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 April, 2013

The Duty of Lawyers to "Investigate" Litigants Social Media Use

April 30th, 2013

It is well established that social media postings and other electronic ‘records’ can be relevant in injury litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this and discussing litigant’s duties to canvass these documents in the course of litigation.

In  last week’s case (Ahadi v. Valdez) the Plaintiff was injured in a 2005 collision.  In the course of her trial an e-mail which was not previously disclosed was put to a witness. This led to a delay of the trial with further discovery taking place.   Madam Justice Adair provided the following comments addressing this development:

[154]     The defendants argue that Ms. Ahadi’s failure, prior to trial, to disclose all relevant electronic documents demonstrates a general lack of honesty on her part.  The problem relating to discovery of electronic documents was discovered on the third day of trial, when Mr. Marcoux showed e-mail communications to a witness (Ms. Betty Chow, Ms. Ahadi’s boss when she was working at Shoppers Drug Mart) that had not previously been disclosed to the defendants.  Mr. Marcoux acknowledged that he had received the e-mail communications from Ms. Ahadi shortly before the trial began.  An order was then made concerning production of electronic documents, and Ms. Ahadi was required to submit to further oral examination for discovery.  This turn of events was very unfortunate, and made an already stressful experience (the trial) even more so.  It was also completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi’s solicitors prior to trial concerning the existence and location of relevant and producible electronic documents.  Court had to be adjourned early on the third day of trial, after the issues concerning Ms. Ahadi’s electronic documents had been uncovered and during Ms. Ahadi’s examination-in-chief, because Ms. Ahadi felt unable to continue in the circumstances.

[155]     The defendants argue that, because of the circumstances surrounding production by Ms. Ahadi of electronic documents and the conflicts in her evidence concerning the location of electronic documents in her home, I should give no weight to either Ms. Ahadi’s evidence at trial or her self-reports to the various experts.  The defendants say that anything less would be unjust to them.  They also argue that I should draw an adverse inference against Ms. Ahadi.

[156]     I do not agree. 

[157]     In my opinion, it does not follow from what happened concerning discovery by Ms. Ahadi of electronic documents that I should give no weight to her evidence generally.  Ms. Ahadi’s solicitors need to accept at least some of the responsibility for what occurred.  Prior to trial, they should have investigated the existence of relevant electronic documents much more thoroughly than they did.  Had they made a proper and thorough investigation, Ms. Ahadi’s solicitors could have avoided placing their client in the uncomfortable position in which she found herself on the third day of trial.  Defendants’ counsel also had the opportunity to pursue the matter of electronic documents (such as Facebook postings and e-mail), when Ms. Ahadi was examined for discovery some nine months before the trial, but they did not.  In my view, Ms. Ahadi’s evidence should be assessed looking at all of the relevant factors.  The court can accept some, all or none of the evidence of a witness.

Bus Driver Liable For Slip and Fall After Failing to Drop Passenger Off at Curb

April 29th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the responsibility of transit operators to drop their passengers off at a safe location.

In last week’s case (Falconer v. BC Transit Corporation) the Plaintiff (who the judge and defence counsel described as “one of the most honest and direct people I have ever come across“) was a passenger on a bus in Kamloops, BC.  It was a winter day and the bus “was not brought to a stop at the bus stop where there was a curb“.   As a result, the Plaintiff  “had a greater distance to step down from the bus than if the bus had been brought to a halt right at the bus stop“.

The Plaintiff slipped on a skiff of snow and was injured.  In finding the bus drier 75% at fault for this incident Mr. Justice Abrioux provided the following reasons:

[44]         In my view, a prima facie case of negligence has been established by the plaintiff. Although Mr. Falconer may not have been able to say what caused him to fall, I have found it was the lower level, icy surface upon which he stepped off the bus due to where the bus driver chose to stop the bus.

[45]         The issue then becomes whether the defendant has presented evidence negating the prima facie case of negligence that has been established. In my view it has not. The reasons for this include:

·       it has led no evidence as to why the bus stopped where it did. Perhaps there was another bus which had pulled up at the stop sign in front of it, but there was no evidence to that effect;

·       it has led no evidence from which I could conclude that the location where the rear doors opened was a “reasonably safe place for [Mr. Falconer] to debark”. See: Grand Trunk Pacific Coast Steamship Co. v. Simpson;

·       viewed within the context of the “very high degree of care” required of a public carrier, the fact Mr. Falconer erroneously believed it was safe for him to debark cannot be interpreted to mean it was in fact reasonably safe for him to do so;

·       the defendant has led no evidence as to whether a warning to passengers was not required under the circumstances.

[46]         In my view, there was a “heightened need to adduce evidence in response, either to prevent the drawing of adverse inferences or to negate a prima facie case”. See: Parsons and Sons Transportation Ltd.

[47]         In addition, Mr. Rogers breached the standard of care expected of a bus driver by leaving the bus stop. An elderly passenger had slipped and fallen in the immediate vicinity of the rear door of the bus. The fact Mr. Rogers left the scene can only mean he did not perform the appropriate check in his right mirror. To quote Mr. Cameron, “I don’t see how a person can drive away in a bus without checking the right mirror to see that they are clear.… You could have a kid reaching in there for a ball under the tires or whatever”. Although this breach of the standard of care did not cause the plaintiff’s injury, it indicates to me a “general lack of care and inattention” by Mr. Rogers in so far as his responsibilities to passengers were concerned. See:  Donald v. Huntley Service Centre Ltd., (1987) 61 O.R. (2d) 257 (S.C.J.) at para. 9.

Subjective Soft Tissue Injuries and Judicial Scrutiny

April 26th, 2013

Last year I criticized the often recited judicial passage stating that ““…the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”  and pointing out that these comments should no longer be used given Supreme Court of Canada’s reasons in FH v. McDougall.

Reasons for judgement were released this week by the BC Supreme Court (Prince v. Quinn) addressing a Court’s role when dealing with subjective injuries.  Mr. Justice Williams provided the following comments which, in my view, would do well to substitute the above passage in the context of a chronic soft tissue injury case:

[25]         With respect, as regards this latter point, it seems to me that this is an approach that must be considered with care. Taken to its ultimate conclusion, it would, in many cases, quite unfairly put a plaintiff in a position where proving a claim would be exceedingly difficult and verging on impossible.

[26]         In my view, the point to be observed is this: where a plaintiff’s claim is founded quite substantially on self-reported evidence, it is necessary for the trier of fact to scrutinize the plaintiff’s evidence carefully and evaluate it in the light of other evidence, such as the circumstances of the collision, other relevant information concerning the plaintiff’s activities and statements made by the plaintiff on other occasions. However, where the evidence of physical injury is substantially based on subjective evidence – the testimony of the plaintiff – that should not constitute an effective barrier to proof of a claim.

[27]         In the final analysis, it is the court’s duty to examine the evidence carefully and critically. That is what I have done in this case.

$45,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries to Neck and Back

April 25th, 2013

Reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.

In this week’s case (Sekhon v. Nguyen) the Plaintiff was involved in a 2006 rear-end collision.  He was 14 at the time.  At trial it was found that “there has been a certain amount of exaggeration…with respect to his injuries” and his claim for chronic headaches was rejected.  Despite this, the Court accepted that the Plaintiff suffered from soft tissue injuries to his neck and back and that the prognosis for full recovery was guarded.  In assessing non-pecuniary loss at $45,000 Madam Justice Ross provided the following reasons:

[49]         I am satisfied that Mr. Sekhon suffered soft tissue injuries to his neck and back in the motor vehicle accident and that as a result he has suffered from headache, neck and back pain. These injuries have gradually but not completely resolved. The prognosis for complete recovery is guarded. I find further that to the extent to which he has suffered from headaches of the kind he described experiencing after August 2009, he has failed to meet the burden to establish causation. I find that he has not suffered from headaches of the frequency and intensity described in his testimony as occurring after August 2009 as a result of injuries suffered in the accident.

[50]         The injuries have interfered with Mr. Sekhon’s enjoyment of many of the activities he engaged in prior to the accident. However, he remains an active young man, able to work, attend school and enjoy many recreational activities.

[51]         In all of the circumstances, I award $45,000 for non-pecuniary loss.

The Death of the LVI Program?

April 24th, 2013

I have it on good authority that ICBC’s Low Velocity Impact Program is being largely scrapped.  Instead of the conventional LVI denials for collisions with under $2,000 of vehicle damage, I am informed that ICBC will now only deny claims under the LVI policy in cases where vehicle damage is limited to “scuffs, scrapes or scratches“.  Anything beyond this minimal paint damage will be adjusted on overall merits.  I have not yet seen a written copy of this shift in policy but if I do I will be sure to share it here.

With this introduction out of the way, the latest judicial nail in the LVI coffin was released this week.  In this week’s case (Midgley v. Nguyen) the Plaintiff was involved in a 2004 collision.  He suffered various injuries and sued for damages. ICBC argued this was a Low Velocity Impact and that the plaintiff was not injured.  Madam Justice Dardi soundly rejected this argument finding the Plaintiff suffered from a torn labru in his right hip along with psychological injuries.  She assessed non-pecuniary damages at $110,000.  In dismissing the LVI Defence the Court provided the following critical comments:

[174]     The overarching submission of the defence was that “this was a nothing accident”. The tenor of the defence submission was that, since there was no damage to Mr. Midgley’s motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.

[175]     There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is to be determined on the basis of the evidentiary record at trial: see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.

[176]     As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr. Midgley’s body position at the time of impact – and the existence of his injuries.

[177]     On the totality of the evidence, I am persuaded that Mr. Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.

Preliminary Class Action Fee Approval Not Appropriate Absent "Exceptional Circumstances"

April 23rd, 2013

Section 38 of BC’s Class Proceedings Act requires judicial approval with respect to any class action fee agreement prior to it being enforceable .  Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the timing of such approval. In short the Court held that ‘preliminary’ approval prior to settlement/judgement is not appropriate absent “exceptional” circumstances.

In this week’s case (Plimmer v. Google, Inc.) the Plaintiff filed a proposed class action against Google. The Plaintiff’s lawyer sought a “preliminary but not final approval of the Plaintiff’s fee agreement“.  Madam Justice Griffin found that such approval was not warranted in the usual course and provided the following feedback:

[55]         I conclude that preliminary approval of fee arrangements in class proceedings in B.C. should only be sought in exceptional circumstances, such as where there is a novel and potentially controversial form of agreement of which the court should be apprised in its supervisory role, to address and avoid the potential that the agreement could later be seen as affecting the integrity of the legal process or the proper administration of justice.  Over time as case law develops and gives guidance to counsel and representative plaintiffs, there will be less occasion for these exceptional circumstances to arise. 

[56]         Those exceptional circumstances do not exist here with respect to the fairness and reasonableness of the fee agreement in general.  I consider it inappropriate to address the approval of the fee agreement in slices, and I conclude that it is premature to consider these general issues at this early stage.

[57]         The role of the court is not to give preliminary legal advice to the plaintiff or plaintiff’s counsel, and the court ought not to be put in the position of making what are essentially moot rulings without all of the facts before it.

[58]         For the most part, the court’s assessment of the fee agreement in this case should await another day when the court will have heard all of the relevant evidence including as to the risks, merits and complexities of the case, and when other class members will have received notice of the fee agreement. 


The Court went on to note that one issue did deserve preliminary comment, and that was an order with respect to fee splitting agreements amongst various lawyers.  The Court held that there was nothing wrong in principle with such agreements in a BC class action lawsuit and provided the following reasons:

[59]         I make the above general observations subject to one aspect of the fee agreement which warrants judicial consideration now.  That aspect concerns the plaintiff lawyers’ arrangements to fee-split with assisting lawyers who are based in the United States.

[60]         The case law regarding Canadian counsel cooperating in class proceedings with lawyers based in the United States is evolving.  I recognize that the plaintiff’s B.C. counsel are being prudent by advising the court of the fee-splitting arrangements they have entered into precisely because the case law is developing and such arrangements could affect the administration of justice. 

[61]         I have concluded that the novelty and potentially controversial nature of these types of arrangements are exceptional circumstances which justify the court embarking on the supervisory task of reviewing the fee agreement in respect of its arrangements to split the plaintiff’s counsel fees with lawyers based in the United States…

[78]         In conclusion, leaving aside the percentage split which is not for this Court to approve at this time, I declare as an interim order that this Court approves in principle of the fee-splitting arrangement between the plaintiff’s B.C. counsel of record, and the Assisting Lawyers, in substantially the terms as described to this Court.

[79]         I considered stating this declaration in the negative, namely, that this Court does not disapprove of the fee-splitting arrangement, to reinforce the limitations in the supervisory discretion I have exercised.  The point I wish to emphasize is that the application for final approval of the fee agreement should proceed as a hearing de novo when it comes to the end of the case. 

When Does An Award of $20,000 = A Significant Debt

April 22nd, 2013

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.

The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:

[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.

[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.

[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).

[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.

[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.

$40,000 Non-Pecuniary Assessment for "Mild, Intermittent, Indefinite" Soft Tissue Injury

April 19th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a long term soft tissue injury.

In the recent case (Sahota v. Ho) the Plaintiff was injured in a 2001 collision.  He was 9 years old at the time.  He suffered soft tissue injuries which continued to be symptomatic.  Although the Court rejected the Plaintiff’s characterization as to the severity of his symptoms the Court accepted they were on-going and would continue indefinitely   In assessing non-pecuniary damages at $40,000 Mr. Justice Cohen made the following findings:

[185]     Thus, I find as follows:

(1)      the plaintiff sustained injuries to his head, abdomen and neck as a result of the accident on September 29, 2001.  The plaintiff’s injury to his head and abdomen resolved shortly after the accident.  The plaintiff continued to experience occasional headaches, but this symptom has also since resolved.  The plaintiff’s neck pain is on-going and will likely continue indefinitely;

(2)      the plaintiff’s injury to his neck was a mild, soft tissue injury.  The evidence from the clinical records of Dr. Chua is that from both a subjective and objective point of view, he noted “mild” with respect to what the plaintiff reported to him and what he found upon examination.  He also conceded in cross-examination that he did not ever use the terms “moderate” or “severe” in his clinical records.  In my opinion, the plaintiff’s complaints regarding his neck pain were not as severe as described by the plaintiff and his father in their testimony.  I do not agree with the plaintiff’s position that the plaintiff’s neck is appropriately characterized as a “moderately severe cervical strain” as stated by Dr. Chua in his August 2007 report; and

(3)      the neck pain experienced by the plaintiff was intermittent, rather than every day or “constant” as the plaintiff and his father insisted.  If the plaintiff or his father had reported to Dr. Chua that the plaintiff experienced neck pain every day, or that the plaintiff’s neck pain was “constant”, then Dr. Chua would have written this description in his clinical records.  Instead, Dr. Chua recorded that the pain was “on and off” or “recurrent”, terms which are not synonymous with the word “constant”.   Furthermore, those terms were used elsewhere in Dr. Chua’s clinical records in reference to other symptoms that do not support such an interpretation.  I also prefer the testimony of Ms. Porter to that of the plaintiff’s father regarding whether the plaintiff experienced improvements in his condition over the period of time following the accident.  Her testimony is in keeping with the evidence of Dr. Chua who mentioned in his report of August 2002 that the plaintiff had improved from his injuries…

[202]     I am mindful that the plaintiff continues to be symptomatic and that his neck pain is likely to continue in the foreseeable future.  However, given my findings on the chronicity and severity of the plaintiff’s pain, in the context of the evidence regarding the extent of the suffering and inconvenience experienced by the plaintiff following the accident, I find that a fair award to him for general damages is $40,000.

At-Scene Admission Tips the Scales at Liability Trial

April 18th, 2013

As previously discussed, admissions in the aftermath of a collision can be important evidence when a liability case proceeds to trial.  Reasons for judgement were released this week where such evidence was the crucial tipping point.

In this week’s case (Koshman v. Brodis) the parties were involved in an intersection collision. Both claimed to have a green light.  Both had independent witnesses confirming their versions of events.  Ultimately the Court held that while it was a close call the Plaintiff likely had the green light and held the Defendant fully at fault.  In reaching this conclusion the Mr. Justice Ehrcke provided great weight to an at-scene admission made by the Defendant.  The following reasons were provided:

[26]         A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.

[27]         Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.

[28]         What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr. Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr. Fontaine testified that the defendant said to him, “Oh my God, I’m so sorry, I didn’t see the red light.” The defendant denies having said those words.

[29]         I do not accept the defendant’s explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr. Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.

One matter of interest that did not appear to be canvassed was whether this admission should have been admitted give section 2 of BC’s Apology Act which holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”

Admissibility of "Incompetent" Litigant Hearsay Canvassed in BC Injury Claim

April 17th, 2013

Adding to this site’s archived caselaw addressing points of civil procedure, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of various out of Court statements made by a Plaintiff involved in injury litigation.

In this week’s case (Saadati v. Moorehead) the Plaintiff was injured in a 2005 collision and sued for damages.  He was also involved in subsequent and previous collisions not before the Court.  Prior to trial the Plaintiff was declared “mentally incompetent” and could not testify.  In the course of the trial both the Plaintiff and the Defendant sought to introduce various pre-trial statements into evidence as exceptions to the hearsay rule.  The decision is worth reviewing in full for the Court’s analysis.  The statements considered included

1. an excited utterance at the scene of the collision

2.  statements to his GP, kinesiologist and treating specialist

3. statements to friends and family

4.  statements to an ICBC adjuster

5. paycheque stubs, pay statements, pay sheets and tax returns

6. Admissions against interest