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 February, 2018

$80,000 Non-Pecuniary Assessment for Chronic and Disabling Soft Tissue Injuries

February 23rd, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and partly disabling injuries caused in a collision.

In today’s case (Senger v. Graham) the Plaintiff was involved in a 2014 collision.  The Defendant accepted fault.  The crash caused chronic soft tissue injury which disabled the Plaintiff from her chosen profession as a dental hygienist.  In assessing non-pecuniary damages at $80,000 Madam Justice Murray provided the following reasons:

[43]        Taking into account all of the evidence I find the following:

               i.                  The injuries suffered in the accident have interfered with Ms. Senger’s schooling, work, household and recreational activities and will continue to do so;

              ii.                  She is limited in her capacity to work as a dental hygienist and will not be able to sustain a career in that field;

             iii.                  Ms. Senger will likely never be able to work full-time;

            iv.                  Her injuries will continue to plague her for the rest of her life. It is unlikely that she will ever be pain free;

              v.                  She has reached her maximum rehabilitation;

            vi.                  Ms. Senger will always require assistance with housekeeping and yard work; and

           vii.                  She will never be able to engage in many of the activities she previously enjoyed.

[49]        Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.


What Will ICBC’s “Minor” Injury Caps Look Like?

February 20th, 2018

As previously discussed, ICBC and the insurance lobby are on the cusp of persuading the BC Government to pass laws capping ‘minor’ injuries and reducing judicial remedies for those caught by the cap.

Assuming the insurance lobby get their way what will ‘minor’ injury caps look like?  The details are incomplete but this is what is known right now.

Who gets stuck with a cap?

If you are injured by the negligence of a distracted, impaired or otherwise careless driver you are having your judicial rights for non-pecuniary damages (pain and suffering) substituted with a government created artificial cap.  In a bizarre twist the Government is proposing to increase the benefits available to the careless driver if they are also injured at the cost of stripping some of the faultless party’s rights.

How much is the minor injury cap?

It is proposed that the cap will be set at $5,500.

How much of a reduction is this from my current legal rights?

A cap already exists across all of Canada (BC included) for non-pecuniary damages in negligence cases.  This cap was set by the Supreme Court of Canada in the late 1970’s at $100,000 and is indexed for inflation.  In today’s dollars non-pecuniary damages can be assessed up to, approximately, $370,000.

What is a “minor” injury?

I put the word “minor” in quotations because the definition will likely capture many claims most people would never consider to be minor.  It is not a medical term, rather, it is a phrase invented by the insurance industry.

The Government has been silent on the exact definition they will use however BC’s Attorney General has stated that the defininon will include “sprains, strains, mild whiplash, cuts, bruises and anxiety and stress“.  These all sound minor but the devil is in the details.  What if injuries become chronic problems?

ICBC hints that chronic injuries can get out of the cap however there’s a catch.  Not only will the injuries need to be chronic but also significantly disabling.  ICBC notes that “if the injury impacts your life for more than 12 months – for example, you’re still not able to go to work or school, have to modify your work hours or duties, or you’re unable to care for yourself – it will no longer be considered minor.”.

So, if ICBC gets their way “minor” will include injuries which can totally disable you for over 11 months.  They will also include permanent injuries so long as you can continue to “go to work or school“.

Who decides if my injury is “minor”?

The Government has been silent on this other than stating  “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.

Is ICBC Foolproof in Designating Injuries as “minor”?

Of course not.  In ICBC’s own words they consider many injuries minor that are, in reality, complex and costly.

What if I want to challenge the designation?

The BC Government has noted that disputes over “the classification of an injury” will be funneled to the BC Civil Resolution Tribunal.

This means that if ICBC (or whatever ‘medical professional’ the government designates as the decision maker) says you have minor injuries you will not be able to have this challenged in court.  Instead you will be forced into a tribunal system.  The tribunal is not presently equipped to handle cases of medical complexity.  They currently only deal with strata fee disputes and very minor small claims.

As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.

The Tribunal also does not have the ability to make binding judgements in Small Claims cases with s. 56.1 of the Civil Resolution Tribunal Act allowing a losing litigant to simply ‘object’ to the result.  The law states that “A party that is given notice of a final decision in relation to a tribunal small claim may make a notice of objection…..If a party makes a notice of objection under this section the final decision is not binding on any party“.

The above are just a few of the shortcomings the BC Government will have to overhaul if they stick to their plan to funnel ‘minor’ injury claims to the Tribunal.

When will the cap come into force?

The BC Government is proposing that people injured by negligent drivers on or after April 1, 2019 will be caught by the cap.

Can I do anything about this?

Yes.  It is not too late to take action and tell the government ‘no to caps’ if you think this is a bad idea.


$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

February 19th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.

In today’s case (Gauthier v. Dubois) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a variety of injuries many of which enjoyed good recovery.  Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128]     Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129]     Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130]     I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131]     Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132]     Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133]     The plaintiff advances no argument in this regard.

[134]     Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135]     Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136]     Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137]     I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138]     It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139]     Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.


Government Plans to Strip Rights for Insurance Company Profits; ICBC Targeting Psychological Injury

February 6th, 2018

Today the BC Government held a press conference where widespread changes targeting the rights of British Columbians to save ICBC money were announced.

In short the Government is creating an artificial cap on what they call ‘minor’ injuries.  As previously discussed even ICBC admits that the term minor injury catches injuries that are ‘complex and costly’.  The pain and suffering cap will be set at $5,500 and is set to kick in in April 2019.

The Government did not provide a full definition of what they call ‘minor’ but ICBC is already noting that in addition to soft tissue injuries that can disable you for up to a year the cap will also target psychological injuries with the insurer publishing a press release saying mental health issues such as ‘anxiety‘ will be caught by the cap.

The Government stated that “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.  If you wish to dispute this designation the government is limiting your rights here as well.  The press release notes that certain ICBC claims will be forced to be adjudicated, not by the courts, but by the BC Civil Resolution Tribunal.  Disputes over “the classification of an injury” will be funneled this way.

As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.

Lastly, if you wish to not have your rights stripped by caps the Government is asking that the victim of bad drivers, not the bad drivers themselves, pay more stating that “Drivers will have an option to purchase additional coverage for a higher limit in pain and suffering compensation. The limit will be set at $75,000 and will cost approximately $1,300 a year, on top of the cost of their basic and other optional insurance. Charging for this optional coverage means the customers who stand to benefit from increased coverage will pay for it, rather than every B.C. driver.

You read that right – if you don’t want your rights stripped you need to pay $1,300 more per year, not the distracted and impaired drivers on our roads!

As Yogi Berra said, It Ain’t Over Till It’s Over!  If the above strikes you as unfair please  contact your MLA and tell the government plainly and clearly ‘no to caps’.