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.

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Tell the BC Government “No!” To Stripping Rights Of Those Injured By Impaired and Distracted Drivers

December 12th, 2017

The Government is flirting with the idea of stripping your rights if you are injured by a distracted or impaired driver.

If you think this is a bad idea tell the government no.

If you want your voice to be heard here are some quick steps you can take to stand up for your rights.

  • Follow ROADBC, a coalition of British Columbians committed to protecting the rights of anyone injured on our roads
  • Contact your MLA.  Tell them “No to caps” and to keep British Columbians rights intact when injured by careless drivers
  • Join ROADBC’s Facebook Page and share this page with those that share your views

Here’s some background on the current situation.

ICBC is under financial pressure.  That has not always been the case.  In recent years the public insurer was so profitable that the past government scooped nearly $1.3 billion from the crown corporation.

Instead of putting this money back into ICBC or taking less drastic solutions the Government has publicly mulled stripping victim rights to save the insurer money.  When the government strips you of your rights it rarely gives them back.

This is done with talk of “caps”.  In short this means restricting the rights of those injured by careless drivers.  Caps are not new and are the creation of the insurance lobby as product to increase profits.  Caps exist in many jurisdictions across Canada and the US and are proven not to be effective in stabilizing insurance rates.  Insurers, even after successfully persuading governments to limit victim rights, look for ever increasing premiums.

The root cause of ICBC’s financial issues are collisions caused by distracted drivers.  Instead of targeting victims of crashes the focus is better placed on bad drivers.

  • Efforts to make our roads safer by reducing speeding, distracted and impaired driving
  • Higher risk drivers should fairly pay higher premiums reflective of the risk they cause.
  • Embracing safe driving technologies projected to cut down collision rates
  • Returning the $1.3 Billion of past profits taken from ICBC

If you want to say no to the Government stripping your rights to benefit bad drivers contact your MLA and tell them no to caps.


Defense Doctor Opinion Rejected After Finding He Acted As “Advocate”

December 6th, 2017

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, rejecting the testimony of a defense hired expert.

In today’s case (Nagra v. Stapleton) the Plaintiff was involved in a 2014 collision that the Defendant admitted responsibility for.  Despite voicing some concerns about the Plaintiff’s credibility the Court accepted his medical evidence that he suffered injuries to his neck and low back as a result of the crash.

In the course of the trial the Defendants called a physician they hired who provided an opinion minimizing the collision’s connection to the injuries.  In rejecting this evidence Mr. Justice Cole found this expert “seemed to be more of an advocate” and provided the following critical comments:

[40]         Dr. Laidlow, called on behalf of the defendant, also confirms that movement of the neck noted during joint examination did seem to be consistent with what was observed spontaneously. Dr. Laidlow also found restrictive range of motion in the plaintiff’s neck but was of the view that his physical symptoms are at the same level or consistent with the plaintiff’s physical symptoms as a result of the 2012 motor vehicle accident.

[41]         I have difficulty with Dr. Laidlow’s evidence as he seemed to be more of an advocate, he was argumentative, and based his report, in part at least, on the fact that because there was no record of neck pain prior to his examination of the plaintiff, that the neck pain had been resolved to the state it was prior to the motor vehicle accident.

[42]         Dr. Laidlow’s opinion is based on the assumption that the neck pain that the plaintiff reported at the end of June 2013, continued on through 2013 and 2014, since the plaintiff was still experiencing neck pain when the June 2014 accident occurred. This assumption was made despite the fact that the plaintiff provided no information to suggest he was experiencing these pain symptoms in 2014 at the time of the accident. Dr. Laidlow admitted that he found no clinical records between 2014 and the date of the accident where the plaintiff reported ongoing neck pain or headaches. Dr. Laidlow reviewed the report of the plaintiff’s family doctor to indicate that there were no reports in his records of pain symptoms similar to those sustained in the accident. Instead, Dr. Laidlow relied on a report by Dr. Novak from June 16, where he indicated that the plaintiff was suffering from chronic neck pain “likely since 2012”.

[43]         I prefer the evidence of Drs. Watson and Waseem, however, the weight to be given to their evidence is diminished because I do not find the plaintiff to be a credible witness.


No – You Can’t Call Evidence Suggesting Your Client is a Criminal Without Instructions

November 20th, 2017

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.

In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.

Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.

The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.

In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).

In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.


BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

November 7th, 2017

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.

In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.

The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages.  The BC Court of Appeal disagreed.  In upholding the trial result the Court provided the following reasons:

[54]         Failure to mitigate is a positive allegation that should be pleaded and argued at trial:  Hosking v. Mahoney, 2010 BCCA 465 at para. 34.  Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55]         In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56]         The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate.  A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57]         In my view, the respondents’ pleading is clearly not deficient.  In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury.  Here the pleading is explicit.

[58]         Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis.  These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59]         The issue of mitigation was both specifically pleaded and extensively explored at trial.  Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment.  Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath.  The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60]         In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages.  I see no merit to this ground of appeal.


BC Court of Appeal – Medico-Legal Reports Are Not Mandatory for Injury Claim to Succeed

October 31st, 2017

In what is one of the longest running personal injury claims I have come across, reasons for judgement were published today by the BC Court of Appeal finalizing a lawsuit started over 20 years ago.

In today’s case (Jalava v. Webster) the Plaintiff was tackled and badly injured by the Defendant who was “under the mistaken impression that Mr. Jalava had left the café without paying his bill“.

The Plaintiff started a lawsuit in 1996.  He was self represented.  He obtained an order that the Defendant pay him damages to be assessed.  The claim dragged on for years without an assessment taking place and a Chambers Judge eventually dismissed the claim noting that “ it was legally impermissible for the Court to assess damages for personal injuries without a medical-legal report“.

The Plaintiff appealed and BC’s highest court overturned the result noting that a medico-legal report was not a required part of a personal injury prosecution.

The court did, however, in the absence of medical evidence assess a token judgment of $100 noting “this matter has dragged on long enough“.

In commenting on the need of medico-legal reports in personal injury lawsuits the Court noted as follows:

[11]         First, there is no legal rule to the effect that in order to have damages for personal injury assessed, a plaintiff must adduce a medical-legal report into evidence: see Reible v. Hughes [1980] 2 S.C.R. 880. There is no doubt that such reports are very helpful and that without one, it is difficult for a judge to assess damages. In this case, for example, Mr. Jalava told the Court that he had suffered a broken clavicle and a “banged up knee” as a result of the assault, but had no details of the injuries or the financial consequences he had suffered. At this point in time, several years after the assault, it would appear no further information is likely to be brought forward.

[12]         However, since the plaintiff obtained judgment for assault, an intentional tort, it was open to the Court to award a nominal sum. Even if the tort had been negligence, the Court could have given an award of damages that would at least give some recognition of Mr. Jalava’s injuries.

[13]         I also agree with counsel that the chambers judge should not have dismissed Mr. Jalava’s claim on his own motion and without prior notice to Mr. Jalava. The plaintiff was taken by surprise and, being unrepresented, was not able to make a meaningful attempt to forestall such an order. Finally, since Mr. Jalava had already obtained judgments against the defendants, it was simply not possible to dismiss “the claim”. The claims had been reduced to judgments years ago and those judgments could not be reversed or nullified except under Rule 3-8 of the Supreme Court Civil Rules or by this court on appeal.

[14]         In all the circumstances, then, the appeal must be allowed and the chambers judge’s order set aside. Since this matter has dragged on long enough, I would also assess Mr. Jalava’s damages at $100.


Punitive Damages Awarded Against Suspended Driver Involved in Hit and Run Collision

October 16th, 2017

In a rare case awarding punitive damages in a motor vehicle collision case reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, making such an award.

In the recent case (Howell v. Machi) the Plaintiff pedestrian was struck by a motorist who fled the scene of the collision.  The Plaintiff was jaywalking at the time and found partly at fault for the crash.  The Defendant was identified.  He had a suspended licence at the time of the collision.  In finding these circumstances warranted an award of punitive damages Madam Justice MacNaughton provided the following reasons:

[517]     Ms. Howell was unable to refer me to any case in which punitive damages had been awarded in a motor vehicle accident case involving a hit-and-run. However, in Legualt v. Tiapis, 2015 BCSC 517, Master Harper dismissed an application to strike a claim for punitive damages against a breached defendant for leaving the scene of an accident on the basis that she could not conclude that the punitive damages claim would prejudice or embarrass the fair trial of the proceeding. As that case did not proceed to trial, there is no authority for whether punitive damages are appropriate in a hit-and-run situation.

[518]     Punitive damages have been awarded against defendants who have shown reprehensible conduct in causing motor vehicle accidents. For example, punitive damages have been awarded in the following cases relied on by Ms. Howell:

·       In McIntyre v. Grigg, 83 O.R. (3d) 161 the Ontario Court of Appeal reduced a jury’s $100,000 punitive damage award to $20,000 against a defendant driver whose blood alcohol level, at the time of the accident, was two to three times over the legal limit;

·       In McDonald v. Wilson, [1991] B.C.J. No. 3137, Justice Hood awarded $5,000 in punitive damages and $1,000 in aggravated damages against a defendant driver who intentionally tried to strike the plaintiff. Similarly, in Stevenson v. Vance, [1988] N.S.J. No. 384, $2,500 in punitive damages was awarded against a defendant who intentionally ran over the plaintiff’s legs after stealing from a store in which the plaintiff worked as a security guard; and

·       In Herman v. Graves, 1998 ABQB 471, a plaintiff was awarded $3,500 in punitive damages arising from a road rage incident and, more recently, in McCaffery v. Arguello, 2017 BCSC 1460, I awarded $30,000 in punitive damages arising from a road rage incident.

[519]     I have concluded that Mr. Machi’s actions are worthy of denunciation and retribution beyond the compensatory awards I have made in favour of Ms. Howell. In particular, although I concluded that his failure to stop after striking Ms. Howell did not amount to further negligence on his part, it is relevant to the punitive damages analysis. I have also taken into account the fact Mr. Machi has repeatedly shown complete disregard for the suspensions of his driver’s licence.

[520]     In all the circumstances, I award Ms. Howell punitive damages of $100,000 against Mr. Machi.


BC Supreme Court – Suggesting Driver At Fault for Collision Based on Past Convictions is “Frivolous”

October 2nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, describing the suggestion of deciding fault for a collision based in part on a motorist’s past driving convictions as ‘frivolous’.

In today’s case (Rezai v. Uddin) the Plaintiff was a pedestrian involved in a collision with the Defendant.  Fault was disputed.  Prior to trial the Plaintiff sought to amend her pleadings to allege “The Defendant Driver had on several previous occasions driven in a manner that put pedestrians and motorists at risk of injury” based on

a.   on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;

b.   on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;

c.   on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;

d.   on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;

e.   on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.

The court rejected this request noting that past convictions likely do not constitute similar fact evidence.  In dismissing the application Master Wilson provided the following reasons:

[22]         The parties agree that there is no British Columbia authority on the issue of whether a pleading alleging similar fact evidence in the context of a prior driving record should be allowed in British Columbia. The defendant refers me to some Ontario authorities in support of his position that such pleadings are improper.

[23]         In Wilson v. Lind, (1985) 35 C.C.L.T. 95, O’Brien J. struck from the pleadings allegations of prior or subsequent impaired driving by the defendant. The application was brought on the basis that the allegations were prejudicial, scandalous or an abuse of process, a rule akin to our R. 9-5(1). At paragraph 12 the court held the following:

Our Courts have held for a long time, and for good reason, that prior negligence of a party is generally irrelevant to proof of subsequent negligence. …

[24]         I note that of the five driving infractions in our case, only two of them are for the same offence, namely speeding. Both were over five years old at the time of the accident. Indeed four of the five convictions were over five years old, with the fifth occurring some months after the accident. The defendant was not issued a violation ticket arising out of the accident.

[25]         The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.

[26]         It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.

[27]         In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.

[28]         After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:

The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.

[29]         I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.


$220,000 Non-Pecuniary Assessment for Leg Amputation and Chronic Pain

September 28th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a leg amputation caused by a vehicle collision.

In today’s case (Bye v. Nelson) the plaintiff was operating a dirt bike which was involved in a collision with an ATV operated by the Defendant.  The collisions caused severe injuries including a left leg amputation.

In assessing non-pecuniary damages at $220,000 Madam Justice Choi provided the following reasons:

[3]             …Not in dispute is that Mr. Bye’s dirt bike and Mr. Newman’s ATV collided near a curve in the road. Both vehicles were damaged, and Mr. Bye was left with a number of injuries including a fracture to his neck and multiple fractures to his legs. Although Mr. Bye was rushed to the hospital, his injuries required a through-knee amputation of much of his left leg.

[93]         Mr. Bye is a young man. He was 35 years old at trial and 31 at the time of the accident. He was an active man who enjoyed various recreational pursuits. He had been employed by Teck Metals as a carpenter commencing February 2010. It was a job he loved, which paid him handsomely.

[94]         The injuries from the accident have changed his life dramatically forever. He now suffers from daily pain and fatigue as a result of the amputation and is permanently disabled from returning to carpentry work and to many of his recreational activities. He testified that, before the accident, he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming, and that his injuries have either cut off, or severely limited his enjoyment of these.

[95]         Additionally, Mr. Bye is now a father, with his son born during the litigation, in 2016. While he is still able to play with and care for his son, many of these interactions are made more difficult by his injury. He testified to the difficulties of lowering himself to the floor to spend time with his son…

[102]      Mr. Bye has been dealing with his injuries since he was 31. He will continue to face difficulties for the rest of his life. Considering all the evidence, the Stapley factors, and case law submitted by the parties, I conclude an award of $220,000 is fair and appropriate in all the circumstances.


Negligent Ski Resort Saved From Liability Based on Waiver

September 27th, 2017

Big White Waiver

Reasons for judgement were released today by the BC Supreme Court dismissing a lawsuit against a negligent ski resort based on a waiver patrons must agree to when using their facilities.

In today’s case (Fillingham v. Big White Ski Resort Limited) the Plaintiff was skiing on a short cut at the end of a ski run named ‘highway 33′  to a parking lot which was, at the time, open for use for skiers.  Shortly prior to this a snowplow came through exposing users of the path to a 10 foot drop to the parking lot.  The Plaintiff fell, was injured and sued for damages.

The Court found that the ski resort was negligent with Madam Justice Adair noting as follows

…as of Noon on March 4, 2013, when Mr. Fillingham was coming down Highway 33 , the rope line at the short cut was still open.  However, the path had been removed, thereby creating a hazard if the short cut was used, and the open rope line failed to mark or warn of that hazard.

[39]        I find further that, in not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, BW Limited failed to take reasonable care and was negligent.

Despite the finding of negligence the Court went on to dismiss the lawsyuit noting a broad worded waiver covered this situation.  In reaching this conclusion the court provided the following reasons:

[51]        On the other hand, when I apply the analytical framework described by Binnie J. to the Exclusion, in my view, the intention is clear:  it is to exclude liability on the part of the Ski Area Operator to the Ticket Holder for “all risk of personal injury . . . resulting from any cause whatsoever” [underlining added].  “Any cause whatsoever” specifically includes, but is not limited to, negligence on the part of the Ski Area Operator.  Mr. Fillingham, as I have found, was very familiar with this language.  He had seen it many times, and carried on his activities on the basis that he was assuming “all risk of personal injury,” including, without limitation, risk of personal injury caused by the negligence of BW Limited.  That is what Mr. Fillingham did at Big White on March 4, 2013.

[52]        Mr. Fillingham, based on his evidence, knew that some of the time, the short cut was roped off, and some of the time it was not.  The essence of his complaint in this action is that, as of about Noon on March 4, BW Limited failed to adequately mark – by closing the rope line – a hazard it had created, and was negligent in doing so.  I have found that BW Limited was negligent.  However, in my view, what occurred is not so extraordinary or unique that it could be said the parties did not intend for it to be covered by the Exclusion.

[54]        Mr. Berezowskyj submitted that, if the Exclusion were found to be valid and broad enough to encompass Mr. Fillingham’s claim, then there are strong public policy reasons for preventing a recreational operator from relying on a ticket waiver to avoid liability in circumstances where it actively creates the hazard from which its guests were not properly protected, and were in fact invited to court.  However, in my opinion, this is not a case where an overriding public policy (evidence of which was thin at best) outweighs the case in favour of enforcement of the Exclusion.


Court Denies Defense Request to X-Ray Plaintiff in Personal Injury Claim

September 22nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, denying a defense request to include an X-ray as part of the defense medical examination process.

In today’s case (Tani v. Baker) the Plaintiff sued for damages as a result of a 2015 collision where she sustained a broken leg and shoulder.

The Plaintiff consented to attend an defense medical examination but refused to consent to an X-ray that the physician requested.  The Defendant applied to court to compel the X-ray.  In dismissing the request Master Muir provided the following reasons:

[7]             The law with respect to medical appointments is not really an issue. Rule 7‑6(1) of the Supreme Court Civil Rules provides that the court can order an examination by a medical practitioner or other qualified person if the mental or physical condition of a person is at issue in an action.

[8]             The plaintiff notes, and I will not put it higher than that, that Rule 7‑6(3) provides specifically that a person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined. There is no equivalent particularization of other testing that might be performed.

[9]             I think I can assume that often physical tests are performed on plaintiffs, but that does not include what the plaintiff refers to as intrusive investigation or intrusive testing. The argument is that if the mere statement that an expert needs certain intrusive testing is taken at face value, then any such test could be ordered and I will add, regardless of the potential ill effects of such an examination or test.

[10]         It is common ground here that there is some danger to cumulative X-Ray examinations. That was not contested by the defendant. He acknowledged that there were health concerns but argued that the intrusive argument was simply not made out here and that the testing was required so that the defendant can be on an equal footing with the plaintiff in investigation of her ongoing injuries.

[11]         The plaintiff notes that they have no updated X-Rays, however. She argues that given the purpose of the rule, which is to put the parties on an equal footing, if the plaintiff does not have any evidence of diagnostic imaging and her existing expert’s and family physician’s reports do not lead to any necessity for further imaging, then there is no basis for an order for the defendant to have such imaging.

[12]         The plaintiff’s family physician apparently says that the breaks are healing properly and that there is no further requirement for treatment. The plaintiff submits that there is an onus on the defendant applicant to show that there is a specific need in this case.

[13]         I note that in his affidavit, Dr. Stone makes no specific reference to this plaintiff. He simply notes that in order to conduct a useful IME report and give an informed medical opinion, he would require “updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment”. He does not say why. He does not say that he has reviewed the other medical records of this plaintiff nor does he provide any basis for a need for updated X-Ray imaging.

[14]         Further, I take the plaintiff’s point that if the plaintiff chooses to go to trial without updated X-Ray imaging and proceed on the basis of expert reports produced without such imaging, then, in my view, there is no basis on which I should order that the defendant have the benefit of this intrusive testing. I will use the plaintiff’s word.

[15]         I should add that the parties were unable to point me to any specific case that deals with this kind of application for such intrusive tests. I am not saying that it would not be ordered if there was a proper basis for it, but on the circumstances before me today, I am not satisfied that there has been any proper basis shown or any need for the X-Rays and the application is dismissed.