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 May, 2017

$85,000 Non-Pecuniary Assessment for L1 Fracture and Concussion

May 31st, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.

In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013.  The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion.  The second aggravated some of her symptoms.  By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain.  In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:

[183]     I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….

[185]     The plaintiff was virtually couch bound for a number of weeks after the First Accident.

[186]     The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.

[187]     The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…

[190]     The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.

[191]     Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.


BC Court of Appeal Discusses the Unique Limitation Periods in Local Government Act

May 31st, 2017

Reasons for judgement were published today by the BC Court of Appeal discussing the unique nature of the notice limitation period for suing local governments.

In today’s case (Anonson v. North Vancouver) the Plaintiff was injured when her bicycle was struck by a truck.  After starting a lawsuit she obtained an order allowing her to add the City of North Vancouver as a Defendant.  The City was never given notice under the 2 month provisions required by the Local Government Act.  The question was whether the City could rely on this defense after being added to the lawsuit because ” It is settled law that the addition of a party to an action pursuant to R. 6-2(7) of the SCCR on the basis that it is “just and convenient” to do so generally will engage s. 4(1) of the Limitation Act and eliminate a party’s accrued limitation defence

The Court of Appeal held that the notice limitation period is unique from the Limitation Act and a local government can indeed still take advantage of this defense even after being added as a party to an existing lawsuit.  In reaching this conclusion the Court of Appeal reasoned as follows:

[38]         In British Columbia, notice provisions for local government have been interpreted as substantially different from limitation period provisions. The Legislature chose to treat local government differently from other litigants by requiring that local government be given notice within a short period following an incident to allow the City to investigate the potential claim.

[39]         Unlike the Limitation Act, s. 736 of the LGA (and the former notice provisions in s. 286 of the LGA and s. 755 of the Municipal Act) are not akin to a lapse of time in which to bring an action. The notice provisions do not function in the same way as limitation period provisions for the following reasons: (1) non-compliance with s. 736 of the LGA or its predecessors does not prevent a plaintiff from commencing or maintaining an action; (2) unlike the more objective language of s. 4(1) of the Limitation Act, the discretionary saving provision of s. 736(3) may or may not act as a bar to an action; and (3) the trial or appeal court must determine whether the discretionary saving provision applies based on the evidentiary record.

[40]         The notice provisions of the current and former legislation have never been captured by s. 4(1) of the Limitation Act when a party is added to an action because the trial or appeal court must first determine whether the saving provision applies. Neither Bannon, which interprets differently worded legislation, nor Neilson, which assumes that s. 4(1) of the Limitation Act is engaged, are applicable to this issue.


$90,000 Non-Pecuniary Assessment for Chronic Wrist Injury

May 30th, 2017

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic wrist injury.

In today’s case (Ackerman v. Pandher) the Plaintiff was involved in a 2011 collision.  The Defendants admitted fault.  The Plaintiff worked as a tile setter and the chronic injury disabled him from his profession.  In assessing non-pecuniary damages at $90,000 Mr. Justice Schultes provided the following reasons:

[29]         The medical evidence about Mr. Ackermann’s wrist injury and its effects was not disputed. It indicates that he suffered what is known as a “perilunate dislocation injury[1]” in the accident. This results in “significant soft tissue/ligamentous disruption within the wrist.[2]” Some degree of stiffness is usually seen in patients with this type of injury and his ongoing symptoms are considered to be “reasonable given the nature and extent of his injury.[3]” When he was examined in May of 2015 he had flexion (moving the hand downward from a horizontal position) of only 20%, although his abilities to pinch and grasp were good[4]. His prognosis is for increasing arthritis in the joint as a result of the injury, “with gradually worsening pain and limitation.[5]” A consulting orthopedic surgeon described his condition in 2015 as “chronic and static with a very high likelihood of deteriorating over time.[6]

[30]         If his pain worsens he may require a partial or total wrist fusion, which “typically improve[s] pain however at the cost of significant range of motion.” A total fusion would mean that he could no longer flex or extend the wrist.[7] For now his symptoms can be “slightly improved” by the intermittent use of a brace and by anti-inflammatory medication.[8]

[31]         With respect to work prospects, the orthopedic surgeon offered the opinion that “[b]etween the associated pain and the limited range of motion to his wrist, [he does] not believe that there is any chance of Mr. Ackermann returning to a physical job involving extensive use of his right wrist.” Nor did he believe that there were any “interventions” that would allow Mr. Ackermann to do so[9].

[32]         During his evidence, Mr. Ackermann demonstrated the restrictions in his range of motion of his right wrist and how moving the wrist forward and backward or from side to side causes him pain.

[33]         When he attempted to return to work after the accident he quickly found that the pain in his wrist made it impossible to perform the essential tasks of tile setting.

[34]         This injury has also undermined his ability to engage in the extensive range of physical activities that made up his life outside of work. These have included gardening, shovelling manure for his wife’s chickens, performing home maintenance tasks and minor renovations, playing sports as part of his Sunday social activities and playing with his grandchildren. He also cannot go hunting because of the effect on his wrist of firing a gun.

[35]         Using his wrist to do work of any kind causes a burning pain which is severe enough that it can also wake him up at night. He always feels pain to some extent but if he “takes it easy” it is lessened…

[132]     I think that in this case Mr. Ackermann’s circumstances demonstrate a meaningful requirement for solace, one that is greater than his physical injury might otherwise suggest. It was not contested that he was previously a person for whom the ability to interact physically with the world, and his identity as a “worker” in both his actual employment and his home life, were extremely important. The pain that is brought on by the use of his wrist is serious enough, but in my view a critical aggravating factor has been the comprehensive undermining of his sense of capability in the parts of his life that he otherwise found the most fulfilling. Even though he was rather stoic when giving his evidence, the overall sense he projected of someone who has been cut adrift from the previous fundamentals of his life was still palpable.

[133]     Taking care to distinguish these effects from the harm that has been caused to his earning capacity, which is of course to be dealt with separately, I conclude that an award of $90,000 under this heading is appropriate.


Driver 25% At Fault For Being Rear Ended Due to “Sudden Stop”

May 23rd, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.

In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.


212,000 Reasons not to Drive Drunk

May 23rd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, illustrating the potentially steep financial consequences of impaired driving.

In today’s case (Hamman v. ICBC) the Plaintiff was involved in a rear end crash.  He was the offending motorist.  He was insured by ICBC but was denied coverage for the crash due to allegations of impaired driving.  An occupant in the faultless vehicle was injured and ICBC ultimately settled the claim for $212,000.

ICBC then sought repayment from the Plaintiff.  The Plaintiff sued ICBC arguing they should not have denied coverage.  Mr. Justice Kent disagreed and ordered the plaintiff pay back ICBC the full amount, plus interest and court costs.  In upholding the breach of insurance the Court provided the following reasons:

[64]         I have no hesitation in concluding that Mr. Hamman was severely impaired by alcohol at the time of the accident.  His explanation of his activities that day and the amount of alcohol he had consumed is confused and unconvincing.  At the scene of the accident he appeared “out of it”.  He smelled of alcohol and he displayed significant comprehension difficulties.  He failed the roadside alcohol screening test.

[65]         It was a relatively clear night and the road surface was dry.  The highway was relatively straight.  The construction zone was illuminated by lights and a flashing arrow merger sign.  There was nothing to diminish the visibility of either the construction zone or the numerous vehicles that had come to a stop before it without incident.

[66]         At the police station he was noted to have slurred speech, flushed complexion, and blood-shot eyes.  He was falling asleep both in the police car and eventually at the police station itself.

[67]         And then, of course, there are the blood-alcohol readings obtained through the Data Master breath testing.  Those readings, .17% and .18% reflect substantial intoxication by alcohol.  They also put the lie to Mr. Hamman’s claim that he had only consumed a couple drinks on the evening in question.  That level of intoxication also explains Mr. Hamman’s difficulties with visual perception (depth and distance) and inability to first notice and then react to the otherwise clearly visible vehicles stopped on the highway ahead of him at the construction zone.

[68]         The evidence is overwhelming, and I have no hesitation in finding as a fact, that at the time of the accident Mr. Hamman was driving his vehicle under the influence of alcohol to such an extent that he was incapable of its proper control.  In doing so he breached the terms and conditions of his insurance policies and his liability coverage for the accident was rightly denied by ICBC.

[69]         Mr. Hamman’s action is dismissed.  ICBC’s counterclaim is allowed and damages are awarded to ICBC against Mr. Hamman in the amount of $212,000 together with interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.


$100,000 Non-Pecuniary Assessment for Breast Pain and Chronic Neck Pain

May 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a collision.

In today’s case (Kingston v. Warden) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The crash resulted in chronic neck pain along with a breast injury that did not subside until surgical intervention.  The Plaintiff chose to have breast augmentation during the surgery and the Court found that only a percentage of the cost of the procedure was compensable.

In assessing non-pecuniary damages at $100,000 for these injuries Madam Justice Duncan provided the following reasons:

[126]     I find on a balance of probabilities that the accident caused an injury to the plaintiff’s neck which has not fully subsided. With a focussed exercise program and possibly some injection treatments, the plaintiff may improve but there was no evidence the neck pain would ever go away. The complaint of neck pain is subjective, but the medical experts for both parties largely agreed that the plaintiff presented with soft tissue injury to her neck.  

[127]     I find on a balance of probabilities that the accident caused the plaintiff to feel pain in her left breast which was not alleviated until after the revision surgery. I acknowledge Dr. Malpass’s expert report was not as detailed as it should have been, in that he did not include with it the depiction of asymmetry he described in his evidence. I also acknowledge that the plaintiff appears to have taken advantage of surgical intervention to increase the size of the implants and re-position her nipples, rather than simply seek to be restored to her pre-accident appearance. Nonetheless, I do not accept the plaintiff was making up the pain or concerns about asymmetry to take advantage of surgery that might be eventually covered by a damage award stemming from the accident.

[128]     I find on a balance of probabilities that the accident intensified the plaintiff’s headaches and caused them to be more frequent, but that in the time since the accident they have essentially returned to the pre-accident level, based on her report to Dr. Sovio…

[136]     Before the accident the plaintiff was an active, fit person. While the defendant, Mr. Warden, characterized the accident as fairly minor, I accept the plaintiff’s perception of the accident as frightening to her. The plaintiff suffered soft tissue injuries in addition to a worsening of headaches. Her neck pain continues to limit her activities, although the experts have said she can return to her usual activity level, bearing in mind she may not be able to snowboard or do other activities for as long or as vigorously as before the accident. 34

[137]     The plaintiff underwent surgery to address pain and the appearance of her left breast, which conditions resulted from the accident. The plaintiff suffered a loss of self-esteem and increased her consumption of alcohol to cope with her pain, although I cannot find she has proven an addiction to alcohol stemming from the accident. I accept that the plaintiff has isolated herself from her formerly active social life and her relationship with her husband is not as close as it was before the accident.

[138]     In all the circumstances I am satisfied an award of $100,000 for non-pecuniary damages is fit in the plaintiff’s case.


$120,000 Non-Pecuniary Assessment for Chronic Pain with Somatization Issues

May 2nd, 2017

Adding to this site’s archived postings of ICBC chronic pain cases, reasons for judgement were released this week by the BC Supreme Court, reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain in a Plaintiff pre-disposed to somatization.

In the recent case (Alafianpour-Esfahani v. Jolliffe) the Plaintiff was involved in a 2012 rear end collision that the Defendant was responsible for.  The Plaintiff alleged brain injury altogether this claim was not proven at trial.  The court found the plaintiff was pre-disposed to somatization and suffered from a chronic pain disorder following the collision.  In assessing non-pecuniary damages at $120,000 Madam Justice Sharma provided the following reasons:

[123]     In light of the following factors, I find Ms. Alafianpour-Esfahani is entitled to $120,000 in non-pecuniary damages:

a)    the accident caused soft tissue injuries to her neck, back and shoulder that resulted in headaches and developed (in combination with her predisposition to somatization) into chronic pain;

b)    she has not likely reached maximum medical improvement of her physical symptoms, but any further improvement depends upon the success of addressing the reactivity of her nervous system, which will be challenging;

c)     her physical symptoms have been prolonged because of her psychiatric condition characterization by a vulnerability to somatization and pathological nervous system reactivity;

d)    her prognosis for improving her condition by following a thorough program of desensitization is fair, but that is tempered by the chronicity of her condition because it has been left untreated fro 3 ½ years;

e)    the accident has negatively impacted all aspects of her life, including her relationship with her family, her social interaction, her ability to work, her recreational activities, her ability to maintain her home and yard, her ability to cook for family and friends; her ability to provide emotional support to her children, especially her daughter and her ability to travel.