ICBC Law

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

ICBC Doctor Found to be “More of An Advocate Than An Independent Professional”

August 13th, 2014

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, with critical comments of an orthopaedic surgeon frequently hired by ICBC.

In today’s case (Hay v. Benzer) the Plaintiff was involved in a pedestrian/vehicle collision in 2008.  ICBC had the Plaintiff assessed by a orthopaedic surgeon who largely limited the connection between the collision and the Plaintiff’s symptoms.  The Court placed  “very little weight” on this evidence and in doing so Mr. Justice Cole provided the following comments:

[13]         At the request of ICBC she saw Dr. O’Farrell on July 28, 2009. He is an orthopaedic surgeon. He does a significant amount of work for ICBC and appeared to me to be more of an advocate than an independent professional. He found that the plaintiff would not have any long-term effects from the motor vehicle accident. He had documents only from a physiotherapist dated June 16, 2009. Dr. O’Farrell did admit that if pain was still present two and a half years after the accident that it would most likely be a long-term or permanent pain. Dr. O’Farrell did not produce any notes of his assessment claiming they were most likely in another file. I give Dr. O’Farrell’s evidence very little weight.

 


$120,000 Non-Pecuniary Assessment for Chronic Soft Tissue and Post Concussive Injury

August 13th, 2014

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages and fault following a motor vehicle collision.

In today’s case (Hill v. Murray) the Plaintiff was involved in “a very bad car accident” in 2009.  The Defendant was found fully at fault.  The Plaintiff’s injuries included chronic soft tissue injury and post concussive symptoms.  In assessing non-pecuniary damages at $120,000 Mr. Justice Macaulay provided the following reasons:

196]     On balance, I prefer the evidence of the plaintiff’s doctors where it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill received the following injuries as a result of the accident:

          1.       Soft tissue injuries to the left neck and shoulder, including AC joint, with cervicogenic headaches and some numbness and tingling down her left arm, now plateaued but not symptom free, particularly if she attempts to do too much;

          2.       Chronic intermittent pain;

          3.       Migraines (aural), under control;

          4.       Migraines unresolved and triggered differently than pre-accident migraines associated with pre-menstrual period;

          5.       PTSD (resolved by the time of trial);

          6.       Nightmares, transitory and resolved;

          7.       MTBI or post-concussion syndrome resulting in ongoing fatigue, memory, concentration, and balance problems;

          8.       Possible overlap of vestibular injury (trauma to utricle) causing or contributing to balance issues; and

          9.       Adjustment disorder, largely in remission.

I do not accept the sufficiency of the evidence respecting temporo-mandibular joint dysfunction.

[197]     It is now more than four years post-accident. Ms. Hill is unlikely to see further improvement. Instead, ongoing therapies will aim at pain management, assisting with balance issues and any further adaptions required respecting the effects of the MTBI or post-concussion syndrome. As she ages, the balance issues will likely elevate her risk of falling.

[198]     Ms. Hill’s injuries have significantly impacted her life and will continue to do so. She has lost the ability to participate in many of the sport and recreational activities that she enjoyed before the accident. Her physical interactions with the children are more limited than before. In social interactions, Ms. Hill is now easily overwhelmed or cannot recall the conversation thread. Her personality now appears different and less attractive to her family, friends and associates.

[199]     While Ms. Hill has been able to return to work at Butchart Gardens, she no longer takes the same degree of pleasure in her work and requires employer accommodations in order to do her job. It is unlikely that she will be able to fulfill the specific career aspirations that she had in mind before the accident and accordingly, she must adjust to that loss as well…

[212]     I reiterate that no two cases are truly alike when assessing non-pecuniary damages. I assess non-pecuniary damages at $120,000.

 


$100,000 Non-Pecuniary Assessment for Onset of Degenerative Disc Disease Pain

August 12th, 2014

A common pattern following the trauma of a motor vehicle collision is the onset of symptoms in an otherwise asymptomatic degenerative spine.  Reasons for judgement were released this week by the BC Supreme Court, Courtenay Registry, dealing with such a fact pattern.

In today’s case (McCarthy v. Davies) the Plaintiff was involved in a 2010 collision caused by the Defendant’s negligence.  She sustained chronic pain in her neck and back which ultimately were diagnosed as originating from degenerative disc disease.  The collision caused the onset of symptoms.  The Court rejected the Defendant’s argument that the symptoms would have come on in any event and in assessing non-pecuniary damages at $100,000 Madam Justice Gerow provided the following reasons:

[65]         In my view, the evidence establishes the probable cause of Ms. McCarthy’s ongoing neck, upper back and lower back pain is that the injuries she sustained in the accident exacerbated her pre-existing asymptomatic degenerative disc disease. While there was a risk that the degenerative disc disease in her neck and back would become symptomatic at some point in the future, the evidence is that she did not have neck or back pain prior to the accident. As stated by Dr. Leete, there are approximately 10 to 15% of patients who suffer from long term intrusive symptoms as a result of the trauma to their spines from a motor vehicle accident.

[66]         Having reviewed the evidence I have concluded this is one of those cases, and the defendant is liable for Ms. McCarthy’s ongoing symptoms even though they may be more severe than expected due to her pre-existing condition. As stated by the experts, many individuals have degeneration in their spines without any symptoms. Accordingly I conclude Ms. McCarthy’s ongoing symptoms fall within the thin skull rule enunciated in Athey.

[67]         I find that but for the accident Ms. McCarthy would not be suffering from the chronic pain in her neck, shoulder and back with the associated mental distress…

[103]     Having considered the extent of the injuries, the fact that the symptoms have been ongoing four years with little improvement, the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $100,000.


ICBC Wrong In Denying Part 7 Benefits Absent Timely Evidence Justifying Their Position

August 8th, 2014

Update – an appeal of this decision was dismissed however the BC Court of Appeal noted that the trial judge erred in his interpretation of s. 101 of the Regulation in concluding that if ICBC is to rely on s. 96(f) to reject a claim for benefits, it must do so on the basis of evidence obtained before the expiry of the 60-day deadline.

 

 

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, holding that ICBC cannot deny Part 7 benefits based on speculation that a pre-existing condition is causing the injury in question absent evidence justifying this position obtained within 60 days.

In today’s case (Kozhikhov v. ICBC) the Plaintiff submitted over $10,000 in medical treatment expenses which ICBC refused to pay.  ICBC relied on s. 96(f) of the Regulations which excludes treatments for conditions caused by “sickness and disease” unrelated to the collision.  ICBC did not have evidence justifying this position, at least not in the 60 days following the submitted claim.  In holding that ICBC is obliged to pay the Part 7 benefits in these circumstances Mr. Justice Smith provided the following reasons:

[19]         The benefits claimed in this case are subject to s. 101(b). The 60 day period for payment allows ICBC the opportunity to review and investigate the claim. Obviously, it does not give sufficient time for the extensive investigation the corporation may undertake when defending its other insured–the allegedly at fault motorist–in the tort claim, but that is consistent with summary nature of the claim and the relaxed standard of proof required of the plaintiff.

[20]         ICBC relies on s. 96(f) of the Regulation, which reads:

The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person

(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.

[am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.]

[21]         Section 96(f) must be read in conjunction with s. 101. If the plaintiff’s injury is caused by the sickness or disease referred to in s. 101, benefits are not payable. But in the absence of evidence that s. 96(f) applies, ICBC must pay benefits within 60 days after it receives proof of the claim.

[22]         In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline. In cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.

 


Motorist Found Fully At Fault Following Collision With Moose at Highway Speed

August 7th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability following a collision with a moose in Northern BC.

In today’s case (Knight v. Knight) the Defendant collided with a moose causing catastrophic and disabling injuries to his spouse who was a passenger in the vehicle.  The Defendant argued he was not at fault as he was not speeding and had little time to react.  Mr. Justice Sewell rejected this argument and found him fully at fault.  In doing so the Court adopted ICBC’s “Learn to Drive Smart” manual as being relevant in assessing the standard of care and provided the following reasons:

[44]         In this case, Mr. Knight’s evidence is that he was driving at the posted speed limit, was looking straight ahead while driving because of the oncoming headlights of the Thomas vehicle and took no action when he noticed those headlights black out. Mr. Knight was aware that there were signs warning of the risk of moose being present on the highway and had on an earlier occasion seen a moose on Highway 37, albeit closer to Terrace. He was also aware that the risk of a moose being present was increased at dusk and that moose were more likely to be present during the rutting season, which includes October. There would be a minimal burden imposed on the defendant from driving more slowly. The only result of doing so would have been that he would have arrived at his destination a few minutes later than he would have if he was driving at the posted speed. There can be no doubt that a reasonable person living in Northern British Columbia would have been aware of the grave consequences of colliding with a moose at highway speed.

[45]         With respect to the standard of care, the Insurance Corporation of British Columbia’s Learn to Drive Smart Manual states at page 129:

Strategies: watching for animals

To help prevent a collision with an animal:

Scan the sides of the roadway ahead for animals

Watch for animal crossing signs when driving through farming or wooded areas. Slow down in these areas.

Be extra cautious at dusk and dawn. This is when animals move around to feed, and it is also harder for you to see them at these times.

Look for sudden, unusual spots of light on the roadway at night. This may be the reflection of your headlights off an animal’s eyes.

Remember that wild animals often move in herds. If you see one animal, there may be more.

[46]         I consider that the recommendations contained in the Driver’s Manual to be relevant in determining whether Mr. Knight met the required standard of care in this case.

[47]         In his evidence and examination for discovery, Mr. Knight admitted that he took none of the precautions recommended above. I am aware that I must be cautious about admissions made by Mr. Knight in this case given the fact that his wife is the plaintiff and that he therefore stands to benefit from an award in her favour. However, taking into account the whole of his evidence, his demeanor when giving evidence and the direct manner in which he answered questions put to him, I have no reason to believe that he was attempting to deceive me. Mr. Thomas’ estimate of the speed of the Knight vehicle was consistent with Mr. Knight’s evidence.

[48]         I conclude that Mr. Knight was operating his vehicle in a negligent manner on the night of October 22, 2008. I find that given the time of the year and the time of day and the presence of moose warnings signs on Highway 37, Mr. Knight was negligent in failing to slow his vehicle and in failing to take any extra precautions to keep a look out for the presence of moose on or near the highway.

[49]         I also find that he was negligent when he failed to immediately slow his vehicle when he observed something crossing in front of the headlights of Mr. Thomas’s oncoming truck.

[50]         In my view a reasonable person in Mr. Knight’s position would have immediately taken steps to slow his vehicle when he saw the headlights of the oncoming vehicle black out. I find that Mr. Knight was aware that something was obstructing the lights of the oncoming vehicle. Given the other factors I have already outlined – the warning that moose might be present on the highway, the time of day, and the fact that October is in the rutting season when moose are more likely to be present – I conclude that a reasonable driver would have realized that there was a material risk that it was an animal that was obstructing the lights and would immediately have applied his brakes and slowed his vehicle until he had ascertained what was causing the obstruction. I find that it was negligent of Mr. Knight not do so.

 


Double Costs Denied Following Modest Besting of Formal Settlement Offer

August 6th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, denying a Plaintiff double costs after modestly beating a pre-trial formal settlement offer.

In today’s case (Barnes v. Lima) the Plaintiff was injured in a collision and sued for damages.  The morning before trial the Plaintiff tabled a $60,000 formal settlement offer.  ICBC rejected this offer and proceeded to trial where damages just over $67,000 were assessed.  The Plaintiff applied for double costs although the Court did not award these finding it was reasonable not to accept the last minute offer.  In reaching this decision Mr. Justice Weatherill provided the following reasons:

[2]             The action arose from injuries sustained by the plaintiff in a motor vehicle accident. It was commenced on September 18, 2012. It was a fast track action commenced under Rule 15-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”). The trial was heard on June 24 to 26, 2014. It lasted 3 days. My Reasons for Judgment were pronounced on July 11, 2014, indexed as 2014 BCSC 1282. The plaintiff was awarded $67,214.19.

[3]             On June 23, 2014, the morning before commencement of the trial, the plaintiff communicated a formal offer to settle the claim for $60,000 plus reasonable disbursements. The offer was stated to be open for acceptance until that same afternoon at 4 p.m. The defendant did not respond to that offer, although it had responded to earlier settlement offers from the plaintiff including by making his own formal offer to settle for $39,651.69 plus funding for 12 active rehabilitation sessions…

[9]             I have considered how the offer compares to the amount ultimately awarded after trial. The award at trial was only $7,214.19 more than the plaintiff’s offer. As matters transpired, it turned out to have been a reasonable offer, although it was a short-fuse offer made on the eve of trial. It should have been made weeks earlier. Be that as it may, it was straight forward and contained no ambiguities. Counsel for the defendant candidly acknowledged that his client had sufficient time before the trial in which to consider it. However, the fact that the award at trial was greater than the offer is not determinative: Ward v. Klaus, 2012 BCSC 99 at para. 46. The reasonableness of a decision not to accept an offer to settle must be assessed not by reference to the award that was ultimately made but rather the circumstances existing when the offer was open for acceptance: Ward, at para. 36.

[10]         On the eve of the trial, the defendant had a legitimate defence to the plaintiff’s claim, particularly his claim for loss of capacity which in his earlier communications to the defendant the plaintiff had indicated was significant. The plaintiff did not break his settlement offer into its components and provided the defendant with no ability to assess how much of it was to compensate the plaintiff for his loss of capacity claim. At the time the offer was communicated, there was a reasonable possibility that the plaintiff would not recover anything for that claim, which ultimately proved to be the case. It was reasonable for the defendant to wish to test the plaintiff’s position that his inability to work overtime at Carter Motors was due to the accident and not to other factors such as his marriage, particularly in the absence of supporting documentation.

[11]         Moreover, most of the plaintiff’s injuries were soft-tissue in nature. He had a pre-existing right shoulder injury. There were live issues regarding whether the plaintiff’s T-4 vertebra fracture had healed and, if so, when, as well as the plaintiff’s credibility relating to the extent that his injuries had affected his life. Parties should not be unduly deterred from bringing meritorious, but uncertain, defences because they fear a punishing costs order: Currie v. McKinnon, 2012 BCSC 1165 at para. 20.

[12]         In addition, the plaintiff provided the defendant with several photographs of the plaintiff’s carpentry skill but gave no explanation for how he intended to rely upon those photographs until after his settlement offer had expired.

[13]         The court has a broad discretion when determining the issue of costs: Ward at para. 33.

[14]         In my view, having considered all of the foregoing circumstances, the offer was not one that the defendant ought reasonably to have accepted.

 


It Ain’t Over Till It’s Over- Fresh Evidence Allowed After Close of Injury Prosecution

August 6th, 2014

After the conclusion of a personal injury trial it can take several weeks if not months before judgement is granted.  If relevant developments occur during this time the Court has discretion to re-open the trial.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, canvassing this area of the law.

In today’s case (Miley v. Abulaban) the Plaintiff sued for damages as a result of personal injuries.  42 days after the Defendant closed their case the Plaintiff sought to introduce fresh evidence that the Plaintiff was fired from his employment.  Despite the Defendant’s objections the Court allowed the evidence to be introduced and in doing so Madam Justice Hyslop provided the following reasons:

[8]             The plaintiff and defendants agree as to the law for the introduction of fresh evidence. The law is as stated by Madam Justice Satanove in Inmet Mining Corp. [v.] Homestake Canada Inc., 2002 BCSC 681, as follows:

[5]        The principles of law governing when a trial judge may re-open a case after judgment has been rendered, but before the order has been entered, has been discussed by our courts in a number of decisions. I have endeavoured to consolidate the applicable principles as follows:

1.         A trial judge has the unfettered discretion to re-open a case before the entry of the order, but the discretion must be exercised judicially and sparingly. (Sykes v Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.)).

2.         The purpose of the discretion to re-open is not intended to be an alternative method of appeal. (Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179 (S.C.)).

3.         Filing of a notice of appeal does not remove the discretion of a trial judge when a factual error has been identified (my emphasis). (Banyay v. Actton Petroleum Sales Ltd. (1996), 17 B.C.L.R. (3d) 216 (C.A.)).

4.         The discretion may be properly exercised where the trial judge is satisfied that the original judgment is in error because it overlooked or misconstrued material evidence or misapplied the law. (Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.)).

5.         It is not a proper basis for exercising the discretion if the applicant merely advances an alternative argument which could easily have been advanced at trial. (Cheema v.Cheema; Sykes v. Sykes). Where a court of competent jurisdiction has adjudicated upon a matter it will not (except under exceptional circumstances) re-open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not. (Maynard v. Maynard, [1951] S.C.R. 346; Angle v. Canada (Ministry of National Revenue), [1975] 2 S.C.R. 248).

6.         New evidence is not an essential prerequisite to exercising the discretion. (Sykes v. Sykes).

[9]             Mr. Justice Ehrcke stated in Zhu v. Li, 2007 BCSC 1467, at para. 14:

The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[10]         The plaintiff offered to be examined by the defendants on this matter and the defendants have chosen not to do so. I see no purpose in the defendants pursuing this course of action as Mr. Miley may not have new employment and this would cause delay

[11]         I must say that it is not surprising that Mr. Miley lost his employment as a result of his lie. An employer relies on integrity and honesty of an employee. This is particularly so when a person applies for employment and represents his or her qualifications. Based on representations in résumés, an employee is given duties, responsibilities and remuneration accordingly.

[12]         Applying the principles set out above, Mr. Miley’s termination could not have been discovered by due diligence because the event of his firing had not occurred. The defendants argue that Mr. Miley knew that his résumé was false as to the representation that he had a degree when he knew he did not, and that he could have brought this to the attention of his employer at any time. That is true, but Mr. Miley did not know he would be caught and that his employer would terminate him, although as I stated earlier, it should not have been a surprise to Mr. Miley.

[13]         The evidence is credible as the documents are disclosed terminating Mr. Miley’s employment. I find that the documents produced by the plaintiff as to his termination are credible.

[14]         The evidence is relevant because although Mr. Miley is without employment, it may affect the issue of earning capacity or it may not, as at the time of trial Mr. Miley’s responsibilities and remunerations with Coast Capital were likely based, in part, on his having a degree. However, Mr. Miley testified that being a professional writer could be attained by education or by experience. Whether this testimony, given by Mr. Miley, was in anticipation that his lack of a degree would be revealed, I do not know.

[15]         The evidence of his termination is neutral.

[16]         I allow the plaintiff’s application and the evidence allowed is that Mr. Miley’s employment by Coast Capital has been terminated by them.

 

 


Failure to Pay Jury Fees Nullifies Jury Notice In Rescheduled Trial

August 5th, 2014

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, confirming that failure to pay jury fees nullifies  jury notice even when a trial is adjourned.

In today’s case (Blaikie v. Penafiel) the Plaintiff was injured in a collision and sued for damages.  The Defendant filed a jury notice but did not pay the fees in the required time frame prior to the initial trial being adjourned by consent.  The Defendant sought to rely on the jury notice in the subsequent trial and the Plaintiff objected.  The Court found that the initial failure to pay the fees nullified the jury notice.  In reaching this conclusion the Court provided the following reasons:

[2]             The basic facts are that the plaintiff was injured in a motor vehicle accident on March 15, 2008. Liability has been admitted by the defendants. The trial was first set to proceed on December 2, 2013, and jury notices were filed by both the plaintiff and the defendants. On October 18, 2013, jury fees were due and payable. Neither the plaintiff nor the defendants paid the jury fees. On November 22, 2013 the defendants applied to adjourn the trial, and it was ultimately adjourned by consent and rescheduled to September 29, 2014. On January 3, 2014, the defendants purported to file a new jury notice.

[3]             It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.

[4]             I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded:

In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.

[5]             The respondent here says that in fact the jury fees will be paid. They will be paid in advance of the new trial date, as provided for under the Rules.

[6]             The defendants relied upon the decision of the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490. In my view that decision is completely inapplicable to a right that is extinguished in accordance with the time limits set out in the Rules. In my view, their voluntary relinquishment of the right to a jury was not and cannot be bound by the law of waiver.

[7]             In the circumstances, it is my view that, having failed to pay the jury fees in a timely fashion, the defendant is restrained from filing a new jury notice or paying the fees now.

[8]             I am confirmed in that view by the decision in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para. 21:

The learned judge below was, in my view, quite correct in concluding that the opportunity to issue a new notice of trial, when a trial has been adjourned from the original trial date, cannot automatically carry with it a renewed right to issue a jury notice. …