ICBC Law

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 September, 2012

"Reprehensible" Government Conduct Results in Special Costs Order

September 28th, 2012

Adding to my archived posts addressing tensions between BC’s Judiciary and the Government, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding the Government acted in a ‘reprehensible‘ way when dealing with Provincial Court Judges salaries in resorting to “secretive…unconstitutional considerations“.  This resulted in an order for payment of special costs.

Today’s case (Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General)) is the latest chapter dealing with a salary dispute between the Provincial Court Judges’ Association of BC and the Government.  The PCJA succeeded in their petition respecting the remuneration dispute.   The PCJA then sought payment of special costs associated with the litigation   Mr. Justice Macaulay agreed this was an appropriate remedy and provided the following rebuke to the Government:

[12]         The aggravating feature in the present case is the entirely inappropriate response of the AG in the Cabinet submission. The AG knew that the Cabinet submission focused on issues, including the question of linkage between judicial and other civil servant salaries, that the Supreme Court of Canada had expressly rejected in Bodner as unconstitutional. That is evident from the wording of the submission and is deserving of censure.

[13]         Given the importance of the process to the public and the PCJA, coupled with the need for transparency in this proceeding, two other matters also deserve censure. First, ordinarily a copy of the Cabinet submission would not be produced. It was only produced in this case as a result of court order. If the Cabinet submission had not been produced, the court may not have appreciated that the government response was based on constitutionally inappropriate considerations. In part, that is because the government affidavit material described the content of the Cabinet submission in a misleading way.

[14]         Second, the AG spoke to the media on May 25, 2011, and specifically raised the linkage to other salaries as “another factor” for consideration by government in formulating its response. The AG did not provide an affidavit or any sworn evidence in this proceeding but he did respond, albeit by letter of his counsel, to questions that counsel for the PCJA raised respecting the media interview. Counsel for the PCJA describes the response as disingenuous. I am not prepared to go that far in the circumstances but the response was certainly less than forthright. The actual content and context for the interview is only available because the media recorded it.

[15]         In my view, the government’s conduct relating to the important constitutional process of setting judicial remuneration as well as its conduct during the judicial review proceeding deserve judicial rebuke. I reach this conclusion reluctantly but have kept in mind that the effectiveness of the process necessarily depends on the goodwill of government. The secretive resort to unconstitutional considerations during the framing of the government response is entirely inconsistent with the obligation of government as was its failure to be forthright during the proceeding.

[16]         In the result, the Legislative Assembly made its decision not understanding how Cabinet arrived at its decision. The public, the PCJA and the court are all entitled to more from the AG and the government

[17]         As a result, the PCJA is entitled to its costs, to be assessed as special costs.


IPod Not Deemed "A Meaningful Factor" In Pedestrian Collision

September 28th, 2012

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the issue of fault for a collision involving a pedestrian who was listening to music on an iPod when he was struck by a transit bus.

In last week’s case (Whelan v. BC Transit) the Plaintiff was injured when a BC Transit Bus ran over his foot.  The parties agreed on the value of the claim but each argued the other was to blame.  The trial proceeded on the issue of fault.

The Plaintiff “was listening to music on his iPod by means of its earbuds” as he was walking on the sidewalk.  He decided to step briefly onto the curb lane of the street in order to walk around other pedestrians.  As he did so he was struck from behind by a BC Transit bus which was leaving the curbside moving forward to merge with traffic.  The Plaintiff “did not hear the bus before it struck him“.

The Court ultimately found both parties were to blame for the impact.  The Plaintiff for stepping out into the street when it was unsafe to do so and without the right of way, the Defendant for failing to see the Plaintiff who was there to be seen.  The Court found the Plaintiff more culpable allocating 60% of the blame to him.  Interestingly the Court did not consider his listening to music and failing to hear the bus to be a significant factor.  In reaching the split of fault Mr. Justice Schultes provided the following reasons:

[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk.

[73]          I do not find his use of an iPod to be a meaningful factor in this analysis though. His negligent decision to step onto the road was caused by impatience and a faulty assumption about the actions of the bus driver, and not by any reduction in his ability to hear his surrounding environment…

[75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.

[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.


$110,000 Non-Pecuniary Assessment for Psychological Injuries Following Fatal Collision

September 28th, 2012

Adding to this site’s database of archives caselaw addressing psychological injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages following psychological injuries following a severe motor vehicle collision.

In last week’s case (Rizzotti v. Doe) the Plaintiff was injured in a 2005 head-on collision.   The crash was significant killing the driver of the offending vehicle.  Fault was admitted.  The Plaintiff suffered from psychological injuries following this crash including PTSD, depression and an adjustment disorder.

The Plaintiff’s injuries were aggravated in two subsequent collisions.  All three cases were heard together and damages were assessed globally.  In assessing non-pecuniary damages at $110,000 Mr. Justice Tindale provided the following reasons:

]The plaintiff was clearly involved in a serious head-on collision in 2005. She sustained injuries of a physical nature and a psychological nature. The evidence is clear that the first accident caused the majority of the injuries to the plaintiff while the other two accidents exacerbated her condition.

[76]The medical evidence is clear that the physical injuries were caused by the accidents. The medical evidence is also clear that her psychological injuries were caused by the accidents.

[77]Dr. Anderson diagnosed the plaintiff as having ongoing depressive symptoms consistent with a diagnosis of chronic adjustment disorder with depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic stress disorder in partial remission.

[78]The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic stress disorder. Both doctors Anderson and Kettner had the advantage of personally interviewing the plaintiff.

[79]Dr. Levin agreed with the diagnosis of adjustment disorder with depressed mood however he did not feel that the plaintiff had post-traumatic stress disorder. Dr. Levin only reviewed the medical documentation and did not interview the plaintiff.

[80]I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr. Levin as they were able to personally interview the plaintiff.

[81]The evidence in this case clearly indicates that the plaintiff suffered physical injuries which are long-standing and chronic in nature as well as a serious psychological injury.

[82]The defendants have not discharged their onus that the plaintiff failed to mitigate her losses by failing to take medication. The evidence does not disclose on a balance of probabilities that she was prescribed antidepressant medication. Also, with regard to the plaintiff declining to have injections in her hip, there is no evidence that this delayed her recovery. She also gave evidence that she was afraid of injections, which I accept

[83]The appropriate award for non-pecuniary damages is $110,000.00.


Cyberbullying and Plaintiff Anonymity Discussed by the Supreme Court of Canada

September 27th, 2012

Occasionally Canadian Courts make exceptions to the open court principle and allow litigants to sue under a pseudonym and further place publication bans in place.  Reasons for judgement were released today by the Supreme Court of Canada grappling with these issues in the context of a ‘cyberbullying‘ lawsuit involving an infant plaintiff.

In today’s decision (AB v. Bragg Communications Inc.) the Plaintiff, a 15 year old girl, found someone ” had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her.  Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.”.  She commenced legal proceedings seeking to uncover the identity of the person who posted this.  She further sought to do so anonymously and asked for the protection of a publication ban.  In a unanimous decision the Supreme Court of Canada held that Plaintiff anonymity was appropriate in these circumstances but that a publication ban beyond information which could identify the Plaintiff was not warranted.  Justice Abella provided the following reasons:

[25]                          In the context of sexual assault, this Court has already recognized that protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122.  It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously.  As the Kids Help Phone factum constructively notes (at para. 16), protecting children’s anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate.  In particular, “[w]hile media publicity is likely to have a negative effect on all victims, there is evidence to be particularly concerned about child victims. . . . Child victims need to be able to trust that their privacy will be protected as much as possible by those whom they have turned to for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting victims’ identities in press coverage of child victimization” (2010), 11Journalism 347, at pp. 349-50.

[26]                          Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.  (See e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15–16; and R. v. D.H., 2002 BCPC 464 (Can LII), at para. 8).

[27]                          If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. ..

[29]                          The acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non-disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle.  Canadian Newspapers clearly establishes that the benefits of protecting such victims through anonymity outweigh the risk to the open court principle. 

[30]                          On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile.  If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B.  The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.

[31]                          I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s).   I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information.


Plaintiff's "Apprehension of Bias" Turfs Defendant's Chosen Psychiatric Examiner

September 27th, 2012

An Excerpt From Proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me addressing the choice of a Defence Psychiatric Exam where a Plaintiff raised an apprehension of bias.  In the face of such concerns the Court did not allow a Defence Medical Appointment to proceed with the Defendant’s psychiatrist of choice and instead ordered that the Defendant choose a different psychiatrist.

In the recent decision (Henry v. Reeves) the Plaintiff alleged he suffered a chronic pain syndrome as a result of a collision.   The Defendant requested a Defence Psychiatric Exam.   Mr. Justice Halfyard ordered that the Defendant was entitled to such an exam.  The Plaintiff raised concerns about the Defendant’s chosen physician highlighting the proposed doctor’s ICBC billings and further pointed out two cases where the chosen physician was judicially criticized.

Mr. Justice Halfyard considered these submissions and noted that the Plaintiff has “got a point here” and ultimately concluded that “I am not going to order (the Proposed physician)..to conduct the medical examination” making the parties settle on a different physician.

To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.


$42,000 non-pecuniary assessment for "somewhat exaggerated" soft tissue injuries

September 26th, 2012

Reasons for judgment released last week by the BC Supreme Court, New Westminster Registry, assessing damages for lingering soft tissue injuries caused by a motor vehicle collision

In last week’s case (Fifi v. Robinson) the plaintiff was injured in a 2008 crash.   Fault for the collision was admitted focusing the trial on an assessment of the plaintiff’s damages.

The plaintiff alleged that she suffered from significant soft tissue injuries.   She sought global damages between $271,000 and $396,000.  The court found aspects of the plaintiffs case problematic and further found that she ‘somewhat exaggerated’ her complaints.  Despite this Mr. Justice Verhoeven found that the plaintiff did suffer some injuries which were lingering to the time of trial.  In assessing non-pecuniary damages  $42,000 the court provided the following reasons for judgment:

[116]     I accept that at the time of her testimony at trial, in January 2012, in excess of three years post accident, she was still suffering from soft tissue injuries to her neck, back, shoulders, arms and hands resulting from the accident.  She has headaches but these are infrequent and of relatively short duration.  Her major ongoing complaint is of pain.  She is not at risk of developing degenerative arthritis or disc disease in future arising from the accident injuries. There is no evidence that the accident injuries will result in any long-term consequences to her health.

[117]     In view of my conclusion that her complaints are somewhat exaggerated, it is difficult to assess the true extent and degree of the plaintiff’s ongoing pain and disability resulting from the accident injuries.  What is clear to me is that they are not as significant as the plaintiff has stated.  It is also clear that other than for the first two to three weeks post-accident, her injuries have never been seriously disabling.  I note her testimony that her injuries had improved by the time she returned to work at Levan in January 2009 and had improved further when she worked at 5ive West in the fall of 2010.  I find that her injuries have gradually been improving with time…

[125]     I find that the residual effects of the plaintiff’s injuries will likely continue for one or two years from the time of trial, but will continue to diminish further with the passage of time, and with appropriate treatment such as active rehabilitation and exercise.  Following this period, any residual complaints will not be significant…

131]     Upon consideration of the whole of the evidence, in my view the sum of $42,000 represents a fit and proper amount of compensation for the plaintiff’s non pecuniary loss…


Court Critical of ICBC for Failing to Advise Unrepresented Party of Limitation Period

September 25th, 2012

When advancing a tort claim with ICBC it is important to remember that they have no duty to advise you of your limitation period.  If the clock runs out before filing your lawsuit there is typically little a court can do other than offer words of criticism at ICBC for engaging in this practice.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.

In last week’s case (Tolentino v. Gill) the Plaintiff was injured in a 2004 collision. He dealt with ICBC directly with the Court making the following findings about their interactions:

22]        …I find that on July 13, 2005, Mr. Tolentino told Ms. Brunac-White that he had not talked to anyone about his claim (including a lawyer) and Ms. Brunac-White advised Mr. Tolentino that it was not necessary to have a lawyer at that time. Ms. Brunac-White intended to discuss the matter with Mr. Tolentino after she obtained updated medical information. Mr. Tolentino was to contact her when he returned from a trip but he did not do so before the limitation period expired on January 10, 2006. Ms. Brunac-White did not attempt to contact Mr. Tolentino either, and she closed the file on February 2, 2006, after conducting a search for a writ of summons.

The Plaintiff ultimately started a lawsuit and ICBC applied to have it dismissed as being filed beyond the limitation period.  The court sided with ICBC and dismissed the lawsuit but prior to doing so Madam Justice Fisher provided the following criticism:

[23]        It is indeed unfortunate that Ms. Brunac-White made no effort to contact Mr. Tolentino before the limitation period expired. It would have been a simple task that could have served the interests of both parties. However, as the plaintiff concedes, ICBC as the insurer has no duty to advise him about the limitation period. Silence or inaction may be considered a representation only where the representor owes a legal duty to the representee to disclose something or take certain steps: Ryan v Moore, 2005 SCC 38…

[29]        I wish to add, however, that I was disturbed by the adjuster’s approach in this case. She sought to rely on an “agreement” with the plaintiff about the next steps but when he did not contact her after several months, she ought to have considered that there could have been a misunderstanding. While she may not have been successful in making contact with the plaintiff given his history, her failure to make any attempt to contact him before the limitation period expired was in my view unreasonable. She had a telephone number and could have left him a message. Although she did not have a legal duty to do so, given her knowledge of the claim, this would have been a more reasonable and fair approach.

[30]        The plaintiff’s action is dismissed…

 


Loss of Interdependency Claims Need to Be Specifically Plead

September 24th, 2012

In British Columbia the law recognizes that a Plaintiff can be awarded damages if they have injuries which impair their opportunity to form a permanent interdependent economic relationship.  Reasons for judgement were released Last week by the BC Supreme Court, Cranbrook Registry, addressing whether such a claim forms part of a diminished earning capacity claim or if it is a unique loss which needs to be specifically plead.  In short the Court held such claims do indeed need to be particularized in the pleadings.

In last week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision.  As trial neared the Plaintiff served an economist’s report advancing an interdependency claim and valuing damages for this at $200,000.  The report was served outside the time permitted under the Rules of Court.  The Defendant objected to the report’s admissibility due to its late service and further due to the fact that an interdependency claim was not specifically plead.  Mr Justice Abrioux held that the report would not be admitted in these circumstances and ordered an adjournment to address the concerns raised.  In concluding that an interdependency claims need to be specifically plead the Court provided the following reasons:

[19]         The issue before me, being whether the interdependency claim had to be specifically pled, was not before the Court of Appeal in Anderson. I have concluded that while an interdependency claim is “closely connected” to one for loss of earning capacity, it is nonetheless a separate head of damages. It should be specifically pled and accompanied, pursuant to the Supreme Court Civil Rules, R. 3-1(2)(a), by a concise statement of the material facts giving rise to the claim.

[20]         Accordingly, if the plaintiff seeks to advance this claim, he is required to amend his statement of claim. Absent the defendant’s consent, he will have to apply to do so. There is no draft amended notice of civil claim before me and, accordingly, I am not in a position to deal with a proposed amended pleading at this time.


Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

September 21st, 2012

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.

In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision.  The matter proceeded to trial first on the issue of fault.  Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“.  ICBC did not lead this evidence at trial.  Ultimately fault for the crash was split between the motorists involved on a 90/10 basis.   Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue.  Madam Justice Smith refused to do so providing the following reasons:

[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.

[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.

[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…

[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.


Unknown Prognosis a Barrier to Quantum Trials, But Not Liability

September 21st, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the fact that an unknown prognosis is a true barrier to a personal injury quantum claim proceeding to trial.

In this week’s case (Dazham v. Nachar) the Plaintiff sued the Defendant for injuries sustained in a 2009 collision.  Fault was disputed.  As the matter approached trial the Plaintiff sought an adjournment arguing that the matter was not yet ready as the Plaintiff’s physicians were unable to comment on his prognosis.  The Court agreed but instead of adjourning the entire matter severed the issues of quantum and liability and ordered that the trial proceed solely on the issue of fault.  In doing so Master Baker provided the following reasons:

[12]         Nevertheless, I have concluded that this is not one of those cases where the injuries can be said to have plateaued, that it is now just a matter of waiting. That is not the case to me at all. Both physicians have indicated further surgical intervention. They have also indicated that that is a contingency; in essence  a) whether the cortisone injections work; and b) whatever the MRI says.

[13]         So by no means are we at a point where the extent of Mr. Dazham’s injuries and their expected recovery can be given with satisfactory accuracy. I just do not think we are there yet.

[14]         As I say, the liability is very much in issue, and why it is generally the situation or circumstance that the court prefers not to sever issues, when we have a lay witness, when we have such an active issue. I think it is in everyone’s interest that that matter be resolved first, and then as a consequence, rather than adjourn the matter, that the issues of liability and quantum be severed and that the matter of liability proceed.

[15]         With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S., 2006 BCCA 12 at paragraph 24, in which he comments that:

If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories.

[16]         I understand Ms. Meade’s concerns about credibility being an important aspect, both as to liability and as to damages, but I can’t see that that is a sufficient concern or basis for not severing. I also think severing is the appropriate approach, rather than adjourning, as I have already said.

[17]         As a consequence, there will be an order directing that the issues be severed.

You can click here to read my archived posts addressing adjournment applications and severance applications in the BC Courts.