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, 2019

BC Attorney General Admits Court Rule Changes Brought Without Judicial Approval

February 27th, 2019

Earlier this month BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  The rule changes were brought without notice to the profession, were retroactive and ultimately will lead to ICBC paying for countless expert reports already in existence that the new rule deems useless.

Today BC’s Attorney General candidly admitted that this rule change was brought unconventionally and without judicial approval.  Legal challenges are being readied against this rule which appears to have been brought for an improper purpose, namely not to fix a procedural problem but rather to save a single institutional litigant money.  In any event here are Attorney General Eby’s words confirming the judiciary did not approve this surprise rule change

 The rules committee did not recommend these changes and was not asked to approve these changes. These changes were a decision made by government.”

Changes to the BC Supreme Court Rules require statutory consultation with the Chief Justice of the Court.  It is unclear just how meaningful a consultation occurred but today’s press release makes it appear that the consultation may have been little more than window dressing.


$95,000 Non-Pecuniary Assessment For Labral Tear with Articular Cartilage Disruption

February 27th, 2019

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic hip injury sustained in a collision.

In today’s case (McCann v. Anderson) the Plaintiff was involved in a 2014 vehicle collision that the Defendant accepted fault for.  The Plaintiff suffered a variety of soft tissue injuries which made full recovery.  More notably he also sustained a chronic hip injury which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $95,000 Madam Justice Shergill provided the following reasons:

[78]         At the time of the MVC, Mr. McCann was a physically active 54-year-old man who worked at a physically demanding job without restrictions. Though he had some problems in his low back prior to the MVC, there is no evidence that the low back pain would have continued or caused him to experience problems in the future. The impact of the October 2014 MVC was substantial, and caused him significant injuries which have continued to affect his employment and recreational activities.

[79]         Mr. McCann recovered from his soft tissue injuries to his neck, back, left shoulder and left hip within ten months of the MVC. In addition, he suffered from anxiety and depression which are partially attributable to the MVC but from which he fully recovered after approximately one year of symptoms.

[80]         The most significant injury is to Mr. McCann’s left hip. He has been diagnosed with an inter-articular labral tear with articular cartilage disruption. His left hip injury prevented him for returning to any form of work for approximately one-and-a-half years. During that time, Mr. McCann underwent a number of investigations and tried many different treatments to try to alleviate his pain. It was not until he underwent a PRP injection in July 2016 that Mr. McCann finally began to experience long-lasting relief from his symptoms.

[81]         Despite having returned to work at his full-time regular duties, he continues to remain symptomatic and experiences intermittent days off work (once every four to six weeks) due to his ongoing pain from the MVC.

[82]         Prior to the MVC, Mr. McCann participated in a number of sports and outdoor activities, and was generally in good health. Mr. McCann is no longer able to participate fully in all of his pre-MVC recreational and leisure pursuits. 

[83]         Mr. McCann’s condition plateaued by March 2018. Now, over four years later, he continues to experience ongoing pain. His prognosis for significant further clinical improvement in his left hip condition is poor….

88]         After considering all of the case authorities, and having regard to the evidence and the unique circumstances in this case, I assess Mr. McCann’s non-pecuniary damages at $95,000.  


Martial Arts Student Waiver Held Not To Extend to Injuries Sustained in a Tournament

February 27th, 2019

Post originally published here on my other legal blog combatsportslaw.com 

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.

In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy.  The Plaintiff participated in a tournament where he sustained injury.  He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.

As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“.  The Defendant argued that this waiver should be upheld and the lawsuit dismissed.  The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“.  Using this test the court found the waiver for injuries in classes could not extent to a tournament.  In reaching this conclusion Madam Justice Matthews provided the following reasons:

[24]         Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.

[25]         I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.

[26]         In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.

[27]         Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.

[28]         I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.

[29]         The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.


$160,000 Non-Pecuniary Assessment for Brain Injury and Chronic Pain

February 25th, 2019

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain sustained in a BC vehicle collision.

In today’s case (Ranahan v. Oceguera) the Plaintiff was involved in a 2013 rear end collision.  Although faut was not formally admitted the Court found the Defendant fully liable for the crash.  The Plaintiff suffered chronic injuries from the collision and in assessing non-pecuniary damages at $160,000 Mr. Justice Mayer provided the following reasons:

[144]     I find that as a result of the accident, Ms. Ranahan has sustained mild traumatic brain injury and soft tissue injuries to her spine, which has developed into chronic neck pain, upper back pain, post-concussion syndrome, cognitive problems with memory and focus, imbalance, tiredness, fatigue, tinnitus, eye strain, sleep disturbance and chronic headaches. I also accept that the imbalance caused by her accident resulted in a further injury, the left ankle dislocation with a chip fracture, while coaching a soccer game.

[145]      I also find that Ms. Ranahan suffers from ongoing mood symptoms including irritability, moodiness a reduction in patience and positivity. She is experiencing on-going difficulties dealing with stress. Although Ms. Ranahan admits that prior to the accident she was under significant stress as a result of her husband’s health issues, family and work responsibilities she was managing these stresses and was fully functioning at work and at home and was able to participate in a number of sports and social activities.  

[146]      I find, based on the totality of the lay and expert evidence, that there are no genuine issues of causation in this case. I find that but for the accident Ms. Ranahan would not be suffering from her current physical and psychological/cognitive symptoms…

[157]     I find that, as a result of the accident, Ms. Ranahan experienced and continues to experience physical and emotional pain, suffering and limitation. Relevant facts have been set out earlier in my reasons and there is no need to repeat them.   

[158]     The impacts have interfered with her family and business life but as a result of her stoicism these impacts have been managed to a certain extent. In addition, her injuries have significantly impacted her recreational and social pursuits but she has not been completely unable to participate in some of these activities.  

[159]     I find that there has been some improvement in some of Ms. Ranahan’s symptoms. What is not clear is whether there will be any further improvement. There appears to be a belief amongst some of the medical experts, including Drs. Chow, Johnston and Boyle, that further assessment and treatment may result in improvement. The prognosis of Dr. Chow and Dr. Johnston is guarded.

[160]     Many of the cases relied upon by Ms. Ranahan occupy the higher end of the spectrum for non-pecuniary damages for similar injuries. The cases relied upon by ICBC are in my view at the lower range and the damages awarded in those cases are not sufficient to address the pain, suffering, loss of enjoyment of life and loss of amenities suffered by Ms. Ranahan. 

[161]     Having reviewed the cases provided by the parties I assess Ms. Ranahan’s non-pecuniary damages at $160,000.  


Talking All Things ICBC With Kyla Lee

February 22nd, 2019

This week I had the pleasure of appearing on Kyla Lee’s Driving Law Podcast where we tackled all things ICBC.   A big thank you to Kyla for having me on again. You can listen to the full episode here:

For more information on some of the subjects we covered you can click on the below links:

Expert Evidence Court Rule Changes

ICBC’s Secret “Meat Chart”

Judicial Criticism of the Meat Chart

ICBC “Minor” Injury Caps

Caps and the Charter

 


ICBC’s “Meat Chart” Crashes In the BC Supreme Court

February 14th, 2019

Update February 25, 2019 – The below paragraph 71 was edited in revised reasons for judgement published today and now reads as follows:

[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.

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Earlier this year ICBC instructed its staff to ignore the law when valuing cases and instead make offers based on an internal injury ‘meat chart’.  The result is cases not settling and going to trial.

The first wave of these has now hit the courts and the judiciary seems none too impressed by ICBC and their ‘institutional’ tactics.

In reasons for judgment released today (Tsai v. Murdoch) ICBC was harshly criticized.  The Plaintiff was injured and sought to settle her case.  ICBC declined and made a low settlement offer subject to their ‘meat chart’ guidelines. The plaintiff sensibly rejected the offer and went to trial where damages were assessed under the law and resulted in an award greater than what she was prepared to settle for.

The Court went on to award the plaintiff double costs for ICBC’s tactics and criticized their new approach.  In doing so Madam Justice Sharma provided the following reasons:

[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. I was informed the defendant had made a settlement offer, but withdrew it for “institutional” reasons. Whatever “institutional” reasons are they do not protect in any way a litigant from bearing the consequences of its choices in the litigation.  Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.


What Dumpster Fire? ICBC Spokesman Says Corporation in Fine Financial Shape

February 14th, 2019

Remember the Dumpster Fire?  The powerful image painted by BC’s Attorney General used to persuade the public that it is necessary for the government to strip the rights of British Columbians in order to keep ICBC healthy?  Turns out ICBC themselves say they are in fine financial shape and can meet all of their existing obligations without concern.

ICBC has Billions in assets.  Billions.  In addition to this, according to ICBC Spokesman Adam Grossman, ICBC is cash solvent and collects enough in premiums and investment income to meet their obligations.

The following quote was attributed to Grossman by the Vancouver Sun’s Rob Shaw:

““We disagree with Mr. McCandless’ position — ICBC is not insolvent….In addition to the reserves and portfolio referenced above, we are still generating sufficient cash flows from premium revenue and investment income, allowing us to meet our current obligations — this is the key point and we are not, therefore, being backstopped by government.

Government has implemented a host of legal changes stripping the rights of British Columbians to douse the so-called dumpster fire.  ICBC has not realized any savings yet from these changes as they largely have not kicked in yet.  If ICBC can meet all current obligations why the “minor” injury caps?  Why the discrimination to people suffering psychological disability?  Why the forced tribunal and stripped judicial rights?  Why the limit on expert witnesses plaintiffs can use when appearing in court? If there was no dumpster fire to put out it looks like British Columbians just got hosed.

 


$125,000 Non-Pecuniary Assessment for “Complex” Psychological Injuries With Pain

February 13th, 2019

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for the victim of a hit and run collision.

In today’s case (Crozier v. ICBC) the Plaintiff was injured in a 2013 collision caused by an unidentified motorist.  ICBC admitted statutory liability for the crash.  The Plaintiff suffered both physical and psychiatric injuries which were partially disabling and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $125,000 Mr. Justice Saunders provided the following reasons:

[99]         The physical and psychological injuries Ms. Eros suffered include pain in the neck, back, shoulders, rib and chest; headache; dizziness and nausea; post-traumatic stress disorder, together with symptoms of depression and anxiety; fatigue, and problems with concentration and memory, either as a result of a mild traumatic brain injury (not confirmed through neuropsychological testing), or a combination of the physical and psychological/psychiatric injuries. Ms. Eros suffers from some residual headache and rib and chest pain. Fatigue remains a concern. She has significant chronic pain in the thoracic spine, and her psychological injuries continue. She is significantly disabled from working fully in her chosen field of massage therapy, and from engaging in physical labour of the type she did with SCRD. Her physical activity is limited. She can only do light housework.

[100]     I also consider the following factors as particularly influential in the damages award. Ms. Eros avoids driving where possible. She is not the joyful, outgoing person she used to be. Her self-identity as a strong and fearless person is gone. She lost the chance of pursuing her relationship with Mr. Johnson. Her relationship with her mother deteriorated after the accident. She is more socially isolated.

[101]     The defendant’s suggested range of $60,000 to $80,000 for Ms. Eros’ non-pecuniary damages, and the case law submitted in support of an assessment in that range, are premised on the substantial improvement of Ms. Eros’ physical injuries within 12 months of the accident, and of the psychological injuries within 18 months. The defendant’s submissions do not come close to acknowledging the devastating psychological effects of the accident, the continuing functional limitations imposed by the plaintiff’s pain, and the complex interrelationship of the pain condition and the post-traumatic stress disorder…

[104]     I find an appropriate award of non-pecuniary damages is $125,000.


BC Caps Expert Reports in Motor Vehicle Litigation

February 11th, 2019

Update – The full text of the amended rules have been published.  These read as follows –

RULE 11-8 – EXPERTS IN VEHICLE ACTIONS
Definition
(1) In this rule, “vehicle action” means an action that includes a claim for damages for
personal injury, or death, that arises out of the use or operation of a vehicle as defined
in the Motor Vehicle Act.
Conflict
(2) This rule applies in the event of a conflict between this rule and another rule of these
Supreme Court Civil Rules, other than Rule 15-1.
Limitation on expert opinion evidence
(3) Except as provided under this rule, a party to a vehicle action may tender, at trial, only
the following as expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) expert opinion evidence of up to 3 experts;
(b) one report from each expert referred to in paragraph (a).
Additional experts and reports by consent
(4) If all the parties to a vehicle action consent,
(a) the parties may tender expert opinion evidence of one or more additional
joint experts, appointed in accordance with Rule 11-3, in excess of the limit
set out in subrule (3) (a), or
(b) a party may tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
page 3 of 5
Additional experts and reports by application
(5) On application by a party to a vehicle action, the court may do any of the following if
the court is satisfied that it would further the object of these Supreme Court Civil
Rules:
(a) provide for expert opinion evidence of one or more additional experts, in
excess of the limit set out in subrule (3) (a), by
(i) ordering the parties to appoint a joint expert in accordance with Rule
11-3, or
(ii) appointing an expert under Rule 11-5;
(b) allow the party to tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
Allowable responding reports
(6) The limits set out in subrule (3) do not apply to an expert or expert’s report, if a party
serves the expert’s report under Rule 11-6 (4) to respond to a report that was served
on the party within 126 days before the scheduled trial date.
Allowable supplementary reports
(7) The limit set out in subrule (3) (b) does not apply to a supplementary report required
under Rule 11-6 (5) or (6).
Limitation on disbursements for expert evidence
(8) In a vehicle action, only the following amounts may be allowed or awarded to a party
as disbursements for expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) the amount incurred by the party for up to 3 expert reports, whether or not
the reports were tendered at trial, provided that each report was
(i) served in accordance with these Supreme Court Civil Rules, and
(ii) prepared by a different expert;
(b) the amount incurred by the party for
(i) a report allowed under subrule (4) or (5),
(ii) a report referred to in subrule (6) or (7), or
(iii) a report prepared by an expert appointed by the court under
Rule 11-5 (1);
(c) the amount incurred by the party for an expert to give testimony at trial in
relation to a report, referred to in paragraph (a) or (b), that was prepared by
the expert.
page 4 of 5
Appointment of experts on initiative of the court
(9) Nothing in this rule prevents the court from appointing an expert on its own initiative
under Rule 11-5 (1).
Transition – application of rule
(10) Subject to subrule (11), this rule applies to all vehicle actions, whether or not a notice
of claim for the vehicle action was filed before the coming into force of this rule.
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of
claim was filed before the coming into force of this subrule:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before the
coming into force of this subrule;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before the
coming into force of this subrule.
5 Rule 15-1 is amended by adding the following subrule:
Application of Rule 11-8
(12.1) In a fast track action,
(a) Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a
reference to “one expert”, and
(b) Rule 11-8 (8) (a) is to be read as follows:
(a) the amount incurred by the party for one expert report, whether or not
the report was tendered at trial, provided that the report was served in
accordance with these Supreme Court Civil Rules; .
SCHEDULE 2
1 Rule 9-7 (7.1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is amended by
striking out “in relation to a vehicle action referred to in that rule”.
2 The heading to Rule 11-8 is repealed and the following substituted:
RULE 11-8 – EXPERT OPINION EVIDENCE ON DAMAGES FOR PERSONAL
INJURY OR DEATH .
3 Rule 11-8 (3) is amended by striking out “to a vehicle action” and substituting “in an
action”.
4 Rule 11-8 (4) is amended by striking out “to a vehicle action”.
5 Rule 11-8 (5) is amended by striking out “to a vehicle action”.
page 5 of 5
6 Rule 11-8 (8) is amended by striking out “In a vehicle action” and substituting “In an
action”.
7 Rule 11-8 (10) is repealed and the following substituted:
Transition – application of rule
(10) Subject to subrules (11) and (12), this rule applies to all actions, whether or not a
notice of claim for the action was filed before the coming into force of this rule.
8 Rule 11-8 is amended by adding the following subrule:
Transition – exceptions for existing actions, other than vehicle actions
(12) The following exceptions apply in relation to an action, other than a vehicle action, for
which a notice of claim was filed before February 1, 2020:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before
February 1, 2020;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before
February 1, 2020.

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Today BC’s Attorney General announced changes to the BC Supreme Court Rules which will limit how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.

While the exact wording of the changes is not yet known the BC Government provided the following details in a press release this morning:

The proposed amendments will limit the number of experts and expert reports permitted to address the issue of damages, such as wage loss, future wage loss and future care that can be used by each side of a motor vehicle dispute. Parties will be able to use one expert and report for fast-track claims (e.g., less than $100,000), and up to three experts and reports for all other claims. However, the judiciary will be able to permit additional court-appointed or joint experts at its discretion.

These amendments will come into effect immediately upon deposit for motor vehicle-related actions. They will also apply to all personal injury claims as of Feb. 1, 2020, subject to the further analysis and consultation that the ministry plans to undertake. More information will be available in the coming weeks.

I will update this article with the actual rule changes once these are published.

While the limits on experts apply equally to both sides it is worth noting that if a plaintiff fails to call treating physicians ICBC can ask the court to draw an ‘adverse inference‘.  Plaintiff’s rarely enjoy this luxury unless ICBC hires an expert and then chooses not to disclose the report generated from the assessment.  Plaintiffs will be faced with the difficult choice of deciding whether to come to court with treating doctors (who often want nothing to do with litigation) vs doctors retained for medic0-legal purposes.  Defendants will not have to struggle with such a choice.