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, 2013

Contingency Fee Agreement Not Explained by Lawyer “Flawed From the Moment It Was Signed”

July 17th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, striking down a contingency fee agreement because it was not reviewed with the client by a lawyer.

In this week’s case (Klein Lyons v. Aduna) the client was involved in a 2005 collision and retained a law firm  to represent him.  His case eventually settled and the lawfirm charged $75,000 in fees under their contingency fee agreement.  A fee dispute arose and Registrar Sainty ultimately struck down the fee agreement as being flawed since it was not reviewed with the client by a lawyer in the firm.  In reaching this decision the Court provided the following reasons:

[35]         In my opinion, the CFA was flawed from the moment Mr. Aduna signed it as he signed it without the benefit of speaking to a lawyer at the law firm. In not having a lawyer review the CFA with Mr. Aduna, it may be said that the solicitors took unfair advantage of Mr. Aduna, although I do not find that any advantage so taken was taken deliberately or was designed to defeat the client’s objectives. Further, I am of the view that the fact that no lawyer met with Mr. Aduna to review the CFA, explain its terms to him and provide him with some advice as to how the law firm’s fees would be calculated, produced a serious flaw in the formation of the CFA and a mistake was made at the time it was signed. As such, the CFA must fail…

 [40]         While it was not required that the solicitors advise Mr. Aduna that he ought to get independent legal advice before entering into the CFA, they ought to have advised him “fully and fairly concerning the terms of that contract” (per Roberts & Muir (Re),supra), something they did not do. As the solicitors were entering into a bargain with the client (to pay them a fee based on a percentage of the recovery), they had a duty to ensure that the terms of the CFA were explained to Mr. Aduna by a lawyer. It was not sufficient that there was a lawyer on “stand-by” to be called into the room to discuss the CFA with Mr. Aduna if he had questions about it. 

[41]         While I have found that Mr. Aduna did not lack capacity to contract with the law firm, he was still under some duress, taking medication and in not insignificant pain when he met with Mr. Petrovic. It was even more pressing then that the solicitors ensure that Mr. Aduna fully grasped the consequences of the retainer agreement and took no unfair advantage given his distress; particularly since the consideration of the fairness of such an agreement, if reviewed by a registrar, is undertaken given the circumstances existing at the time the retainer agreement is made.

[42]         In my view, this is of even more import when the contract between a lawyer and his client is for a fee based on a contingency, a percentage of the recovery.  In Anderson v. Elliott (1998), 60 B.C.L.R. (3d) 131 (S.C.), Sigurdson J. explained the nature of contingent fee agreements, at para. 67:

        Under a contingent fee agreement, the lawyer and the client enter a type of joint venture where they will either share in the fruits of the action or suffer the defeat together. Normally, I would expect that it is not a joint venture of equals, in that the law firm, generally, has a more thorough understanding of the law, the legal process and the potential outcomes of litigation than the client.

[43]         Accordingly, I find that the CFA was unfair at the time it was entered into. What, then, is the consequence of that decision?

[44]         The Act provides:

68(6)    If the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into, the registrar may modify or cancel the agreement.

[45]         I believe I must cancel the CFA as there is no modification of it that would render the CFA fair.

$100,000 Non-Pecuniary Assessment For Multi Level Disc Herniations

July 16th, 2013

Adding to this site’s archives addressing non-pecuniary damages for spine injury cases, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with such an injury.

In the recent case (Tabet v. Hatzis) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk.  He suffered a variety of injuries the most serious being multi level disc herniations in his low back which went on to cause chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Dickson provided the following reasons:

[47]         The defence does not challenge most of the expert evidence presented by Mr. Tabet regarding his accident-related injuries.  In summary, he has been diagnosed by Dr. Sahjpaul, a neurosurgeon, as suffering from low back pain; myofascial and discogenic neck pain; myofascial left leg symptoms, radicular and discogenic; and concussion, resolved.  Dr. Sahjpaul also diagnosed left arm symptoms, but the etiology of those symptoms is uncertain.  In addition, Mr. Tabet has been diagnosed by Dr. Chernick, a psychiatrist, as suffering from depression.  Other than the left arm symptoms, I accept that these conditions are causally connected with the accident.

[48]         According to Dr. Sahjpaul, a September, 2007 post-accident CT scan demonstrated a left L4-5 disc herniation and a broad based L5-S1 disc bulge.  Subsequent investigations demonstrated the L5-S1 disc bulge has also become herniated.  Unfortunately, Mr. Tabet’s prognosis for complete recovery from associated symptoms is not favourable.  While it is possible that his left leg symptoms will improve somewhat it is unlikely that his back pain and neck pain will improve substantially, even with surgery…

[76]         There is merit in both submissions made by counsel.  Mr. Tabet’s physical and emotional suffering is significant and his overall enjoyment of life has been seriously compromised.  Nevertheless, he has pushed himself hard and his work regimen reflects both a choice on his part and stoicism.  Taking into account all of the facts summarised above, I conclude that an award of $100,000 in non-pecuniary damages is appropriate in all of the circumstances of the case.

Privileged Report Detrimental To Plaintiff’s Claim Declared Reasonable Disbursement

July 15th, 2013

Just because a medico-legal report proves harmful to a Plaintiff’s claim does not make the costs of obtaining the report, in and of itself, an unreasonable disbursement.  Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, demonstrating this.

In last week’s case (White v. Reich) the Plaintiff was injured in a 2008 collision.  He sustained a chronic knee injury which impacted his ability to work.  The Plaintiff had a history series of heart problems which also impacted his choice of working in remote locations.   His treating cardiologist did not wish to be involved in litigation and the Plaintiff retained an independent physician to address this issue.  Ultimately the independent physician provided an opinion which was detrimental to the Plaintiff’s litigation interests indicating “that the heart condition was in no way related to the motor vehicle accident and that in any event, if the plaintiff were to follow a regime of rehabilitation and medication he could seriously reduce the risk of further heart problems.  In short, the evidence established that with proper actions, there was no physical reason for the plaintiff not to return to his Northern Alberta position.”

The Plaintiff claimed privilege over this report and it was not exchanged with defence counsel.  The matter settled prior to trial.   The Defendant argued the disbursement associated with this report was unreasonable.  Master Caldwell disagreed finding simply because the report was ultimately unhelpful to the Plaintiff’s claim the decision to explore the issue was reasonable.  In allowing the disbursement the Court provided the following reasons:

[19]         The applicable legal principles were canvassed and summarized recently by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at para. 5.  In particular it is noted that the test is not one of hindsight and that a proper disbursement may be one which is ultimately not necessary but which was reasonably incurred for the purposes of the proceeding.

[20]         In this regard, counsel for the defendant acknowledged that if the report had determined that the most recent heart problems had been caused by or contributed to by the accident and that that was the cause of the plaintiff’s being unable to return to work, there would be no question that the report was not only reasonable and proper but in fact necessary to the proper conduct of the litigation.

[21]         In all of the circumstances, I am of the view that the course of investigation with Dr. Isserow, which culminated in and included his report, was reasonable and proper at the time that it was undertaken and accordingly the disbursements which relate to Dr. Isserow are allowed as presented.

Pending Appeal No Reason For Trial Judge Not To Finalize Costs

July 12th, 2013

Short and to the point reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a plaintiff double costs after proceeding to trial and besting a pre-trial settlement offer.

In the recent case (Codling v. Sosnowsky) the Plaintiff was injured in a motor vehicle collision.  Prior to trial she made a formal settlement offer for $55,000.   ICBC rejected this and proceeded to trial where she was awarded just over $70,000.  The Court awarded the Plaintiff double costs for besting the offer.  ICBC argued that it was premature to settle costs as the case was under appeal.  Mr. Justice Smith quickly disposed of this argument providing the following reasons:

[3]             The defendant also says it is premature to deal with costs because he has filed an appeal and even partial success could reduce the award to an amount below the offer to settle. I do not accept that argument. The duty of this court is to finalize its own judgment. If the Court of Appeal finds that judgment to be in error, the costs consequences will change accordingly.

In confirming that this was an appropriate case for double costs Mr. Justice Smith reasoned as follows:

[7]             On the basis of the evidence that the parties could reasonably have anticipated being called at trial, I find that the plaintiff’s offer represented a reasonable effort to assess her possible recovery. It was one the defendant should have recognized as being within the range of possible awards and ought reasonably to have been accepted, particularly when weighed against the cost of going to trial. I recognize that liability was denied and the plaintiff’s offer made no apparent discount for risk on that issue, but this was a rear-end collision and the defendant had little prospect of success on liability or contributory negligence.

$60,000 Non-Pecuniary Assessment for Chronic Shoulder Injury With Favourable Prognosis

July 11th, 2013

Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, addressing such an injury.

In this week’s case (Proctor-McLeod v. Clarke) the Plaintiff was injured in a 2008 rear end collision.  The 51 year old plaintiff suffered a variety of soft tissue injury including a chronic shoulder injury which continued to pose problems at the time of trial.  Despite the chronic nature of her symptoms the ultimate prognosis was a favourable recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Armstrong provided the following reasons:

[67]         The onset of the plaintiff’s shoulder symptoms was brought on by the defendant’s negligence. The medical opinions suggest that these symptoms may have never appeared if the plaintiff was not injured in the accident. Dr. Hawkins did not explain to my satisfaction why he believed that the shoulder pain would have become symptomatic if the plaintiff had not been injured. In my view, the accident was part of the cause of the plaintiff’s ongoing complaints. Common sense dictates that there is a causal connection due to the uninterrupted continuation of these symptoms, albeit on an intermittent basis.

[68]         I accept Dr. Hawkins’ opinion that further treatments might result in a resolution of her shoulder symptoms and that her soft tissues have improved significantly. The plaintiff has been suffering from the after effects of the calcium deposits and friction in the coracoacromial arch in her shoulder. The plaintiff’s continued pain from flare ups would not have happened but for the accident. Although she made a good recovery from her other injuries, there is persisting pain developing intermittently in her neck and radiating to her left arm. This causes her pain levels to rise from a daily level of three out ten to six or seven out of ten. These estimates are of limited use; however they do give a subjective measure of the plaintiff’s perception of her condition during flare ups of symptoms.

[69]         I conclude that the plaintiff’s symptoms will likely resolve over time….

[93]         … I have assessed the plaintiff’s loss at $60,000 for non-pecuniary damages.

$75,000 Non-Pecuniary Assessment for Low Back Disc Protrusions With Chronic Symptoms

July 10th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury caused as a result of a motor vehicle collision.

In this week’s case (Roy v. Storvick) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault “just before the trial commenced“.  The Plaintiff, a 27 year old carpenter at the time of the crash, suffered various injuries the most serious of which involved disc injuries in his low back.  He was expected to have long term issues associated with these affecting his vocational abilities.  In assessing non-pecuniary damages at $75,000 Madam Justice Gropper made the following findings and provided the following reasons:

[50]         With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:

As a direct result of [this motor vehicle accident], this 30-year-old carpenter sustained myofascial injuries to his cervical spine and a severe injury to his lumbar region where both clinically and radiologically he has evidence of lower lumbar disc protrusions principally at the L3/L4 level where there was an associated annular tear and also at the L4/L5 level where there was a moderate midline focal disc protrusion.

[51]         Dr. Murray says that lumbar disc protrusions usually run a protracted course of recovery: a three year duration is not unusual. He expects that Mr. Roy will eventually become pain free.

[52]         In regard to Mr. Roy’s tear of the annulus fibrosus at the L3/L4 level, it can never heal as it does not have a blood supply. Dr. Murray considers that Mr. Roy will always be at risk for further episodes of lumbar disc protrusion pain. Dr. Murray continues:

… he will not be able to continue with his career as a carpenter and will need to be retrained for a less physically demanding alternate occupation. It may be difficult to find such an occupation for this man as he is very much “the sporting type”, who prior to the [motor vehicle accident] three years ago attended the gym six times a week and also played soccer twice a week….

[105]     At the time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work as a carpenter and participated regularly and enthusiastically in many sporting activities. While he is able to continue his employment, the remaining aspects of his physical activities have come to an end. In reconciling the prognosis of Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited opportunity to observe Mr. Roy. He was also apparently unclear on the degree to which Mr. Roy was engaging in exercise.

[106]     I further note that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a kinesiologist, who put him through testing and concluded that Mr. Roy’s functioning is compromised and that he will likely have increased rather than reduced pain.

[107]     I find that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy suffered a severe injury to his lumbar spine and a moderate to severe injury to his cervical spine is accurate. While Dr. Murray suggests that there may be some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing pain and discomfort….

[109]     Having reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary damages at $75,000.

The Dry Judgement Blues – Knowledge of lack of Registered Owner Consent

July 9th, 2013

Knowingly riding in a vehicle involved in a collision where the at fault driver does not have the owner’s consent can lead to legal headaches when it comes to being compensated for injuries.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with such a potential scenario.

In this week’s case (Schoenhalz v. Reeves) the Plaintiff was badly injured while riding as a passenger in a vehicle involved in a 2007 collision.  The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture.  Damages of $282,992 were assessed.

The driver of the vehicle was found to be at fault.  The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner.  Accordingly the lawsuit against the vehicle owner was dismissed.    The driver was 15 years of age at the time and did not have a license.  The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.

Why does this matter?  While this judgement did not get into collections issues such a finding could be problematic.

Typically a 15 year old uninsured motorist would have no means to satisfy a quarter million dollar judgement.  This leaves the issue of insurance.  In ‘no consent‘ situations ICBC treats the collision as uninsured leaving an injured plaintiff with only the ability to collect damages under either section 20 of the Insurance (Vehicle) Act or under their own Underinsured Motorist Protection plan (UMP).

While the above insurace plans often are valuable in satisfying an uninsured judgement, there are exceptions as to who can access these.  One such exclusion deals with knowingly being in a vehicle without driver consent.  A Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”

A similar exclusion exists if a Plaintiff seeks to access their own UMP coverage.  Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.

When seeking to collect the judgement from ICBC such a judicial finding may cause ICBC to deny payment on the basis that a person “ought to know” that an owner likely is not providing consent to an unlicensed individual operating the vehicle.  This area of law has received scarce judicial commentary but these coverage exclusions should serve as a stark reminder to individuals considering taking a ride with an unlicensed driver.


$85,000 Assessment for Permanent, Partially Disabling Soft Tissue Injuries

July 8th, 2013

Adding to this site’s archived caselaw addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for such an injury with permanently partially disabling consequences.

In last week’s case (Stull v. Cunningham) the Plaintiff was involved in a 2009 collision.   Fault was admitted by the Defendant.  The collision was significant and the Plaintiff caused soft tissue injuries to the Plaintiff’s back and neck.  These continued to be symptomatic by the time of trial and were expected to continue in the future.  The Plaintiff worked as a tradesman and the injuries interfered with his physical abilities at work.  In assessing non-pecuniary damages at $85,000 Mr. Justice MacKenzie provided the following reasons:

[91]         Having regard to the totality of the circumstances, I accept the evidence of the plaintiff that he still suffers reasonably moderate neck and back injuries and that this has affected, to a certain degree, his ability to do the same type of work around the house that he once enjoyed, that it has affected his recreational activities to a modest extent, and most significantly, his ability to perform at full capacity in his chosen occupation.

[92]         I accept that Mr. Stull is permanently partially disabled because of the injuries incurred in this accident and that his pain is constant and relatively significant. I find that the injuries he suffered in the accident have prevented him from doing all of the installation work he used to be able to do throughout his full work day.

[93]         I also accept the evidence of both Mr. and Mrs. Stull that the financial impact of the motor vehicle accident caused significant stress and disharmony in their marriage.

[94]         I also agree with counsel for the plaintiff that, by their very nature soft tissue injuries are not always manifested by objective signs. Complaints of soft tissue pain and headaches are subjective in nature. I do note, however, that Dr. Martin saw Mr. Stull in late May 2012 and noted “a mild decreased range of motion.” I accept Mr. Stull’s evidence with respect to the ongoing significance of these symptoms and find that they were caused by the accident and are not a result of normal wear and tear on a back that had been traumatized many years before.

[95]         Given the totality of the circumstances, I am satisfied a fair and reasonable assessment of non-pecuniary damages would be $85,000.

Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

July 5th, 2013

Adding to this site’s archives addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an incident.

In this week’s case (Wong v. South Coast British Columbia Transportation Authority) the 81 year old plaintiff boarded a bus and was on her way to her seat when “the driver pulled into traffic in an abrupt motion“.    The Plaintiff fell and the driver then “abruptly braked“.  The Plaintiff’s hip was fractured in the incident.

Madam Justice Power found the bus driver was negligent in failing to wait until the elderly plaintiff was seated before accelerating.  In finding the driver partly liable for the incident the Court provided the following reasons:

[25]         In cross-examination, Mr. Pinnell conceded that “it was surprising” that Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle.  He acknowledged that if he had seen Ms. Wong, he would have told her to sit down.  He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location.  He acknowledged that at examination for discovery he did not think such a policy was in place…

[40]         In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing.  In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11.

The Plaintiff’s fractured hip required surgical intervention.  Despite having an ‘uneventful’ recovery she was left with permanent restrictions in mobility.   The Court went on -to assess non-pecuniary damages at $90,000 before slightly reducing these for contributory negligence.

Why Global Settlement Offers Are OK in BC Wrongful Death Lawsuits

July 4th, 2013

Interesting reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the propriety of a global settlement in a wrongful death lawsuit involving children as beneficiaries.

In the recent case (Gaida v. McLeod) the Plaintiff Brenda Leah died “as a result of methotrexate toxicity and that the medication was mistakenly given to her daily, rather than weekly“.  The Defendants admitted liability in causing the wrongful death.   In the course of the lawsuit the Defendants and the estate of the Plaintiff reached a global settlement.   A disagreement arose and leading to a Defendant application to declare that a binding settlement took place.

The Plaintiff opposed this arguing that “ the failure to allocate specific amounts of the settlement money to the two minor children renders the proposed settlement too uncertain and vague to be enforceable.”  Mr. Justice Pearlman rejected this argument and provided the following reasons explaining why a global settlement can survive scrutiny:

[60]         In British Columbia, the court must approve the amount to be paid in settlement of an infant’s claim before the settlement of a claim under the FCA may be implemented.  The court may approve payment to an infant in an amount different from that proposed by the parties or recommended by the Public Trustee and Guardian.  The court may increase the amount to be paid in settlement of an infant’s claim beyond that proposed by the parties, and may do so at the expense of an adult claimant…

[67]         Any amounts which the parties propose to allocate to the heads of damages applicable to minor claimants, including loss of care, guidance and companionship, and loss of inheritance, are proposals only, subject to the court’s approval.  Ultimately, the court must determine the amount to be allocated to each minor claimant, which may require the reapportionment of allocations proposed by the parties within the global settlement amount.  While the global amount of settlement will not change, there can be no certainty respecting the parties’ allocation of specific amounts to each of the claimants, because the court has the exclusive jurisdiction to determine the allocation of settlement monies to the minor claimants.

[68]         Under s. 3(6) of the FCA, a defendant may make a single payment into court, in satisfaction of all claims, without specifying how that amount is to be allocated among the claimants.  There is no requirement under the FCA that a defendant making a payment into court must specify the amounts to be paid out to minor claimants.  In cases where the payment into court is accepted by the plaintiff, if the claim involves infant claimants the court must still approve the distribution of settlement monies to the minor claimants.

[69]         I conclude that the allocation of specific amounts to minor claimants, which is always subject to the court’s approval, and may vary from the amount proposed by the parties, is not an essential term for the formation of an enforceable settlement agreement.