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 March, 2018

What All Canadian Sports Organizations Can Learn From Ontario’s “Concussion Law”

March 15th, 2018

As detailed at my second site,, Ontario recently passed a ‘concussion law’ which will impact all sports organizations in the Province.

While the law has no bearing outside of Ontario’s borders it’s requirements likely will prove influential instructing the standard of care when personal injury lawsuits are filed alleging negligence against sports organization that fail to take proper measures in response to athlete concussions.

The legislation requires all sports organizations (a term broadly defined) along with coaches and other key personnel involved in the oversight of amateur sport to be familiar with concussions, to implement a concussion protocol discussing when athletes must be removed from play and when concussed athletes are ok to return to play.  The law further requires these organizations to educate athletes (and in the case of minors, their parents) about the realities of concussion.

The law does not appear to have any enforcement mechanisms however that does not mean it is meaningless.

This law likely sets the framework that courts would adopt when asked whether sports organizations are negligent when athletes are concussed.  If a sports organization anywhere in Canada fails to have meaningful concussion protocols in place and further fails to follow these protocols successful litigation framed in negligence very well may follow.

If you are involved in the oversight of amateur sport becoming familiar with and following the Sport Concussion Guidelines published by the Ontario Ministry of Tourism, Culture and Sport is a wise idea.

Litigation Lender Loses Out in Loan Recovery as Unsecured Creditor

March 15th, 2018

Reasons for judgement were published today addressing the priority of a litigation lender recovering funds from a deceased personal injury lawyer’s practice.

In today’s case (Napora (Re)) the Responded lent money to a personal injury lawyer to help fund the lawyer’s practice.  The money was spent on disbursements; basically money spent in the prosecution of claims on items such as expert reports.

Approximately $187,000 plus interest was owed.

The lawyer died and the practice was deemed insolvent with debts of about $650,000 and with $275,000 held in the general account on behalf of the law practice.

A bank, CIBC, had a secured interest in the personal property of the law practice.   The litigation lender argued that they should have first priority in repayment of the money available.  The court disagreed and ordered that the lender is second in line after the bank.  In doing so Madam Justice Murray provided the following reasons:

14]         Mr. Napora and Mr. Brito entered into many funding agreements between late 2011 and the time of Mr. Napora’s death. These agreements are set out in documentation which is the same for each transaction:

  1.                     Letters from Mr. Napora to Mr. Brito requesting an amount of money “in disbursement funding”, which if approved would be allocated to specific files identified in most letters by file number only. These request letters are on law corporation letterhead but signed by Mr. Napora;
  2.                     Each letter has an attached promissory note, in which Mr. Napora himself promised to pay the sum sought upon receipt of payment for the files specified or within two years, whichever came first. Of note, the promissory note is not on law corporation letterhead and is signed by Mr. Napora himself.

              iii.                    The Promissory note begins: “IN CONSIDERATION of the loan from CARLOS BRITO…, the undersigned Terry l. Napora, HEREBY PROMISES TO PAY …” [underlining added];

  1.                     In most of Mr. Napora’s request letters there is a proviso which states:

I have attached a signed Promissory note for your records.

I undertake to meet the obligations set out in the note of paying out the disbursements and interest related to each matter as payment is received on each matter, or within two years, whichever comes first.

[15]         Due to a clerical error the undertaking is missing in some of the request letters, but given that it was one of the terms of the funding arrangement from the beginning, I do not attribute any significance to its occasional omission.

[16]         The word “loan” was used in the Promissory note. Nowhere in the documentation is the word “trust”. As both Mr. Brito and Mr. Napora are lawyers and Mr. Brito was a banker before becoming a lawyer I attach some significance to that.

[17]         All of the above point to a loan for a specific purpose. Money was requested for a specific purpose and it was given.

[18]         After considering all of the evidence and all of the submissions I am satisfied that there was no trust relationship between Mr. Brito and Mr. Napora.

[23]         I am satisfied that CIBC, as the only secured creditor, has priority over Mr. Brito to the funds held by the custodian for the Napora Law Corporation.

Injury Claim Succeeds Despite 4 Year Gap in Treatment by “Germaphobe” Plaintiff

March 13th, 2018

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Moody v. Hejdanek) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash was significant resulting in the Plaintiff’s vehicle being written off and the Defendant’s vehicle sustained over $17,000 in damage.  THe Plaintiff sought medical attention shortly after the crash but by March of 2013 stopped treatment and did not see a doctor again until 2017 for medico-legal purposes.

Despite this gap the Court accepted the Plaintiff suffered a compensable level of lingering injury and assessed non-pecuniary damages at $55,000.  In reaching this quantum Mr. Justice Steeves provided the following reasons:

[51]         The plaintiff testified that immediately after the accident he felt pain in the middle of his back and in his shoulders. This continued into the evening and night. He did not return to work on the day of the accident and he told Dr. Robinson that he was off work for a “couple of days.” He attended at a walk-in clinic on January 15 and January 23, 2013. He was prescribed pain medication but he told Dr. Robinson that he doubted that he took it. He had four massage treatments in March 2013. Dr. Winston stated that there were no references to headaches in the record he saw from the walk-in clinic or massage therapist…

[54]         Nonetheless, the fact that there are no records of medical assessment or treatment of the plaintiff for his injuries from the March 2013 accident until he obtained expert evidence for his trial is significant. He saw Dr. Robinson, an expert in neurology and headaches, in May 2017 and Dr. Stewart, a specialist in physical medicine and rehabilitation medicine, in September 2017. He also saw Dr. Winston in October 2017. Typically, in this type of litigation, there is information, sometimes extensive information and chart entries, from a plaintiff’s family physician. In the subject case, this evidence is absent.

[55]         This situation creates a number of complications for the plaintiff. First, it requires the doctors that he saw in 2017 to make judgments about the medical consequences of the 2013 accident with limited medical information about his history. The primary, or only, source of information available to the doctors for the 2013 to 2017 period is the account of the plaintiff four years after the fact. For example, Dr. Robinson stated in his May 2017 report that “[e]ver since the accident [the plaintiff] has had headache, neck, shoulder and upper back pain.” The only way that this could be known is from what the plaintiff told Dr. Robinson. This is not so much a credibility issue as a problem establishing continuity of medical history.

[56]         I conclude that the absence of contemporaneous medical information about the plaintiff between 2013 and 2017 raises an issue of the weight that is to be given to the plaintiff’s expert evidence.

[57]         A further conclusion that can reasonably be drawn from the absence of medical information between 2013 and 2017 is that there were minimal injuries caused by that accident. Accepting that the plaintiff talked to his golf clients who had medical training, his own evidence is that none of them suggested making an appointment for an examination or treatment. It cannot be the case, as urged by the plaintiff, that conversations on the golf course with people with medical training is the same as seeing those people in their offices and undergoing an examination. Put another way, even on the evidence of the plaintiff, these medical professionals did not think it necessary for him to be examined in their office.

[58]         As partial explanation for this, the plaintiff says he has an aversion to doctors and he is a “germaphobe.” I accept the plaintiff’s evidence that he is uncomfortable seeing doctors but he has seen them for other reasons in the past (for example, an abscessed tooth). He also saw three specialists and underwent a functional evaluation for this litigation without any recorded problems. He apparently did not take pain medication prescribed when he attended at a walk-in clinic in January 2013 but he currently takes Advil for pain. I conclude that the plaintiff would have sought out further medical attention after March 2013 if the injuries he suffered from the 2013 accident had been serious enough, as any sensible person would do.

[59]         According to the defendant, the lack of medical attention at the time of the January 2013 accident means that the plaintiff did not take reasonable steps to mitigate his injuries. There is a logic to that submission but, as above, I conclude that the situation is one of weight to be given to the plaintiff’s expert evidence rather than of mitigation.

[60]         Turning more specifically to the expert evidence, Dr. Robinson has opined that the plaintiff’s history is “… consistent with a diagnosis of chronic posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the January 6, 2013 motor vehicle accident.” Similarly, Dr. Stewart reviewed the plaintiff’s history and stated in her report of September 6, 2017 that, “[b]ased on this history it is my opinion that he sustained soft tissue injury to his neck and back in the collision.”

[61]         For his part, Dr. Winston certainly disputes that the plaintiff has any ongoing impairment. However, he does not opine on the specific issue of causation. He notes the initial medical treatment at the walk-in clinic and he apparently had the chart from the physiotherapist available to him. The latter was two months after the accident, in March 2013, and there is no reference on the chart to headaches. He notes that the plaintiff “never sought medical attention again” after March 2013 and he does not believe there was impairment after that. Dr. Winston does not state it expressly, but I take his opinion to be that there was an accident and it did cause some mild soft-tissue injury. However, there was no impairment to speak off after March 2013.

[62]         From these opinions, I conclude that the plaintiff did suffer a soft-tissue injury to his neck from the January 2013 accident, as described by Dr. Robinson. I conclude that headaches are included in this assessment. As above, Dr. Winston’s opinion is broadly consistent with this at least on the initial causation issue (but he is very skeptical about any ongoing impairment). In her opinion, Dr. Stewart includes an injury to the back but in cross-examination, she agreed this was possible but not probable. It is also not the opinion of Dr. Robinson. I do accept the opinion of Dr. Robinson that “[c]hronic insomnia is probably a factor in the persistence and severity of his posttraumatic headaches”…

[73]         Overall, I conclude that non-pecuniary damages in the amount of $55,000 are appropriate in this case.

Plaintiff Ordered to Pay Double Costs After Failed Parking Lot Collision Injury Claim

March 8th, 2018

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.

In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”

Prior to trial ICBC made a formal settlement offer of $5,000.  ICBC asked for double costs.  The court agreed noting the offer ought to have been accepted.  In granting the request for double costs Mr. Justice Brown provided the following reasons:

[4]             The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.


[7]             I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.

$85,000 Non-Pecuniary Assessment For Chronic Wrist Injury

March 5th, 2018

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a permanent wrist injury sustained in a vehicle collision.

In today’s case (Fatin v. Watson) the Plaintiff was involved in a 2014 collision.  The Defendant disputed fault but ultimately was found 75% to blame.

The Plaintiff suffered a variety of injuries the most serious of which affected his wrist and was expected to be permanent. In assessing non-pecuniary loss at $85,000 prior to apportionment of damages Mr. Justice Grauer provided the following reasons:

[28]         Dr. Fatin suffered a blow to his head and his left shoulder, but neither of these caused any lasting injury.  The significant injury was to his right wrist.  He suffered, and continues to suffer, from a condition called “SLAC wrist”.  SLAC is the medical short form for scapholunate advanced collapse, and comprises injury to the right scapholunate ligament leading to intercarpal and radialcarpal osteoarthritis.

[29]         This injury has had a marked effect on Dr. Fatin’s lifestyle.  Although retired from medicine for some years, he has been very active in carrying out extensive renovations and landscaping to the homes and recreational properties in which he and his family have lived, and was active in activities such as golf and bocce.  He can no longer lift a heavy item, wield a hammer, drive a screw, swing a golf club or put a backspin on a bocce ball.  He wears a brace on his right wrist to minimize the pain that comes with movement. 

[30]         The injury itself and the wrist osteoarthritis were not caused by the motor vehicle accident, but were pre-existing degenerative conditions that were asymptomatic.  It is not contested that the collision caused the osteoarthritis to become symptomatic, and that he will have a permanent disability in the form of pain, decreased wrist movement and decreased strength in the right upper limb. 

[31]         No one can say whether or when it would have eventually become symptomatic but for the accident.  His treating plastic surgeon, Dr. Slobodan Djurickovic, who has a special interest in hand and wrist surgery, wrote in his report:

It is impossible to know whether or not he would have had significant wrist pain had he not been involved in an accident.  It is my opinion that he likely would not have developed severe wrist pain.  He had significant arthritic changes and no pain into his 75th year and was able to golf etc.  As a result I feel he would have likely had only mildly painful wrist arthritis at the most if it weren’t for the motor vehicle accident.

[32]         I accept Dr. Djurickovic’s opinion.  It is consistent with the opinion of the defence orthopedic surgeon, Dr. Brenda Markland, who wrote in her report:

It is likely that Dr. Fatin would eventually have become aware of the osteoarthritis in his right wrist, but it is difficult to predict exactly when that would have happened.  After all, he made it to the age of 75 years without any symptoms, and might have lived out the rest of his life without knowing that the problem existed.  However, a fall on the outstretched hand or the strenuous activity involved in renovations might have brought out the symptoms earlier, or the progression of the degenerative changes over time might have given him gradually increasing pain.

[33]         Accordingly, I find that the motor vehicle collision caused Dr. Fatin’s pre-existing osteoarthritis to become symptomatic to the point where it became disabling, and that he would not have suffered that degree of disability but for the accident.

[34]         The only potential treatment is surgical: either a wrist fusion, which would likely relieve pain but completely limit movement, or a wrist joint replacement (arthroplasty), from which, according to Dr. Djurickovic, Dr. Fatin could expect a reasonable result, with reduction in pain, increased range of motion, and more comfort in activities of daily living, lighter duties and hobbies.  It is not clear that Dr. Fatin would be able to resume golf or undertake renovations, and he would be advised to continue wearing a splint for anything more than light activities.

[35]         Given Dr. Fatin’s age and physical demands, as well as the fact that he is right hand dominant, it is Dr. Djurickovic’s recommendation that he undergo the wrist replacement procedure.  Dr. Fatin is still considering his options…

[40]         Dr. Fatin is a man who took great satisfaction from his ability to carry out manual tasks at which he was very good.  These included, as I have noted, renovating his several houses, extensive maintenance, repair work, landscaping and gardening.  He engaged in these all his life, including in his retirement.  He has been considerably more active than many of his age.  All of this has been greatly impaired by his injury.  In addition, the leisure activities he has enjoyed in retirement have also been affected, particularly golf.  For him, the loss of independence that we all face as we age has been greatly accelerated.  Dr. Fatin has faced this stoically, but not without real frustration.

[41]         There is no doubt that his injury is permanent.  It is possible that wrist replacement surgery would improve things, but it would not cure the condition.  Dr. Fatin has expressed some reluctance to proceed with such surgery because of experience he has had from procedures in the past where he has suffered side effects usually limited to 1% or so of the population.  There nevertheless remains, I find, a real and substantial possibility that he will choose to undergo such a procedure, if for no reason other than to reduce pain and relieve frustration, and I assess the likelihood at 50%.

[42]         Taking all of these factors into account, I assess Dr. Fatin’s claim for non-pecuniary damages at $85,000. 

Court Dismisses “Low Velocity Impact” Collision Claims in Part Based on Forseeability

March 1st, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissed claims for injuries from 5 separate collisions.

In today’s case (Greenway-Brown v. Kyung) the Plaintiff was involved in 5 separate collisions and alleged injury.  The Court dismissed two of the claims based on liability.  Of the remaining 3 the Court found that the Plaintiff did not meet her burden in proving injury.  Interestingly, the Court then went even further and noted that as a matter of law it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot.  This seems to contradict the reasoning from the BC Court of Appeal and numerous other so-called low velocity impact prosecutions.  In any event, Mr. Justice Macintosh provided the following reasons extending the Mustapha reasonsing to low velocity collisions:

[51]        Ms. Brown has not established the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude.  While the Court in Mustapha recognizes that a defendant must take a plaintiff as it finds him, or her, for purposes of damages, focusing on a person of ordinary fortitude, for the purposes of determining foreseeability, will not be confused with the “eggshell skull” situation, where, as a result of a breach of duty, the damage inflicted proves to be more serious than expected.

[52]        Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well.  Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis.  Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude.  In the three accidents, 2, 3, and 5, all of the available objective evidence, including the photographic evidence of the Jeep after several of the accidents, makes it wholly improbable that the Plaintiff suffered damages, or could suffer damages, from the three parking lot episodes.

[53]        The Plaintiff’s mental and physical conditions, of which she complains, pre-existed the second accident upon which she sues, and were exacerbated by her obesity and other physical conditions unrelated to the three accidents.  A defendant need not put a plaintiff in a position better than his or her position but for the defendant’s conduct.  See, Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34–36.  For Ms. Brown to receive damages from accidents 2, 3, and 5 would be to offend the principle expressed in Athey.

ICBC Ordered to Pay $250 for “Misguided” Refusal to Pay $15 Fee

March 1st, 2018

When people hire a lawyer in British Columbia a $15 ‘trust administration fee’ must be paid to the Law Society of BC.  Basically a mandatory tax.

When a plaintiff hires a lawyer to resolve a dispute with ICBC this fee needs to be paid.  If the Plaintiff is a successful litigant ICBC needs to indemnify this fee as a disbursement.  They don’t like to do so.  Today, reasons for judgement were published by the BC Supreme Court, Vancouver Registry, (Garayt v. Deneumoustier) with some harsh words for ICBC’s routine ‘misguided’ refusal to accept this disbursement.  In ordering the disbursement paid along with a $250 award in further costs Registrar Cameron provided the following reasons:

[6]            I agree with these submissions and would add that on numerous occasions on assessments that I have presided over I have advised counsel for the Insurance Corporation of British Columbia, who are retained to defend these motor vehicle related personal injury claims under our provincial automobile insurance program, that unless there is an issue as to whether or not the Plaintiff’s counsel has received a deposit into trust in respect of resolution of the litigation, there is absolutely no justification to put the trust administration fee into issue.

[7]            I have said to counsel, who come with instructions to oppose the TAF disbursement that those instructions are simply misguided and the matter ought not to be raised on an assessment unless there is an issue about the deposit being made. There is no such issue in this case.

[8]            I have jurisdiction pursuant to Supreme Court Rule 14-1(14) to award costs arising from an improper act or omission. The applicable Rule reads as follows:

Costs arising from improper act or omission

(14)   If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a)  that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

[9]            In this case the Plaintiff was put to unnecessary cost to address this objection to the TAF and I am satisfied that it is appropriate pursuant to Rule 14-1(14)(b) to allow an additional amount for costs in recognition of the failure of the Insurance Corporation of British Columbia to abide by the very clear case law not to make TAF an issue unless there is a proper basis for doing so.

[10]        Finding that there was no proper basis in this case and that the concession was only made this morning, I allow the Plaintiff an additional $250 in costs.