

ICBC Appealed this order arguing that a court can only look at the likely value of a claim when deciding whether there is sufficient reason to sue in the BC Supreme Court.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court provided the following useful reasons addressing the scope of ‘sufficient reasons‘ under Rule 14-1(10) of the Civil Rules:

[16]        The words “sufficient reason” are not defined in the Rules of Court.  In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that “any reason” will not do.  The reason has to be “sufficient”, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim.  On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review.  That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13:

[13]      At the outset, I observe that the application of Rule 57(10) does not involve an exercise of discretion.  For a plaintiff who recovers a sum within the jurisdiction of the Small Claims Court to recover more than disbursements, the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court.

[17]        In support of its position, the appellant relies on the nature and purpose of the legislative scheme which, he submits, reflect an intention on the part of the Legislature to confine the meaning of the words “sufficient reason” to reasons relating only to quantum as assessed at the outset of the claim.  In that respect, it is common ground that the primary purpose of denying costs in the Supreme Court to those with monetary claims of $25,000 or less is to encourage claimants to bring their claims in Small Claims Court, with its simplified procedures and greater accessibility to judicial dispute resolution.  Litigating in the Supreme Court when the amount of money involved is relatively small can be prohibitive for both the “winner” and the “loser”.

[18]        I am in general agreement with the appellant’s submission in its factum (at para. 33) that the object of the small claims procedures set out in the Small Claims Act, R.S.B.C. 1996, c. 430 and Rules, B.C. Reg. 261/93 is “to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court”.  I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees, provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result.  But, that will not always be the case.  In this instance, for example, the trial judge was satisfied that Mr. Gradek’s circumstances required the assistance of counsel to obtain a just resolution of his claim.  It is implicit in his reasons that he considered that it would be unjust to find that Mr. Gradek require counsel to properly present his claim, on the one hand, and to deny him costs which would partially offset the expense of retaining counsel, on the other.  It was on this basis, in part, that he found there was “sufficient reason” within the meaning of Rule 57(10) to bring the action in the Supreme Court with its attendant relief for the successful party in costs.

[19]        Without endorsing all of the factors relied on by the trial judge as constituting “sufficient reason” in this case, I am satisfied that there may be circumstances which may constitute sufficient reason for bringing an action in the Supreme Court, thereby triggering its costs provisions, despite the fact that it is apparent from the outset that the award will fall within the monetary jurisdiction of the Provincial Court.  It is open to a defendant who believes that the claim should not have been brought in the Supreme Court to apply under s. 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443, to have the matter transferred to the Provincial Court.  Alternatively, if the matter proceeds in the Supreme Court, it is open to the defendant to ask that a successful plaintiff be denied costs on the basis that there was not sufficient reason to bring the action in the Supreme Court in the first instance.

[20]        I accept that the narrow interpretation of the words “sufficient reason” advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit.  But I agree with the trial judge that if the Legislature had intended to limit the scope of the words “sufficient reason” to the extent suggested by the appellant, it could readily have done so.  While I am satisfied that the words, “sufficient reason” should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party.