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 January, 2018

ICBC Admits Lobbied “Minor” Injury Caps Will Impact “Complex and Costly” Claims

January 28th, 2018

As discussed last month, after years of record profits ICBC is experiencing a bout of financial hardship.  In turn the government is considering stripping your rights if you are injured by a distracted or impaired driver.  Stripping judicial rights to save bad drivers and ICBC money.  A poor trade-off.

Today ICBC published a press release noting they “are working hard alongside government to take the steps necessary to bring about long-term solutions which will put ICBC back on a stable financial footing, one that will create a sustainable auto insurance system for B.C.”

The “work” is persuading government to pass a law placing a cap on what they call ‘minor’ injury claims.

ICBC’s own press release, however, advanced the best argument why caps are a defective idea that target seriously injured victims.

In ICBC’s own words

older claims – some dating as far back as 2010 – which were initially presented as minor injury claims have since emerged as more complex and costly, large loss claims. Over the past 12 months, we have experienced an unprecedented 80 per cent growth in large loss claims which have an average cost of $450,000 per claim.

I could not make the argument better myself.   You can be injured by a bad driver and suffer “complex and costly” injury that initially presents as minor.  ICBC knows a “caps” law will catch claims worth hundreds of thousands dollars and instead result in victims receiving pennies on the dollar for long term pain and disability.  They want victims to shoulder the shortfall so bad drivers and the insurance industry can benefit.

If this seems unfair to you contact your MLA and tell the government plainly and clearly ‘no to caps’.


Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

January 25th, 2018

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.

In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter.  He pursued the shoplifter to his vehicle.  When confronted the shoplifter ran the plaintiff over and injured him.  The collision was described as follows:

[17]        The plaintiff described what happened.  When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle.  The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”.  He asked for the merchandise back.  The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.  

[18]        At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance.  His feet slid under the passenger-side door.  The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot.  He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go.  When he let go, the passenger-side door hit him.  As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle.  The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19]        The plaintiff attempted to get up.  However, a bystander said “I am not sure if you realize what just happened to you.  You should probably stay down”.  So he did.  First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident.  The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88]        I find that, in this case, the vehicle had not been started when the plaintiff approached it.  I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93]        Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable. 

[94]        Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support.  In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty.  The trial judge found no contributory negligence.  On appeal, the Ontario Court of Appeal found the officer to be 25% negligent.  However, on further appeal to the Supreme Court of Canada, that decision was reversed.  At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95]        Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.  

[96]        Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle.  I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.


$75,000 Non-Pecuniary Assessment for Chronic Myofascial Injuries

January 24th, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic injuries sustained as a result of two collisions.

In today’s case (Anderson v. Gagnon) the Plaintiff was involved in two collisions that the Defendants were responsible for.  The collisions resulted in chronic myofascial injury which lingered to the time of trial several years later with a prognosis of some likely lingering symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Armstrong provided the following reasons:

[93]        In this case, I am satisfied that the plaintiff has suffered a myofascial injury to the paraspinal muscles of the back of her neck, the trapezius rhomboid muscles of the upper back that are chronic and will be ongoing. There are no findings of underlying disc injury or nerve root impingement or other potential injuries.

[94]        The plaintiff’s complaint of chest symptoms is not significant and likely reflect changes as a result of her myofascial pain.

[95]        I accept Dr. Travlos’ conclusion that the hip symptoms cannot be attributed to the accident. The plaintiff has been diligent in participating with various treatment opportunities and those therapists have been the mainstay of her treatment and pain management. The optimum strategy is to continue her exercise activity although she may not respond positively given the length of time the symptoms have persisted since the accident.

[96]        Intermittent massage therapies, physiotherapy and acupuncture are reasonable treatments for the plaintiff to pursue as a means to minimize the interference in her life activities caused by pain. She may also benefit from the use of some anti-inflammatory medications in the case of flare-up of pain.

[97]        Although there is medical evidence that her ongoing symptoms might last indefinitely, or may not resolve in the near future, there are possibilities for improvement as evidenced by Dr. Travlos’ and Dr. Arthur’s recommendations and opinions.

[98]        Overall, the plaintiff is capable of doing chores and activities around her home but must be cognizant of the pain management techniques necessary to enable her to be active. Although she is capable of working full-time, some reduction in work hours may assist her with better pain management. I accept Dr. Travlos’ opinion that she is capable of working longer hours but may benefit from reducing the number of days worked during the week work. This reduction in work is essentially another tool Ms. Anderson has to manage her pain. It contributes to her overall enjoyment of life.

[99]        I am satisfied the plaintiff endures intermittent variable pain that is most taxing on days when she is more physically active or working. The plaintiff’s symptoms tend to worsen between physiotherapy or massage treatments. The symptoms rise to very discomforting levels and are ameliorated by those treatments and it would appear this pattern will continue for the foreseeable future. These injuries have limited her ability to enjoy dancing, skiing, snowshoeing, prolonged cycling, and activities with her children. The evidence suggests that she is fit and works consistently at maintaining her physical condition notwithstanding the symptoms of her injuries.

[100]     As a result of her inability to consistently and thoroughly clean and maintain her house, she has received housekeeping assistants; initially this happened every two weeks but has since been reduced to help once a month due to the cost…

112]     Taking into account the plaintiff’s age, the severity and duration of her pain, the absence of actual disability and emotional suffering, the impact on her family, the limits to her physical abilities, and her stoicism, I award non-pecuniary damages of $75,000.


Medical Malpractice Claim Not Too Complex for a Jury to Understand

January 23rd, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a defence request to have a jury struck from hearing a medical malpractice lawsuit.

In today’s case (Howe v. Hwang) the Plaintiff commenced a lawsuit alleging negligence following a series of complications relating to the surgical treatment of diverticulitis.

The parties settled on damages but the issues of liability (fault) remained open for the court to decide.  The Plaintiff elected trial by jury.  The Defendants objected arguing a medical malpractice case was too complex for a jury to understand.  Master Keighley disagreed and provided the following reasons in upholding the Plaintiff’s right to trial by jury :

[41]         My authority to grant the order sought is discretionary. In exercising this discretion, I must consider the issues holistically, in determining whether, at the conclusion of my analysis, the considerations raised by Rule 12-6(5) support the defence assertion that this case is not appropriate for a decision by a jury.

[42]         It may go without saying that the jury in this case will be required to engage in a prolonged examination of documents, that the resolution of the issues before this jury will require a scientific or local investigation and that the issues are of an intricate and complex nature. Thus my discretion is engaged.  

[43]         Amongst the factors which I have considered in determining that it is appropriate to have this case tried by a judge and jury, I have considered the following:

1.     The anticipated length of the trial.

[44]         The trial will not be a long one. It is presently anticipated by counsel that it will take perhaps ten or 11 days of the three weeks set aside. This reduction in time is primarily the result of the resolution of the claims against Dr. Crowley, and the agreement which has been reached with respect to damages. The jury will not be obliged to retain the technical knowledge they acquire for many weeks before delivering its verdict

2.     The number of experts to be called.

[45]         As I have indicated, the plaintiff will be relying on two experts and the defendant on three.

3.     The volume of expert evidence.

[46]         As is the case with most expert reports, the text is dense and replete with scientific terminology. But in objective terms the reports, as I have indicated, total 32 pages, far from a vast volume of expert reports.

4.     The nature and character of the expert evidence.

[47]         The jury will be obliged to consider conflicting opinion with respect to the conduct of the defendant. I have reviewed the medical reports. While I am untrained in medical matters I have no difficulty in following the rationale expressed by the experts or understanding the terminology used. I cannot see that a jury, properly instructed, will have difficulty in coming to a conclusion on the basis of technical issues alone. The opinions of all five experts are clearly stated and, apparently, objective. Juries are, of course, often called upon to deal with conflicting expert evidence with respect to medical issues in the context of personal injury litigation. I do not regard the terminology which appears in the pleadings or the expert reports as being mysterious or opaque. I am confident that with supplementary assistance from the experts, counsel and the presiding judge, the reports may be appropriately dealt with by a jury.

[48]         In summary, although the jury in this case will be obliged to deal with technically demanding scientific medical issues and unfamiliar terminology, as well as the conflicting evidence of experts, I am not satisfied that those considerations put this case beyond the range of functions credited to juries in our system.

[49]         As previously indicated to counsel, the application is dismissed. The issue of costs was dealt with at the conclusion of the hearing.


$75,000 Non-Pecuniary Assessment for Chronic Back and Hip Soft Tissue Injuries

January 8th, 2018

Reasons for judgement were published this week by the BC Supreme Court, Chilliwack Registry, assessing damages for chronic soft tissue injuries caused by a collision.

In this recent case (De Groot v. Heller) the Plaintiff was involved in a 2012 collision that the Defendant accepted fault for. The crash caused soft tissue injuries to her hip and low back along with an aggravation of a pre-existing arthritic condition.  The symptoms lingered to the time of trial and were expected to negatively impact her moving forward.  In assessing non-pecuniary damages at $75,000 Mr. Justice Greyell provided the following reasons:

[125]     In my view, the evidence establishes that it is likely that the Accident aggravated Ms. De Groot’s underlying arthritic condition in her left hip. There is no evidence connecting her prior back complaints with back complaints brought on by the Accident. The lay witnesses called to testify on her behalf each confirmed that she was active in regularly walking her dogs and that she engaged in such activities as hiking, canoeing and horseback riding on the trips she made to the interior. It is also clear on the evidence that, post-Accident, her ability to engage in those activities is limited…

[130]     At the time of the trial, almost five years had passed since the Accident. Ms. De Groot continues to suffer from pain in her lower back and hip, which prevents her from enjoying the activities she enjoyed prior to the Accident, and while she has not missed time from work, she has difficulty sitting for long periods. She has difficulty lifting and carrying her child, and performing heavier household tasks. She and her husband have experienced difficulty with intimacy due to her injuries from the Accident. Ms. De Groot’s prognosis for improvement is uncertain.

[131]     After considering the principles set out in Stapley and the cases referred to by counsel, I award Ms. De Groot $75,000 in non-pecuniary damages.