BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury 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 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 February, 2012

The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

February 29th, 2012

(Image via wikipedia)

One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams. ¬†Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.

In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision. ¬†In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome. ¬†His records were exchanged in the litigation process. ¬†As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.

The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report. ¬†Master Baker dismissed the¬†application¬†noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule. ¬†In dismissing the¬†application¬†Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — ‚Äúshoehorn‚ÄĚ the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.


$200,000 Non-Pecuniary Damage Assessment For Multiple, Disabling Orthopaedic Injuries

February 29th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple, complex, orthopaedic injuries caused by a motor vehicle collision.

In last week’s case (Tompkins v. Bruce) the Plaintiff was injured in a serious 2006 collision which was caused when the Defendant, who had been drinking and was driving while over the legal limit, crossed the centre line and collided with the Plaintiff’s vehicle. ¬†The Defendant was found fully at fault for the crash.

The Plaintiff suffered multiple injuries including rib fractures with a collapsed lung, a left hip fracture, a fractured femur and a fractured patella.  These injuries required surgical intervention.  The Plaintiff had a total hip replacement and likely needed a total knee replacement in the future.

The Plaintiff was a plumber and gas fitter and was rendered totally, permanently disabled from his own occupation.  He was left with a minimal residual earning capacity.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Mr. Justice Curtis provided the following reasons:

[47] Wayne Tompkins was 50 years old, living in Pemberton and happily employed as a tradesman when the June 3, 2006 collision occurred.  As a result of the injuries suffered by Mr. Tompkins which were caused by the negligent and criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has been permanently and very significantly altered.

[48] He has lost his ability to work in his trade at employment he enjoyed.  He has lost a great deal of his mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he once did.  He cannot stand or sit for long periods of time.  His mood is depressed and his anger harms his relationship with other people ? particularly in the case of Nancy Larkin, his romantic partner after the accident who left him largely because of his anger and irritability.  In addition, Mr. Tompkins now faces the prospect of further surgeries, such as two knee replacements, another hip replacement, the prospect that the condition of his knees and hip may get worse ? and that each surgery comes with a risk of loss of function, dangerous embolisms, scar tissue, long recovery periods and possible poor results.

[49] On the other hand, Mr. Tompkins is an intelligent man whose depression and anger can quite likely be treated and improved.¬† He now has his own home in Chilliwack where he lives with his dog close to his sons and grandson.¬† He is capable of driving his car, at least as far as Chilliwack to Whistler.¬† There is a good chance that continued physical training will maintain his strength and may well improve his mobility and flexibility ? he has been capable of walking without a cane in the past, and even of lifting Nancy Larkin who weighs 115 pounds from her wheelchair into a car and it is not unlikely that his condition may again reach that level.¬† He did own and operate a boat after the accident and could again, and fishing is still possible.¬† While his trade work as he once did it is no longer open to him, there is the possibility he may find rewarding employment in some other field…

[53] Mr. Tompkins has been particularly unfortunate in having three major joints ? both knees and his left hip damaged in the collision.  Those injuries are permanent and the condition of those joints likely to get worse.  Considering that and his altered mood and other injuries, I find the sum of $200,000 a fair and reasonable amount for non pecuniary damages.


Failure to Obtain Injections and Mitigation of Damages

February 28th, 2012

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether the failure to follow through with steroid injections to treat a shoulder injury should result in mitigation of damages in a personal injury claim.

In the recent case (Lim v. Anderson) the Plaintiff suffered an impingement syndrome following a rotator cuff injury sustained in a collision. ¬†In the course of recovery she had a steroid injection which provided temporary relief. ¬†Her surgeon suggested that the Plaintiff could have further injections although she chose not to follow through with this advice. ¬†The Defendant argued the Plaintiff’s damages should be reduced due to this choice. ¬†Madam Justice Fenlon rejected this argument and provided the following reasons:

[18] A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems: Papineau v. Dorman, 2008 BCSC 1443. The applicable standard is reasonableness.¬†The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner‚Äôs recommendations…

[23] Here too, while Dr.¬†Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff‚Äôs problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as ‚Äúlike a miracle‚ÄĚ.

[24] It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.

[25] A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.

This judgement can be contrasted with this 2010¬†decision where a Plaintiff’s damages were¬†reduced¬†by 30% for choosing to follow naturopathic treatment instead of injections/surgery to treat a shoulder injury.


The Flexibility of the 7 Day Rule for Jury Strike Applications

February 28th, 2012

Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference.  With the overhaul of the civil rules does this exception still apply?  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.

In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely¬†injured‘ in a 2007 collision. ¬† The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice. ¬†The Defendant brought an¬†application¬†to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).

The¬†Defendant’s¬†application¬†was¬†ultimately¬†dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules:

[12] Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).


ICBC Ordered to Pay $75,000 Punitive Damages for "Bad Faith" Breach of Insurance

February 27th, 2012

I have previously detailed the potentially high financial consequences for civil breach of insurance. ¬† One way a motorist can be in breach relates to intoxication. ¬†If as a result of¬†intoxication¬†an individual is “incapable of proper control of the vehicle” then the motorist can be in breach of their insurance pursuant to Section 55(8)(a) of BC’s Insurance (Vehicle) Regulation. ¬†This means that the individual can lose all insurance coverage and be forced to pay all damages flowing from a collision.

This is a severe consequence and in appropriate circumstances a very deserving one.  However, if ICBC is too quick to breach someone from their coverage they may be forced to pay damages in bad faith.  Such a result was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (McDonald v. ICBC) the Plaintiff was involved in a 2007 collision. ¬†She was at fault for the crash. ¬†She consumed two to three glasses of wine prior to operating a vehicle. ¬†As she was driving she “turned the wrong way into an oncoming van” causing a collision and injuries to the other motorist.

The Plaintiff was issued a 24 hour roadside suspension and charged criminally with dangerous driving and alcohol related offences. ¬†Eventually the criminal charges were dropped and the Plaintiff plead guilty to careless driving pursuant to section 144 of BC’s Motor Vehicle Act.

The injured van driver brought a claim against the Plaintiff.  ICBC eventually settled the claim for just over $182,000.  ICBC held the Plaintiff in breach of her insurance arguing the collision occurred as a result of impairment and sought to collect the money from her.

The Plaintiff disputed ICBC’s allegations. ¬†She sued ICBC for a declaration that she is entitled to coverage and further for punitive damages. ¬†Madam Justice Ballance sided with the Plaintiff. ¬†The Court found that ICBC failed to prove that the collision occurred as a result of alcohol consumption and further ordered that ICBC pay the Plaintiff $75,000 for their ‘bad faith’ denial of coverage. ¬†In reaching this result Madam Justice Ballance provided the following reasons:

[249] An insurer does not have to have an iron-clad case in order to deny coverage.  It is not expected to investigate a claim with the skill and forensic proficiency of a detective.  Nor is it required to assess the collected information using the rigorous standards employed by a judge.  The duty of good faith does not impose a standard of absolute liability in respect of an insurer’s wrong decision.  The duty simply dictates that an insurer bring reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation, and the assessment of the collected information with respect to the coverage decision.  My criticisms of the calibre of Ms. Baadsvik’s investigation and the shortcomings of her ultimate assessment should not be interpreted as suggesting that each individual omission or failing is, of itself, necessarily a violation of good faith and fair dealing.  It is their cumulative effect that constitutes a breach of its duty of good faith.

[250] It is not possible to perform a fair and proper evaluation in the absence of a reasonably thorough underlying investigation.¬† The latter precludes achievement of the former.¬† And so it was, in the case at hand.¬† Here, that deficiency was compounded by the other failings of Ms. Baadsvik‚Äôs evaluation of whether the plaintiff had been Incapacitated…

[259] ICBC engaged in settlement negotiations and concluded a settlement binding the plaintiff without appointing legal counsel on her behalf, all the while investigating her potential breach of contract.  The plaintiff was never informed of the settlement discussions despite the fact that ICBC knew that the damages in the To Action were likely to be significant and that the plaintiff would potentially have to bear them personally.  Indeed, after Ms. Baadsvik’s final discussion with Constable Wood on April 1, she was essentially on the brink of deciding that the plaintiff was in breach and that ICBC would not be indemnifying her.  The nature and sequence of these events, all fully within ICBC’s control, was manifestly unfair.

[260] Ms. Baadsvik was asked whether, in making the decision that the plaintiff was in breach, any consideration was paid to the settlement of the To Action.  She gave the unsatisfactory answer that she understood she had to wait until that settlement was concluded before she could advise the plaintiff about the breach and tell her how much money was involved.

[261] In my opinion, ICBC‚Äôs multiple failings in the investigation, assessment and breach decision that I have outlined, and its misconduct in relation to the To Action, respectively, contravened the duty of fair dealing and good faith owed to the plaintiff…

[263] This is an exceptional case.¬† The nature of ICBC‚Äôs bad faith behaviour took different shapes throughout the time line.¬† The overall handling and evaluation of the claim was overwhelmingly inadequate.¬† ICBC also allowed its objectivity to be tainted by the fact that the claim indirectly involved the ‚Äúvery difficult‚ÄĚ Mr. McDonald.¬† While I recognize that the tainting of impartiality was only slight, it was nonetheless real and improper.

[264] In my opinion, ICBC‚Äôs conduct was harsh, high-handed and oppressive as those concepts have been developed in the jurisprudence, and marked a significant departure from the Court‚Äôs sense of decency and fair play.¬† Some of the acts of bad faith were inadvertent and others were not and they persisted over a considerable period.¬† The plaintiff was in a vulnerable position and suffered harm in consequence of ICBC‚Äôs misconduct, not all of which is tidily rectified by this Court confirming her right to be indemnified.¬† ICBC would not be accountable for its bad faith in the absence of an award of punitive damages, which it can well afford.¬† Such an award is justified to deter other insurers from engaging in similar types of misconduct, and to punish ICBC and condemn its breaches of duty…

[267] I declare that the plaintiff is entitled to indemnity from ICBC for all claims arising from the accident, including the To Action.

[268] I also award her the sum of $75,000 in punitive damages.


$85,000 Non-Pecuniary Damage Assessment For Annular Tear

February 27th, 2012

(Disk Herniation Image via Wikipedia)

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a vocationally disabling spine injury.

In last week’s case (Peers v. Bodkin Leasing Corporation) the Plaintiff was involved in a 2009 rear end collision. ¬†Fault was admitted by the rear motorist focusing the trial on the extent of the Plaintiff’s injuries.

The Plaintiff worked his whole life in the forest industry as a boom boat operator.  The collision caused a spine injury (an annular tear which left him vulnerable to disk herniation) which fully disabled the Plaintiff from his own profession and largely disabled him from other professions.  In assessing non-pecuniary damages at $85,000 Madam Justice Humphries provided the following reasons:

[45] Dr. Kokan was of the view that the shocks experienced by Mr. Peers this past spring indicated an annular tear as a result of the accident that may be progressing into a herniated disk. ¬†That could lead to neurological changes including numbness to his lower extremities and even weakness with loss of bowel and bladder control. ¬†Mr. Peers would likely need surgery which could reduce but not necessarily eliminate the pain…

[53] I am satisfied that Mr. Peers made a determined effort not to let the pain interfere with the work he loved, but it eventually proved too much for him, and he was force to quit. ¬†It may be that the shocks should be further investigated, and that Mr.¬†Peers should not be as frightened of the potential for disk herniation as Dr.¬†Kokan suggests.¬† Nevertheless, I accept that pain from the accident was the eventual cause of Mr.¬†Peers‚Äô inability to continue to work as a boom boat operator and at physical jobs in general…

[59] Mr. Peers must cope with a life that is very different from the one he led previously, and at the age of 53, he is unlikely to return to the activities he loved, even at a reduced level.  He has lost the ability to rely on his great strength and agility, which sustained his confidence and self-esteem, and although he can still participate in some activities, he is simply not the person he was.  He has tried, since the accident, to stay in the working world which defined him, and to remain active and replace the sports he loved and excelled at with others that he could at least participate in.  Since he quit work in March of this year when his symptoms became too much to handle and moved to Powell River, he describes a life which is reclusive and lonely.

[60] However, the future is not, in my view, completely bleak.  While testifying, Mr. Peers displayed stoicism and a sense of humour, underneath his evident uncertainty about the turn his life has taken.  Having only recently quit work, he is obviously still coming to terms with the need to find a different lifestyle to fulfil himself.  He has a number of concerned friends and family members who worry about him and want to assist him in improving his life and increasing his social contacts.  He has moved away from his long time home in the Gibsons/Roberts Creek area, but now lives near his son and grandchild.  This should provide him with opportunities to join in community activities if he will avail himself of them.

[61] Nevertheless, the loss of his former work and lifestyle is profound.  The cases cited by the defendants do not deal with such substantial loss.  I accept the plaintiff’s position that non-pecuniary damages should be $85,000.


Section 10 WCB Bar Fails to Protect Ministry of Solicitor General

February 27th, 2012

(Update June 19, 2013 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)

As previously discussed, Section 10 of the BC Workers Compensation Act can strip people of their right to sue if they are injured in the course of their employment by someone else in the course of their employment.

When a police officer in the course of their duties injuries someone through negligence they may be subject to this bar.  However, when an RCMP officer is negligent they usually enjoy personal immunity from lawsuits and instead the injured party needs to look to the Minister of Public Safety and Solicitor General for compensation who are exposed by statute for liability when RCMP members are negligent in the course of their duties.  (Note: this Ministry has recently been overhauled and renamed the Ministry of Justice)

Interesting reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, discussing the interplay of the WCB Bar to lawsuits and actions against the Minister of Solicitor General for negligence of RCMP officers.

In last week’s case (Aitken v. Bethell) the Plaintiff was seriously injured while sitting in a parked vehicle. ¬†The RCMP were in pursuit of the Defendant Bethell who lost control of his vehicle, colliding with another, and eventually causing a collision with the Plaintiff’s vehicle. ¬†The Plaintiff sued various parties including the police officer.

Both the Plaintiff and the Police officer were found to be in the course of their employment at the time of the crash. ¬† The Minister of Public Safety and Solicitor General brought an¬†application¬†to have the¬†lawsuit¬†against them dismissed relying on the WCB section 10 bar. ¬†Mr. Justice Halfyard refused to do so finding that while the bar could prevent the lawsuit against the individual officer, the Minister did not enjoy the same immunity as they were not an ‘employer‘ and their liability was created by virtue of statue. ¬†In permitting the claim to proceed Mr. Justice Halfyard provided the following reasons:

[66]I have attached s. 10(1) of the Act as an appendix to these reasons. It seems to me that, in a negligence action for damages for personal injury, in order for a defendant to succeed in this defence, it must be established:

a)that the plaintiff, at the time of the alleged injury, was a ‚Äúworker;‚ÄĚ

b)that the alleged injury ‚Äú[arose] out of and in the course of [the plaintiff‚Äôs] employment;‚ÄĚ

c)that the defendant was the plaintiff‚Äôs employer, or the plaintiff‚Äôs co-worker, or ‚Äúany employer within the scope of this Part‚ÄĚ (i.e., Part 1 of the Act), or ‚Äúany worker;‚ÄĚ and

d)that the conduct of the defendant which is alleged to have caused the injury ‚Äúarose out of and in the course of employment within the scope of this Part‚ÄĚ (i.e. Part 1 of the Act).

[67]Where the statutory bar applies in favour of a defendant, the plaintiff cannot maintain his or her action as against that defendant. The plaintiff is restricted to making a claim for workers compensation in respect of the injury caused by that defendant.

[68]It appeared to be common ground that, if the Minister was an employer within the meaning of the¬†Workers Compensation Act, then s. 10(1) would be an absolute bar to any action being brought against him by the plaintiff, i.e., a ‚Äúworker,‚ÄĚ (for any tort allegedly committed by him or by a police officer), even though neither the government nor the Minister was the employer of the police officers involved. The potential scope of the statutory bar appears to be broad…

[80]It seems to me that the Court of Appeal is saying, by necessary implication, that the province cannot be vicariously liable under s. 11 of the Police Act, and that only the Minister can be. If that is so, then on hindsight, it would appear that Mr. Justice Macaulay should not have granted judgment against both the government and the Minister, but should only have found the Minister to be vicariously liable. To my mind, that result cancels out the argument of the applicants based on Hill v. Hurst.

[81]If the plaintiff had sued the Government of British Columbia (which would have to be named as ‚ÄúHer Majesty the Queen in Right of the Province of British Columbia‚ÄĚ: s. 7 of the¬†Crown Proceedings Act), the finding of WCAT that the government was an employer within the meaning of the¬†Workers Compensation Act¬†could have the legal effect of entitling the government to the statutory bar in s. 10 of the Act (but only if the conduct of the government, or its servant or agent, was a cause of the injury, and that conduct ‚Äúarose out of and in the course of employment‚ÄĚ). But the plaintiff has not sued the government, nor could he have sued the government, in my opinion. I am not persuaded that the Minister should be accorded the status of an employer for the purpose of s. 10(1) of the Act, simply because the government is an employer and because the Minister is the designate, or is the agent of, the government for the purposes of the¬†Police Act.


Why Can The Government Scoop ICBC Profits?

February 24th, 2012

I recently reviewed ICBC’s 2012-2014 Service Plan which reported that “Pursuant to legislative change effective April 2010, ICBC¬†now transfers its excess Optional capital to the Government¬†of British Columbia on an annual basis“.

This had me wonder how the Government scoops and plans to continue to scoop ICBC’s profits while ICBC¬†simultaneously¬†applies for a rate hike. ¬†I’m not talking about why this is politically acceptable, but rather the much more basic question of how legally they can do this. ¬†What “legislative change” was made in April 2010?

After a bit of digging around I came across the BC Budget Measures¬†Implementation¬†Act which amended section 26 of the Insurance Corporation Act to read as follows to give the Government power over ICBC’s profits:

(2) Subject to subsection (3) and despite any other enactment, the Lieutenant Governor in Council may, by order, direct the corporation to make payments to the government at such times, in such amounts or circumstances, on such bases and in such manners as the Lieutenant Governor in Council may order and to record the required payments as liabilities in the corporation’s financial statements.

From ICBC’s recently released Service Plan it appears that the Government is choosing to exercise this right on an annual basis.

So why does this matter? ¬† ¬†ICBC, like any other viable company, needs to maintain financial stability. ¬†As ICBC reports, the Minimum Capital Test (MCT) “is¬†used to determine whether a company has suf?cient capital¬†levels to protect policyholders from ?nancial risk and provide¬†long-term ?nancial stability.” ¬†Scooping profit on an annual basis weakens ICBC’s financial position as they themselves report on page 21 of their Service Plan stating that ICBC’s MCT is lower due to “the transfer of excess Optional capital to¬†the government“.

Actions have consequences.  In this case the action of taking profit from an insurer year over year weakens their financial position.  This reality is worth keeping in mind if ever faced with the rhetoric that individuals should compromise their civil access to justice rights to have a working auto insurance system.


Adverse Inferences When Parties in an Injury Claim Fail to Testify

February 24th, 2012

Further to my previous posts addressing this topic, two sets of reasons for judgment were released recently by BC Courts addressing the law of adverse inference in the failure of parties testifying in their own injury claim.

In a recent Court of Appeal decison (O’Connell v. Yung) the Plaintiff suffered a serious brain injury as a result of a 2007 tractor-trailer collision. ¬†The consequences of her injury caused her to “lack insight into her difficulties”. ¬†At trial the Plaintiff did not take the stand with counsel explaining that this choice was made because “she was an unreliable historian and could not add anything to the truth of the evidence she would be giving”. ¬†The Plaintiff’s case instead consisted of medical evidence and that of collateral witnesses.

The Plaintiff was awarded significant¬†damages¬†at trial. ¬†The¬†Defendants¬†appealed arguing the damage awards were too high and further that the trial judge erred in not drawing an adverse inference from the Plaintiff’s failure to testify.

The Court of Appeal, while somewhat reducing the damages awarded for cost of future care, found that no error was made in not drawing an adverse inference.  Madam Justice Kirkpatrick provided the following reasons:

[16] I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:

In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.

[17] The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal…

[31] In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge‚Äôs conclusion that Ms. O‚ÄôConnell had limited ability to testify. Further, the evidence suggests that had Ms. O‚ÄôConnell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p.¬†573] ‚ÄúOn the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.‚ÄĚ Similarly, Dr. Anderson testified that Ms. O‚ÄôConnell is ‚Äúeasily influenced by others‚ÄĚ and tends to say whatever they want to hear. In my view, Ms. O‚ÄôConnell‚Äôs limited ability to testify would have complicated rather than aided in the assessment of her claims.

[32] The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.

[33] In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.

Also of note is a recent BC Supreme Court decision (McIlvenna v. Viebig) wherein the Plaintiff was seriously injured in a collision with a vehicle. ¬†At trial neither the Plaintiff nor the Defendant¬†testified. ¬†Both parties asked the Court to draw an adverse inference from the opposing side’s failure to¬†testify. ¬†Mr. Justice Sigurdson refused to draw such an inference and in doing so set out comprehensive reasons addressing this area of the law at paragraphs 68-74 of the reasons for judgement which are worth reviewing in full.


More on Rule 15 and Pre Trial Costs Assessments

February 23rd, 2012

Last year Master Baker released reasons for judgement assessing pre-trial settlement costs of a Rule 15 lawsuit at $6,500.  Today reasons for judgement were released upholding this analysis finding no error was made in such an assessment.

In today’s case (Gill v. Widjaja) Mr. Justice Harvey provided the following reasons upholding the Master’s decision:

[47] I turn now to the matter of the tariff fees allowed by Master Baker of the $6,500 in costs.

[48] Rule 15-1(15) reads:

(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1(10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:

(a)  if the time spent on the hearing of the trial is one day or less, $8,000;

(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9 500;

(c) if the time spent on the hearing of the trial is more than 2 days, $11 000.

[49] The Rule, as written, gives the registrar wide discretion in determining the appropriate tariff amount.  Master Baker was aware of the steps taken in the litigation and the date of settlement relative to the trial date.

[50] Having regard to the aforementioned test that I must apply, I am not of the view that an error in principle has been demonstrated nor do I find that the master was clearly wrong in his determination that the appropriate cost of tariff amount was $6,500.

[51] The express purpose of Rule 15-1 is to streamline the process both for trial and, presumably, taxation of costs.  Parsing out the details in each action where the amounts do not apply is not, in my view, the proper course.  Indeed, were it, in this action there was a settlement conference which no doubt necessitated some significant preparation, much like trial preparation, and, as well, a trial management conference.  Each of those events resulted in discussions leading to the settlement of this matter.

[52] In those circumstances I find no error in principle such as to interfere with the finding of the master.


 

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