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 September, 2017

Court Denies Defense Request to X-Ray Plaintiff in Personal Injury Claim

September 22nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, denying a defense request to include an X-ray as part of the defense medical examination process.

In today’s case (Tani v. Baker) the Plaintiff sued for damages as a result of a 2015 collision where she sustained a broken leg and shoulder.

The Plaintiff consented to attend an defense medical examination but refused to consent to an X-ray that the physician requested.  The Defendant applied to court to compel the X-ray.  In dismissing the request Master Muir provided the following reasons:

[7]             The law with respect to medical appointments is not really an issue. Rule 7‑6(1) of the Supreme Court Civil Rules provides that the court can order an examination by a medical practitioner or other qualified person if the mental or physical condition of a person is at issue in an action.

[8]             The plaintiff notes, and I will not put it higher than that, that Rule 7‑6(3) provides specifically that a person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined. There is no equivalent particularization of other testing that might be performed.

[9]             I think I can assume that often physical tests are performed on plaintiffs, but that does not include what the plaintiff refers to as intrusive investigation or intrusive testing. The argument is that if the mere statement that an expert needs certain intrusive testing is taken at face value, then any such test could be ordered and I will add, regardless of the potential ill effects of such an examination or test.

[10]         It is common ground here that there is some danger to cumulative X-Ray examinations. That was not contested by the defendant. He acknowledged that there were health concerns but argued that the intrusive argument was simply not made out here and that the testing was required so that the defendant can be on an equal footing with the plaintiff in investigation of her ongoing injuries.

[11]         The plaintiff notes that they have no updated X-Rays, however. She argues that given the purpose of the rule, which is to put the parties on an equal footing, if the plaintiff does not have any evidence of diagnostic imaging and her existing expert’s and family physician’s reports do not lead to any necessity for further imaging, then there is no basis for an order for the defendant to have such imaging.

[12]         The plaintiff’s family physician apparently says that the breaks are healing properly and that there is no further requirement for treatment. The plaintiff submits that there is an onus on the defendant applicant to show that there is a specific need in this case.

[13]         I note that in his affidavit, Dr. Stone makes no specific reference to this plaintiff. He simply notes that in order to conduct a useful IME report and give an informed medical opinion, he would require “updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment”. He does not say why. He does not say that he has reviewed the other medical records of this plaintiff nor does he provide any basis for a need for updated X-Ray imaging.

[14]         Further, I take the plaintiff’s point that if the plaintiff chooses to go to trial without updated X-Ray imaging and proceed on the basis of expert reports produced without such imaging, then, in my view, there is no basis on which I should order that the defendant have the benefit of this intrusive testing. I will use the plaintiff’s word.

[15]         I should add that the parties were unable to point me to any specific case that deals with this kind of application for such intrusive tests. I am not saying that it would not be ordered if there was a proper basis for it, but on the circumstances before me today, I am not satisfied that there has been any proper basis shown or any need for the X-Rays and the application is dismissed.


No, You Can’t Make the Court Take Down Reasons You Don’t Like

September 15th, 2017

Reasons for judgement were published today by the BC Court of Appeal refusing to take down or modify previous reasons for judgement that a litigant was displeased with.

In today’s case (MacGougan v. Barraclough) the Plaintiff was involved in a personal injury claim and sued for damages.  In the course of litigation the Plaintiff had an outburst that ” involved the use of expletives, and pejorative descriptions of the court, which this Court described as “an obscene diatribe and bizarre behaviour”.

Reasons outline the following history of the litigation-

[6]           The jury was discharged and the action dismissed. This and other behaviour during the course of the trial resulted in Mr. MacGougan being found in contempt of court. An appeal from the dismissal was allowed (the contempt finding was not appealed) and a new trial ordered. The issue of costs of the first trial was to be disposed of by the judge presiding at the new trial. After the Court of Appeal’s 2004 decision, no re‑trial was held. Instead, Mr. MacGougan settled his claim in 2009.

The Plaintiff applied “to have portions of the reasons for judgment issued by this Court in December 2004 redacted or to have the decision removed from the Court’s website because the reasons contain information he says is inaccurate and damaging to his reputation.”

The Court dismissed the request noting the open court principle precludes such a result.  In dismissing the applicaiton the BC Court of Appeal noted as follows:

[14]        To accede to the application of Mr. MacGougan to redact the reasons would offend the principle of finality. The Court was long ago functus in relation to the appeal heard and decided in 2004. The time to make any application in relation to any alleged errors in the reasons of the Court, or, for that matter, to anonymize reasons, is before the order disposing of the appeal is entered. Such application could only be heard by the division of the Court which heard the appeal in extant proceedings.

[15]        If it is not open to a litigant, on an application such as the present, to call into question the reasons of a division of the Court which finally decided an issue, is it nevertheless open to the Court to restrict access to its reasons for decisions? This Court’s Record and Courtroom Access Policy indicates some of the circumstances in which the Court may entertain restricting access to its proceedings, which would include access to its reasons for decision.

[16]        In this case the reasons of the Court have been published on the Court website for many years, and there has been republication in various other legal paper and electronic reports. Withdrawing the reasons from the Court website would not result in the withdrawal from those other paper and electronic reports.

[17]        More importantly, in my view, restricting or preventing access to the Court’s reasons because a litigant disagrees with a description of an event or circumstances would do considerable harm to the principles of transparency, access, and the openness of our courts.

[18]        The leading cases germane to the open court principle include Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, and Re Application to Proceed in Camera, 2007 SCC 43. Public access to the courts and the reasons of the courts allows everyone the opportunity to see that justice is done, and that justice is administered in a non‑arbitrary manner in accordance with the rule of law.

[19]        Recently Cromwell J. in Endean v. British Columbia, 2016 SCC 42 said:

[66]      The open court principle embodies “[t]he importance of ensuring that justice be done openly”, which is “one of the hallmarks of a democratic society”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (“C.B.C. v. New Brunswick”), at para. 22, quoting Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 23; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 31; and Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at para. 1. As this Court has previously remarked, “[p]ublicity is the very soul of justice”: C.B.C. v. New Brunswick, at para. 21, quoting Scott v. Scott, [1913] A.C. 417 (H.L.), at p. 477; Vancouver Sun (Re), at para. 24; Named Person, at para. 31. And, as Wilson J. summarized in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1361, the open court principle is rooted in the need

(1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.

[20]        Departing from the open court principle, which in this case would entail restricting the public right of access to the reasons of the Court, should not be embraced lightly, and, as the Court policy provides, should generally only involve exceptions recognized by law, serious risks to privacy, and other important interests such as the administration of justice. In my view, none of those exceptions are engaged here.

[21]        The application is dismissed. There is no order as to costs.

 


Vehicle Dealer Found at Fault For Crash By Thief By “Leaving a Truck Available to be Stolen”

September 13th, 2017

If you own a vehicle that is stolen and the thief injures others in a collision can you be liable?  According to a case released today by the BC Supreme Court, the answer is yes.

In today’s case (Provost v. Bolton) the Defendant stole a truck owned by Chevrolet Dealership. After stealing the vehicle a police pursuit occurred and several crashes arose.

There was no dispute that the thief was liable.  In an interesting development the Court went on to find that the dealership was liable as well and the police bore some liability for engaging in the pursuit.  In finding the dealership partly liable Mr. Justice Kelleher provided the following reasons:

[14]         At about 8:58 a.m. on April 24, 2012, Mr. Katerenchuk left an unlocked one-ton 2011 GMC Sierra K2500 pickup truck (the “Truck”) outside a detail bay at the dealership Dueck. The Truck had been sold and was to be detailed that morning in preparation for delivery to the purchaser.

[15]         The Truck was left outside the dealership detail bay by Mr. Katerenchuk with the keys in the ignition, the engine running, and the doors unlocked. The Truck was parked in an area open to public view. Anyone walking or driving along Terminal Avenue past the dealership could see the Truck, along with other vehicles on the lot, if they looked in that direction.

[16]         The dealership is not fenced in. It is an open area where people can walk around the vehicles…

[19]         The Truck remained parked outside, with the keys in the ignition, the engine running, and doors unlocked for about 40 minutes when the defendant, Mr. Bolton, got in the Truck and drove away…

[146]     Here, I find that it is reasonably foreseeable that a stolen vehicle would cause serious damage and injuries to the police and bystanders in the vicinity of where the police are attempting to recover the stolen vehicle from the thief.

[147]     The Dueck employees called and expected the police to quickly attend to recovering the stolen Truck. Moreover, Dueck authorized OnStar to activate the GPS tracking system in the stolen Truck for the purpose of assisting the police in locating the Truck so that it could be recover

[148]     The circumstances in this case differ from those in cases like Hollett and Spagnolo where the accidents did not occur during the theft.

[149]     I am satisfied that, in these circumstances, it was reasonably foreseeable that persons and property may be injured or damaged during the recovery of a vehicle by the police in the immediate aftermath of a theft…

[161]     In sum, Dueck had a duty to Constable Provost and Ms. Brundige and the Attorney General to secure the vehicle in its lot and Dueck breached this duty and this breach caused the injuries and damages.

In finding the police partly liable for engaging in the pursuit the Court noted as follows:

[188]     Here, I conclude that the breach of the standard of care by RCMP officers is on the part of Constable Whitney, Constable Lee and Corporal Waldron. All three officers engaged in a high speed pursuit of the truck in an urban area in the middle of the day. Moreover, they did not appropriately comply with an order to terminate the pursuit when it was made by Staff Sergeant Stark and repeated by Corporal Peters.

[189]     Constable Whitney heard the order to discontinue the pursuit. His duty was to deactivate his lights and sirens (which he did) and to stop the vehicle at the side of the road and state his location. He did not stop and do that. Instead, he continued following the Truck on River Road…

[201]     Constables Lee and Whitney and Corporal Waldron proceeded to follow the vehicle. I find that they were, as Mr. Laughlin and Constable Hartigan testified, proceeding quickly. Their actions, on a balance of probabilities, caused Mr. Bolton to continue to drive at a high rate of speed. On the evidence, but for their pursuit, the accident with Ms. Brundige would not have occurred.

[202]     I find the defendant, the Minister of Justice for the Province of British Columbia, liable for the negligence of the officers.


Court Rejects Defence Doctor As Not A “Reliable and Credible Witness”

September 7th, 2017

A finding that a witness lacks credibility is damaging.  This is particularity so when it comes to an expert witness for hire.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such a finding with respect to a a doctor hired by Defendants in a personal injury claim.

In today’s case (Palangio v. Tso) the Plaintiff was injured in two collisions and sued for damages.  The Defendants admitted fault but disputed the plaintiff’s injuries.  In the course of the lawsuit the Defendants had the Plaintiff assessed by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries.  In finding that this expert witness lacked reliability and credibility Madam Justice E.A. Arnold-Bailey provided the following critical comments

[222]     I did not find Dr. Sovio to be a reliable and credible witness in this case. With regard to reliability I find that Dr. Sovio was quick to assume that the Plaintiff was trying to conceal facts that could be material to his examination, for example, in relation to the subsequent accident, whereas had he read the letter of instruction he was sent prior to his examination of the Plaintiff he would have appreciated there was nothing secret about the Subsequent Accident and that the Plaintiff had disclosed it to other medical experts. Furthermore, I note that certain turns of phrase Dr. Sovio used in his report created a negative or false impression of the Plaintiff, like “he seems to be convinced he needs these [the lidocaine injections administered by Dr. Caillier] on a regular basis or he gets more discomfort.” This statement by Dr. Sovio creates the impression that the Plaintiff determines that he needs these injections, completely overlooking Dr. Caillier’s involvement as the pain treatment specialist who administers them. His choice of language is designed to imply that the Plaintiff is malingering or exaggerating his pain in terms of continuing to need the injections. This is contrary to the impartiality the Court expects from an expert witness.

[223]     I also note that Dr. Sovio is not qualified to provide opinion evidence on chronic pain and pain management. He admitted that he has no training with regard to the treatment of headaches, and that he has had no clinical training regarding the treatment of pain.

[224]     In addition, Dr. Sovio was quick to assume that the First and Second Accidents were very minor accidents involving relatively minor forces. Initially he was evasive about his sources, and then when referred to a portion of the record that did not necessarily support such a conclusion, he resorted to his overall impression gleaned from the records. It is also to be noted that Dr. Sovio had no criteria as to what informed his opinion that an accident was minor, relatively minor, or moderate. I find his assessment of the nature of the accidents and the forces involved to be purely subjective and outside his area of expertise.

[225]     Dr. Sovio neglected to refer to the pain he had noted the Plaintiff to have at his C2-3 vertebrae in the “Impressions and Discussion” section of the report, referring only the Plaintiff experiencing mild discomfort on palpation of the paravertebral muscles. I find that he was inaccurate in summarizing his findings, or he was careless. I do not accept his evidence as he tried to explain this oversight away. Either way, the reliability of his report and his testimony was further undermined.

[226]     Where the opinions of Dr. Sovio as to the causes, extent, or treatment of the Plaintiff’s injuries arising from the First and Second Accidents conflicts with the opinions of Dr. Caillier, Dr. MacInnes, and/or Dr. Sidhu, I reject Dr. Sovio’s evidence without hesitation. Even Dr. Sovio acknowledged that an orthopedic examination may not reveal findings in relation to individuals experiencing legitimate pain and chronic pain, and in my view the Plaintiff is precisely such an individual.


$110,000 Non-Pecuniary Assessment For Chronic Low Back Pain

September 6th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic back pain caused by a collision.

In today’s case (Teunissen v. Hulstra) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The crash caused a soft tissue injury which was chronic and partly disabling in nature.  In assessing non-pecuniary damages at $110,000 Madam Justice Burke provided the following reasons:

[67]         I conclude the medical evidence clearly establishes Mr. Teunissen suffered a soft tissue injury in the accident and continues to suffer from chronic back pain. It also establishes the accident is a material contributing cause to Mr. Teunissen’s back injury, pain and resulting disability…

[92]         Mr. Teunissen is a determined and stoic individual who has persisted in trying to work and support his family, despite the chronic pain. He has demonstrated this more than once, attempting work opportunities that he previously would have had no difficulties with and which he unfortunately cannot continue.

[93]         The assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Teunissen’s age, the nature of the injuries, the severity of his symptoms and the fact they have been ongoing for five years, the poor prognosis for recovery, and the authorities, I am of the view the appropriate award for non-pecuniary damages is $110,000.