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 November, 2014

The Big 2000!

November 13th, 2014


2000 Article Badge Larger


While writing my last post I realized this site has passed the 2,000 article benchmark.  Thank you to all my readers who make this ongoing effort worthwhile!



Clinical Record Disclosure Thwarts Adverse Inference Request

November 13th, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, placing great weight on clinical record disclosure in denying a request for an adverse inference.

In the recent case (Beggs v. Stone) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered a variety of soft tissue injuries with accompanying psychological difficulties which rendered her disabled.  In the course of the trial the Plaintiff did not call a variety of treating physicians including one who treated her before and shortly after the collision and treating psychologists.  In declining to draw an adverse inference Mr. Justice Smith placed ‘particular emphasis‘ on the fact that fulsome disclosure of these treating physicians records was made.  In finding no inference should be made the Court provided the following reasons:

[22]         Counsel for the defence seeks an adverse inference from the plaintiff’s failure to call the family physician who treated her before and in the year following the accident and more particularly the psychologists who treated her both here and in Winnipeg after the accident. The factors for drawing an adverse inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35. These include the evidence before the court, the explanations for not calling the witness, the nature of the evidence that could be provided, the extent of disclosure of the witness’s clinical notes and the circumstances of the trial.

[23]         In declining to draw an adverse inference, I place particular emphasis on the fact that the clinical records of all of these professionals were disclosed to defence counsel and were reviewed by all the experts who gave their opinions in part based upon those records. The plaintiff’s pre-accident condition and post-accident progress are well documented, and there is nothing to suggest that there is anything in those records that contradicts anything that the doctors who have testified have stated.

ICBC Claim for “Disastrous Losses on the Stock Market” Fails at Trial

November 12th, 2014

Update February 23 2018An appeal of the below case was dismissed this week by the BC Court of Appeal


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering whether a Plaintiff’s substantial losses in the stock market could be compensated as part of a personal injury lawsuit.  On the facts of the case the Court rejected this claim.

In today’s case (Barta v. DaSilva) the Plaintiff was involved in a 2007 collision caused by the Defendant.  The Plaintiff alleged that the collision caused a mild traumatic brain injury and this “destroyed his capacity to earn an income, trading securities on his own account, and has caused him to lose the capital he accumulated and invested in the stock market“.

Around the time of the crash the plaintiff’s total portfolio was valued around $1.8 million.  By the end of the 2009 the value plummeted to less than $400,000.  In rejecting the claim that a brain injury had anything to do with this diminished asset, Mr. Justice Affleck provided the following reasons:

[56]         By July 31, 2008, a year after the accident, the plaintiff’s portfolio had increased to $2,790,301.95.  He had made successful trades in that year increasing his portfolio by almost $921,000.  There is no possible inference to be drawn that cognitive impairment had damaged his trading ability during this time period.  Then disaster struck.  In September 2008 the market “crashed” and the plaintiff testified that he was “hit hard”.

[57]         The plaintiff had purchased Lehman Brothers Holdings prior to the crash and had made a considerable capital gain in a few days.  This appeared to have encouraged the plaintiff to hold Lehman Brothers even as his own financial crisis deepened, as did that of the market generally.  This the plaintiff argues indicates his impaired judgment following the accident.  However, I have no basis to conclude his decision to retain the Lehman Brothers stock was irrational at the time it was made.  He had made a substantial quick profit in a few days and I believe he concluded he could eventually continue to make money by holding on.  He did not foresee Lehman Brothers would be forced into bankruptcy.  Many investors suffered a similar fate…

…The plaintiff engaged in risky stock market trading over several years.  He developed a level of expertise that permitted him to earn a reasonable income.  However his unwise decisions made in 2008, coupled with the stock market collapse, and the judgment in favour of Mr. Palkovics created financial conditions from which he could not recover.  In my opinion the effects of the accident did not compromise his ability to trade on the stock market.   

[61]         It is impossible not to have sympathy with Mr. Barta’s disastrous losses on the stock market but the evidence does not satisfy me that he has proven that the defendant’s negligence caused them. 

Difference Between Amounts Claimed and Awarded “Not a Reason for Depriving Costs”

November 7th, 2014

Unreported reasons for judgement were recently provided to me confirming that, where a party receives substantially less at trial than they were seeking, that is not a reason in and of itself to deprive the successful party costs.

In the recent case (Fadai v. Cully) the Plaintiff was injured in a collision and sued for damages.  At trial the Plaintiff was awarded damages but these “were substantially lower than he had claimed“.   The trial judge initially awarded the Plaintiff only 75% as a result of this.  The Court was asked to reconsider and after reviewing Loft v. Nat the Court reconsidered and awarded the Plaintiff full costs.  In reaching this decision Mr. Justice Schultes provided the following reasons:

[4] When I look at the decisions that I have been provided…it is clear that a difference between the amounts claimed and those awarded is not, in itself, a reason for depriving a successful party of their costs.

[5]  A proper allication of the law should lead Mr. Fadai receiving his costs of this trial, and not only the portion of them that I tentatively awarded him.


Joint TortFeasor Payments Fully Deductible From Lessor’s Vicarious Liability Obligations

November 7th, 2014

BC’s Motor Vehicle Act and Insurance (Vehicle) Act limit the vicarious liability of vehicle lessor’s to $1 million.  Reasons for judgement were released this week by the BC Court of Appeal clarifying this obligation when a personal injury claim is worth over $1 million and other responsible tort feasors have paid the first $1 million in damages.  In short, the BC Court of Appeal held that once payments from other tortfeasor’s are made up to $1 million lessor liability is fully extinguished.

In this week’s case (Stroszyn v. Mistui Sumitomo Insurance Company Limited) the Plaintiff was involved in a serious motor vehicle collision and settled his injury claim for $1.6 million.  ICBC, who insured the responsible driver, paid the first $1 million being the full extent of the Third Party insurance available.  The Plaintiff sought to collect the balance from the lessor, Honda Finance Inc., who was the registered owner of the Defendant’s vehicle and vicariously liable for the tort.

The BC Court of Appeal held that ICBC’s payment fully satisfied any exposure Honda had.  In reaching this conclusion and clarifying the protections given to vehicel lessor’s in BC the Court provided the following reasons:

[24]         I see no basis in law for considering only a portion of the ICBC payment to have been made on behalf of Honda. In my view, each of the insureds in this case can regard the whole of the payment made by ICBC to have been made on his, her or its behalf and to have reduced its liability to the petitioner to the full extent of the payment. In the absence of a statutory provision limiting the lessor’s liability, all three would remain jointly and severally liable for the balance of the petitioner’s damages. However, the I(V)A having limited the lessor’s liability to $1 million, it is my view that the payment of $1 million to the petitioner on behalf of all insureds, including the lessor, completely discharges the lessor’s liability and leaves the other defendants jointly and severally liable for the balance of the damages.

[25]         This must certainly be the case where the liability of Ms. Chen and Honda is entirely vicarious. Vicarious liability is discharged to the extent of any payment made in satisfaction of a plaintiff’s claim for damages. This is not a case where liability can be apportioned by degrees of blameworthiness, or severed.

Overstating Severity of Collision Leads to Claim Dismissal Following Low Velocity Impact

November 6th, 2014

Update February 18, 2016 – the below case was overturned on appeal with a new trial being ordered with the Court of Appeal expressing concern that the trial judge failed “to offer any explanation of his reasons for rejecting important corrobative evidence“.


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a personal injury claim following a minor collision.

In today’s case (Andraws v. Anslow) the Plaintiff was involved in modest rear end collision in 2011 which the Defendant took full responsibility for.  The Plaintiff went to hospital via ambulance following the incident and participated in some therapies thereafter.  The Plaintiff sought damages of over $65,000 but the claim was rejected in its entirety with the Court noting that the Plaintiff failed to meet her burden in proving the modest collision caused her injuries.  In reaching this decision the court was troubled with the plaintiff’s “overstatement” of the severity of the collision.  In dismissing the claim and ordering the Plaintiff to pay the Defendant’s costs Mr. Justice Funt provided the following reasons:

[8]             The collision occurred at very low speed.  The defendant’s car was behind the plaintiff’s van in a line leaving Guildford Mall.  The line was merging into available breaks in traffic so that egress onto 152nd Avenue could be made safely.

[9]             The plaintiff did not see the collision develop.  She only felt the impact of the defendant’s car.  She described the collision as a “hard hit” and that her chest hit the steering wheel.  The plaintiff testified her car was pushed forward but could not say how far forward.  The coffee in a cup-holder spilled.  The plaintiff’s friend, who was in the front passenger seat of the van at the time of the accident, did not testify…

13]         The defendant is an older gentleman.  He was an RAF pilot in World War II.  Age has treated him well.  He enjoys a clarity of expression and a quick mind.

[14]         As the defendant described the collision, he was behind the plaintiff as her van edged towards 152nd Avenue.  He did not see the van stop and his vehicle rolled into it.  The defendant estimated the speed of his car as “dribbling along” at approximately 2-3 kph, a “drifting speed”.  He acknowledged there was a “sudden bang” when the plaintiff’s van was bumped, not “hit”.  He felt little impact.  A Kleenex box resting on the rear seat of the defendant’s car remained in place, and did not fall to the floor upon impact.

[15]         The defendant suffered no injuries as a result of the accident. He initially thought there was no need to exchange information with the plaintiff because he could see no damage other than possible scuff marks on the van’s bumper…

[38]         The burden remains on the plaintiff to prove to the Court the nature and extent of his or her injuries and that these injuries were caused by the defendant’s negligence, whether the collision is minor or major.

[39]         The defendant’s description of the collision was consistent with the cosmetic damage to each vehicle and the overall traffic configuration at the time of the collision.  The Court finds that the collision involved only minor forces.  The plaintiff has overstated the severity of the collision.

[40]         A collision of minimal forces makes it more probable that there would not be serious injury.  As noted above, Dr. Parikh’s opinion was that the plaintiff was totally disabled from any type of employment requiring the continued use her upper and lower back muscles for almost a year.  In his deposition, he testified that the plaintiff would be “capable of some sort of sedentary-type job within six months of her injury, after she’d completed as session — extended session of physiotherapy”.  As noted above, based on questionnaires completed by the plaintiff, as of January of this year, Mr. Teh, the kinesiologist, described the then-current disability in the plaintiff’s upper body and neck as “severe”.

[41]         The Court finds that the plaintiff has not been sufficiently reliable to prove her claim on a balance of probabilities.  As described above, the Court finds that the plaintiff overstated the severity of the collision.  Without foundational reliability, the Court is not satisfied on a balance of probabilities that her complaints reflect any injury arising from the collision.  As the Supreme Court of Canada in F.H. also stated (at para. 46): “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.

[42]         Without sufficient reliable evidence, the Court finds that no injuries were occasioned by the accident.  The plaintiff has not discharged her burden of proof.

Driver Found 60% At Fault for Rear End Crash After Failing to Activate Hazard Lights

November 6th, 2014

The BC Court of Appeal released reasons for judgement today upholding a trial judgement finding a motorist who was rear-ended 60% liable for the collision for failing to have their hazard lights activated prior to the crash.

In today’s case (Langille v. Marchant) the Plaintiff was involved in a crash which left her vehicle stopped in the middle lane of a bridge.  A few minutes later her vehicle was rear ended.  The BC Court of Appeal found it was not unreasonable for the Plaintiff to have not moved her vehicle prior to the second collision, but that the failure of her to activate her hazard lights was negligent and upheld the trial finding placing 60% of the blame on this omission.

In reaching this conclusion the Court of Appeal provided the following reasons:

[19]         Activating emergency flashers is a step Ms. Langille certainly could have taken. It was open to the trial judge to find that it was negligent on the part of Ms. Langille to obtain particulars from the other driver before ensuring the safety of the location of the accident, or at least improving the situation for oncoming drivers by activating her flashers. It was also open to the trial judge to find doing so would have reduced the likelihood of impact or the severity of the impact that occurred. That is the logical implication of the finding that Ms. Marchant’s late recognition of the hazard caused or contributed to the accident. The activation of flashers would have made Ms. Langille’s car more visible and made it harder for Ms. Marchant to fail to notice its presence or note earlier that it was not moving, and to take earlier evasive measures.

[20]         As this Court noted in Hansen v. Sulyma, 2013 BCCA 349, when considering the trial judge’s assessment of causation in a similar case:

[29]      I do not read the trial judge in this case… as having found that this was one of those exceptional cases in which the “but for” test is to be “relaxed” by recourse to a “material contribution to risk” test. Rather, the trial judge was using “contribute to” in the traditional sense and in my respectful opinion, did not err in doing so. Certainly on a “robust and pragmatic approach”, it was a reasonable conclusion that if Mr. Sulyma had activated his hazard lights, Mr. Leprieur would likely have been alerted to the presence of the Honda and would have had adequate, or more, reaction time in which to decelerate. Even if deceleration would not have totally avoided the impact but would only have reduced Ms. Hansen’s injuries, the “but for” test was still met.

[21]         I would not disturb the trial judge’s findings that it was negligent to turn off the car and leave only its running lights on in the middle of a busy bridge at night in a location where one would not expect vehicles to be stopped, nor would I disturb the finding that the negligence contributed to the accident.

[22]         The appellant argues that in apportioning liability the trial judge failed to recognize that the primary responsibility for avoiding rear end collisions rests with the driver approaching from the rear. In my view, it is clear from her reasons for judgment that the trial judge recognized that rule; she found the defendant negligent and liable, before going on, as she was required to do, to consider the plaintiff’s conduct. Having found the plaintiff contributorily negligent she was required to address the relative degrees of blameworthiness of the parties.

[23]         When she weighed the parties’ relative degrees of blameworthiness the trial judge was clearly of the view that the plaintiff’s conduct in failing to protect herself and other drivers after the first collision was more blameworthy than the defendant’s conduct. The trial judge found the defendant to have been momentarily inattentive in the face of an imminent, and relatively difficult to discern, peril. The plaintiff, on the other hand, attended to inspection of damage and attempted to exchange information with Mr. Masahiro before taking a simple step to protect herself and others. The trial judge properly treated the failure to illuminate flashers and move the vehicle collectively as “the central allegation” made against the plaintiff. ln my view, this central complaint, that the plaintiff failed to take any step to reduce the risk to drivers approaching what the trial judge found to be an unexpected hazard, remains, even if the plaintiff’s failure to move her vehicle is not blameworthy.

$140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

November 4th, 2014

Adding to this site’s archived cases addressing damages for psychological injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a predominantly psychological chronic pain disorder.

In today’s case (Khosa v. Kalamatimaleki) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered relatively mild objective physical injuries but went on to develop a largely disabling chronic pain disorder with a significant psychological component.  In assessing non-pecuniary damages at $140,000 Mr. Justice Saunders provided the following reasons:

[100]     In view of the testimony of Ms. Khosa and her collateral witnesses, and the medical evidence as I whole, I find on a balance of probabilities that she has been and continues to be both physically and psychologically disabled from her previous employment as an LPN, and from housework…

[103]     As noted above, Dr. Gandhi has opined that Ms. Khosa “likely developed a pain disorder associated with both physical and psychological factors”. I agree. The current physical disability, I find, undoubtedly has a very significant psychological component…

[105]     Given the persistence of the physical symptoms in the absence of any significant organic objective signs I find it likely that the psychological factors are the predominant cause…

[107]     I find that Ms. Khosa, on a balance of probabilities, is and has been impaired largely due to psychological injuries caused by the accident.

[108]     Ms. Khosa, I find, currently lacks the ability, at least psychologically, to undergo any form of retraining or upgrade of her skills, and, even if she could undertake the necessary training, currently lacks the physical and psychological wherewithal to discharge the job duties of a registered nurse. The plaintiff submits that:

The constellation of issues she has around tasks requiring management of stress, memory, and concentration, render her an unlikely candidate for completion of nursing school, let alone meeting the job requirements for nursing set out by her employer – foremost among those is the ability to safely administer medication and perform feeding procedures on her young patients.

[109]     I agree.

[110]     It is also apparent that Ms. Khosa’s injuries have had a profound impact on her self-image and her relationships with her husband and children.

[111]     These injuries, subjective though they may be, are real, were clearly caused by the physical and psychological trauma of the accident, and are compensable…

[121]     Based on the opinions of Dr. Koch and Dr. Gandhi, and on Dr. Estrin’s observations as to her positive responses to the limited CBT and neurofeedback therapy she has had, I find that Ms. Khosa’s current condition is such that there is considerable uncertainty as to her prognosis. I am not satisfied that her condition is such that marked improvement is improbable. As the plaintiff has not met the onus of proving this, I find there to be a probability of her responding favourably to psychological treatment. I find the outcomes that could follow from such favourable response range, in ascending probability, from only having her emotional well-being and her relationships with her family restored, to becoming more physically active, to being able to return to work as an LPN and possibly renew her planned pursuit of a career as an RN. I also find, however, that even within the best of these potential outcomes, Ms. Khosa may remain at least somewhat fragile and possibly susceptible to further episodes of anxiety and depression. I also recognize the possibility that the treatment period may be prolonged.

[122]     Given the inherent uncertainty in her condition, I also find that there is a relatively small, but still significant possibility of Ms. Khosa’s psychological condition being resistant to further treatment, resulting in no meaningful improvement. There is a very small possibility of her condition remaining so persistent and so debilitating that she would end up removing herself from the workforce entirely…

[130]     Bearing in mind both the probability of eventual recovery and the possibility of persistent symptoms into the future, and having regard to the non-exhaustive list of factors outlined in Stapley v. Hejslet, 2006 BCCA 34, I assess her non-pecuniary damages at $140,000.

Watch Out for the Moose, Eh! Failure To Warn Leads to Liability

November 3rd, 2014

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, addressing the duties of a motorist after colliding with an animal.

In today’s case (Ziemver v. Wheeler) a motorist struck a moose on the Alaska Highway.  It was “fully dark” at the time.  The moose lay dead or wounded when a subsequent motorist travelling in the same direction struck the animal, lost control and collided with an oncoming vehicle.

Multiple lawsuits were commenced.  The Court found that, given visibility issues, none of the motorists were responsible for striking the moose.  However, the first motorist was found liable for the subsequent collisions for failing to warn other motorists about the injured or dead moose in the roadway.  In reaching this conclusion Madam Justice Watchuk provided the following reasons:

[154]     A driver who has collided with wildlife must take reasonable steps to preclude the possibility of another vehicle colliding with that wildlife.  The actions which will constitute reasonable steps will vary depending on the circumstances.  The time available to the driver who has collided with the wildlife is an important factor to consider in assessing reasonableness. ..

[180]     Warning other motorists of the hazard that he had good reason to believe was lying on the road was a duty.  The duty arose at the time that he hit the moose.  Not utilising the available 9 minutes to fulfill that duty was a breach of his duty.  That breach caused the collisions between Mr. Walter and the moose and the Walter-Ziemer vehicles. ..

[187]     Mr. Wheeler failed to take any reasonable or entirely possible steps over the period of approximately 9 minutes before the third collision.  He did not return to the scene until a minimum of 21 minutes had passed.  I find that in these circumstances, his failure to take any steps to warn other motorists of the hazard posed by the moose carcass fell below the standard of care.

[188]     I further find that but for Mr. Wheeler’s failure to warn other motorists, the Walter-Ziemer collision would not have occurred or would have been likely to result in significantly decreased injury. 

[189]     This is not a case like Fajardo, in which the collision would have occurred even if the defendant driver had taken reasonable steps to warn other motorists (at para. 40).  Unlike in Fajardo, the hazard in this case did not take up the entire highway lane.  Further, because the weather was clear and Mr. Walter and Mr. Ziemer could see each other approaching, it is unlikely that they would have collided if they had taken evasive action to avoid the moose, which also distinguishes this collision from the accident in Fajardo. 

[190]     Most importantly, I find that both Mr. Ziemer and Mr. Walter would have been likely to avoid or lessen the impact of the collision if they had been warned that there was an approaching hazard.  I accept Mr. Walter’s evidence that he would have slowed if he had seen flashing lights which he would have understood as a warning.  I also find that Mr. Ziemer was an attentive driver and that he would have been likely to respond to a warning signal from Mr. Wheeler.  Both of these findings are supported by the persuasive expert evidence of Dr. Droll which indicated the ways in reasonable drivers could be assisted by roadside warnings of an upcoming hazard. 

[191]     In conclusion, I find that Mr. Wheeler breached his duty to warn other motorists of the hazard posed by the moose carcass, and that this caused the Walter-Ziemer collision.