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 July, 2012

Limitation Periods Not Determinative When Adding Parties to Existing Litigation

July 31st, 2012

One of the exceptions to the strict application of limitation periods relates to adding parties to existing litigation.  In these circumstances an expired limitation period is not, in and of itself, a barrier to add a party to a lawsuit in the BC Supreme Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.

In this week’s case (Haworth v. Haworth) the Plaintiff was injured while riding as a passenger in a vehicle driven by her husband in 2007.  The vehicle lost control in icy conditions.  She sued him for damages.  In the course of the lawsuit ICBC plead the “inevitable accident” defence and eventually added the appropriate road maintenance company as a Third Party.  The Plaintiff then sought to add this party as a  Defendant.  The Road Maintenance company objected arguing, among other matters, that the limitation period to sue them has expired.  Master Keighley found this unpersuasive and granted the Plaintiff’s application.  In doing so the Court provided the following reasons:

[39] There is, as previously confirmed, a presumption of prejudice if a proposed defendant will be deprived of a limitation defence by his addition as a party. Also, as previously indicated, the relevant period during which prejudice is to be assessed is that which follows the expiration, in this case, of the three year period following the date upon which the cause of action arose. The plaintiff will certainly suffer prejudice if her application is dismissed. She will lose a possible claim against a party or parties with potential liability. This issue, Wilson J. indicates in Walsh v. Blair, Vancouver Registry, Action No. M015646, BCSC, said as follows:

[22]      There is prejudice to the plaintiff in that if the application is not allowed, she will lose a right to claim against a party with potential liability. As noted in Takenaka v. Stanley (2000), 91 B.C.L.R. (3d) 179 (S.C. Master), that will usually outweigh the loss of a potential limitation defence to a potential defendant. Generally, the courts are reluctant to deprive a plaintiff of his or her day in court, so that the trend in the cases appears to be that it will take more than theoretical prejudice to outweigh the loss of that potential claim.

[40] The plaintiff’s potential peril becomes more significant when one considers that, should the application be dismissed, and should the present defendant succeed on the issue of unavoidable accident, she will be left without remedy although blameless with respect to the circumstances of the accident.

[41] Neither Her Majesty the Queen or Argo Thompson allege, as is often the case in such applications, that they have been prejudiced by an inability to investigate the claims against them. HMTQ has, of course, been aware of the potential claim since May 12, 2011 when the application to add the Third Parties was brought. There was no evidence of any investigation conducted by HMTQ after that date to the present. While it seems likely the government representatives would have discussed the potential claim with representatives of Argo Thompson at an early date, there is no evidence of that and I can make no such assumption. With respect to itsinvestigation, Argo Thompson says as follows (and this appears in Affidavit No. 2 of Yvonne Van Vliet, a paralegal in the employ of Argo Thompson’s counsel):

14.       Attached as Exhibit “J” to this affidavit is a true copy of the timecard signed by plough operator Chris Jones on November 12, 2007. Mr. Jones’ timecard indicates that he commenced his shift at 5:00 p.m., on November 12, 2007 and worked until 4:25 a.m., on November 13, 2007. On his timecard he recorded applying 41 cubic meters of winter abrasive (activity 310B) to the Coquihalla Highway during his shift.

15.       On May 22, 2012 I was informed by Tom Bone, General Manager for Argo, during a teleconference, that Chris Jones has not been employed with Argo since 2008, nor has Argo been in contact with him since 2008. Furthermore, Mr. Bone informed me that Argo is not aware of Chris Jones’ current address or contact information.

[42] There is no indication that Mr. Jones cannot be found, what reasonable steps have been taken to locate him, or even whether his evidence, beyond that contained in the records, is required for the defence of these claims. With respect to records, there is no evidence to suggest that any are missing or have been destroyed.

[43] In the circumstances, I find that there is no prejudice to these proposed defendants in making the order sought, whereas the potential prejudice to the plaintiff, should she be deprived of potential claims, is overwhelming. An order will go in the terms of the application. Costs will be in the cause.

$80,000 Non-Pecuniary Assessment For Chronic Hip Soft Tissue Injury

July 31st, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hip soft tissue injury.

In last week’s case (Pisani v. Pearce) the Plaintiff was involved in a ‘significant‘ head on collision.  Fault was admitted by the Defendant.   The crash resulted in a non-specific soft tissue injury to the Plaintiff’s hip.  The symptoms interfered with the Plaintiff’s physical lifestyle and were expected to linger indefinitely.  In assessing non-pecuniary damages at $80,000 Madam Justice Loo provided the following reasons:

[73] Ms. Pisani was injured in a significant head on collision. Her 2009 Mercedes C300 4Matic was written off. She sustained soft tissue injuries to her shoulder, neck, and back. She will likely suffer flare ups from time to time for the rest of her life. She now has problems with her hip that prevent her from enjoying activities she used to enjoy. There is no diagnosis for the problem with her hip, and there is little or no evidence that it will improve. Her relationship with her boyfriend and her friends has been adversely affected.

[74] Her social life and her extracurricular activities have been adversely affected. She has difficulty attending the mosque because sitting on the floor causes her pain. She cannot dance, play soccer, hike, ride her bicycle, or ski. Dancing has always played a big and important part of her life. Hopefully by carrying out Dr. Anton’s recommendations, she will improve her postural muscles and core stabilizers and may be able to resume most of her activities…

[87] In this case, Dr. Anton suggests that Ms. Pisani’s neck, shoulder, and lower back symptoms should hopefully improve with one on one training with a qualified kinesiologist. Dr. Anton also suggests that if Ms. Pisani fails to have a good response to the training, she may not be able to resume dancing. She will probably suffer flare ups of her injuries for the rest of her life. She is still only 23 years old. There is also no evidence that her hip problem will resolve.

[88] I conclude that a fair and reasonable award of non-pecuniary damages is $80,000.

In addition to the above, paragraphs 96-104 are worth reviewing for the Court’s discussion of damages for the Plaintiff’s delayed entry into the workforce as a result of her injuries.

More Disbursement Caselaw

July 30th, 2012

Adding to this site’s archived caselaw addressing disbursements in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the reasonableness of a variety of disbursements in the prosecution of an ICBC Claim.

In last week’s case (Kezel v. Greenslade) the Plaintiff was involved in two collisions in July 2007.  She sued for damages and in the course of the lawsuit accepted an ICBC formal settlement offer for $46,000 plus costs and disbursements.  The parties agreed to reasonable costs but a variety of disbursements were challenged.   The judgement is worth reviewing for the Court’s discussion of the following disbursements:

1. Medico-legal reports from multiple experts

2.  A Functional Capacity Evaluation

3.  A Defence Medical Exam Cancellation Fee

4.  Outside Legal Fees

5.  Mediation Administration Fees

6.  Photocopy Charges

7.  Legal Alternative Courier Charges

8.  Office Supplies

Visual Aids Permitted In Trial Closing to "Assist the Jury"

July 27th, 2012

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of non-exhibit visual aids during closing submissions in a Jury trial.

In the recent case (Walker v. Doe) the Plaintiff sued for damages following a motorcycle collision.  During closing submissions the Plaintiff canvassed his claimed damages for wage loss and future care with the help of non-exhibit visual aids.  In finding such aids were appropriate Mr. Justice Voith provided the following reasons:

[19] Counsel for the plaintiff proposes, in his closing submissions, to: (a) develop a bar graph or time line that explains the period of time that each of past wage loss, future wage loss, and the other heads of damage being claimed cover; and (b) visually depict how a future wage loss claim or future care claim should be calculated from the relevant tables that are found in the Civil Jury Instructions.

[32] In line with MacKenzie A.C.J.S.C.’s reasons in Basi, I have reviewed both Watt’s Manual of Criminal Jury Instructions and the CJC’s model jury instructions. Both seem to confirm that charts or summaries can be used during a closing to help illustrate or explain the evidence, even if they are not made exhibits at trial.

[33] The purport of the decisions in Bengert, Fimognairi and Basi, moreover, is that trial judges have a wide discretion to permit what aids to the jury they consider are helpful or appropriate.

[34] Support for this wider discretion is also found in Jones A. Olah, The Art and Science of Advocacy, loose leaf, (Toronto: Carswell, 1990). At 18.8, he writes, unfortunately with no citation other than to another secondary source that I was unable to access:

The use of demonstrative aids that are not part of the trial record, such as blackboards, charts, models, and summaries, is in the trial judge’s discretion. If the evidence provides reasonable foundation for these summaries or charts, then their use should be permitted.

[35] In this case, subject to the comments I am about to make, I am satisfied that counsel for the plaintiff can proceed as he wishes. The intended use of the “demonstrative aids” that he has described is modest, finite, and would assist the jury in understanding the issues that are before them. This is also consistent with the guidance provided in each of Bengert, Fimognairi and Basi. Still further, my instructions will contain a caution confirming that neither the time line nor the calculations constitute “evidence” before the jury.

I am advised this case is currently under appeal for unrelated reasons.  If the BC Court of Appeal addresses this topic I will provide an updated post.

Double Costs Awarded Following Liability Only Trial

July 26th, 2012

Adding to this site’s archived posts of costs consequences following trials with formal settlement offers, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this topic following a ‘liability only’ trial.

In this week’s case (Cyr v. Blaine) the Plaintiff was involved in a 2009 collision.  The parties agreed that, subject to proving fault, the value of the claim was $60,000.  The parties could not agree on fault both arguing the other was to blame.  Prior to trial the Plaintiff delivered a formal settlement offer of $50,000.

At trial the Defendant was found fully at fault entitling the Plaintiff to the agreed damages of $60,000.  Mr. Justice Saunders found that it was appropriate to award the Plaintiff post offer double costs in these circumstances.  In doing so the Court provided the following reasons:

[13] The defendants say that it was reasonable for them to try the case on the basis of their theory that the plaintiff had a duty to look to her left as she passed by the front of the vehicle that had stopped for her in the intersection.  But even if the plaintiff had been under an obligation to anticipate that there might be another vehicle in the same lane as the stopped vehicle, attempting to pass that stopped vehicle on the left, the defendants had no evidence that, by the time she would have been able to see the defendants’ vehicle, she would have been able to bring her own vehicle to a stop in time to avoid the collision, given the defendants’ speed.

[14] The defendant Mr. Blaine passed a stopped vehicle, on its left, when he was in the same lane as that vehicle. As I found, it ought to have been apparent to Mr. Blaine from the opening in the divider separating eastbound and westbound traffic that he was passing through an intersection, and that cars travelling in his direction had stopped to let a vehicle or vehicles through the intersection. By the time the subject offer was delivered, it ought to have been apparent to the defendants that they would be found wholly or at least substantially liable for the accident.

[15] Given that damages had been agreed at $60,000, the plaintiff’s $50,000 offer represented a discount of roughly 17%, or, to put it another way, roughly a 50% chance of a finding of one-third contributory negligence on the plaintiff’s part.  It was an offer that reasonably ought to have been accepted upon delivery.

[16] The plaintiff, I find, is entitled to double costs of all steps taken after the offer was delivered.

MRI Recommended By Massage Therapist Not Recoverable in ICBC Claim

July 25th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry (Culos v. Chretien), rejecting compensation for the cost of an MRI recommended by a Massage Therapist.  In finding this was not an appropriate special damage in the circumstances (ie -without the request coming from a medical doctor) Mr. Justice Rogers provided the following comments:

[61] The plaintiff is not entitled to the cost of the MRI or the magnetic belt that he claims. The former is not recoverable because the massage therapist who recommended it to the plaintiff did not have the qualifications to either prescribe the scan or to interpret its result. The magnetic belt sounds like a bit of Old West quackery. No evidence at trial supplied a foundation for a finding that this belt was necessary to control or cure the plaintiff’s complaints.

$70,000 Non-Pecuniary Assessment for Chronic Headache Disorders

July 24th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a chronic headache disorder caused as a result of a motor vehicle collision.

In this week’s case (Fennell v. Herbert) the Plaintiff was involved in a ‘quite violent’ collision in 1998 when she was 8 years old.  Liability was admitted focussing the trial on an assessment of damages.  The trial proceeded summarily as there were no issues as to the legitimacy of the plaintiff’s symptoms nor to their connection to the collision.  In assessing non-pecuniary damages at $70,000 the court summarized the following medical evidence and provided the following reasons:

[4] As a result of the motor vehicle accident, the plaintiff suffered soft tissue injuries to her neck and lower back and headaches started within days of the collision. The headaches and neck pain have continued ever since and it is the headaches that are the most debilitating and are now considered chronic.

[5] Dr. Robinson, who is a neurologist that specializes in pain disorders stated in his report that:

In all likelihood she will continue to have chronic headache and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize…

[7] Dr. Laidlow, a physical medicine and rehabilitation specialist, in a report dated April 28, 2010, noted that the plaintiff had neck pain, back pain, and two types of headaches. His opinion was that her neck and lower back pain was myofascial pain caused by musculoligamentous strain at the neck and lower back at the time of the accident. Dr. Laidlow recommended that she see a neurologist. Dr. Robinson’s report was dated August 9, 2011. He noted that as a result of the accident she probably sustained soft tissue injury to her neck and shoulders and developed chronic headaches relating to the neck injury:

I believe that she probably did develop chronic headaches relating to neck injury as a result of the January 30, 1998 motor vehicle accident. As a result of that accident, she has ongoing neck and shoulder discomfort present constantly. The pain is aggravated by physical activity whereupon there is an increase in her head pain.

I believe that it is possible that she did develop an increased predisposition to headache reflecting migraine in her early teenage years. However, I doubt that she would have developed a constant headache or as frequent severe episodes had the lingering effects motor vehicle accident not been present.

In essence, I believe that her current headache difficulties are primarily related to chronic pain involving her neck secondary to the motor vehicle accident of January 30, 1998, superimposed upon which is a predisposition to headaches. Although it is impossible to be definitive I believe that she probably would not have developed any substantial problems with headaches if the accident had not occurred.

In all likelihood she will continue to have chronic headaches and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize. I doubt that her headache disorder will worsen or that it will have a negative impact upon her post-secondary education or for that matter her career potential.

[8] Dr. Laidlow also stated:

I do feel that she should be able to go to school and do any work activities. I think she will also be able to do any recreational activities that she chooses…

[15] I accept the evidence of the plaintiff. I find that under the heading of general damages for loss of enjoyment of life, given her young age and the severity of pain and discomfort she has suffered, she is entitled to general damages in the amount of $70,000. Also included is a component for loss of housekeeping capacity.

LVI Defence Rejected Again; Damages Awarded for Modest Injuries

July 23rd, 2012

In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.

In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision.  The impact resulted very minor vehicle damage.  The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“.  Madam Justice Fitzpatrick rejected this logic and provided the following reasons:

[46] As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47] I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

[48] Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

[49] In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.

The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery.  In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:

[71] In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…

[77] I award the sum of $7,000 for non-pecuniary damages.

Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court.  You can click here to read other decisions addressing this discretionary issue.

Welcome Top MMA News Readers

July 21st, 2012

Keith Grienke, owner of kindly republished my article discussing the implications of Bill S-209 (the Bill seeking to formally legalize MMA in Canada) and the potential consequences this will have on amateur MMA contests.  I want to thank Keith for bringing a larger, and more targeted, audience to this issue.

For those of you visiting here for the first time, welcome.  I write about Canadian MMA Legal Developments at the Canadian MMA Law Blog and you can visit there for more details.

Liability Discussed Following Parking Lot Collision

July 20th, 2012

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing fault for a parking lot collision involving two vehicles.

In yesterday’s case (Sheikh v. Struys) the Plaintiff and Defendant were both attempting to leave a busy parking lot following a Canucks game.   A truck has stopped leaving a gap in the travelled laneway.  The Defendant drove into the gap and at almost the same time the Plaintiff “reversed back into (the Defendant’s) Jeep“.  The Plaintiff argued that the Defendant was wholly or at least partially at fault alleging the gap was left for him to fill.  Madam Justice Fitzpatrick disagreed and provided the following reasons in dismissing the Plaintiff’s claim:

[47] I find as a fact that Dr. Sheikh’s SUV reversed back into Mr. Struys’ Jeep while Mr. Struys was partially into the laneway and had stopped there. I also find as a fact that Dr. Sheikh could not see Mr. Struys’ Jeep at the time of the collision. Further, I find that Dr. Sheikh could not see what was happening behind his vehicle as he was reversing into the laneway and, therefore, he has no knowledge as to how the collision occurred.

[48] Dr. Sheikh contended that Mr. Struys should have paid more careful attention as to what was going on in front of him. Mr. Struys was said to have mistakenly assumed, without any eye contact with the driver of the Dodge truck, that the Dodge truck had stopped for him, which resulted in him colliding with Dr. Sheikh’s SUV.

[49] In my view, it does not matter which party was the one being allowed to enter the laneway by the driver of the Dodge truck. The driver of the Dodge truck may in fact have been stopping for both of their vehicles in that respect. There is no evidence one way or the other as to whether the Dodge truck had stopped for Dr. Sheikh, Mr. Struys or both of them. The point is that the Dodge truck had stopped and both parties assumed, based on their contact with the driver of the Dodge truck, that he or she was stopped for them. As such, it has not been shown that Mr. Struys “mistakenly” assumed that the Dodge truck had stopped for him…

[53] The Motor Vehicle Act, R.S.B.C. 1996, c .318 addresses the duty of care owed by a driver who is reversing his vehicle:

Caution in backing vehicle

193 The driver of a vehicle must not cause the vehicle to move backwards into an intersection or over a crosswalk, and must not in any event or at any place cause a vehicle to move backwards unless the movement can be made in safety.

[62] I find that Dr. Sheikh has not proven, on a balance of probabilities, any negligence on the part of Mr. Struys. Nor did Dr. Sheikh discharge the burden under the Motor Vehicle Act in proving that he was able to move back “in safety” while reversing his vehicle.

[63] Accordingly, I find Dr. Sheikh entirely responsible for the collision. As such, there will be no apportionment of liability between the parties pursuant to the Negligence Act.