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

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Archive for January, 2012

Interest on Disbursements Disallowed in Personal Injury Claim

January 31st, 2012

Update November 17, 2014 – in Reasons released today the BC Court of Appeal overruled the below decisions and found interest on disbursements cannot be recovered.


Update – May 17, 2013 – the below decision was overturned on Appeal.  You can click here to read about this development


A very uncertain area of the law relates to recovery of interest on disbursements.  Last year the BC Court of Appeal declined to resolve this uncertainty.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further weighing in on this inconsistent area of law finding that interest on disbursements is not recoverable.

In today’s case (MacKenzie v. Rogalasky) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff borrowed $25,000 to finance the disbursements in his case. Following trial the interest on this loan was over $11,000.  The Plaintiff sought to recover this interest but Registrar Sainty declined to allow this claim.  In doing so the Court provided the following reasons:

[33]Based on all of the matters that I have considered — and I have had this matter under consideration for some time; I reviewed all of the submissions before coming here today and then today I have heard even more comprehensive submissions from counsel — I find that I am not bound by the decision of Mr. Justice Burnyeat in Milne. None of the decisions cited to me in favour of awarding interest, including Milne, are on all fours with the facts before me. Milne arose in the context of settlement of an action. Here, the matter was decided following a trial. Further, I find that Mr. Justice Burnyeat’s comments in Milne were obiter and are not binding on me. The case before me is also distinguishable from the decision of Registrar Cameron in Chandi as, in that case, counsel told the Learned Registrar that he was bound by Milne. His Honour was not given the benefit of the submissions I have had regarding the nature of that decision; nor of the impact of theCourt Order Interest Act on his decision. On that basis I may distinguish his reasons.

[34]That, of course, does not end the matter because the fundamental question still remains to be answered: Is this a disbursement that is recoverable by the plaintiff? I think that it is not on the basis of the arguments made by Mr. Parsons, most particularly those related to the impact of the Court Order Interest Act on claims of this nature.

[35]Firstly, a successful party’s right to claim disbursements does not actually arise until the action itself has been determined and so, until the judgment has been rendered, no entitlement arises to recover any costs or any disbursement. Accordingly there can be no right to claim any disbursement until the determination of the action.

[36]The decision in Milne was made without the benefit of the extensive argument that was before me, particularly the argument based on the application of the provisions of the Court Order Interest Act. That Act makes it clear that the legislature did not intend that interest be recoverable on disbursements.

[37]Nor can it be said that the object of costs (as compared to damages for a tortious act) is to return a party to his pre-litigation status and thus interest ought not to be recoverable. Costs are not intended to provide full indemnity to a successful party and the successful party is only entitled to recover necessary or proper disbursements at a reasonable amount. In my view it cannot be said that interest on disbursements is a necessary and proper adjunct of litigation. It is simply one of those unfortunate matters that arose in the circumstances of this particular plaintiff and I find it is not reasonable that the plaintiff recover it.

[38]So, for all of these reasons, I am going to disallow the plaintiff’s claim for interest paid to the third party lender in respect of the loan to fund the disbursements.

Mitigation of Damages and "Sincerely Held Religious Beliefs"

January 31st, 2012

As previously discussed, if a person fails to take reasonable steps to mitigate their damages following a personal injury the compensation they are entitled to is reduced accordingly.

There are some clear examples where a person will not be penalized for failing to mitigate their damages such as when they are financially unable to follow their doctor’s advice.  But what about pre-existing religious views?  Can a person be penalized by a damage reduction for failing to follow medical advice where their refusal to do so was based on a religious belief?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this interesting topic.

In this week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff suffered a head injury when he was struck at an intersection by an RCMP cruiser.  Fault for the crash was admitted.

In the course of recovery the Plaintiff failed to follow various suggestions made by his medical practitioners.  The Plaintiff argued his damages should not be reduced as this failure was based on religious beliefs.  Madam Justice Ross did not address the issue head on as she was not satisfied that the Plaintiff’s decisions were based on “sincerely held religious or spiritual objection“.  Despite this finding the Court made the following observation about this little tested area of law:

[71] In addition, counsel submits that Mr. Abdalle has spiritual and religious objections to drug use. Counsel submits that adherence to a sincerely held religious belief should not be considered a failure to mitigate damages. In counsel’s submission this should be an application of the principle of tort law that the tortfeasor takes the victim as he finds him.

[72] The medical evidence establishes that the recommended treatments would likely have assisted Mr. Abdalle, that there were no contraindications in his case and that the risks were minimal. Accordingly, unless Mr. Abdalle’s spiritual objections provide a reason to refuse treatment, I conclude that Mr. Abdalle’s refusal to follow the recommendations of his physicians was unreasonable…

[75] It appears that the particular question of whether pre-existing religious beliefs would constitute a reasonable basis for a refusal of medical treatment has not been addressed in this jurisdiction. Jamie Cassels and Elizabeth Adjin-Tettey wrote in Remedies: The Law of Damages, at pp. 292 and 393 that “there is little authority on this issue”, and cite two American decisions as guidance. Neither of these cases have been cited in Canadian jurisprudence. Moreover, from Janiak it is clear that the American position on this issue takes subjective attributes into consideration to a greater degree than in Canada (Janiak, p. 160). Cassels and Adjin-Tettey opine at p. 392 that:

According to the Janiak test, where a medical treatment is otherwise obviously required, religious or ethical objections would not provide an excuse from mitigating unless those objections rendered the plaintiff incapable of choice or could be assimilated to ‘pathological’ conditions.

[76] Ken Cooper-Stephenson also explored this topic in Personal Injury Damages in Canada and expressed a different view. He stated at p. 876 that:

[l]f a pre-existing religious belief or cultural practice inhibits or prevents the plaintiff’s capacity to choose a certain form of treatment…then it is almost certain that the plaintiff will not be adjudged unreasonable in the refusal… Defendants take their plaintiffs as they find them with respect to their religion, their culture, and their socio-economic setting.

He does not, however, provide any Canadian authority in support of this proposition.

[77] Professor Cooper-Stephenson also argues that there is a move towards subjectivism, with one approach including religious belief and cultural practice within the notion of “capacity” fromJaniak. He says, at p. 879, that as for religious belief and cultural practice:

…their recognition as fundamental constitutionally-protected interests in the Canadian Charter of Rights and Freedoms almost certainly requires that they be respected in post-action choices for the purposes of the duty to mitigate.

[78] There are two questions to be addressed in relation to this issue. The first is whether, to what extent, and under what circumstances a religious or cultural belief will be taken into consideration in addressing the plaintiff’s duty to mitigate. As noted above, it appears that the answer to this question may not be settled in Canadian jurisprudence. The second question is whether in the particular case, the plaintiff’s failure to follow a recommended course of treatment is the result of adherence of a religious or cultural belief or practice.

[79] In my view, this is not the case to make a determination with respect to the first question because I have concluded that the factual foundation is simply not made out for the Court to conclude that the reason for the refusal of treatment was a sincerely held religious or spiritual objection on the part of Mr. Abdalle…

[81] In the result, I am satisfied that Mr. Abdalle’s refusal to take the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the recommendation to take facet block injections was not the product of a religious or spiritual objection. In addition, I find Mr. Abdalle’s failure to continue with swimming, to become more active, to attend a further course of physiotherapy, to take the Nortriptyline as prescribed and the facet block injections as recommended was unreasonable in all the circumstances and in breach of his duty to mitigate.

$75,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries and PTSD

January 31st, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages arising from injuries sustained a motor vehicle collision.

In last week’s case (Smith v. Williams) the Plaintiff was a young veterinarian.  She was involved in a 2009 collision.  The Defendant crossed the centre-line and caused a head-on collision.  The Plaintiff sustained chronic soft tissue injuries and Post Traumatic Stress Disorder (PTSD).  The Plaintiff’s symptoms were on-going at the time of trial.  In assessing non-pecuniary damages at $75,000 Mr. Justice Betton provided the following reasons:

[33] The plaintiff indicated that the accident has left her with a feeling of vulnerability. She is very anxious in a motor vehicle, especially on highways, envisioning accidents unfolding. There are occasional panic attacks. She gets a tingling and pain down her right arm that is aggravated by repetitive motion and particular movements or positions. One of these, I note, was holding her child while breastfeeding. Others relate to her work as a vet.

[34] She spoke of how the physical and psychological injuries have adversely affected her enjoyment of her wedding and her regret for how she reacted to the stresses associated with the wedding toward her husband. For her part, the plaintiff indicates that she simply battles through her restrictions. She says that the more physically demanding her day, the greater the consequences in symptoms…

[43] This plaintiff is a young professional, early in her career. She has historically been a high-achiever, endowed with intelligence, motivation and physical ability. The motor vehicle collision came as she was planning her wedding and the purchase of a business. Her wedding, as described by her, was not the enjoyable experience that she, as a young woman, had dreamed of.

[44] The purchase of the business completed, and she has been able to live up to the work demands of that practice, facilitated in part by the fact that it is less demanding than work she did prior to acquiring the practice. In addition, her absence for maternity leave coincided with her rehabilitation. She has actively engaged in rehabilitation during all of the significant developments in her life, including being a new mother. The Post Traumatic Stress Disorder symptoms linger and also influence the enjoyment of an activity which is part of everyday life, that is, driving…

[53] Taking what one can from those authorities and applying the general principles, as referenced in Stapley, it is my conclusion that an appropriate award for general damages is $75,000.

The Blunder of No-Fault Insurance

January 30th, 2012

One of the foundations of our tort-system is accountability.  Those harmed at the hands of others careless or criminal actions deserve compensation.  Those who act carelessly and cause harm ought to be held accountable by providing the compensation.  This goes to our basic understandings of fairness.

When governments decide to strip people of their right to sue and instead create no-fault systems of compensation accountability is removed from the picture.  This can lead to absurd results as demonstrated in a story published last week by the Globe and Mail.

Accountability matters.  At its most basic level no-fault insurance takes away compensation rights of victims and redistributes these to those that cause harm.  Examples such as the one pointed out by the Globe and Mail should act as a reminder to Government that removing accountability from the Civil Justice System is a fundamentally flawed policy.

Fault For Rear End Collision Following Lane Change Discussed

January 30th, 2012

Reasons for judgement were released last week discussing fault for a rear-end motor vehicle collision which occurred after the Plaintiff made a lane change into the Defendant’s lane of travel.

In last week’s case (Perry v. Ismail) the Plaintiff was driving in “bumper to bumper” traffic in the right lane of a highway.  There were few vehicles in the left lane as it was closed to traffic ahead further up the roadway.  The Plaintiff made a lane change into the left hand lane and shortly after he was rear-ended by the Defendant.

Although collisions such as these can be caused by the fault of both motorists in last week’s case the Court determined that the Defendant was fully at fault for the crash for failing to keep a proper lookout.  In assessing the Defendant 100% liable Madam Justice Hyslop provided the following reasons:

[25] Before making his lane change, Mr. Perry shoulder checked and put on his signal light indicating his intention to change lanes. He concluded and I accept he could make the lane change safely. I do not accept Mr. Perry’s evidence that he actually recalls independently at the time of trial doing all of those checks before making the lane change. I do accept that he signalled, looked in his mirrors, did a shoulder check and decided that it was safe to change lanes.

[26] Mr. Perry had completed his lane change and was travelling at least 40 kilometres per hour, accelerating, and had not reached his intended speed when the rear end collision occurred.

[27] Mr. Ismail occupied the left lane and was he aware that vehicles might change lanes given the traffic conditions in the right lane.

[28] As Mr. Ismail drove in the left lane there was nothing to obscure his vision. He did not see the Perry vehicle until the very last moment when he slammed on his brakes, colliding with the rear of the Perry vehicle. He did not see the Perry vehicle’s signal, nor the change of lanes. I find that Mr. Ismail came upon Mr. Perry who was about four to five car lengths ahead of the Kelly vehicle and accelerating. Mr. Ismail should have seen the Perry vehicle signal and should have seen the lane change and should have seen the Perry vehicle ahead of him. He did not see any of these events.

[29] I conclude that Mr. Ismail was negligent in that he was not paying attention and failed to keep a proper lookout for other vehicles as he drove in the left lane on Lougheed Highway. When the Perry vehicle was finally seen by him it was too late. He slammed on his brakes and struck the Perry vehicle.

[30] I find all the witnesses to the accident to be truthful and they did their best to recall the events. Mr. Ismail did not attempt to explain away the accident. He was transparent, despite the fact there may be consequences to him from his employer.

Are BC Taxpayers Getting Short Changed When it Comes to Subsidizing Medical Malpractice Insurance?

January 27th, 2012

The above image was taken from the BC Government Website where they recently launched a “budget calculator” permitting the public to play around with various tax revenues and expenditures.  The calculator is far from complete, however, leaving many expenses out of bounds.  One expense which is absent is the CMPA fee subsidy.

I recently wrote how BC taxpayers subsidize the defence of doctors in medical malpractice lawsuits.  This issue has also received media scrutiny by legal reporter and former lawyer Alan Shanoff.  I questioned the propriety of this given the long term under-funding of legal aid and BC’s Justice System.

It seems that Ontario taxpayers will be receiving a break from this subsidy in 2012.  A longstanding reader of my blog who does not care to be named notes that taxpayers in Ontario will not be on the hook for CMPA fees for 2012.

The CMPA reports that “The payment of medical liability protection costs in Ontario is guided by two agreements. Firstly and as is the case in other provinces, Ontario physicians benefit from a program that reimburses them for a portion of their CMPA membership fees…For members, the substantial reduction in total CMPA fees translates into individual fees for 2012 that are at, or below, 1986 levels. As the reimbursement program is based on a 1986 threshold, the program will be suspended for 2012 while members “out-of-pocket” costs will remain consistent with previous years.

As things stand BC taxpayers will not get the same benefit with the public continuing to subsidize CMPA membership fees despite the CMPA “holding $572 million in unrestricted net assets”. I again ask who is a better beneficiary of the $50 plus million dollars the BC Government has used to subsidize liability insurance dues, the CMPA with half a billion dollars in unrestricted net assets, or BC’s poorest who require legal aid to gain access to justice?

What Happens if Your Judge Falls Ill After Trial But Before Judgement?

January 27th, 2012

It is not uncommon for judges to reserve their reasons for judgment after a trial concludes.  Sometimes this can take many months.  What happens if a judge becomes ill or dies during this period of time?  Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, dealing with such a scenario.

In this week’s case (Walsh v. GMAC Leasco Corporation) the Plaintiff was injured in a motor vehicle incident.  After trial concluded the presiding judge reserved his reasons.  He fell ill and he could not render judgement.  As required by the BC Supreme Court Rules the Associate Chief Justice appointed a new judge to conclude the matter.   Complicating matters further the Plaintiff’s lawyer died before the new judge was appointed.

The parties could not agree on how best to finalize the matter.  The Plaintiff argued the new judge could review the transcripts from the trial and render a decision.  The Defendant argued a new trial was necessary.  Mr. Justice Johnston decided that the best resolution would be to review the transcripts and address the recalling of witnesses on an individual basis.  The Court provided the following reasons:

[11] Present Rule 23-1(10) is almost identical to former Rule 64(10) and any difference between present Rule 23-1(11) and former Rule 64(11) appears to be mostly in layout rather than substance.

[12] My primary concern is how best to do justice between the parties to this action. In the unusual circumstances of this case, the plaintiff’s stated desire to have the matter retried on the transcripts of the evidence and argument already given should be given greater weight in light of the fact that the counsel chosen by her to carry her case through trial is no longer available to act for her.

[13] The controversy surrounding the written opinion I expect will have been fully argued, that argument will be reproduced in the transcript, and I will be in an equally good position to identify portions of the opinion that are either inadmissible or to which little weight should be attached.

[14] I am persuaded that the appropriate exercise of my discretion under Rule 23?1(11) is to direct that the re-trial be on the official transcript of the evidence heard at the original trial, together with the exhibits filed. That transcript will contain the submissions of counsel on any issues that arose during the trial, together with opening and closing arguments.

[15] I give leave to the parties to apply to have the evidence of any witness reheard orally, but no such application can be made until the transcripts have been received and a suitable time has lapsed to permit reading of those transcripts.

$45,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

January 27th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.

In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month.  Fault was admitted by the Defendants for both collisions.  The crashes caused an overlapping indivisible injury and damages were assessed globally.

The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments.  This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.

In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:

[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…

[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.

[37] In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.

"Gold-Plated" Cost of Future Care Report Judicially Criticized

January 26th, 2012

(Update June 18, 2013 – the below judicial scrutiny survived review by the BC Court of Appeal)

Following recent judicial criticism of overly robust requests for future care costs, reasons for judgement were released last week by the BC Supreme Court, criticizing a “gold-plated” expert report.

In last week’s case (Jarmson v. Jacobsen) the Plaintiff was involved in a motorcycle accident.  Although he sustained serious injuries and was awarded significant damages at trial, his claimed damages for cost of future care was met with skepticism.  In criticizing the expert evidence on this point Mr. Justice Meiklem gave the following reasons:

[115]The defendant’s closing submission listed 20 items recommended by Ms. Landy that the defendant argued were not medically supported by any evidence at trial. I agree with that submission. Many of those items would require very significant outlays, for example, a van with a lifting device to transport an anticipated power mobility device.

[116]Mr. Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality and objectivity and her reliance on facts and opinions not in evidence, and criticizing her for travelling to Dubai to interview witnesses already interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I would not go so far as to agree that  Ms. Landy became an advocate specifically for the plaintiff in this case, but it is a fair comment that she seemed to advocate an expansion of the types of items and services claimable as future care costs under the law.

[117]Ms. Landy did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.

[118]Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.

[119]Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.

$40,000 Non-Pecuniary Damage Assessment For Chronic Grade 2 Whiplash

January 26th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing damages caused by a motor vehicle collision.

In last week’s case (Cameron v. Hsu) the Plaintiff was injured in a 2008 collision.  The Plaintiff was rear-ended and pushed into the vehicle ahead of him.  Fault for the crash was admitted by the Defendant focusing the trial on quantum of damages.  The Plaintiff sustained a Grade 2 Whiplash Associated Disorder as a result of the collision.   His symptoms continued at the time of trial some three years following the crash.  In assessing non-pecuniary damages at $40,000 Madam Justice Hyslop provided the following reasons:

[85] I have concluded that Mr. Cameron did suffer neck and shoulder injuries as a result of the accident. As a result of these injuries he suffered headaches. Those appear to no longer occur or are infrequent.

[86] I also conclude that these injuries caused Mr. Cameron difficulties in certain seasons at which time Mr. Cameron sought physiotherapy to resolve the symptoms.

[87] I have also concluded and take into consideration in assessing Mr. Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow] several years before the 2007 accident. I also conclude that before this accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I also conclude that Mr. Cameron has resisted doing exercises designed to assist or improve the mobility and flexibility in his neck and in the area of his upper shoulder…

[99] Mr. Cameron, at the time of the trial, continued to suffer from tightness in the shoulder and neck beyond that of his pre-existing condition. Mr. Cameron did not lose time at work and he never thought he should do so or would do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical treatment only when there was something wrong. The evidence is that Mr. Cameron has difficulty with his neck and shoulder when doing office work and not when working on-site and in good weather.

[100] Mr. Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his physiotherapist, so it is difficult to determine the progress he would have made had he done so. Taking that into consideration, I award Mr. Cameron general damages in the amount $40,000.00 for pain and suffering and loss of enjoyment of life.