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 February, 2013

Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

February 28th, 2013

I have previously discussed the fact that accelerated vehicle depreciation is a recognized damage in BC.  Reasons for judgement were released this week by the BC Court of Appeal addressing such a claim noting something more than hearsay is required to prove the loss.

In this week’s case (Kapelus v. Hu) the Plaintiff was injured in a 2006 collision.  She proceeded to trial and was awarded damages for her injuries but her claim for accelerated vehicle depreciation was dismissed.  The Plaintiff presented evidence of offers that others provided her for the purchase of the vehicle.  The Court of Appeal noted that if this was the only evidence then there was no error in dismissing this aspect of her claim.  The Court provided the following reasons:

24]         Finally, I should say that the argument advanced by Mrs. Kapelus, that the judge erred in rejecting evidence of the loss in value of her vehicle, based solely on her report of offers to purchase the vehicle, is without merit.  The judge ruled that Mrs. Kapelus’ evidence, that third parties had been prepared to purchase her car at a certain price prior to the accident, was hearsay.  I accept this ruling: it is hearsay and it is not rendered admissible under the business records exception in the Evidence Act, R.S.B.C. 1996, c. 124.

Pedestrian Struck in Crosswalk on "Dark and Rainy" Night Not Contributorily Negligent

February 27th, 2013

Adding to this site’s archived cases discussing fault for pedestrian collisions, reasons for judgement were released recently addressing contributory negligence of a pedestrian struck in a marked crosswalk.

In the recent case (Bulatovic v. Siebert) the Plaintiff was struck while crossing Granville Avenue in Vancouver.  She had passed the midway point of the street when struck by the Defendant who was making a left hand turn.

Although there was contradictory evidence about the circumstances of the crash the Court ultimately found that the Plaintiff lawfully entered the crosswalk with a walk signal in her favour and that there was no evidence of contributory negligence.  In finding the Plaintiff faultless for the collision Mr. Justice Steeves provided the following reasons:

[82]         More generally, the reason for the legal protection of pedestrians in crosswalks is the significant inequality in speed and force between a motor vehicle and a pedestrian. A pedestrian is entitled to walk through a crosswalk, taking reasonable precautions consistent with having the right of way, knowing that she is safe. I find that the plaintiff took those precautions and she is entitled to the legal protection of having the right of way under section 132(1) of the Motor Vehicle Act.

[83]         I also adopt the comments of a previous judgement (Hooper v. Nair, 2009 BCSC 862 at para. 32),

I accept the plaintiff’s submission that in order to prove that a plaintiff pedestrian was contributorily negligent, the defendant driver bears the onus of establishing not only inadequate attention on the part of the pedestrian but also must show that by the time the pedestrian realized the driver was not going to yield the right-of-way to the pedestrian, that it would at that point have been possible for the pedestrian to avoid the driver’s car. As well, the driver must show that a reasonable person in the circumstances of the pedestrian would have taken and succeeded in actions which would have avoided impact with the driver’s car:  Olesik v. Mackin (23 February 1987), Vancouver B860365 (S.C.); Pinto v. Rana, [1993] B.C.J. No. 1312 (S.C.).

[84]         I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said “Walk”. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to “Walk”. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant’s evidence that he could have looked to his left in order to see the plaintiff.

[85]         It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a “Walk” signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.

$60,000 Non-Pecuniary Assessment For Chronic Pain At Pre-Existing Surgical Site

February 26th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.

In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision.  The Defendant admitted fault.  Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh.  He was left with a level of nerve damage at the surgical site.  Following the collision this pain was aggravated.  The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor.  In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons:

[3]             The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation.

[4]             Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life…

[22]         There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment.

[23]         The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own…

[49]         In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.

Want Your Day In Court? Mortgage Your Property First!

February 25th, 2013

In a very rare display of the BC Supreme Court’s powers pursuant to its inherent jurisdiction, and a strong reminder of the potentially high financial consequences of BC’s loser pays legal system, Mr. Justice Burnyeat released reasons for judgement ordering a Plaintiff to mortgage her properties to the amount of $100,000 as security for costs prior to allowing her claim to proceed to trial.

In today’s decision (IJ v. JAM) the Plaintiff sued the Defendants alleging sexual harassment   The Plaintiff had other costs orders made against her and the Court found she had “a pattern of ignoring orders for costs that have been made“:  The current Defendants applied for an order requiring $100,000 to be paid into court as security for costs.  Mr. Justice Burnyeat agreed security was appropriate and provided the following reasons:

[18]         I am satisfied that “very special circumstances” are present so that an order for security for costs should be made.

[19]         First, the Plaintiff has a pattern of ignoring orders for costs that have been made:  in the Petition for judicial review of the British Columbia Human Rights Tribunal decision where costs were awarded in favour of J.A.M. and, in these proceedings where an order for costs was made against the Plaintiff arising out of the dismissal of the civil claim against the G.S. and J.S.

[20]         Second, I take into account the merits of the claim of the Plaintiff.  As I will be the trial judge for the lengthy trial that is scheduled for June 2013, I do not express any final opinion about the merits of the claim other than to observe that, as presently drafted, the claim against J.A.M. and J.M. is expressed in an often confusing, emotional and vitriolic manner, with many allegations not relating directly to the very serious claim that the Plaintiff makes against J.A.M.  and J.M.  It is not appropriate at this stage to make a fine assessment of the relative merits of the claim of the Plaintiff but only to observe that the claims are not so weak that they are bound to fail.  However, regarding the claim, I take into account the agreement that was executed by the Plaintiff releasing the Company and officers, including J.A.M. for previous acts which occurred.  It is a fair assessment at this point that the case of the Plaintiff has many problems…

[25]         The Defendants request the payment into Court of the sum of $100,000.  It is clearly the case that such a sum is not available and that to require that sum to be paid would effectively deny the Plaintiff access to the Court.  However, the affidavit of the Plaintiff is that the two Whistler properties have a value of approximately $729,000 and have charges against them of approximately $550,000 so that her equity is in the neighbourhood of $279,000.  The Plaintiff also states that her property in Ontario has an approximate value of $560,000 with a mortgage of approximately $164,000 against it so that the approximate equity is $396,000.

[26]         Taking into account all of the circumstances surrounding the claim of the Plaintiff, I am satisfied that there is good reason and very special circumstances why an order for security for costs should be made.  Accordingly, a mortgage in the amount of $100,000 without interest will be granted by the Plaintiff against her two properties in Whistler with the mortgagee being the Registrar of the Supreme Court of British Columbia.  The mortgage is not to be discharged or enforced without the further order of the Court.

[27]         The Plaintiff will be required to sign that mortgage within ten days of it being tendered on her for her signature.

$70,000 Non-Pecuniary Assessment For Chronic "Moderate" Soft Tissue Injuries

February 25th, 2013

Adding to this site’s archives of soft tissue injury non-pecuniary awards, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic ‘moderate’ low back injury.

In last week’s case (Schafer v. Whitely) the plaintiff was involved in a 2010 collision.  Although liability was disputed the defendant was found fully at fault at trial.  The plaintiff suffered various injuries which improved by the time of trial with the exception of a low back injury of moderate severity which continued to pose problems.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:

[179]     There is no dispute about the nature of the injuries sustained by the plaintiff as a result of the accident. She suffered minor injuries to her left knee and to her face, and experienced some headaches. These injuries, and the headaches, had resolved within a month or so after the accident.

[180]     I find that the plaintiff sustained injury to the soft tissues of the musculoskeletal structures of her neck and lower back. The injury to these structures has caused pain in the plaintiff’s neck and low back. By the time of trial, the plaintiff’s neck pain symptoms had resolved, but she continues to experience pain in her low back on an intermittent basis.

[181]     I find that the impact of the collision was violent and that the forces exerted on the plaintiff’s body were capable of causing, and did cause significant injury. Although the medical experts did not offer an opinion as to the severity of the injury, I find that the injury was at least moderate in severity…

[197]     In my opinion, having regard to the facts I have found, a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount under this head of loss.

Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

February 22nd, 2013

The law in BC has long recognized that a Plaintiff can seek damages to reimburse banked sick leave benefits which are depleted due to an injury caused throught the negligence of others. Despite this litigants occasionally still argue that the law does not allow such recovery as it amounts to ‘double recovery’.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of this defence argument.

In this week’s case (Chingcuangco v. Herback) the Plaintiff was injured in a 2008 collison.  She missed time from work and used up over $7,000 of banked sick time.  In confirming that the Plaintiff can recover this loss Mr. Justice Weatherill provided the following reasons:

[209]     During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits.  She seeks damages to reflect the depletion of those benefits.

[210]     The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09.

[211]     The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time.

[212]     This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48.  In that case, Madam Justice Ballance provided a thorough and helpful analysis:…

[213]     I agree with that analysis and I adopt it in its entirety.  Here, the plaintiff exhausted her accumulated sick leave.  She also used up several of her vacation days.  She has had illnesses unrelated to the accident that have resulted in her being unable to work.  She is likely to have them in the future.  Her plan is to stay and make a career at CRA. 

[214]     I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09.  There will be no deduction for income tax.

I have canvassed this topic before and you can click here to access my archived posts addressing the law of recovery of sick time benefits.

Law of Spoliation of Evidence Discussed by BC Court of Appeal

February 21st, 2013

Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.

In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision.  The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision.  The Plaintiff argued that the vehicle was prematurely destroyed and an adverse inference should be drawn that no mechanical failure took place.  The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence:

[27]         Finally, I turn to the plaintiff’s argument that ICBC’s (apparent) destruction of the Jeep “effectively destroyed” her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court’s inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the “real party in interest”, such that the vehicle was destroyed by a person who was in effect the defendant in this litigation.

[28]         I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.)

[29]         On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v. Canada (1896), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red Cross Society (1998) 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and the discussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that the evidence would be required for litigation purposes’.)  As stated in McDougall v. Black & Decker, “When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.”  (Para. 24).

[30]         The Court observed in McDougall that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms. Chow-Hidasi. (See McDougall, para. 25, British Columbia Law Institute, Report on Spoliation of Evidence (2004), at 10-20.)

[31]         In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.

Producing False Witness To Collision Leads to $200,000 in Financial Consequences

February 20th, 2013

In an illustration of BC’s motor vehicle insurance system having real teeth to punish fraudulent acts, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering substantial damages against a couple who produced a false witness to ICBC following a motor vehicle collision.

In this week’s case (ICBC v. Panag) the Defendant was involved in a 2006 collision.  The parties had competing versions of how the collision occurred.  The Defendant produced a witness in support of her claim.  After investigation ICBC determined this individual in fact did not witness the collision and was known to the Defendant.

ICBC paid out over $188,000 in claims following the crash.  ICBC held the Defendant in breach of insurance and sued to recover this money on the basis that the Defendant attempted to commit insurance fraud.  Mr. Justice Grauer agreed and ordered repayment of these damages along with punitive damages.  In reaching this decision the Court provided the following reasons:

64]         In these circumstances I am satisfied that the Panags and Harinder Grewal were in fact involved in a conspiracy to put forward Mr. Grewal to ICBC as a witness to the collision knowing that he had not in fact witnessed it, and with the intention that he provide ICBC with evidence that he did not have and which they knew to be untrue.  The facts, in my view, cannot fairly admit of any other inference.  Speculation is not required…

[67]         It follows that both Mr. and Mrs. Panag participated in a conspiracy to deceive ICBC about both how the accident happened and the status of Mr. Grewal as a witness to the accident.  They clearly intended ICBC to rely upon their representations, and ICBC as a result was left scrambling for a considerable period of time as it embarked upon an extensive investigation in an attempt to straighten out what would otherwise have been and should have been a straightforward matter.  This amounts to fraud.  See, for instance, ICBC v. Nisbet, 2009 BCSC 1570, at para. 85.

[68]         In the result, the Panags have forfeited their right to coverage under s. 19(1)(d) of the IMVA as well as s. 19(1)(e), and ICBC is entitled to recover against both of them.  Whether directly as a consequence of the Panags’ conspiracy to commit fraud or as a result of the application of the principles of unjust enrichment, this would include the moneys paid out to Mr. Panag for his material damage claim and to Mrs. Panag for her Part VII claim.  The total amount awarded to ICBC in this regard is $188,722.86, which I am satisfied accurately represents what ICBC paid out, to which I add pre-judgment interest of $8,460.21.  I have deducted $305.06 from the interest claimed because of the absence of evidence concerning the date when expenses related to surveillance were incurred…

[70]         In providing ICBC with willfully false statements and in conspiring to commit fraud, the Panags undoubtedly engaged in conduct that was reprehensible.  In the particular circumstances of this case, however, I note that the consequences of their actions have exposed them to statutory liability far beyond the actual financial consequences of their actions.  Had they succeeded in their deception, they would have saved a mere $801 plus whatever might have been gained through a potential personal injury claim.  Now they must pay over $188,000 plus interest…

ICBC Projects Almost $1 Billion in Net Income From 2012-2015: Government Plans $539 Million Profit Scoop

February 19th, 2013

The BC Government’s 2013-2014 Budget has just been released.  Included in the documents is ICBC’s Service Plan for 2013-2015 which reports robust net profit expectations.  Below I reproduce the Crown Corporation’s Summary Financial Outlook.  It is noteworthy that this current projection is up over 200 Million from ICBC Projections for 2012-2014 released last year.

The Government also reports a planned $539 Million profit scoop for ‘core government services’ with the Budget and Fiscal Plan reporting as follows:

Insurance Corporation of British Columbia – ICBC’s net income outlook is forecast at
$257 million in 2013, $222 million in 2014 and $205 million in 2015. The outlook
assumes average annual growth of 1.5 per cent in the number of insured vehicles and
a 3.6 per cent average annual increase in claims costs. Over the fiscal plan period,
ICBC is forecast to remit $539 million of its excess Optional insurance capital to the
consolidated revenue fund to support core government services.


Low Velocity Impact – Not the Law but a Factor That Can Be Looked At

February 19th, 2013

I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage.  The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In last week’s case (Gonzales v. Voskakis) the Plaintiff was involved in a minor rear-end collision   Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back.  The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.

The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision.  In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence:

[206]     I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.

[207]     Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33.

[208]     In Miller v. Darwel, 2005 BCSC 759, the court stated:

[9]        On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4:

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 not 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.

[10]      As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.

[11]      I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.

[209]     More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.”

[210]     I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.