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, 2014

Rollerblader 10% at Fault Following Crosswalk Collision

February 28th, 2014

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a rollerblader and a vehicle.

In this week’s case (Chabot v. Shaube) the Plaintiff was rollerblading and entered an intersection in a marked crosswalk.  She had the right of way.  She passed 4 of 5 lanes when the Defendant motorist, who failed to see her, moved forward attempting a right had turn.  A collision occurred.  Despite having the right of way the Plaintiff was found 10% at fault for the collision due to her speed when crossing.  In reaching this division of fault Mr. Justice Brown provided the following reasons:

[30]         The defendant should not have rolled to a stop and proceed as she did, considering the traffic, the time of day and the marked crosswalk in front of her. Her passenger saw the plaintiff and called out a warning.

[31]         As for the plaintiff, once she chose to skate across the intersection, she should have skated at a pace that slow enough to allow her to stop as quickly as if she were walking or at most slowly jogging, which is, for all practical purposes, instantaneously, after allowing a moment to see and react. In other words, she departed from the standard of care of a reasonable person in similar circumstances. By skating at a fairly brisk jog, she failed to exercise sufficient care for her own safety when crossing a busy intersection during morning rush hour at UBC…

[34] The plaintiff was not walking. She was travelling considerably quicker than a pedestrian walking. She does not have to guard against every conceivable eventuality, or to assume a vehicle in the designated right turn lane might not respect her right of way. Only, considering the circumstances, to be more vigilant and to take reasonable precautions for her own safety, considering she was skating across the intersection, could not see traffic on the other side of the bus and could not stop as quickly as she could on foot.

[35] The law does not declare the plaintiff broke the law by skating across the crosswalk. Cyclists are obligated to dismount when they enter a crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. But the Motor Vehicle Act does not include roller blades in its definition of “cycle”, see s. 119(1) “cyclist”; they are pedestrians. Further, I appreciate inline skating is a popular way to get around in good weather. Some road skaters appear very adept and agile skaters. I accept the plaintiff was an experienced skater and that she knew how to stop properly on skates. She was not obliged to remove her skates to cross. But having chosen to skate across the crosswalk, she needed to take reasonable precautions for her own safety, commensurate with her speed and visibility of traffic beyond the stopped bus.

[36] As noted in Karran, “fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.” I find the plaintiff’s conduct falls within the range of a momentary or minor lapse of conduct, which nevertheless, carries with it the risk of foreseeable harm. Based on this finding, and the circumstance that she was always within a marked crosswalk, I apportion 90% fault to the defendant and 10% to the plaintiff.


ICBC Ruined Our Marriage! “Lost Opportunity of Family Income” Claim Rejected

February 27th, 2014

While BC Courts do recognize that collision related injuries can lead to the demise of a financially interdependent relationship and lead to increased costs, the evidence to advance such a claim must be persuasive.  Reasons for judgement were released this week rejecting such a claim and discussing the requirements of advancing damages for “lost opportunity of family income“.

In this week’s case (Liu v. Bourget) the Plaintiffs were injured in a collision and sued for damages.  They alleged a variety of losses including that they separated, and thereby incurred greater expenses, as a direct result of the accident.  Mr. Justice Skolrood rejected this claim on the evidence and in doing so provided the following reasons:

[272]     Ms. Cheng and Mr. Liu submit that they have incurred increased expenses from the fact that they now live in separate residences which they say is a direct result of the accident. They say that an award of $50,000 is reasonable in the circumstances.

[273]     Ms. Cheng and Mr. Liu cite Grewal v. Brar et al, 2004 BCSC 1157, where the court awarded the plaintiff $30,000 for the possibility that her marriage might fail as a result of the consequences of the accident. The award was in effect a modified award for damages for loss of marriageability, a head of damages that the courts have long recognized.

[274]     This type of award was described by Mr. Justice Lambert of the Court of Appeal in Reekie v. Messervey (1989), 59 D.L.R. (4th) 481 at 494, 36 B.C.L.R. (2d) 316 (C.A.) at 330-331, as follows:

This aspect of the damage award was called “loss of opportunity to marry” by counsel and by the trial judge. But marriage is not the significant point. the significance lies in the loss of an opportunity to form a permanent interdependency relationship which may be expected to produce financial benefits in the form of shared family income. Such an interdependency might have been formed with a close friend of either sex or with a person with whom a plaintiff might have lived as husband and wife, but without any marriage having taken place. Permanent financial interdependency, not marriage, is the gist of the claim. For the sake of simplicity and consistency, I will now usually call this head of loss: “Lost opportunity of family income”.

[275]     Mr. Justice Lambert went on to describe categories of loss arising under this head of damages which are summarized by Mr. Justice Cole in Grewal as: (1) loss of the benefit of increased income, (2) loss of the benefit of shared expenses, and (3) loss of the benefit of shared homemaking (Grewal at para. 157).

[276]     In Grewal, Mr. Justice Cole rejected the defendant’s argument that this type of award was not available to persons who, at the time of the accident, were already involved in a marriage or inter-dependent relationship (paras. 158-159).

[277]     In the present case, Ms. Cheng and Mr. Liu’s claim is premised on their position that their marital separation is a result of the accident. I have found that the accident was one of many contributing factors to the breakdown and that there was a good likelihood that they would have separated in any event. I also note that unlike in Grewal, there is no evidence from an economist or other expert attempting to value the additional expenses resulting from the separation. Nor was there evidence from Ms. Cheng and Mr. Liu outlining their expenses pre and post-accident.

[278]     Taking all of these factors into account, Ms. Cheng and Mr. Liu have not satisfied me that an award under this head is warranted.


$100,000 Non-Pecuniary Assessment for Lingering Post Concussive Symptoms

February 27th, 2014

Adding to this site’s archived caselaw addressing non pecuniary damages for collision related brain injuries, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, addressing damages for lingering concussive issues.

In this week’s case (Fadai v. Cully) the Plaintiff was involved in a 2008 collision. He sustained soft tissue injuries along with a mild traumatic brain injury.  While many of his symptoms cleared prior to trial he continued to have issues with impulse control which was a consequence of his brain injury. In assessing non-pecuniary damages at $100,000 Mr. Justice Schultes provided the following reasons:

[202]     To summarize, I find that Mr. Fadai suffered soft tissue injuries to his head, neck, shoulder and left wrist as a result of the accident, including severe headaches, and that these injuries resolved by about a year after it.

[203]     I also find that he suffered a mild traumatic brain injury in the accident which led to difficulties with his short-term memory, which resolved by about two years after it. He also has some degree of impairment of his control over his impulses and anger as a result of the accident, which was ongoing at the time of trial. The extent of that impairment is captured by the incidents that were observed by his family and friends. Given the expert evidence that such problems resolve within two years if they are to resolve at all, I will proceed on the basis that the difficulty with self-regulation will be permanent…

209]     Obviously every case has its own unique factors that influence the amount awarded, but considering the helpful common themes of these authorities I would say that the physical injuries in the cases cited on behalf of Mr. Fadai were all more serious and enduring than his soft tissue injuries. This is also true of the cases cited on behalf of Mr. Cully, except for Gatzke, in which it appears that the duration and severity of the injuries were slightly lower. In making these comparisons, I have kept in mind that although his physical symptoms had largely resolved within a year or slightly more, Mr. Fadai’s headaches during at least the first six months were quite severe.

[210]     I would characterize the effects of the mild traumatic brain injuries in Gougen, McKinnon and Scoates as being somewhat more serious than Mr. Fadai’s, because I have found that in his case the component of short-term memory loss and concentration problems have largely resolved, and that his difficulty is now mainly with self-regulation.

[211]     Taking all of this into account, I conclude that an appropriate award for non-pecuniary damages is $100,000.

$50,000 Non-Pecuniary Assessment for “Crossover Toe” Injury

February 26th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing non-pecuniary damages for ‘crossover toe’ sustained in a collision.

In today’s case (Chow v. Schuler) the Plaintiff was struck by the Defendant’s vehicle while crossing a crosswalk.  Although the Defendant disputed fault he was found fully liable for the collision.  The Plaintiff suffered a knee strain and eventually developed cross-over toe which required surgical correction.  In assessing non-pecuniary damages at $50,000 Mr. Justice Kent provided the following reasons:

[58]         There is no doubt that the plaintiff did suffer pain and disability both in the immediate aftermath of the accident and the later development of “crossover toe” and the surgical treatment of same. Her mobility was significantly affected and she has been unable to fully return to all of her pre-accident recreational activities including, of course, ballroom dancing. However, while the plaintiff’s pain and discomfort has not completely disappeared, she testified she presently only experiences pain if she walks too long or too fast or if she otherwise puts pressure on her leg in attempting to move objects or the like.

[59]         The plaintiff did seek counseling assistance from a professional psychologist at the suggestion of her family doctor. She was experiencing nightmares about being struck by vehicles and she was having difficulty sleeping. She developed a fear of crossing the road. She testified that the counseling did assist and that today she has no such fears and nightmares are rare.

[60]         An award of general damages for non-pecuniary loss must be fair to all parties and fairness is measured against awards made in comparable cases. This, of course, is only a rough guide as each case depends on its own unique facts. The factors usually considered in making these types of awards, as outlined by the Court of Appeal in numerous cases including Boyd v. Harris, 2004 BCCA146 and Stapley v. Hejslet, 2006 BCCA 34, include:

a.     Age of the plaintiff;

b.     Nature of the injury;

c.     Severity and duration of pain;

d.     Nature and extent of resulting physical and mental disability;

e.     Emotional suffering;

f.      Impairment of life including family, marital and social relationships; and

g.     Loss of lifestyle.

Here, having regard to all of these factors as well as the cases cited by counsel, I award the plaintiff general damages in the amount of $50,000.



BC Seeks to Overhaul All Terain Vehicle Regulation

February 25th, 2014

The BC Government announced the introduction of Bill 13, the Off Road Vehicle Act, which seeks to overhaul the Province’s system regulating the use of off road vehicles.

You can find the text of the proposed legislation here.

Below is the BC Government’s press release:

VICTORIA – Bill 13, the Off Road Vehicle Act introduced today, promises certainty, safety and regulatory structure for thousands of off-road enthusiasts.

The proposed Off Road Vehicle – or ORV – Act replaces the 40-year-old Motor Vehicle (All Terrain) Act with a modern management structure, designed to align with existing regulatory regimes at minimal cost.

Increased use of quads, snowmobiles and other ORVs has helped British Columbians get out and enjoy the beauty of the province’s backcountry. Bill 13 will help ensure these vehicles are driven in a safe and environmentally responsible manner.

The act, if passed and brought into force, will:

  • Establish a one-time registration system specifically designed to integrate with the pre-existing structure of the Insurance Corporation of British Columbia’s vehicle registry, reducing implementation costs. ORVs will have to be registered and display a clearly visible number plate before they can be operated on Crown or other public land.
  • Allow the development of regulations on the rules of operation (such as wearing helmets), safety standards and conditions of use for a wide range of modern ORVs, including snowmobiles, all-terrain vehicles or “quads”, dirt bikes and utility terrain vehicles.
  • Assist in identifying stolen or abandoned ORVs, by requiring ORVs to be registered in a database that is accessible to peace officers at all times.
  • Provide officers with more effective enforcement tools to target the small number of irresponsible ORV owners that endanger others or damage sensitive habitat. This includes the ability to stop and inspect ORVs for violations, seize an ORV for safety or evidence purposes, and increase the maximum fine for offences from $500 to $5,000.

Included in the proposed ORV legislation is an amendment to the Special Accounts Appropriation and Control Act establishing the ORV Trail Management Sub-account. This will ease the process of providing future investments directly into developing and maintaining trails, delivering lasting benefits to the ORV tourism industry in rural communities.

 The proposed ORV Act is the result of extensive consultation, and represents a fair compromise for all user groups. Implementation, including registration provisions, is anticipated in the fall of 2014.



$80,000 Non-Pecuniary Assessment for Fractured Wrist With Residual Complicaitons

February 21st, 2014

Adding to this site’s archived database addressing damages for wrist injuries, reasons for judgement were released this week by BC Supreme Court, Vancouver Registry, dealing with a wrist fracture following a cyclist collision.

In this week’s case (Jang v. Ritchie) the Plaintiff was walking along a trail when the Defendant “was cycling along the same trail travelling in the same direction as Mr. and Mrs. Jang. Mr. Ritchie lost control of his bicycle and drove into Mr. Jang striking him in the back“.  The Defendant was found fully at fault for the collision.  The Plaintiff broke his wrist which required immediate surgical attention and went on to cause long term limitations.  In assessing non-pecuniary damages at $80,000 Madam Justice Fenlon provided the following reasons:

[5]             I also find that Mr. Ritchie’s negligence caused Mr. Jang’s injuries. The injuries were fully described in the medical opinion of Dr. Melvin Serink, an orthopaedic surgeon. Dr. Serink stated in his opinion:

… [Mr. Jang] suffered a comminuted fracture involving his left distal radius and ulna. He subsequently was treated with a closed reduction and a Hoffman external fixator. Postoperatively he developed Sudeck’s dystrophy with generalized pain and swelling related to his wrist and PIP joints of his left hand. As a result of his injury, he has been left with permanent soft tissue contractures involving the PIP joints of the fingers involving his left hand. He also has been left with complaints of pain and weakness related to his left wrist associated with generalized stiffness. … [Mr. Jang] is aware of stiffness associated with loss of extension and flexion. As a result of his Sudeck’s he does have decreased power and dexterity related to the fingers of his left hand. …

His range of motion shows loss of extension and flexion by approximately 50% percent. Supination is decreased by approximately 20%. His power grip is significantly decreased secondary to generalized pain related to the PIP joints.

X-rays of his left wrist from January of this year [2012] [show] the complete loss of the space involving the radiocarpal joint. The un-united ulnar styloid is evident. The early osteophyte formation involving the distal radial styloid is also evident.

I have paraphrased slightly to insert Mr. Jang’s name and so on.

[6]             I accept Dr. Serink’s uncontradicted opinion in this case. His observations are consistent with Mr. Jang’s testimony and my own observations of Mr. Jang’s left hand, which is fixed in a somewhat claw-like position. I also find that Mr. Jang’s condition is permanent. The progressive nature of the injury-induced arthritis in his hand will, if anything, increase Mr. Jang’s symptoms as time goes by. Dr. Serink examined Mr. Jang and provided the following opinion in this regard:

As a result of the destruction of the articular cartilage involved in his original fracture, he has developed significant post-traumatic degenerative arthritis. The soft tissue contracture which occurs as a result of the Sudeck’s dystrophy will be permanent. As a result, he will be left with complaints of pain, weakness and generalized stiffness. These complaints will not significantly improve with rest, time or further physiotherapy. At the present time [Mr. Jang] is well motivated and is using Tylenol on a p.r.n. basis for pain control….

[11]         Mr. Jang was in a cast for three months and underwent extensive physiotherapy. Despite that, he continues to have constant pain. He described the pain as eight on a scale of 10. He gets shooting pains on activity. Mr. Jang manages the pain by using Tylenol 3 and heat and by massaging his hand.

[12]         Mrs. Jang touchingly described her husband of 30 years as “hard on the outside, but soft on the inside, a nice man”. She and her daughter, Angela, both described the difficulties they have observed Mr. Jang having now with even simple tasks such as opening a jar.

[13]         Counsel for Mr. Jang took me to a number of cases with somewhat similar facts including Paras v. Muirhead (1996), 71 B.C.A.C. 17; Ferguson v. All-Can Express Ltd., [1988] B.C.J. No. 78 (S.C.); Jackson v. Jeffries, 2012 BCSC 814; Lowe v. Larue, [1998] A.J. No. 1465 (Q.B.); and Kumlea v. Chaytors (1993), 76 B.C.L.R. (2d) 337 (C.A.). Counsel submits non-pecuniary damages in the range of $60,000 to $85,000 would be appropriate.

[14]         While the cases provided to me are helpful, they are not, of course, determinative. Each case must be decided on its own facts. The cases referred to me include some differences such as plaintiffs who are younger or plaintiffs with soft tissue injuries as well as a wrist injury. In many of the cases, the injuries the plaintiffs experienced were not as severe as the injury experienced by Mr. Jang.

[15]         Having considered all of the cases and the particular facts of this case, I am satisfied an award of $80,000 is appropriate for pain, suffering, and loss of enjoyment of life.

Double Costs Application Allowed To Proceed Despite Entered Order Addressing Costs

February 20th, 2014

In interesting reasons for judgement released today by the BC Supreme Court, Chilliwack Registry, Chief Justice Hinkson determined that a double costs application could proceed despite the entry of an order addressing costs.

In today’s case (Keller v. Pearson) the Plaintiff was injured in a collision and sued for damages.  Prior to trial ICBC offered to settle the case for $70,000.  The Plaintiff rejected the offer and proceeded to trial where the case was dismissed with costs payable to the Defendant.  The Court did not address the consequences of the formal offer.  An order was entered which read “The Plaintiff shall pay the Defendants’ costs in this action, subject to the Plaintiff being at liberty to request to reappear before the Court to make submissions in respect of same.”.

The Defendant then sought double costs relying on their pre trial formal offer.  The Plaintiff argued the Court was functus officio.  Mr. Justice Hinkson disagreed and provided the following reasons addressing the narrow exception to address costs following an entered order:

[10]         The plaintiff contends that it is he, and he alone, who was permitted by the entered order to reappear before the Court to make submissions as to costs, and that the defendants have no basis upon which to advance any submissions with respect to double costs.

[11]         While it may have been open to the defendants to make submissions seeking double costs before the entry of the order, the order addresses their entitlement to costs, subject only to the plaintiff’s request to reappear before the Court. No such request has been made by the plaintiff, and the defendants’ entitlement to costs in the matter has been determined by the summary trial judge.

[12]         In Buschau v. Rogers Communications Inc., 2004 BCCA 142 at paras. 26–27, 237 D.L.R. (4th) 260, Newbury J.A. stated:

[26]      …The Court also had the power to amend the entered order on the basis that it contained an error in expressing the manifest intention of the Court. As stated by Rinfret J. for the Supreme Court of Canada in Paper Machinery, [[1934] S.C.R. 186]:

            The question really is therefore whether there is power in the Court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think — and we see no reason why it should not also be the rule followed by this Court — that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court (In re Swire [(1885) 30 Ch. D. 239]; Preston Banking Company v. Allsup & Sons, [[1895] 1 Ch. 141]; Ainsworth v. Wilding, [[1896] 1 Ch. 673]). [at 188; emphasis added.]

Paper Machinery has been cited on numerous occasions by Canadian courts, including this court in R. v. Blaker (1983), 46 B.C.L.R. 344, at 347, and in Racz v. District of Mission (1988) 22 B.C.L.R. (2d) 70. In the latter case, the Court set aside a “consent dismissal order” entered by a solicitor who had acted without authority. The Court found that it had inherent jurisdiction to correct what would otherwise be an abuse of process and ruled that it was not necessary to require the plaintiff to bring a fresh action in order to set the order aside. On this point, the Court agreed with Chief Justice Sinclair in Morstad v. Quintal (1980) 14 Alta. L.R. (2d) 369 (Q.B.), who had said that [at p. 371]:

… it must surely be within the inherent jurisdiction of this court to grant the relief sought by the plaintiff on the present motion without the necessity of going through the sterile routine of commencing a separate action, a proceeding which would not result in the bringing forth of additional facts or otherwise advancing the administration of justice.

Hutcheon J.A. in Racz noted that in Morstad, the order nisi as entered had been “based on a mutual mistake of fact.” (At 73.)

[27]      Even if the error in the order was not a “clerical” one or an error arising from an “accidental slip or omission” within the meaning of Rule 41(24), then, the court below had the inherent jurisdiction to correct the order insofar as it did not reflect its manifest intention. In the absence of any evidence that the respondents had taken any irrevocable step in reliance on the order, or would suffer undue prejudice were it corrected, I conclude that the Court should have exercised this jurisdiction and corrected its order. In my view, it cannot be in the interests of justice for the respondents to rely on that order to retain a sum to which they have no entitlement in principle.

[13]         I am unable to see that either of the two exceptions discussed in Paper Machinery apply in this case. I am advised that the entered order was drafted by counsel for the defendants.  There is no suggestion that there was any “slip” in drawing it up, nor does it evidence any error in expressing the manifest intention of the court. There is no suggestion before me that Smart J. was asked to order double costs, and there is no basis upon which it could be argued that he intended to do so.

[14]         Nor is this a situation such as that dealt with by Mr. Justice Burnyeat in GC Parking Ltd. v. New West Ventures Ltd. et al, 2004 BCSC 1700, 9 C.P.C. (6th) 245, where after an order awarding costs on Scale 3 against the defendants was made, the order entered made no reference to costs as the plaintiff specifically advised the defendants that it intended to make further submissions respecting an alleged entitlement to double costs. In that circumstance, Burnyeat J. held at para. 17 that:

[17]      The court can be functus officio where the entered order accurately deals with matters which were dealt with in the Reasons for Judgment but retain jurisdiction to deal with matters which were not set out in the entered order but which were dealt with in the Reasons for Judgment. Bavelas v. Copley, [2000] B.C.J. (Q.L.) No. 523 (B.C.S.C.) dealt with an order entered with respect to liability and damages but not with respect to costs. Drost J. held that the entry of the order rendered the court functus offico “except with respect to the issue of costs” (at para. 20).

[15]         While I respectfully agree with this statement by Burnyeat J., in the case before me, the entered order reflected the disposition of costs as set out in the reasons for judgment.

[16]         However, in Smart v. McCall Pontiac Buick Ltd., 2001 BCSC 467, [2001] B.C.J. No. 682, special costs were awarded to the plaintiff in a written judgment, and an order was entered providing for special costs. An application was then brought by the plaintiff for double costs based upon an offer to settle made by the plaintiff. Mr. Justice McKinnon reasoned that despite the entered order, he could hear the plaintiff’s application for double costs arising from the defendants’ failure to take advantage of an offer, which was substantially below the amount awarded, as he was unaware of the offer to settle and unentitled to know about it when delivering his reasons for judgment.

[17]         I am unable to distinguish the factual underpinnings in Smart from those in this case. Despite the entry of the order in this case, based upon the principle of judicial comity discussed in Re Spruce Hansard Mills Ltd., [1954] 4 D.L.R. 590, 34 C.B.R. 202, I find that I am obliged to hear the defendants’ application for double costs.


BC Court of Appeal Strips Modest Diminished Capacity Award “As a Matter of Principle”

February 19th, 2014

Reasons for judgement were released today by the BC Court of Appeal stripping a Plaintiff of modest damages awarded for diminished earning capacity.

In today’s case (Kim v. Morier) the Plaintiff was injured in a collision and sued for damages.   Despite her injuries she was able to work 12-15 hour days as a floor plan technician. She had no lost income by the time of trial.  Her injuries lingered and were expected to indefinitely though the “degree of disability would be mild, that her level of disability is “fairly small” “.

In overturning the $10,000 damage assessment for this loss the BC Court of Appeal provided the following comments on the evidentiary foundation needed for diminished earning capacity damages:

[6]           On appeal, the defendant submits that the Court erred in making an award under this head in the absence of a finding of a “real and substantial possibility” that Ms. Kim’s earnings in future would be impaired. The defendant relies in particular on Roberts v. Kidd (1998), 52 B.C.L.R. (3d) (C.A.), where Mr. Justice Hollinrake for the majority noted that it is not sufficient for an award under this head for the plaintiff to testify as to a loss of confidence or ability to project herself without showing a “functional” element. (Mr. Justice Lambert dissented on this point.) In the result in Roberts, this Court set aside the award for diminished income and incapacity.

[7]           More recently, in Perren v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303, this court emphasized at paras. 21, 32, and 33 the requirement for the plaintiff to meet the onus of showing at least a “real possibility” of future loss, as opposed to a theoretical loss. Similarly, in Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152, the Court discussed the comment of Madam Justice Southin in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, to the effect that it was “impossible to say” the plaintiff in that instance would not suffer reduced earning capacity in the future. Mr. Justice Donald wrote in Steward at para. 17

But the language in question there was used in the context of appellate review and, with respect, it cannot be transposed to an original analysis at the trial level. The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur: Parypa v. Wickware, 1998 BCCA 88, 169 D.L.R. (4th) 661¶ 65.

This is not a heavy onus, but it must be met for a pecuniary award to be justified.

[8]           In my view, the trial judge here did err in equating the loss of capital asset here with the plaintiff’s own perception. As the cases demonstrate, that is not enough. The plaintiff must show that it is a realistic possibility she will be less able to compete in the marketplace – with economic consequences, not merely psychological ones. In my view as well, the trial judge’s statement made after the award was pronounced, that Ms. Kim “may” be less capable of maintaining her disciplined approach to work also fell short. As we suggested to counsel this morning, the word “may” is essentially speculative and does not equate to a finding of a real possibility.

[9]           Mr. Carta said all that could be said in support of the award, but I agree with the defendants that as a matter of principle the findings here did not support an award for loss of earning capacity.

[10]        I would allow the appeal and set aside the award under this head. I would also order that the parties bear their own costs, given that this appeal was brought as a matter of principle.


ICBC Projects Nearly $1Billion in Profit From 2013-2016 ; Government Profit Scoops to Continue

February 18th, 2014

It’s that time of year again.  With the BC Government’s Budget also comes ICBC’s 2014-2016 Service Plan.  As always, these documents give insight into the actual and projected financial health of ICBC.

ICBC is projecting nearly $1 Billion in profits from 2013-2016 and the Government plans to scoop an average of $160 Million annually over this period.

The below excerpt is from the Budget:

Insurance Corporation of British Columbia: ICBC’s net income is forecast to average
$214 million annually over the fiscal plan period. The outlook assumes average annual
growth of 1.7 per cent in the number of insured vehicles and a 4.0 per cent average
annual increase in claims costs. Over the fiscal plan period, ICBC is forecast to remit an
annual average $160 million of its excess Optional insurance capital to the consolidated
revenue fund to support core government services.

Here are the details of ICBC’s projected financial performance over this period:


$45,000 Non-Pecuniary Assessment for Lingering but Resolving Soft Tissue Injury

February 18th, 2014

Adding to this site’s archived case summaries addressing soft tissue injury damages, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a lingering whiplash injury.

In this week’s case (Kelly v. Kotz) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  The Plaintiff suffered a whiplash type injury which caused chronic headaches.  Although there was improvement with time some symptoms still lingered at the time of trial.  In assessing non-pecuniary damages at $45,000 Madam Justice Hyslop provided the following reasons:

[100]     I do find that in the accident the plaintiff suffered neck and upper back injuries, and that headaches are a symptom of those injuries…

[105]     She stated that six months after the accident there were days that she felt normal, though there were times that the headaches got worse as to severity and duration and affected her level of concentration. These descriptions are consistent with her reporting to Sarah Robson and Carey Jones.

[106]     When Dr. Brownlee saw the plaintiff, she had normal range of motion and some pain with flexion, particularly with the extension of her neck. The plaintiff told Dr. Brownlee that her symptoms gradually improved, but never resolved themselves completely…

[122]     I conclude that the plaintiff’s symptoms have improved as she described to Dr. Brownlee and will continue to improve.

[123]     In assessing non-pecuniary damages, I considered the plaintiff’s special circumstances and the case law cited to me by both plaintiff and defendants.

[124]     I award $45,000.00 for non-pecuniary damages.