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 the ‘Uncategorized’ Category

BC Lions Streaker Alleges Brain Injury After Hit By Marcell Young – Quick Legal Breakdown

June 20th, 2018

Earlier this week a streaker thought it was a good idea to run onto the field during a CFL game.  Not taking too kindly to the unwanted interruption Marcell Young of the BC Lions took matters into his own hands and put an end to the streakers 15 seconds of fame.

The incident was captured by @Jadenfootball21 who published the hit via Twitter

 

 

The ‘fan’ has now hired a personal injury lawfirm and is alleging the incident caused brain injury.  The firm published a press release noting “Our client suffered serious injuries, including a mild traumatic brain injury, as a result of being violently struck by BC Lions player Marcell Young.  Our client has been released from the hospital and is now recovering at home.  His future prognosis remains unclear. ”  These allegations of injury have yet to be proven in Court.

So is there merit in this potential lawsuit?  While controversial, there can be.

The fan had no business being on the field.  Interrupting the game can bring a host of legal consequences for the fan.  However, security guards, players or anyone else looking to end the streaker’s ill-conceived fun must do so with a reasonable amount of force in the circumstances.  Exceeding this can bring damages under the tort of battery.

The law of battery is rather straightforward.  A Plaintiff simply needs to prove that the Defendant made intentional and unwanted contact with him and harm indeed occurred as a result of the contact.

From there a Defendant is free to raise defenses such as consent, provocation or self defense.  BC Courts have stated as follows when justifying battery via self defense:

Self defence imports the idea that the defendant is under attack at the hands of the plaintiff, or reasonably believes that he will be subject to such an attack, even if the plaintiff has neither the intention nor the power to make such an attack. Even if the circumstances entitle the defendant to claim he was acting in self defence, he cannot escape liability unless he discharges the burden of proving that the amount of force he used was reasonable in all the circumstances. This will depend on the court’s assessment of the situation, taking into account the form and nature of the plaintiffs attack on the defendant and the reasonableness of the response of the defendant.

And the following for provocation:

In order to amount to provocation, the conduct of the plaintiff must have been “such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault.”  


$20,700 “Accelerated Depreciation” Claim Succeeds Following Vehicle Damage in Crash

June 5th, 2018

Reasons for judgement were published this week by the BC Provincial Court ordering a Defendant (insured by ICBC) to pay over $20,000 in vehicle depreciation after a crash.

In the recent case (Chiang v. Kunar) the Plaintiff purchased a Mercedes for just over $68,000.  The following year the Plaintiff was involved in a crash caused by the negligence of the Defendant.  The crash caused over $34,000 in repair costs leaving the vehicle far less valuable after repairs.  The Plaintiff sued to recover the value of this accelerated depreciation but ICBC argued that there was no loss.  In siding with the Plaintiff, who to his credit succeeded in litigation while self represented, The Honourable Judge K. Arthur-Leung provided the following reasons:

      I am satisfied that the Claimant has met the burden of proof, and that this low to mid-level luxury vehicle was indeed a customized vehicle that was in the high end of its own category of Mercedes Benz, and sustained accelerated depreciation.  The Bill of Sale shows thousands of dollars of extras that he ordered for this Vehicle.  It was a rare vehicle at the time that it was initially in the Vancouver market, and the experts both testified that it remains an in demand vehicle if it was not in an accident.

In addition, the decision of Rutter v. Adams, 2016 BCSC 554 (CanLII) at paragraph 314 relies upon Signorello v. Khan, 2010 BCSC 1448 (CanLII) to include quantification that “…such losses can include a ‘loss of use and the inconvenience of having to return the vehicle on several occasions’.”  In addition, in Cummings v. 565204 BC Ltd., 2009 BCSC 1009 (CanLII), the Court relied upon Reinders v. Wilkinson, 1994 CanLII 2527 (BC CA)1994 CanLII 2527 (BCCA) that it is not necessary for the party to sell the vehicle in order to succeed in a claim for accelerated depreciation.  The damage sustained to this Vehicle was not merely cosmetic and required significant repair, to wit it remains outstanding with ongoing operational and mechanical problems…

THEREFORE THIS COURT ORDERS JUDGMENT TO THE CLAIMANT AGAINST THE DEFENDANTS, JOINTLY AND SEVERALLY AS FOLLOWS:

a)            The amount of $20,700.00, for accelerated depreciation of the Vehicle ($18,000.00 plus 15% tax);

b)            Interest on the sum of $20,700.00 as of February 26, 2015, in accordance with the Court Order Interest Act;

c)            The amount of $1,990.08 in general damages as claimed by the Claimant;

d)            Interest on the sum of $1,990.08 as of May 9, 2016, in accordance with the Court Order Interest Act;

e)            The amount of $472.50 for the cost of the Coast Auto Appraisal Report;

f)            Court attendance fees of Mr. Sparrow of Coast Auto Appraisal in the amount of $1,155.00;

g)            Court filing fees in the amount of $156.00; and

h)            Service fees in the amount of $30.00.


Victoria Soon to be Home to BC’s Biggest Gym!

May 30th, 2018

ISV

This post is a bit off topic but since most of my readers are British Columbians I thought this may be of interest.

I am proud to announce the launch of Inspire Sports Victoria!

Inspire Sports is an internationally affiliated organization that will be opening their first gym in Canada right in the heart of greater Victoria.  The gym will be the largest facility in all of BC!

With an emphasis on physical literacy for all, Inspire Sports Victoria is proudly registered with GymBC and will provide everything from entry level recreational classes to world class competitive training.

Our website has just been launched and can be found here.

You can also follow us on Facebook and Instagram.

If you live in the Greater Victoria area and are looking for a wonderful activity for you or your family please check us out!  Class registration will begin in June with our first full month of programs scheduled for August.  The full fall schedule should be out soon!

 

 


$85,000 Non-Pecuniary Assessment for Chronic Pain With Guarded Prognosis

May 17th, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained from two vehicle collisions.

In today’s case (Harry v. Powar) the Plaintiff was a pedestrian struck by a vehicle in a crosswalk in 2012.  She was involved in a rear end collision the following year.  The collisions resulted in ” headaches, chronic myofascial pain syndrome, cervical facet joint syndrome and lumbar facet joint syndrome” with a guarded prognosis for full recovery.  In assessing non-pecuniary damages at $85,000 Madam Justice Winteringham provided the following reasons:

[79]         I have found that Ms. Harry’s most significant injuries are the headaches, chronic myofascial pain syndrome, cervical facet joint syndrome and lumbar facet joint syndrome. ..

[84]         Ms. Harry was in her early thirties at the time of the Accidents. Sadly, the symptoms connected to her injuries are ongoing and I accept that her prognosis for a full recovery is guarded although she may experience some improvement with further treatments.

[85]         The evidence demonstrates that Ms. Harry has tried to manage her pain in a way that enables her to carry on with her life.  That is not to say her pain is insignificant.  Rather, I have found that Ms. Harry has done almost all that she can to pursue her career despite the defendants’ negligence.  It is also clear from the evidence that the energy exerted on pursuing her professional endeavours has taken a toll on the other aspects of her life.  She does not have the energy or the physical well being to regularly conduct day-to-day household tasks, engage in social events or participate in physical activity – all of which formed an integral part of her life before the accidents. ..

[90]         In all of the circumstances and taking into account the authorities I have been referred to, I am satisfied that an award of $85,000 will appropriately compensate Ms. Harry for her pain and suffering and loss of past and future enjoyment of life for which the defendants are responsible.    


Kyla Lee is Awesome; BC’s New ICBC Laws Not so Much…

May 17th, 2018

Kyla Lee is a criminal lawyer practicing out of Vancouver well versed in issues relating to BC driving law and issues of fairness with administrative hearings.  Kyla, in a regular column she pens at VancouverisAwesome, had some scathing observations about the realities of BC’s Civil Rights Tribunal being fed ICBC injury claims and the inherent unfairness that British Columbians will face under this soon to be mandatory scheme.

I urge anyone interested in the subject to read the column in full.  The highlights include the following observation:

But the really disturbing part about this that no one has been paying much attention to is how the ability to prescribe by regulation flows together. Not only can regulations enacted by the BC Government increase the amount of the Civil Resolution Tribunal’s jurisdiction but the definition of minor injury can also be amended by regulation.

What this means is that if Government does not like the fact that too many claims are being paid out for a particular type of injury, say, a broken leg, it can call a broken leg a “minor injury” by enacting a quick regulation and suddenly those who have suffered a broken leg are left without a remedy in court. Instead, they are at the mercy of the Civil Resolution Tribunal.

And there are more troubling changes to the Civil Resolution Tribunal legislation that should have the public gravely concerned. The enabling statute has been amended to state explicitly that the tribunal is an expert tribunal in any area where the legislation states they have specialized expertise.

Care to hazard a guess about one area in which a tribunal that has heretofore not dealt with motor vehicle accident claims has specialized expertise? If you guessed motor vehicle accident claims, you are picking up on this disturbing trend.

The specialized expertise designation is of particular importance when considering the ability to appeal decisions of the tribunal. These appeals are known as judicial review.

Under the rules of administrative law, a tribunal with specialized expertise is supposed to be afforded substantial degrees of deference. This means that judges cannot overrule their decisions unless there is a clear error or a clearly unreasonable finding. Moreover, the court is required to defer to the tribunal’s own interpretation of the law in areas where it has specialized expertise. So if the tribunal says that “depression and anxiety” are “psychological conditions” that constitute minor injuries, a court cannot interfere with that finding unless it is unreasonable, even if there are other reasonable interpretations that say otherwise.

Now who is in charge of this ‘specialized tribunal‘?  BC’s Attorney General, the same person in charge of ICBC’s so-called ‘dumpster fire‘.  It does not take an overly critical lens to see concern when the person in charge of ICBC is also in charge of appointing ‘specialists’ subject to limited judicial oversight to adjudicate British Columbians ICBC disputes.


ICBC “Minor Injury” Tribunal Designed To Be Unfair

April 27th, 2018

This week the BC Government is debating amendments to laws creating the Civil Resolution Tribunal to expand their powers to have mandatory jurisdiction over “minor” injury litigation.

As previously discussed, the word “minor” is being used to mislead the public.  The Government has defined the word to include many serious and disabling injuries including

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

In any event, the Civil Resolution Tribunal Amendment Act which may pass into law as early as next week takes away the right of British Columbians injured by careless drivers on our roadways to go to court.  Instead this law requires you to go to a Tribunal that will decide whether you have a “minor” injury and your level of compensation which will also be capped.

In debate this week the Government admits that their purpose in funnelling claims here is to create an unfair landscape.  They expressly state they hope to discourage the injured party from hiring a lawyer and to have you face an ICBC “specialist” in the dispute.

Here is our Attorney General expressly stating the intent of the legislation is to discourage people from hiring a lawyer when they are forced to litigate an injury claim:

The intent is to have this tribunal operate in most cases without counsel. You’ll see, in this section that we’re talking about, that we’re making an exception, saying: 

“Look, if you really want to bring a lawyer here, given the amount of money that you’re going to pay in legal fees and the amount that’s under dispute, which by definition under this act, is less than $50,000…. If you really want to bring a lawyer, you can bring a lawyer. But the amount of money that you’re going to spend on your lawyer is going to eat up a lot of your award, so it’s probably not to your interest.”

So, the Government has created a system where they don’t want you to have a lawyer.  And who do they want you to face in the Tribunal?  An ICBC “specialist.“.

Again, from our Attorney General

The intention is currently that an ICBC adjuster would attend. ICBC would be the respondent to the claim. So when someone who has been in an accident doesn’t agree with what the adjuster has said their claim is worth…. they can go to the civil resolution tribunal to have that dispute heard. There has to be someone on the other side saying here’s what we think the claim is worth. Currently, ICBC’s thinking is…. that that person would be an adjuster….They are specialists in determining the value of claims.

So those people would be attending the hearing, making representations to the tribunal about what their position is — what the claim is worth. The person who was in the accident makes representation, with their medical records and their costs and so on, to the tribunal about what they think the claim is worth. Then the tribunal would make a decision

So there you have it.  The purpose of the government’s new law is to reduce your right to compensation when injured by a distracted or impaired driver and if you don’t like it to have your dispute heard, without a lawyer, facing an insurance company paid for “specialist”.

 


$75,000 Non-Pecuniary Assessment for Onset of Symptoms in Pre Existing Scoliosis

April 21st, 2018

Reasons for judgment were published this week by the BC Supreme Court, Kelowna Registry, assessing damages for a collision causing the onset of symptoms in pre-existing asymptomatic scoliosis.

In the recent case (Cyryl v. George) the Plaintiff was injured in a collision when she was 17 years old.  Liability was admitted by the at fault motorist. The collision resulted in several injuries including pain in her previously asymptomatic spine.  The Plaintiff alleged that the collision went on to cause a chronic pain syndrome but the Court rejected this assertion.  In assessing non-pecuniary damages at $75,000 Mr. Justice Weatherill provided the following reasons:

[104]     I find, on the whole of the evidence, the plaintiff had an asymptomatic scoliosis condition as well as a 1.5 cm leg length discrepancy that became activated and aggravated by the Collision.  I find that the Collision caused the plaintiff to suffer the following injuries: several contusions, abrasions and lacerations to her face, headaches, a bitten tongue and soft tissue injuries to her jaw, neck and back. 

[105]     I also find that for approximately two months immediately following the Collision, the plaintiff continued to suffer considerable pain and discomfort in her neck, jaw and back as well as headaches.  I find that, while some pain and discomfort has persisted since then, it is not as prevalent and debilitating as the plaintiff has suggested.  Rather, I find that her pain symptoms flare up from time to time depending upon levels of activity and that she is able to tolerate her symptoms and cope well with the use of over-the-counter pain medication such as Advil.  I find that the only restrictions on the plaintiff’s activities are related to her symptom tolerance.

[106]     On the whole of the evidence, I am unable to find that the plaintiff has demonstrated a loss in cognitive function as a result of the Collision or that her ongoing symptoms have developed into Chronic Pain Syndrome…

[114]     In my view, the appropriate award of non-pecuniary damages in this case is $75,000.


BC Court of Appeal – “Costs Thrown Away” Should Routinely Be Ordered For Late Adjournments

April 17th, 2018

Reasons for judgement were published today by the BC Court of Appeal finding that ‘costs thrown away’ should ordinarily be ordered against a party obtaining a late trial adjournment.

In today’s case (Bolin v. Lylick) the Plaintiff sued for damages from personal injuries.  6 weeks prior to trial she successfully applied to adjourn it after having switched lawyers.  The Court of Appeal noted there was nothing wrong with this however found that the adjournment was prejudicial to the Defendants and this should have been remedied with an order of costs thrown away.  In discussing this norm the BC Court of Appeal provided the following reasons:

[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.


$200,000 and $50,000 Non-Pecuniary Assessments for Carbon Monoxide Poisoning

April 16th, 2018

Reasons for judgment were published today by the BC Supreme Court, Vancouver REgistry, assessing damages for carbon monoxide poisoning that aggravated pre-existing brain abnormalities.

In today’s case (Edwards v. Parkinson’s Heating Ltd.) the Plaintiffs were a married couple who were exposed to carbon monoxide emissions from their living room fireplace.  The Court found that this exposure was caused by a Defendant’s negligent servicing of the fireplace.

Both Plaintiff’s had pre-existing brain abnormalities but the Court found the poisoning aggravated these.  In assessing non-pecuniary damages at $200,000 and $50,000 for the Plaintiffs Mr. Justice Hinkson provided the following reasons:

[466]     A summary of my key findings is as follows:

  1. Kenorah owed the plaintiffs a duty of care with respect to the 2008 reinstallation of the fireplace. Parkinson’s owed the plaintiffs duties of care with respect to both the 2008 reinstallation and the subsequent servicing of the fireplace;
  2. The standard of care for installing and servicing the fireplace required the following:

(a)   Reasonably inspect the fireplace to ensure it was:

(i)   operating in accordance with the manufacturer’s specifications (per s. 57 of the Gas Safety Regulations); and

(ii)  was venting in a safe and proper manner (per s. 57 of the Gas Safety Regulations);

(b)   Reasonably test for CO emissions using a suitable CO detector;

(c)   Repair or remediate any defects or problems that would interfere with the safe operation and venting of the fireplace.

  1. Kenorah did not breach the standard of care with respect to the 2008 reinstallation. Parkinson’s breached the standard of care with respect to subsequent servicing of the fireplace. The breaches occurred on February 10, 2009, and November 13, 2009;
  2. As a result of Parkinson’s breach that occurred on November 13, 2009, the plaintiffs were exposed to CO in their residence, from that date until January 4, 2010, at levels above 50 ppm but less that 1000 ppm;
  3. Prior to the CO exposure, Dr. Pinel had brain abnormalities, which included hippocampal atrophy and white matter changes. He also had behavioural and cognitive problems, such as forgetfulness, fatigue, and mild depression;
  4. Prior to the CO exposure, Ms. Edwards had brain abnormalities, which included hippocampal atrophy and white matter changes. She also had anxiety, depression, and mood disorders, and cognitive problems involving verbal and visual learning.
  5. As a result of the CO exposure, both Dr. Pinel’s and Ms. Edwards’s hippocampal atrophies were accelerated. The CO exposure caused Dr. Pinel’s depression to worsen, and Ms. Edwards’s depression, anxiety, and mood disorders to worsen.

[467]     The damages awarded to the plaintiffs are as follows:

a. Non-pecuniary damages (Ms. Edwards) $  50,000.00
b. Non-pecuniary damages (Dr. Pinel) $ 200,000.00
c. Special damages $5,792.00
d. Cost of care $ 53,000.00
e. HCCRA award $ 2,624,57

BC Injury Law Blog Hits 10 Year Anniversary!

March 21st, 2018

This week marks the 10 year anniversary of the BC Injury Law Blog.

2,374 posts strong!

In the age of legal blogs this site perhaps now qualifies for an old-age pension.

Here’s to 10 more years!