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, 2018

Court Finds “After the Event” Insurance a Factor To Consider When Awarding Post Trial Costs

July 9th, 2018

In what, to my knowledge, is the first BC injury case commenting on the weight a court should place on “After the Event” insurance when awarding costs post trial, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this.

In the recent case (Clubine v. Paniagua) the Plaintiff was injured in a crash and sued for damages.  Prior to trial the Defendant offered to resolve the claim for a total of $94,848.32 plus costs and disbursements.  The Plaintiff rejected this offer and proceeded to trial where he was awarded a total of $77,224.32 in damages.  The Defendant asked for costs of the trial arguing their offer should have been accepted.

The Plaintiff had ATE insurance which covers some of these adverse costs consequences.   The Court was asked to take this factor into account in stripping the plaintiff post-offer costs and making the Plaintiff pay the Defendant’s trial costs.  In finding this was an appropriate factor to consider Madam Justice Watchuk provided the following reasons:

[27]         On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial.  In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer.  It will not pay for the plaintiff’s costs following the date of the offer. 

[28]         The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule.  It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial.  The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences.  I conclude in this case that this insurance had such an effect. 

[29]         The ATE insurance in this case strongly weighs in favour of the defendant’s costs application. ..

[30]         The defendant made reasonable efforts to settle this matter.  The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences.  The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances. 

[31]         The offer was open to the eve of trial, July 22, 2016.  In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements.  The defendant’s application is granted and she is entitled to the costs and disbursements of the trial. 


$185,000 Non-Pecuniary Assessment for Severe Soft Tissue Injury With Nerve Irritation

July 5th, 2018

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury with nerve irritation and a poor prognosis.

In today’s case (Broad v. Clark) the Plaintiff was involved in a 2013 collision.  The defendant denied fault but was found fully liable at trial.  The crash caused a severe low back soft tissue injury which progressed into chronic pain with a poor prognosis.  In assessing non-pecuniary damages at $185,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[272]     I find that the soft tissue injury to the lower back was severe, leading to multiple and complex issues that have worsened in their cumulative impact since July 2014, including: mechanical low back pain; a painful lesion on her lower back that has grown; and, intermittent nerve irritation that causes pain to “shoot” down her legs, particularly the right leg.

[273]     I also find that the plaintiff is likely to be impacted by these conditions, in one form or another, for the entirety of her life.  The overall prognosis for improvement is poor.  The plaintiff presents as an unusual case, with multiple issues simultaneously affecting her lower back.  The lesion, in particular, appears to be a rarity.

[274]     The evidence establishes that the plaintiff’s life has been profoundly impacted by her lower back injury.  The video footage from May and June 2014, the Facebook photographs and Instagram postings do not persuade me to the contrary.  They represent moments in time.  The video footage predates the time at which the lower back injury took a turn for the worse.

[275]     The evidence, considered in its entirety, proves the existence of chronic pain and limitations to physical capacity that adversely impact the plaintiff’s emotional health; relationships with friends and family; her ability to physically engage with her children; intimacy with her partner; an incapacity to complete everyday tasks, including maintaining a household and meeting her children’s needs; and, the plaintiff’s physical struggles keep her out of the external work force and unable to achieve the independence and self-sufficiency goals that she set for herself.  She now spends a large portion of her life in pain and on the “sidelines”, unable to avail herself of opportunity for active engagement and advancement.  She is only 28.

[276]     In this sense, I agree with the plaintiff that her situation is analogous to (although not as severe as), Turner v. Dionne…

[284]     Recognizing that no two cases are ever exactly alike, after reviewing the authorities cited by the parties and applying the factors from Stapley v. Hejslet, it is my view that non-pecuniary damages within the context of the plaintiff’s individual circumstances are appropriately set at $185,000.