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, 2015

$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

February 27th, 2015

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury sustained in a vehicle collision.

In today’s case (Mir Tabatabaei v. Kular) the  Plaintiff was involved in a 2010 collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[66]         It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

[67]         Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one…

[71]         The plaintiff is 53 years of age. He experiences pain in his right shoulder when he exerts himself. He experiences pain in his neck at night which disrupts his sleep. There is no cure for either of these conditions. His shoulder may get worse and require him to undergo surgery which in turn carries risks. Notwithstanding the pain and discomfort, the plaintiff has continued to work to the extent that he is able and to participate in his previous leisure activities, such as biking and swimming, albeit it to a lesser extent than before the accident. I agree with counsel for the plaintiff that Wong is very similar in terms of the type of injury involved; however, the plaintiff in that case had an additional injury to her knee. Nonetheless, it is a helpful benchmark. In all the circumstances I find an award of $75,000 for non-pecuniary damages is appropriate.

Court Rejects “Perplexing” Defence Doctor Evidence Minimizing Plaintiff Disability

February 25th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages following a rear-end collision.

In today’s case (Sirak v. Noonward) the Plaintiff suffered “very significant and progressively worsening debilitating pain and neurological symptoms” as a result of a 2005 collision that the Defendant was responsible for.  In the course of the litigation the Defendant had the Plaintiff assessed by two physicians who provided the Court with an opinion that the Plaintiff “is not disabled” as a result of the collision related injuries.  In rejecting these opinions Madam Justice Warren provided the following critical comments:

[140]     In their reports, Dr. Dommisse and Dr. Turnbull both expressed the opinion that Mr. Sirak is not disabled. These opinions are perplexing because it is apparent from their reports that Dr. Dommisse and Dr. Turnbull were aware that Mr. Sirak was limited in his ability to work. Dr. Dommisse noted that Mr. Sirak had stopped bricklaying after the accident, and that his pain was aggravated by working overhead and working on a ladder. Dr. Turnbull noted, in his report, that Mr. Sirak was working “on and off as a painter”, on average four hours a day, and only three or four days a week. Both Dr. Dommisse and Dr. Turnbull agreed, in cross-examination, that if Mr. Sirak was limited in his ability to work in the manner and to the extent he had worked before the accident, then it would be appropriate to characterize him as disabled. Further, their opinions were based on their interviews and examinations of Mr. Sirak, which took place over the course of about an hour and-a-half for Dr. Dommisse and about an hour for Dr. Turnbull. The nature and extent of their inquiries pales in comparison to the work-capacity evaluations conducted by Mr. Kerr, who expressed the view that Mr. Sirak was significantly disabled. For these reasons, I do not accept the opinions of Dr. Dommisse and Dr. Turnbull as to Mr. Sirak’s disability.

In assessing non-pecuniary damages at $160,000 for the Plaintiff’s prolonged injuries the Court noted as follows:

[159]     Mr. Sirak is a middle aged man. He was 45 years old when the accident occurred and is now 55 years old. Prior to the accident, he was healthy, energetic and physically active. It is apparent from the lay witnesses, who testified on his behalf, that he was a cheerful, happy, outgoing person who enjoyed life and had many friends. His family was important to him and he enjoyed spending time with them. He enjoyed participating in a wide range of recreational activities. He worked long hours in a physically-demanding career, and had earned the respect of those in the construction industry in the Squamish and Whistler area.

[160]     For the past ten years, Mr. Sirak has suffered from severe, disabling, and progressively worsening pain and neurological symptoms. These symptoms have very significantly affected all aspects of his life. Even if he undergoes surgery, he is unlikely to experience any substantial improvement. His condition is most likely permanent. He faces many years of ongoing pain and compromised lifestyle. His personality has been affected. He has gained weight. His sleep has been affected. His appearance has changed. He has become sloppy and unkempt. He can no longer participate in most of the recreational activities he previously enjoyed. He cannot play with his grandchildren in the physical, rambunctious way that was his pre-accident nature. This, in particular, has caused emotional suffering. He has become quiet and socially withdrawn. He now spends most of his time alone.

[161]     It has become increasingly difficult for Mr. Sirak to continue to work as a painter or in any physical job. He has suffered financial consequences as a result, which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. First, he has had to force himself to continue to work on a part-time basis so that he is able to support himself and his son, but this has further compromised his health and exacerbated his pain. Second, he has had to live with the prospect that his injuries will eventually preclude him from working in any physical job. Given his limited formal education, and now limited functionality, his options for more sedentary work are few. It is apparent, from a consideration of the whole of his evidence, that this reality, together with his poor prognosis, has weighed heavily on him, and has had an adverse effect on his overall emotional well-being…

[167]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having considered the extent of Mr. Sirak’s injuries, and all of the cases presented by counsel, I am of the view that an award of $160,000 for non-pecuniary damages is appropriate in this case.

Passenger Found 40% At Fault For Riding in Over-Crowded, Speeding Vehicle

February 25th, 2015

Update October 26, 2016Today the BC Court of Appeal overturned the finding of contributory negligence but otherwise left intact the trial reasons rejecting much of the Plaintiff’s claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, largely rejecting a personal injury claim from a Plaintiff who sustained modest injuries in a 2009 roll-over collision.

In today’s case (Wormald v. Chiarot) the Plaintiff was 15 year old passenger in the Defendant’s vehicle at the time of the collision.  The Defendant had a Novice licence and had 9 passengers in her vehicle ‘far exceeding its designed capacity’.  The vehicle’s passengers encouraged the driver to speed, who did so and ultimately lost control of the vehicle, rolling several times coming to a stop in a ditch.

The Plaintiff sued for damages arguing she suffered serious injuries and sought approximately $250,000 in damages.  The Plaintiff’s claim was largely rejected with the Court noting that the Plaintiff’s evidence was not entirely reliable.

The Court assessed damages for the Plaintiff’s scars, bruises, scrapes and cuts at $8,000 and then reduced these by 40% due to the Plaintiff’s contributory negligence.  In reaching this deduction Mr. Justice Funt provided the following reasons:

[52]         In assessing Ms. Wormald’s contributory negligence, the Court has considered that she knew that:

(a)       Ms. Chiarot had a novice licence;

(b)       Ms. Chiarot had been drinking, contrary to her novice licence;

(c)        Ms. Chiarot had more passengers in the vehicle than was allowed by her novice licence;

(d)       the vehicle had more occupants in it than it was designed to carry;

(e)       over the course of the night in question, she had several opportunities to remove herself from the situation but did not do so;

(f)         she sat in an area of the vehicle where she knew there were no seatbelts; and,

(g)       the other occupants planned to throw eggs at people from the moving vehicle (with the reasonable expectation that the vehicle might be chased).

[53]         With respect to Ms. Wormald’s failure to wear a seatbelt, the Court notes that she was not thrown from the vehicle. There was no evidence presented that her injuries would have been any different if she had been wearing a seatbelt. Accordingly, the Court will ignore this factor in assessing Ms. Wormald’s contributory negligence based on the rule in Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145 (BCCA).

[54]         The Court has also considered Ms. Chiarot’s involvement. She would have known everything Ms. Wormald knew regarding the situation and, moreover, as the driver of the vehicle, would have had control of the situation. Accordingly, Ms. Chiarot was at greater fault than Ms. Wormald. The Court finds Ms. Wormald to be 40% at fault.

$70,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

February 24th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by two collisions.

In today’s case (Larsen v. Moffett) the Plaintiff was injured in two collisions, the first in 2010, the second in 2012.  ICBC admitted fault on behalf of the defendants in both cases.  The crashes caused soft tissue injuries to the Plaintiff’s neck and back which continued to the time of trial and interfered with his ability to work as a painter and drywaller.  His symptoms were not expected to improve.   In assessing non-pecuniary damages at $70,000 Mr. Justice Steeves provided the following reasons:

[46]         In summary this 44 year old man has suffered two soft tissue injuries to his neck and back and he has developed related headaches. These injuries cause ongoing and severe pain and they limit his daily activities, including his social life and work. With respect to the former, the plaintiff’s pain contributed significantly to the breakup of a potentially long-term relationship he started with Ms. Briere. Prior to the 2010 and 2012 injuries the plaintiff took over his father’s contracting business and, despite some personal difficulties and problems with record keeping, he was able to feel confident that he had a business that would look after him, as it did his father. That is now in significant doubt.

[47]         All of this has had a negative effect on the plaintiff’s sense of self-worth and emotional well-being. The experts are unanimous that this situation will continue into the future. The defendants’ expert suggests that there may be future improvement but this is put in very guarded terms.

[48]         Taking this into account with the authorities cited to me I assess the non-pecuniary damages in this case to be $70,000.

$160,000 Non-Pecunairy Assessment for a “Complicated MTBI with Residual Symptoms”

February 19th, 2015

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a “complicated MTBI with residual symptoms“.

In today’s case (Matromonaco v. Moraal) the Plaintiff pedestrian was standing on a sidewalk waiting to cross a street when the Defendant ran a red light, lost control of his vehicle, drove onto the sidewalk and struck the Plaintiff.  The Defendant was soley responsible for the crash.  The Plaintiff suffered a variety of soft tissue injuries that fully healed.  She also suffered a mild brain injury which caused continuing symptoms at the time of trial.  In assessing non-pecuniary damages at $160,000 Mr. Justice Harvey provided the following reasons:

[210]     The Plaintiff suffered a number of physical injuries which I characterize as soft tissue injuries. All healed uneventfully within a reasonably short period of time after suitable treatment by way of physiotherapy and exercise.

[211]     Her most significant injury by far is the MTBI.

[212]     I accept that this injury has caused the Plaintiff mild cognitive impairment in processing, which in turn has impacted memory, mood concentration and focus. The result, not surprisingly, is that the Plaintiff exhibits signs of depression and social isolation.

[213]     Counsel for the Plaintiff referred me to a number of authorities involving plaintiffs with injuries similar to Ms. Mastromonaco, suggesting an appropriate range for non-pecuniary damages is $150,000 to $200,000.

[214]     Specifically, I have been referred to and considered Curtis v. MacFarlane, 2014 BCSC 1138; Watkins v. Dormuth, 2014 BCSC 543 [Watkins]; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111;Harrington v. Sangha, 2011 BCSC 1035 [Harrington]; Sirna v. Smolinski, 2007 BCSC 967; and Dikey v. Samieian, 2008 BCSC 604 [Dikey].

[215]     No two cases are alike. At one end of the extreme is the decision in Dikey, where the plaintiff suffered profound cognitive deficit requiring that he have daily assistance with his living requirements for the rest of his life. He also suffered significant ongoing pain. Similar findings were made in Harrington.

[216]     In terms of similarities, the Plaintiff’s present condition, attributable to the aftereffects of the accident, are as follows: irritability, anxiety brought about by stress, poor memory, concentration, distractibility, fatigue and general low mood.

[217]     While not so severe as the 32-year-old plaintiff in Watkins, the case is similar, such that it provides a useful starting point for the analysis. In Watkins, Blok J. awarded general damages of $175,000.

[218]     Unlike the plaintiff in Watkins, the Plaintiff here is not experiencing ongoing headache, problems with balance or noise intolerance. I also take into account the difference in the plaintiff’s respective ages, as Ms. Watkins was 27 years old at the time of she was injured in a car accident. Accordingly, I assess the Plaintiff’s non-pecuniary loss at $160,000.

$64,000 Non-Pecuniary Assessment Following “Low Velocity” Collision

February 18th, 2015

Adding to this site’s archived judgments dealing with ‘low velocity’ collisions, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an incident.

In today’s case (Park v. Abd El Malak) the Plaintiff was involved in 2010 rear end collision caused by the Defendant.  The impact was not severe but did cause the Plaintiff injuries.  The Defendant argued it was a low velocity impact and therefore the Plaintiff’s injuries must be from other causes.  In rejecting this defense and awarding $64,000 in non-pecuniary damages for the Plaintiff’s injuries Mr. Justice Davies provided the following reasons:

[73]         Counsel for the defendant has submitted that all aspects of Mr. Park’s ongoing back problems are related to his pre-existing disc problems that would have occurred in any event. He also submits that the low velocity of the collision supports that finding.

[74]         I do not agree.

[75]         The defendant’s submission ignores the overwhelming cumulative effect of the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that Mr. Park’s injuries were caused by the collision and that his pre-existing back conditions were asymptomatic at the time of the collision and were rendered symptomatic by the collision…

[95]         I reach that conclusion with specific reference to the following evidence which I accept:

1)    Dr. Kim’s prognosis that despite all medical measures undertaken, Mr. Park’s symptoms persist and have now persisted for more than five years and will continue to with perhaps some (but gradual) improvement.

2)    Dr. Heran’s prognosis and recommendations as recorded in his opinion of June 26, 2014, that:

The recommendations that Dr. Craig makes for management based on the fact that he does not believe that Mr. Park has reached maximal medical improvement in his primary medical legal report are somewhat conflictual as clearly Mr. Park has developed L4 radiculopathy into his right leg likely before and definitely after the assessment with Dr. Craig and this confounds any abilities to recover overall. The myofascial components of his pain definitely have improved. The optimistic approach to him being able to do all of his usual activities back in a setting where only intermittent exacerbations would be incurred is therefore not supported by the presence of the L4 radiculopathy either. Dr. Craig does appropriately note that there is potential for slightly increased risk of accelerated degenerative changes in his neck and back due to the injuries from this accident. This is more importantly for the lumbar spine where he already has prominent degenerative changes already resulting in narrowing of the space where the nerves pass through in a setting where he has already been symptomatic in such distribution.

In my opinion Mr. Park is now well over two to three years out from the motor vehicle accident which is the time one would expect him to be plateaued from his myofascial injuries. Your records support that he has reached a point where he has intermittent neck pain, albeit not a major concern by the time he saw me, as well as persistent low back pain, albeit much improved than when it first started following the motor vehicle accident. What I don’t know is whether the L4 radiculopathy i.e. the radiation into his right leg, will improve with time. This is possible, however, not probable, given the imaging abnormalities. Subsequent MRI scan has not yet been performed. A comparative MRI scan which I have already ordered, requesting this to be performed around December 2014, will be valuable for further delineation of true causation for the right sided L4 radiculopathy as it is likely to be from height loss, disc settling and osteophytes as opposed to a disc herniation, with the former not getting better with time. If it were to persist, then a recommendation for intraspinous device for decompression of the nerve root indirectly is what I would propose. I would not recommend an aggressive surgery with instrumentation or aggressive open surgery with laminectomy for decompression. For this reason I would like to see Mr. Park following his MRI scan of around December 2014.

At this point in time I feel that Mr. Park is limited from all moderate to heavier activities yet is able to participate in all of his usual daily activities of light to moderate nature. Assistance would be required for heavier lifting, repetitive activities requiring bending and twisting maneuvers. His recreational activities have also been affected and this is well outlined.

3)    Dr. Craig’s prognosis to which I earlier referred and quoted at para. 57 of these reasons.

4)    Mr. Park’s evidence which I accept, that he is now able to be less physically active and unable to enjoy outdoor activities that he used to enjoy, is burdened by headaches when trying to read historical treatises which he used to very much enjoy, and finds that he is more tired from the standing his work requires and also less able to do the heavier lifting that he previously did.

[96]         I do, however, find that Mr. Park’s pain and suffering and loss of enjoyment of life are less than that suffered by the plaintiffs in those cases in which the plaintiffs were awarded general damages of $100,000.

[97]         Although Mr. Park has suffered pain that is chronic, it does however, wax and wane. He is also still able to enjoy travel to Asia although of a more sedentary nature than before the collision. He is still also able to make the long drive from Valemount to Vancouver although with more frequent stops and discomfort. The sparse evidence of the need for future surgical or other invasive medical intervention is also insufficient to establish entitlement to compensation for such eventualities.

[98]         In all of the circumstances I find that an award of $80,000 would appropriately compensate Mr. Park for his past, present, and future pain and suffering and loss of enjoyment of life.

[99]         By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that has been caused by the defendant’s negligence, I award Mr. Park $64,000 to compensate him for his non-pecuniary losses.

$80,000 Non-Pecuniary Assessment Following Chronic Injuries from 7 Collisions

February 17th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff who had the misfortune of being involved in 7 collisions.

In today’s case (Sediqi v. Simpson) the Plaintiff was involved in seven collisions from 2010-2013.  He was not at fault for any of these.  He suffered a variety of injuries, some of which lingered to the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher made the following findings and provided the below reasons:

[78]         I find that the plaintiff suffered soft tissue injuries in his neck, right upper back and shoulder and lower back as a result of these accidents (with the exception of accident #4, which appears to have been limited to the neck and upper back or shoulder). He had a pre-existing rotator cuff tear in his right shoulder that was aggravated by each successive accident, as well as pre-existing carpal tunnel syndrome (aggravated by accidents #5 and 6) and a degenerative spine condition (aggravated by accidents #6 and 7). He also suffered from headaches from accidents #1, 4, 5 and 7, and the pain resulting from all of these injuries has affected his mood and contributed to his feelings of sadness. He was unable to work for a week after accident #4, for about four weeks after accident #5 as well as a month of reduced hours, for about three weeks after accident #6 as well as further weeks of reduced hours, and for three weeks after the last accident followed by several months of reduced hours.

[79]         The plaintiff is a 51 year old man who prides himself as a person who works hard for his family. He has been the unfortunate victim of seven accidents, which caused injuries that have affected him cumulatively. I consider the cumulative effect of these injuries to be an important factor.

[80]         The plaintiff continues to experience pain symptoms more a year following the last accident, particularly in his right shoulder and the right side of his back. He has problems sleeping and experiences low moods and feelings of sadness. He has changed from a good natured, positive individual to one who is less jovial, less patient of others, and at times argumentative. He has had some limitations in his physical activities at home and at work. Evidence from his wife and from Mr. Poirier and Mr. Murray confirms this. He does little at home and has difficulty carrying heavy objects at work.

[81]         The plaintiff has tried physiotherapy, exercise and various kinds of pain medication but he is not a physically active person. His prognosis is guarded. Considering how long he has been in pain, it is likely to continue. However, his symptoms should improve to some extent with proper management, which includes physical exercise…

[89]         In general, I found the cases cited by Mr. Wilson to involve injuries less severe than those in this case, either due to shorter periods of pain symptoms or reductions due to contingencies that do not apply here. Not surprisingly, none of the cases cited by either counsel involved plaintiffs suffering the cumulative effect of injuries from seven accidents. In my view, general damages appropriate in a case like this range from $50,000 to $90,000. Taking into account the plaintiff’s pre-existing conditions (which as I said before do not require a significant reduction), I would assess a fair award here to be $80,000.

ICBC Formal Offers Seeking to Pay FMEP Deemed Not Reasonable

February 16th, 2015

Update October 6, 2015 today the BC Court of Appeal overturned the below reasoning finding “In my view, the judge erred in principle in finding that the reference in the offer to settle to ICBC’s obligation to remit settlement monies in the amount alleged to be owed by the plaintiff for arrears of support to FMEP rendered the offer not one that the plaintiff ought reasonably to have accepted.”


Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that it is not reasonable for a Plaintiff to accept a formal settlement offer from a Defendant insured with ICBC where ICBC will first pay off debts the Plaintiff allegedly owes to the Family Maintenance Enforcement Program.

In today’s case (Loft v. Nat) the Plaintiff was injured in a motor vehicle collision and sued for damages.  At trial the Plaintiff sought substantial damages of over $1.8 million.  The Plaintiff’s claims were largely rejected with damages just over $60,000 being awarded.  Prior to trial the Defendant made two formal settlement offers, one for $125,000 and the second for $150,000.  Both offers contained the following term:

The defendants confirm that this offer is made with the acknowledgement that the Insurance Corporation of British Columbia (“ICBC”) has been served with a Notice of Attachment and/or Requirement to Pay and is therefore obligated to first pay to Family Maintenance Enforcement Program (“FMEP”) from the Settlement Payment in this matter. The defendants and /or ICBC are required to first meet any obligation to FMEP before paying monies to the plaintiff in relation to the Settlement Payment, pursuant to the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 and amendments and regulations thereto.

Mr. Justice Jenkins held that the offers were not reasonable on the basis that ICBC was not formally a debtor to the Plaintiff and as such deductions on the basis of the FMEP Notice of Attachment were not reasonable.  The court reasoned as follows:

[13]         The plaintiff also submits that the Notice of Attachment and/or Requirement to Pay should not have been included in the offers to settle as those documents were issued to ICBC, not to the defendants, and ICBC was not and would not become obligated to pay the settlement amount or the amount of any judgment. The Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 provides for a notice of attachment in s. 15 (1) which states:

15 (1)   If the debtor has at any time defaulted in a payment required under a maintenance order, the director may serve a notice of attachment in the prescribed form on a person who is indebted or likely to become indebted to the debtor.

A “debtor” under the Act is defined as:

“debtor” means a person required under a maintenance order to pay maintenance;

[14]         The plaintiff submits that service of the Notice of Attachment and/or Requirement to Pay on ICBC would not attach the settlement funds, if one of the offers had been accepted, as ICBC would not have been indebted to the plaintiff. According to the wording of the settlement offers, it was the defendants who had offered to pay the plaintiff the settlement funds. ICBC was obligated to indemnify the defendants and had no obligation to pay the plaintiff the settlement amount upon acceptance of an offer to settle…

[31]         I am unable to make a costs award in favour of the defendants on the basis of the defendants’ two offers to settle as I conclude they were not offers that ought reasonably to have been accepted on the dates the offers were made. I accept both submissions put forward by the plaintiff in this regard. Even if the plaintiff was inclined to accept one of the offers to settle, the condition included in the offers relating to the Notice of Attachment and/or Requirement to Pay from FMEP should not have been a term of the offer. ICBC was not and would not have been indebted to Mr. Loft. ICBC was not a party to the action and its obligation was only to indemnify the defendants for negligence if the court awarded damages to Mr. Loft. As well, the offers of settlement were made by the defendants, not ICBC, and the defendants had no obligation to ICBC if one of the offers was accepted.

“The Continuum Between the Information-Gathering and Litigation Stages”

February 12th, 2015

Reasons for judgement were released today by the BC Court of Appeal discussing “the continuum between the information-gathering and litigation stages” in the context of an application for production of privileged documents.

In today’s case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  Both he and the at fault motorist were insured with ICBC.  The Plaintiff met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.

In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.   The lower courts reached opposing conclusions on whether the report was subject to litigation privilege.  In finding that it was, the BC Court of Appeal provided the following reasons on the sometimes parallel roles ICBC plays while investigating claims:

[50]         In my respectful opinion, the judge erred in characterizing the Meeting as part of the information-gathering process, thereby foreclosing a finding that litigation was “in reasonable prospect” when the Report was commissioned. The master, correctly in my view, described the Meeting as “information gathering for the purposes of defending an anticipated claim for lost income” (para. 27). Litigation may be “in reasonable prospect” at any point along the continuum between the information-gathering and litigation stages of an inquiry if an evidentiary basis is established that a party has more than just suspicions about the legitimacy of litigation occurring. The two stages are not mutually exclusive for such a finding. Moreover, this aspect of the test, as noted in Hamalainen, will not be particularly difficult to establish. The evidence in this case established that by the date of the Meeting the information regarding the nature of the accident and the parties involved had been sufficiently established for ICBC to admit liability on behalf of Mr. Khosravi. In my view, an evidentiary basis was established for the master’s finding that litigation was “in reasonable prospect” when the Report was commissioned.

[51]         Similarly, the master found that the dominant purpose of the Report was to assist ICBC in the conduct of Mr. Raj’s anticipated tort claim. She did so by accepting Mr. Kalisch’s evidence that there was no other purpose for the Report other than Mr. Raj’s tort claim, as any potential Part 7 claim by Mr. Raj would only become a reality if and when Mr. Raj provided written confirmation that he had no WCB coverage. While the Report might be relevant to a potential claim for Part 7 benefits in the future, such a claim at the time of the Meeting was not a purpose for the Report’s production. The lack of confirmation that Mr. Raj did not have WCB coverage, and therefore could not make a Part 7 claim at that time, corroborated Mr. Kalisch’s evidence that he had no purpose other than the anticipated tort claim for ordering the Report. Again, in my view it was open to the master on this evidence to find that the dominant purpose of the Report was to defend Mr. Raj’s anticipated tort claim.

[52]         In my respectful view, the judge erred in finding that there was a dual purpose for the production of the Report. The evidence of Mr. Kalisch, as accepted by the master, was that the only purpose for the Report’s production was the anticipated tort claim. Even if a dual purpose could be found to have existed, in my view the judge erred in finding that the dominant purpose of the Report was not litigation because Mr. Khosravi had not eliminated the competing Part 7 claim (para. 49). Mr. Khosravi was not required to eliminate all potential purposes for the Report in order to establish that its dominant purpose was litigation.

Court Finds High Billing ICBC Expert “Strayed Into Advocacy”

February 11th, 2015

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a high billing ICBC expert witness’ evidence should be afforded “very little weight” in part based on advocacy.

In today’s case (Redmond v. Krider) the Plaintiff was injured in a 2010 collision that the Defendant was found solely at fault for.  The Plaintiff suffered various physical injuries along with an accompanying psychiatric condition.  The Defendant retained a psychiatrist who gave evidence “that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident”.  The Court rejected this evidence and in doing so Madam Justice Maisonville provided the following critical comments:

[115]     Dr. Levin obtained his initial medical qualifications in the then Soviet Union.  There was much questioning of the nature of certain patient treatment at one of the institutes from where he had received his training. 

[116]     Dr. Levin was also cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. .  Suffice it to say that 91% of his income for 2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that Dr. Levin’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court…

[120]     Overall, Dr. Levin testified that the plaintiff did not develop a new major psychiatric condition due to this motor vehicle accident, and he found that her level of functioning was inconsistent with the diagnosis of a pain disorder found in her family physician’s clinical records.  He submitted the fact that she had travelled to Las Vegas and participated in boating with her partner went against the conclusion that she was suffering from a psychiatric condition.

[121]     While I have accepted that Dr. Levin is an expert, I find that his report is to be afforded very little weight given his testimony at trial, and given the extent to which his report strayed into advocacy.  It is difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC, although this alone is not determinative in my finding that Dr. Levin’s report should be afforded little weight. 

[122]     I note that the doctor was argumentative with counsel.  The Court was often required to direct him to answer, as he would not clearly give his evidence in response to simple questions asked.  On cross-examination, he agreed he was not a practicing physical medicine doctor and that he did not assess the plaintiff’s physical injuries, and would defer instead to the plaintiff’s physical medicine doctors, and yet he commented that the plaintiff’s pain and limitations were inconsistent with her stated injuries.  It was difficult to accept his evidence, for the further reason that Dr. Levin stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses.  I do not accept that evidence…

[125]     In his report, Dr. Levin said that the plaintiff does not suffer from somatic symptom disorder, as the requirements of that diagnosis are a catastrophic perception of injuries, pervasive preoccupation with pain, and time-consuming, excessive activities.  However, that is not the criteria set out in the DSM-5 which was put to Dr. Levin.  That criteria requires only that there be “[o]ne or more somatic symptoms that are distressing or result in significant disruption of daily life”.  Somatic symptom disorder is a spectrum disorder, and Dr. Levin agreed with that proposition, and yet in his report, he was clearly evaluating the diagnosis as existing only if symptoms fall at the severe end of the spectrum.

[126]     Most difficult for the Court, however, was the aspect of Dr. Levin’s evidence discussing the somatic symptom disorder as it applies to the plaintiff.  As mentioned, he discussed commentary from the DSM-5 about those symptoms that may occur with severe cases of somatic symptom disorder, rather than the specific criteria.  When cross-examined on the actual diagnostic criteria, it became clear that he had not asked the plaintiff questions to determine if she met the diagnosis set out in the DSM-5.

[127]     I do not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s evidence over that of Dr. Levin.  Dr. Anderson candidly conceded matters, such as that the plaintiff would have a better prognosis if the physical component of her pain disorder was removed, and Dr. Anderson deferred to the physical medicine doctors respecting the plaintiff’s physical pain.  In contrast, Dr. Levin assumed this responsibility and asserted that, as a consequence, the plaintiff did not suffer from any a new psychiatric condition.

[131]     I do not accept Dr. Levin’s opinion and give it no weight.