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 May, 2012

ICBC "Nuisance Offer" Fails to Trigger Double Costs

May 31st, 2012

One of the most welcome developments under the New Rules of Court (and for a short while prior to their introduction, Rule 37B) was the introduction of discretion to the costs process following trials where formal settlement offers were made.  It used to be that if a Plaintiff had their case dismissed at trial where a formal offer was made before hand (even a $1 offer) the Plaintiff was forced to pay double costs.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this discretion in action.

In last week’s case (Byer v. Mills) the Plaintiff was one of two occupants of a vehicle involved in a serious collision.  Prior to trial the Parties agreed to quantum of $125,000.   The parties could not agree on the issue of liability with ICBC arguing the Plaintiff was the driver of the at-fault vehicle (not the passenger as he alleged).  ICBC made a formal settlement offer of $5,000.

At trial the Plaintiff’s case was dismissed with the Court finding he likely was the driver.  ICBC asked for double costs to be awarded.  Mr. Justice Harris refused to do so finding a nuisance offer that does not provide a genuine incentive to settle should trigger double costs.  The Court provided the following reasons:

[21] It is in these circumstances that one must assess whether the offer of $5,000 plus costs was one that ought reasonably to have been accepted by the plaintiff. Although the prospect of the plaintiff succeeding was always highly uncertain and difficult realistically to assess, I cannot see that it can fairly be characterised as a case that was lacking in some substantial merit. In my view, the offer does not rise above a nuisance offer. The merits of the case, on both sides, and the uncertainties facing all parties, called for a more substantial offer if the offer were to serve the purposes of the Rule. Accordingly, I cannot conclude that the offer was one that ought reasonably to have been accepted by the plaintiff while it was open for acceptance.

[22] In reaching this conclusion, I have approached the question whether the offer was one that ought reasonably to have been accepted by the plaintiff from the plaintiff’s perspective. It will be apparent, however, from my general comments about the inherent uncertainties affecting predicting the merits of the case, that I do not view the offer that was made as objectively reasonable. In that sense, I cannot conclude that it provided a genuine incentive to settle the case. The offer does not possess those characteristics that would justify rewarding the party who was successful at trial with an award of double costs.

[23] I turn to consider the other considerations that may justify an award of special costs, even though the offer is not one that ought reasonably to have been accepted. I approach these factors recognising that the Rule is intended to penalise a party for failing to accept an offer and reward a party who makes a reasonable settlement offer. In brief, I do not find that any of those considerations justify an award of double costs.

[24] Although the plaintiff would clearly have been substantially better off to have accepted the offer, this consideration standing alone is not determinative.

[25] I cannot conclude that the relative financial circumstances of the parties lend support to the conclusion that, nonetheless, an award of double costs is justified.

[26] I am not persuaded that there are any other considerations that would justify an award of double costs. The defendants criticised the cross-examination of their expert, which they characterised as suggesting guilt by association. I did not view the cross-examination as overstepping reasonable professional boundaries.

[27] The application for double costs is dismissed. There will be one set of costs.

Well That's That…Bill 44 and 52 Pass Third Reading

May 30th, 2012

Earlier this month I called BC’s Justice Reform Initiative ‘political theatre’ if Bill 44 and 52 passed before the government received Geoffrey Cowper’s final report. My opinion, unfortunately, has fallen on deafened ears as these bills have now gone through Committee and passed Third Reading.

Fortunatly for the those British Columbians unhappy that their right to a fair trial is being taken away when faced with a traffic dispute, you can point to MLA Kathy Corrigan’s comments from the House floor when challenging the Constitutionality of this legislation, where she declares that “The scheme would not survive a Charter challenge as so many personal rights and freedoms are being removed under the legislation“. (Click here for the link and scroll down to 1930 for the MLA’s comments).

Motorist with Right of Way Found 40% at Fault For Intersection Crash

May 30th, 2012

UPDATE – June 12, 2013 -the below decisions addressing liability was upheld by the BC Court of Appeal.  The matter was set back to the trial judge, however, because the BCCA concluded the trial judge made a palpable error when assessing damages)


As discussed earlier this week, having the right of way is only one factor which determines fault for a collision.  A motorist with the right of way still needs to maintain a proper lookout otherwise they can share fault for a collision.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, in the context of an intersection crash.

In this week’s case (Sangha v. Chen) the Plaintiff was driving northbound on Willow Street in Vancouver, BC.  As he entered an intersection the Defendant, who was faced with a stop sign, came through a side street resulting in a collision.

Although the Plaintiff had the right of way both motorists were found at fault.  In assessing fault at a 60/40 split Madam Justice Boyd provided the following reasons:

[34]In the case at bar, I am satisfied that Chen stopped at the stop sign, that she moved forward to check for northbound traffic and that, finding there was none, she began to move out into the intersection.  Unfortunately from that point forward she simply proceeded forward in her slow course across the intersection, without keeping any continuing lookout for oncoming northbound traffic.  Chen did not, therefore, become the dominant driver.  While she stopped and yielded to traffic, she failed to proceed with caution.  This was also a breach of her common law duty to other users of the highways because she clearly failed to meet the standard of care as set out by Lambert J.A. in Carich v. Cook: “care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime”.

[35]For his part, I am satisfied that the plaintiff was likely travelling over 30-40 kph, although perhaps still within the speed limit.  Contrary to his evidence, I find that at the last moment, he did (perhaps even unconsciously) see the defendant’s vehicle and did slam on the brakes momentarily (accounting for the initial jerking motion Dr. Temple experienced).  While he could not avoid hitting the defendant’s vehicle (which by this time was in his lane of traffic), his vehicle effectively came to a stop on impact, although rotating somewhat to the right in a counter-clockwise direction.

[36]While the plaintiff may have remained the dominant driver, he had a duty to exercise reasonable care even if those around him did not respect his dominant position.  He clearly did not exercise reasonable care as he failed to keep a proper lookout.  The fact the defendant proceeded slowly across the intersection and that the collision occurred on the far side of the intersection convince me he should have seen the plaintiff earlier.  Had he kept a proper lookout he would have seen her vehicle earlier than he did and thus could have applied his brakes to avoid the collision.  But he had not kept a proper lookout and the accident ensued.

[37]In determining the division of liability, the court is to consider the relative responsibilities of the parties for the accident: Salaam, para. 35-38.  This is not a case similar to Amador, Ryonand Salaam where one driver saw the other and made a decision to proceed in a certain manner, while the other driver failed to see them and keep clear.  Here, neither driver saw the other prior to impact when the circumstances are clear that they should have.  Liability must therefore be shared more evenly.  That being said, while both parties failed to keep a proper lookout, and failed to see what was there to be seen, the defendant, as the servient driver, had a higher standard of care and the plaintiff, to a certain extent, was permitted to expect servient drivers to respect his dominant position.  Thus the negligence of Chen contributed more to the accident than that of the plaintiff.

[38]In all the circumstances I find that the defendant is primarily liable for this collision.  In this case, I would divide liability 60% against the defendant and 40% against the plaintiff.

Welcome Lawyers Weekly Readers

May 30th, 2012

For those of you visiting this site for the first time after reading my recent interview with The Lawyers Weekly, welcome!  For more on the topic of client’s ‘spying on themselves‘ you can click here, here, here and here to access some of my previous posts.

Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim

May 29th, 2012

(Update October 2, 2012The below post was upheld on appeal in reasons for judgement released today)

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing reasonable photocopy expenses in a bill of disbursements.

In the recent case (Chow v. Nguyen) the parties could not agree to the reasonableness of various disbursements incurred in the prosecution of a personal injury claim.  In the course of the lawsuit the Plaintiff’s lawyer made 7,231 photocopies and claimed disbursements at $0.25 per copy.  ICBC argued this was unreasonable.  Master McDiarmid disagreed and allowed this disbursement as presented.  In doing so the Court provided the following reasons:

[4]Counsel for the defendant and third party also objected to the photocopy charges. She accepted plaintiff’s counsel’s representation that the 7,231 photocopies were in fact made. There was no argument that the photocopying was not necessary or proper; rather, the argument was that the 25¢ per page was excessive given the actual cost of photocopying. When assessing costs, a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceedings, and I must allow a reasonable amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil Rules (the “Civil Rules”)).

[5]Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010 directs that photocopying charges may be allowed at 25¢ per page on a party/party bill of costs. This amount is a guideline only. If it is shown that the actual cost was or should have been different from the guideline charges, the amounts allowed on an assessment may differ from the guideline amounts.

[6]The actual cost of photocopying is difficult to determine, in as much as it involves a combination of fixed costs, per page costs, and labour costs. There was no evidence before me to show what the actual cost was. I find that in the circumstances of this case, the number of photocopies was both necessary and proper, and I allow the photocopying charges as claimed in the amount of $1,807.75, plus applicable taxes.

This case is also worth reviewing for the Court’s discussion of document binding charges (dismissed as overhead) and the cost of fairly expensive expert reports which were allowed as being reasonable given the circumstanses of the case.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

May 29th, 2012

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.

In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.

At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.

Driver 25% at Fault for Striking Jaywalking Pedestrian

May 28th, 2012

As previously discussed, having the right of way is not determinative of fault for a collision.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this in the context of a pedestrian crash.

In last week’s case (Murdoch v. Biggers) the Plaintiff was crossing Blanshard Street in a marked cross-walk.  She did so against a red light.  There were 3 oncoming through lanes of travel.  The vehicles in the first two lanes stopped for the jaywalking Plaintiff.  The vehicle in the third lane did not stop in time and collided with the Plaintiff resulting in a broken right leg.

The Court found that while the motorist had the right of way they shouldered some of the blame for failing to keep a proper lookout.  In assessing the Plaintiff 75% at fault and the Defendant 25% at fault Madam Justice Power provided the following reasons:

[33] In this case, I do not believe that the defendant exercised the appropriate standard of care to avoid breaching that duty. The drivers in vehicles in the two lanes to her right were able to observe and stop for the plaintiff, and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk was able to observe that something was happening in his rear-view mirror. In the circumstances, I find that the defendant failed to keep a proper lookout by failing to observe Ms. Murdoch’s entry into the crosswalk and by failing to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch. I find that if the defendant had in fact been keeping a sufficient look out, she would have been able to stop for Ms. Murdoch and avoid the collision…

[36] In all of the circumstances, I conclude that the 75% of the fault for the accident should be borne by the plaintiff and 25% by the defendant.

Verbal Agreements Can Create Binding Settlements of Injury Claims in BC

May 25th, 2012

While this is certainly not a new legal development (you can click here to access my archived posts addressing this topic) reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming yet again that a verbal agreement can create a binding injury claim settlement and that refusing to sign the appropriate closing documents does not create an escape route for a litigant that regrets their decision.

In this week’s case (Robertson v. Whistler (Resort Municipality)) the Plaintiff was injured when she fell in a shower owned by the Defendant.  She was 8 years old at the time.  She started a lawsuit when she was 20.  In the course of the lawsuit the Defendant made a global settlement offer of $1,400.  The Plaintiff, in a phone conversation with the Defendant’s lawyer stated that she “wished to accept the $1,400 offer“.

The Plaintiff later refused to sign an agreed to Consent Dismissal Order.  The Plaintiff testified that “until she signed the offer and signed the order, there was no settlement“.  Madam Justice Hyslop disagreed and dismissed the lawsuit finding there was a binding settlement.  In addition the Court awarded the Defendant costs from the date of the settlement onward (which could result in the Plaintiff owing the Defendant money).

In confirming that a binding settlement was reached with the verbal agreement the Court provided the following reasons:

[31] Contract law applies to settlement agreements provided no contractual grounds to set aside the contract exist. Example: mutual mistake, lack of capacity, duress or fraud: Robertson v. Walwyn Stodgell Cochrane Murray Ltd., [1988] 4 W.W.R. 283, 24 B.C.L.R. (2d) 385.

[32] Settlement agreements need not be in writing to be enforceable. This was recognized in Sekhon v. Khangura, 2009 BCSC 670.

[33] Even if the oral agreement contemplates that it be reduced to writing, it is still enforceable: Young et al v. Fleischeuer et al, 2006 BCSC 1318. A party may decide not to pursue certain heads of damages as claimed and a settlement may be reached without addressing that particular head of damage: Prasad v. Ho, [1992] B.C.J. No. 643…

[47] The plaintiff changed her mind and repudiated the settlement as a result of the reaction of her father and the involvement of her aunt, Ms. MacDonald.

[48] I conclude that on December 16, 2010, the plaintiff entered into a binding settlement agreement. This action is dismissed with costs awarded to the defendant upon the basis that the sum of $1,400.00 due to the plaintiff will be set-off against the defendant’s assessed costs. Costs will be assessed under Appendix B, Scale B of the Supreme Court Civil Rules.

$40,000 Non-Pecuniary Assessment for "Longstanding" Soft Tissue Injuries Caused by Impaired Driver

May 25th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, assessing damages for long standing soft tissue injuries.

In this week’s case (Hahn v. Barnes) the Plaintiff was injured in a 1998 collision.  He was 5 years old at the time sitting as a passenger in a vehicle that was rear-ended by the Defendant.  The Defendant was found fully at fault with the Court noting that she was “under the influence of alcohol and not paying attention to her driving“.

The Plaintiff was 19 by the time of trial and testified that he sustained injuries to his neck and back and that his symptoms carried on since the collision.  The Court accepted this evidence and assessed non-pecuniary damages at $40,000.  In doing so Mr. Justice Tindale provided the following reasons:

[71] Credibility is the central issue in this case. I have had an opportunity to view the plaintiff, his mother, his father and his soccer coach Mr. Pohl give evidence. I accept that they are all honest witnesses. There are no notations regarding the back problems of the plaintiff in the clinical records of Dr. McKinley. Unfortunately, Dr. McKinley is not here to give evidence regarding the accuracy of his clinical records. I accept the evidence of the plaintiff, Sharon Hahn, and Keith Hahn regarding the plaintiff’s back symptoms. I find the plaintiff’s back symptoms are from the motor vehicle accident on June 16, 1998.

[72] I also accept the plaintiff’s, Sharon Hahn’s and Keith Hahn’s evidence relating to the neck symptoms. The plaintiff clearly had neck pain after the accident and there was some radiographs suggesting pre-cervical soft tissue swelling at the time of the accident. I find that the plaintiff’s neck symptoms are from the motor vehicle accident of June 16, 1998. I also find, given the evidence of doctors Dommisse and Travlos, the plaintiff’s neck and back symptoms can be defined as chronic in nature…

[76] In this case, the plaintiff is young, and has a long standing neck and back injury. However, the plaintiff’s injuries are not severe or disabling. I do not have any evidence that the injuries have caused the plaintiff any emotional suffering…

[78] An appropriate award for Non-Pecuniary damages, given the length of the plaintiff’s symptoms and the nature of the neck and back strain, is $40,000.

Fixed Trial Date a Prerequisite for Trial Management Conference

May 24th, 2012

Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, confirming that a Trial Date needs to be fixed before the Court has the authority to conduct a Trial Management Conference.

In today’s case (Landis v. Witmar Holdings Ltd.) the Claimant unilaterally set down a Trial Management Conference before a trial date was secured.  The Respondent argued that the conference was a nullity in these circumstances.  Mr. Justice Punnett agreed and in doing so provided the following reasons:

[5] Trial management conferences are a creation of the new Rules and are governed by Rule 12-2.  The objective of a trial management conference is to provide increased judicial supervision of pre-trial steps of litigation and the conduct of trials.  The rationale for increased judicial supervision is to provide assistance to parties in moving the case forward consistent with the overall objective of the Rules, particularly the proportionality principles.

[6] The requirement under Rule 12-2(1) to hold a trial management conference at least 28 days before the scheduled trial date indicates that a trial must be set before a trial management conference is scheduled.

[7] Rule 12-2(1) reads:

Unless the court otherwise orders, a trial management conference must take place at least 28 days before the scheduled trial date, at a time and place to be fixed by a registrar.  [Emphasis added]

[8] Without a trial date a judge is unable to address the issues referred to in Rule 12-2(9), nor would counsel be in a position to comply with the requirements of Rule 12-2(3) respecting the filing of trial briefs.

[9] Consequently, the trial management conference should not have been set down.  A notice of trial fixing a trial date must be issued before a trial management conference can be scheduled.

[10] The trial management conference set for June 11, 2012 is struck.