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 August, 2014

“Customer Safety” Based Incident Report Ordered Disclosed as Non Privileged

August 28th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Defendant in a personal injury lawsuit to disclose an incident report created following the incident at question.

In today’s case (Smith v. Air Canada) the Plaintiff “was in her seat when a bag allegedly fell on her after a fellow passenger failed to store it securely in the overhead compartment.“.  She sued Air Canada alleging negligence.  Following the incident Air Canada created an “incident report” but refused to provide the Plaintiff with a copy of this document alleging it was created for the dominant purpose of litigation.  Madam Justice Gropper disagreed finding it was instead created primarily with customer safety in mind and ordered it disclosed. In reaching this conclusion the Court provided the following reasons:

[24]         As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.

[25]         As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.

[26]         Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.

[27]         As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master’s view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.

[28]         Having reached that conclusion, it was not necessary for Master Baker to consider the dominant purpose test. He did not conflate the two-part test as Air Canada suggests. Air Canada did not clear the first hurdle.


$25,000 Non-Pecuniary Assessment for Multiple Rib Fractures

August 27th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, assessing damages for multiple rib fractures caused by a collision.

In today’s case (Bariesheff v. Bennett) the Plaintiff was involved in a 2011 rear end collision.  Fault was admitted by the Defendant.  The plaintiff  “fractured five of her left lower ribs, more particularly the 8th to the 12th rib of the left chest wall, for which the defendant has accepted responsibility.“.

The Plaintiff alleged the crash caused a chronic low back injury as well although this was rejected by the Court.  In assessing damages for the rib injuries at $25,000 Mr. Justice Cole provided the following reasons:

[55]         The following cases provide a range of between $15,000 and $35,000 for general damages: Sinnott v. Boggs, 2007 BCCA 267; Kapelus v. Hu, 2013 BCCA 86; Mak v. Eichel, 2008 BCSC 1102; Sun v. Sukhan, 2012 BCSC 365; Currie v. McKinnon, 2012 BCSC 698; De Abreu v. Huang, 2013 BCSC 398.

[56]         I have taken into account the relatively young age of the plaintiff, the fact that she missed her graduating ceremonies to a great extent, which was an important event of her life, and that the pain, though essentially gone, persisted for about three years and is still tender to the touch. I am satisfied that an appropriate award for general damages is $25,000.


$100,000 Non-Pecuniary Assessment for Fractured Shoulder and Wrist

August 26th, 2014

Adding to this site’s archived cases addressing non-pecuniary damages for wrist and shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for orthopaedic injuries to these areas.

In today’s case (Azam v. Bilaya) the Plaintiff was involved in two motorcycle collisions.  Fault was admitted in both.  In the first collision the Plaintiff suffered a broken shoulder and various soft tissue injuries.  These were aggravated in the second crash which also caused a broken wrist.  In assessing non-pecuniary damages at $100,000 then modestly reducing these to account for pre-existing conditions Madam Justice Gerow provided the following reasons:

110]     It is clear that Ms. Azam was injured in both motor vehicle accidents. In the first accident, she suffered a broken shoulder and a neck and back injury. In the second accident, she suffered a broken wrist, injury to her knees and an exacerbation of her pre-existing spine condition.

[111]     I accept she does have chronic pain in her back which is exacerbated by activity; however, I do not accept Ms. Azam’s evidence regarding the impact of her injuries. I did not find Ms. Azam a particularly credible witness, and there is evidence that she is able to function at a higher level than she testified to…

[126]     Having considered the extent of the injuries, the fact that she is still having chronic pain after the accident which flares up from time to time, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $100,000, if the accidents were the only cause of Ms. Azam’s ongoing symptoms.

[127]     However, Ms. Azam must be put back in the position she would have been in if the two motor vehicle accidents had not occurred. The evidence establishes that Ms. Azam suffered from a pre-existing symptomatic spine condition which had caused her periodic back pain in the 10 years prior to the first accident. Although it was not symptomatic right before the first accident, is reasonable to infer Ms. Azam would likely continue to suffer from periodic back pain, regardless of the accidents. Having taken that into consideration, I am of the view that the appropriate award for non-pecuniary damages is $85,000.


BC Supreme Court Awards Damages for Cost of Medical Marijuana Program

August 21st, 2014

With medical marijuana gaining more acceptance as a prescribed treatment for a variety of health conditions, costs associated with such treatments are receiving judicial consideration in personal injury litigation.

In what is at least the second decision in BC to do so (click here for the first) reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for the cost of medical marijuana.

In today’s case (Amini v. Mondragaon) the Plaintiff was injured in a 2011 collision that the Defendant accepted responsibility for.  The Plaintiff suffered various lingering injuries and a medical marijuana program was recommended to address some of the Plaintiff’s symptoms.  Mr. Justice Greyell assessed damages of $6,500 to account for the cost of this recommendation and in doing so provided the following reasons:

[133]     Dr. Hershler strongly recommended Ms. Amini be put on the Medical Marijuana Program to assist in controlling her pain so as to allow her to work on strengthening exercises for her neck and back. He was of the view this would allow her a “good chance for effective pain management”. I accept his recommendation as a reasonable one.

[134]     Dr. Hershler recommended she be prescribed ten grams of cannabis per day to be used as an ointment. He recommended this be followed with 20 sessions with a physiotherapist to build core strength and range of motion.

[135]     Dr. Hershler estimated the cost of a six month program using a dosage of 10 grams per day to be approximately $9,000. In cross-examination counsel suggested the ointment could be made at considerably less cost if the plaintiff, as a Nurse, made her own. Dr. Hershler did not disagree.

[136]     I award the plaintiff $6,500 for a Medical Marijuana Program and $1,500 for the cost of 20 physiotherapy sessions (at $75 each) to follow the medical marijuana treatments.


Adverse Inference Drawn Following Defendant’s Failure To Testify in Liability Trial

August 21st, 2014

Where fault for a collision is disputed it is very unusual for one of the parties to fail to testify.  Absent a good explanation the Court is free to draw an ‘adverse inference’ meaning an assumption that the party would not help their cause if they did indeed testify.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing this principle.

In this week’s case (Solberg v. Carriere) the Plaintiff pedestrian was struck by the Defenant’s vehicle in a 2012 collision in Campbell River, BC.   The Plaintiff, was “acting in an animated and boisterous fashion” near the Defendant’s vehicle.   The Defendant put his vehicle in motion knowing the Plaintiff was in the vicinity who then “slipped and fell” and was run over by the vehicle’s trailer.  The Defendant argued the Plaintiff was fully at fault for the incident.  The Defendant, who was present during the trial, decided not to testify.  The Court drew an adverse inference from the Defendant’s failure and concluded that the Defendant “breached his duty of care by moving his vehicle forward without looking for himself to see that it was safe to do so, knowing that (the Plaintiff) was in the immediate area and acting foolishly”.

In drawing an adverse inference from the Defendant’s failure to testify Mr. Justice Johnston provided the following reasons:

[43]  Weighing the evidence in light of those criteria set out in McIlvenna, I conclude that in this case I will draw an inference that, if he had been called, Mr. Carriere’s evidence would not have tended to establish that he looked toward Ms. Solberg before he put his vehicle in motion.  I conclude that Mr. Carriere relied on his passengers to tell him if it were safe to move, whether it was good to go or clear.  This is consistent with his discovery evidence that no one was looking at Ms. Solberg as he was driving away, and consistent wit the evidence of his passengers who did testify.


History of Violence Not Necessary For Dog Injury Claim To Succeed

August 20th, 2014

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, addressing liability when a dog leaves its owners property and causes harm to others.

In today’s case (Gallant v. Slootweg) “the defendants’ dog, “Rocky”, ran from their property, apparently unimpeded by the electronic fence that was intended to keep it within the property, towards the plaintiff and knocked him from his bicycle“.  The Plaintiff suffered orthopeaddic injuries and sued for damages.

The dog did not have a history of violence but did have “a propensity to chase cyclists”.  The Defendant’s argued that this was not sufficient to establish liability as the dog did not have a history “of a vicious or dangerous nature” and that installing an electronic fence was a sufficient step to prevent a finding of negligence.  Mr. Justice Joyce disagreed and found the defendants  liable in both negligence and under the principles of scienter.  In reaching this conclusion the Court provided the following reasons:

[24]         It is not necessary, however, for the plaintiff to show that the dog has actually caused the particular harm in the past; what is required is to show that the defendant knew or ought to have known that the dog had a propensity or manifested a trait to do that kind of harm. ..

[32]         I am satisfied that Rocky had a propensity to chase cyclists while barking and get as close to them as he could within the electronic restrain to which he was ordinarily subject, and to follow them as they traversed in front of the defendants’ yard. I am satisfied that Rocky’s actions constituted a propensity to cause harm to cyclists by knocking them from their bicycles if he was not restrained within the yard. I am further satisfied that the defendants knew, or ought to have known, that if not restrained, Rocky would run right up to a cyclist, barking at the cyclist and creating a very real risk that he would impede the travel of the bicycle. The defendants had watched Rocky run the length of the front yard getting as close to cyclists as he could within the boundaries of the electronic fence, which was the only method that they employed to restrain Rocky from going right up to the cyclists. The harm the Rocky caused on this occasion was the very kind of harm that, in my view, Rocky had demonstrated a propensity to inflict.

[33]         I conclude, therefore, that the defendants are liable on the basis of scienter.

[34]         I am also satisfied that the defendants are liable on the basis of negligence. In my opinion, they knew that the only thing that was keeping Rocky from running up to cyclists using the road in front of their property, and likely knocking them from their bicycles, was the electronic fence. It is my view, that a reasonable person would not place reliance solely on such a device to secure their dog and prevent it from causing harm to users of the road, when they were aware of the risk of harm if Rocky got free from the confines of the electronic fence. Unlike a physical fence or a large pen, it is not possible to readily observe that the electronic fence is in good repair.

[35]         Further, the operating manual that the defendants received when they purchased the fence warned them that the fence was a deterrent, not a barrier and advised that there was no guarantee that a pet could be trained to avoid crossing the boundary.

[36]         In order to meet a reasonable standard of care to ensure Rocky was kept within the property would not have required the defendants to incur the expense of fencing the whole of the property. They could have built a large “dog run” that would have provided Rocky with ample exercise room when not on leash, in the company of someone able to restrain him. Alternatively, they could have used a chain for Rocky that would not physically permit him to go beyond the property and onto the roadway.

[37]         Further, I find that having adopted the electronic fence as the only means of preventing their dog from escaping onto the road and charging passers-by, they were negligent in not ensuring that it was working properly by testing it on a frequent basis. While it is not known precisely when the receiver failed to operate, they had not tested it for months. They only checked the transmitter on a daily basis. Even when the defendants replaced the batteries and tested the receiver after the incident they found that did not operate consistently. If they had tested it regularly, it is likely that they would have discovered that it was not safe to rely on the electronic fence system to retrain Rocky.


Plaintiff Ordered To Produce Credit Card Statements In ICBC Brain Injury Claim

August 18th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff in an injury lawsuit to disclose credit card statements for a span of several years.

In today’s case (J v. K) the Plaintiff was involved in two motor vehicle collisions.  She allegedly suffered a head injury and the medical evidence noted that the Plaintiff “is probably suffering with residual frontal lobe dysfunction with respect to impulsive behavior, impulsive buying“.

The Defendant requested various financial records to explore the reported impulsive buying behavior.  Master Taylor agreed that this was a reasonable request and ordered that Visa records from a year prior to the collision onwards be disclosed.  In reaching this decision the Court provided the following records:

[24]         I am satisfied by the circumstances and the facts of this case that the request for the plaintiff’s credit card statements which will likely show her spending patterns, and that the information gleaned from the statements is relevant and material to the plaintiff’s claims. I am not satisfied that the plaintiff’s banking records are material to her claim or that her privacy with regard to those items should be breached, aside from one exception as set out in paragraph 26 below.

[25]         Accordingly, I order that the plaintiff disclose her Visa credit card statements and any other credit cards she may have used or statements related to any other credit cards, from one year pre-accident to the present. In this instance, it is one year prior to her first accident which occurred on September 13, 2010. The statements are to be unredacted except for those purchases made by the plaintiff’s brother which may be redacted.

[26]         In the event that the claimant intends to show any impulsive spending by way of debit card transactions, then those monthly statements should be provided to the defendants, but in this case only the monthly statements in which the alleged impulsive spending is to have occurred, and in an unredacted format.


Quickscribe 2.0 Now Live With “Expert Annotation”

August 18th, 2014


Quickscribe, BC’s premier service for tracking legislative changes in the Province, has now launched their updated online version which provides many new features including legislative annotations from ‘experts’ in various legal fields.

I am happy to accept Quickscribe’s invitation to act as their annotator for motor vehicle related legal developments.  While Quickscribe is a subscription service with many worthwhile features worth paying for for those involved in the legal industry, those that access my content here will not be losing out.  I will, in addition to my services at Quicskscribe, continue to provide timely BC injury law related updates here free of charge.


Welcome CBC Radio Vancouver Listeners

August 14th, 2014

Yesterday I had the pleasure of being interviewed by CBC Radio’s Jeremy Allingham on the topic of expert witness advocacy in personal injury lawsuits.

For those visiting this site for the first time welcome!  If you are looking for more information on this topic you can click here to access my archived posts detailing judicial criticism of expert witness advocacy in the BC Supreme Court.


$100,000 Non-Pecuniary Assessment for “Serious Facial Scars” Following Vehicle Collision

August 14th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for facial scars following a tragic motor vehicle collision.

In today’s case (Boparai v. Boparai Estate) the Plaintiff was involved in a serious collision when he was 8.  He was a passenger in a vehicle which crashed and killed his mother and twin brother.  The Plaintiff suffered relatively minor soft tissue injuries and serious facial scarring.  In addressing non-pecuniary damages for these physical injuries Mr. Justice Schultes provided the following reasons:

[71]         To summarize the physical injuries and their consequences, at a vulnerable age Mr. Boparai received several serious facial scars from this accident. He then had to endure numerous uncomfortable procedures to reduce their visibility, without complete success.

[72]         The scars have had a significant influence on his life to this point. Although I agree that Dr. Rai has been able to improve them markedly from their original state (and there was an additional surgery planned to try to improve them further), the reality is that some degree of visible scarring will be permanent.

[73]         As significant as the scars themselves were, the self-consciousness and embarrassment that they caused in Mr. Boparai as he was growing up were equally damaging, making his schooling and social development much more difficult. I accept that he has tried to avoid social interaction because of these feelings, which were directly caused by the physical injuries.

[74]         That said, and without minimizing the continuing visibility of some of Mr. Boparai’s scars or the way that they make him feel about himself, I should say that to an objective observer they are not shocking or disturbing, and a distinction should be drawn between his situation and that of very severely disfigured accident victims, whose every moment in public is a source of compassion or discomfort for observers.

[75]         The soft-tissue injuries that he suffered, mainly to his right leg, were much less serious than the scarring. While there is no reason to doubt his assertion that the leg injury kept him out of sports for several years and out of physical education class until Grade 10, I think it would be unsafe to conclude, in the absence of any evidence of ongoing treatment, that it was a source of major discomfort after the last visit to his doctor in relation to it in July 2003, about four years on from the accident…

84]         Taking into account the relevant aspects of the injuries that I have described, and receiving guidance from the cases without following them slavishly, I award Mr. Boparai $100,000 in non-pecuniary damages for his soft-tissue injuries and facial scarring.