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 July, 2017

“It is Unusual For a Trial Judge to Award Costs to an Unsuccessful Plaintiff”

July 21st, 2017

Interesting reasons for judgement were released today by the BC Court of Appeal upholding a trial judges award of costs in favour of a plaintiff who had their lawsuit dismissed.

In today’s case (Tisalona v. Easton) the Plaintiff sued for damages as a result of injuries sustained in two collisions.  The Plaintiff was awarded damages for the first crash though less than what she requested and also less than the Defendant’s pre trial offer to settle.  The claim for damages from the second collision was dismissed.  Despite this the Court awarded the Plaintiff costs for both actions which were tried together.  In upholding this result the BC Court of Appeal provided the following reasons:

[75]         In the case of the 2011 action, the only issue at trial was whether the 2011 Accident had aggravated or prolonged the effects of the 2008 Accident. The trial judge concluded that it had not, but that it had been reasonable to deal with the two accidents together.

[76]         The trial judge went on to estimate that approximately one hour of trial time was devoted to evidence concerning the second accident.  None of the expert reports had addressed the 2011 Accident to any extent.

[77]         It is unusual for a trial judge to award costs to an unsuccessful plaintiff. Here the principal considerations were the de minimus nature of the additional time required to deal with the 2011 action at trial and the trial judge’s conclusion that it had been reasonable to join this claim with the more substantial action in relation to the 2008 Accident.

[78]         In my view these considerations are not arbitrary, but rather were connected to the case before the trial judge. They fall within the broad discretion afforded to trial judges following the elimination of the qualification “for good cause” from our rules. Accordingly, I would not give effect to this ground of appeal.


Court Prohibits Surveillance During Defence Medical Exam

July 16th, 2017

Useful reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, finding it is appropriate to prohibit a Defendant from conducting video surveillance of a plaintiff who is compelled to attend a Defence medical examination in a personal injury lawsuit.

In the recent case (Moquin v. Fitt) the Mr. Justice Thompson provided the following reasons justifying this restriction:

[21]         The defendant nominates a R. 7-6 medical examiner, but it is the Court that appoints the examiner and orders the plaintiff to attend for the examination at a particular time and place. On the dates of the medical examinations, the plaintiff will not be in public on journeys of his own choosing. If the defendant or the defendant’s insurer takes advantage of the opportunity created by court order to engage in surveillance then the defendant might be seen by a reasonable observer to be acting in close concert with the Court. Partisan conduct aligned with the court order may be seen as lessening or compromising the Court’s neutrality, and the Court must, of course, zealously protect its reputation for impartiality.

[22]         Barring surveillance on the trip to or from the medical examinations is hardly a significant barrier to the defendant’s ability to gather information, and in my view the imposition of a surveillance bar and the consequent chance that the trier of fact might be deprived of some relevant information is a small price to pay to guard the Court’s reputation. Returning to R. 13-1(9), I think the non-surveillance condition promotes the just determination of this proceeding — a stated object of the Rules — because it prevents the possibility of conduct which might degrade the perception of the Court’s impartiality.


BC Court of Appeal – Cyclist 50% at Fault for Collision for Passing Vehicles on the Right

July 12th, 2017

Cyclists commonly split a single lane of traffic by riding near the curb and passing vehicles stopped at an intersection on the right.  Reasons for judgement were released today noting that doing so not only violates the Motor Vehicle Act but can be negligent as well.

In today’s case  (Ilett v. Buckley) the Court overturned a trial judges finding of 100% responsibility of the Defendant driver.  The court summarized the facts as follows:

[5]             Mr. Ilett was riding on the shoulder of Admirals northbound.  He was passing to the right of the slow-moving vehicles.  Other cyclists were riding on the shoulder in the same way.  He considered the shoulder to be a cycle lane.  The road was flat for 300 yards leading to the intersection.  He was seen approaching the intersection by the driver of the vehicle that was stopped behind Ms. Buckley’s vehicle, Messa Mattina; he was visible to her for a significant distance.  Mr. Ilett scanned the traffic as he rode and he saw the large vehicle at the intersection ahead.  He saw the gap in the northbound traffic ahead of that vehicle opening.  He did not apply his brakes to slow his bicycle.

[6]             The large vehicle precluded Ms. Buckley and Mr. Ilett from seeing each other as she began her turn and he closed on the intersection.  Accepting Ms. Mattina’s testimony, the judge found that Ms. Buckley commenced her turn slowly but, before she could see Mr. Ilett approaching, she accelerated across the northbound traffic lane.  Nearly the whole of the front half of her vehicle was across the shoulder when, after hearing a screech of brakes, Mr. Ilett crashed into it.  His momentum was such that he was carried over the hood of the vehicle and onto the pavement beyond.  The impact caused him to suffer various injuries.  He was taken to hospital.

In finding the cyclist should bear 50% responsibility for this crash the Court of Appeal noted as follows:

[23]         He was riding on the shoulder of the road at speed, passing the slow-moving northbound vehicles.  He failed to recognize, as he should have, that he was not riding in a designated cycle lane and, at least under the Act, was not permitted to pass vehicles on the right as he was.  He was approaching an intersection.  He saw the gap in the northbound traffic open ahead of a large vehicle which would permit a southbound vehicle on Admirals to turn left onto Seenupin.  He could not see whether the intersection was clear because the large vehicle was obstructing his vision.  He made no attempt to slow down to see whether the intersection was clear – whether any vehicle was turning into the gap that had opened.  He proceeded to pass the large vehicle on its right, entered the intersection, and immediately collided with Ms. Buckley’s vehicle.

[24]         It is difficult to see on what basis the judge found in effect that, by virtue of s. 174, Ms. Buckley had a duty to yield to Mr. Ilett such that he effectively had the right of way when under s. 158 of the Act he was not permitted to pass the large vehicle on the right and enter the intersection as he did.  It cannot be that one applicable section of the Actis to be taken to be a factor in establishing the standard of care but another section that would apply in the circumstances is not.  It is not for the court to pick and choose between interrelated sections that apply.  Rather it must be the whole of those sections, and the extent to which taken together they bear on the circumstances, that may be considered a factor in determining the standard of care.  To do otherwise would appear to amount to legal error. ..

[33]         As stated, the cause of the accident was primarily that neither Ms. Buckley nor Mr. Ilett saw each other before the collision.  That was because neither exercised the measure of caution necessary to discharge their duty to make a reasonable effort to ensure they could proceed as they intended safely.

[34]         It is not possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.


$85,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries with Anxiety and Depression

July 5th, 2017

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

In today’s case (Ponsart v. Kong) the Plaintiff was involved in 2 collisions for which the Defendants were responsible.  These resulted in chronic soft tissue injuries to her neck and back with some psychological overlay.  In assessing non-pecuniary damages at $85,000 Mr. Justice Butler made the following findings and provided these reasons:

[76]         With these conclusions in mind, I make the following specific findings about the nature and extent of Ms. Ponsart’s injuries and symptoms:

·       She suffered a Grade II strain of her neck and low back in the First Accident. At the time of the First Accident, she had recovered from the injuries suffered in the May 2011 accident. The pain in her thoracic spine around that time was primarily caused by breast enlargement that was alleviated by the surgery in 2013.

·       The First Accident also caused the plaintiff to experience significant anxiety and depression, which affected her ability to take part in work and leisure activities. Nevertheless, as her physical condition improved, she was able to take part in many activities. By 2013, she was doing strenuous training. While she functioned marginally at times, that was primarily a result of her psychological condition.

·       Her anxious nature predisposed her to experiencing anxiety and depression. However, there is no evidence suggesting that she would have experienced the emotional problems she faced without the First Accident.

·       The plaintiff was functioning reasonably well before the Second Accident, although she was still experiencing some neck and low back pain. Her emotional condition had improved from the summer of 2014.

·       The Second Accident aggravated the plaintiff’s soft tissue strain to the cervical and lumbar spine. The injury was not as serious as what she experienced in the First Accident, although she was partially disabled for two to three months. The Second Accident had a significant impact on her emotional well-being. It caused additional anxiety and depression, although not to the extent of a major depressive disorder.

·       By the time of the Third Accident, the plaintiff’s physical condition was manageable, although she was still experiencing minor neck and low back pain, which by that time had become chronic.

·       The Third Accident caused a further aggravation of the injuries from the two prior accidents. It had a significant impact on her, both physically and emotionally because of her increased headaches. She now suffers from chronic headaches including severe migraines. The exacerbation of her neck and back symptoms lasted for approximately six months before returning to the pre-accident status.

·       As a result of the accidents, the plaintiff is left with a minor degree of chronic neck and low back pain. She is able to manage all tasks of daily living and most of her recreational pursuits most of the time. However, because of the accidents, she is more susceptible to anxiety and depression than she was before the First Accident.

·       As will be evident from these conclusions, much of the plaintiff’s suffering was emotional. As I have described, there is no doubt it was caused by the First and Second Accidents.

[84]         As I have described, a major component of the plaintiff’s injury is emotional or mental. As the Supreme Court of Canada recently affirmed in Saadati v. Moorhead, 2017 SCC 28, such losses are compensable where, quoting Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, they are “’serious and prolonged and rise above the ordinary annoyances, anxieties and fears’ that come with living in civil society”. The plaintiff has clearly met the burden of proving serious and prolonged disturbance to her emotional well-being arising from the injuries in the First and Second Accidents.

[85]         When I consider the facts I have found about the nature and extent of the plaintiff’s injuries, I conclude that a fair award for non-pecuniary loss is $85,000. This award does not include any amount for two discrete injuries or symptoms: the exacerbation of the plaintiff’s neck and shoulder pain that occurred in the six-month period after the Third Accident; and the headache symptoms that the plaintiff suffered after that accident.