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.

BC Court of Appeal – The Phrase Crumbling Skull is “Rarely Helpful”

June 8th, 2017

Reasons were released today by the BC Court of Appeal criticizing  the phrase ‘crumbling skull’ and spelling out the analysis a Court must take when dealing with non tort related causes to a Plaintiff’s position.

In the recent case (Gordon v. Ahn) the Plaintiff was injured in a 2009 collision and was awarded $50,000 at trial.  In reaching the award the trial judge noted that the plaintiff was a ‘crumbling skull’ and further that she failed to mitigate her damages and reduced the damage assessment by some unspecified amount.  The BC Court of Appeal ordered a new trial noting the trial judge did not properly address the evidence to justify any reductions.  In discussing what is needed of a Court when deciding what position a plaintiff would be in but for the tort the following reasons were provided:

[33]        The use of the phrase “crumbling skull” to describe a plaintiff’s condition is, in any event, rarely helpful. As Major J. explained in Athey, there are no special rules or analyses that apply to claims made by plaintiffs who, before becoming victims of a tort, are affected by conditions that may deteriorate in the future. Damages are always to be assessed by reference to the situation that the plaintiff would be in but for the wrongdoing. Describing a plaintiff as coming within the “crumbling skull doctrine” does not eliminate the need for a complete analysis of the pain and suffering caused by the accident.

[34]        The judge found that there was “an inter-relationship between the pain that the plaintiff experienced from her physical injuries and her emotional or psychological problems”. He also found that her psychological problems “worsened because of the accident”. Even in cases where a plaintiff is suffering from serious chronic depression, an aggravation of the symptoms attributable to a tort is compensable: Sangha v. Chen, 2013 BCCA 267. In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.

[35]        It is not apparent, from the judge’s reasons, whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, he did not undertake any analysis of the issue of damages in relation to Ms. Gordon’s emotional and psychological deterioration.

[36]        A proper analysis of the issue would have required the judge to consider the degree to which Ms. Gordon’s psychological and emotional health was damaged by the accident. Such an analysis would have required a detailed consideration of her pre-accident and post-accident mental health, as well as an assessment of the likelihood that a deterioration would have occurred even in the absence of an accident (see Laidlaw v. Couturier, 2010 BCCA 59). The judge failed, in this case, to undertake such an analysis.


“Partisan” Experts Criticized and Rejected by BC Supreme Court

June 6th, 2017

Adding to this site’s archives of judicial criticism of expert evidence, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the evidence of two experts the court found gave evidence in a ‘partisan’ fashion.

In today’s case (Thompson v. Helgeson) the Plaintiff was involved in a 2012 collision that the Defendant admitted liability for.  In the course of the lawsuit the Plaintiff was assessed by several experts including two psychiatrists, one retained by the Plaintiff and the other by the Defendant.  The Court gave “no weight to either” finding they were partisan in their evidence.  In rejecting these opinions Mr. Justice Sewell provided the following reasons:

[72]         There is a disagreement between Dr. Ancill and Dr. Levin over whether Ms. Thompson suffers from any recognized psychiatric illness related to the Accident.

[73]         Dr. Ancill and Dr. Levin agree that Ms. Thompson does not suffer from post-traumatic stress disorder. However, they disagree on whether she suffers from any recognized psychiatric disorders.

[74]         Dr. Ancill diagnosed Ms. Thompson with the following conditions:

1.  Post-Concussion Syndrome with Mild Traumatic Brain Injury;

2.  Mild Neurocognitive Disorder arising from a Traumatic Brian Injury;

3.  Adjustment Disorder with anxiety-chronic type;

4.  Major Depressive Disorder-moderate-severe, chronic; and

5.  Somatic Symptom Disorder.

[75]         Dr. Levin’s opinion is that Ms. Thompson does not meet the criteria for any recognized psychiatric disorder.

[76]         I have reservations about the evidence of both Dr. Ancill and Dr. Levin. I found both of them to be somewhat partisan in their opinions.

[77]         I do not accept that Ms. Thompson is suffering from five psychiatric disorders as opined by Dr. Ancill. I have already concluded that she does not have post-concussion syndrome or a brain injury. Having reviewed Dr. Ancill’s report, I am unable to conclude that he took a balanced and unpartisan approach to assessing Ms. Thompson’s mental state.

[78]         On the other hand, Dr. Levin rejected the notion that Ms. Thompson suffered from any psychiatric conditions arising from the Accident and attributed any complaints she had to her pre-existing depression.

[79]         As with Dr. Ancill, I considered the tone and content of Dr. Levin’s report to be very adversarial. In his report, he repeatedly referred to what he described as inconsistencies in Ms. Thompson’s statements to him during her interview. However, on cross-examination, he was forced to agree that these inconsistencies were clarified by Ms. Thompson later in her interview. In addition, he provided no explanation as to why Ms. Thompson has developed the headaches that are her chief complaint and in fact, paid scant attention to their existence.

[80]         I also found Dr. Levin to be argumentative and at times non-responsive in the answers he gave on cross-examination. One example of this was his answers with respect to whether Ms. Thompson met the criteria for Somatic Symptom Disorder with Pain. In his report he said the following:

48.       I defer an opinion about Ms. Thompson’s physical injuries sustained in the subject MVA to specialists in internal medicine and orthopaedic surgery. However, from a psychiatric perspective, Ms. Thompson did not present with a catastrophic perception of her injuries, pervasive preoccupation with pain or excessive time consuming activities trying to manage her pain to the extent that she would be diagnosed with chronic pain disorder as a psychiatric condition currently described in DSM 5 under the rubric of somatic symptom and related disorders.

[81]         When counsel pointed out that the DSM 5 criteria for Somatic Symptom Disorder stated that a catastrophic perception of injuries was only possibly present, Dr. Levin gave unresponsive answers and failed to acknowledge the obvious meaning of the passage in the DSM 5 that he was being asked about.

[82]         Finally, Dr. Levin was the only witness of the many expert and lay witnesses who opined that “Ms. Thompson appeared as an optimistic, future-oriented, and at times cheerful woman who reported her unimpaired ability to enjoy herself and make other people laugh.” Based on Ms. Thompson’s evidence at trial, my own observations of her and the evidence of every other witness who commented on her post-Accident condition, I simply cannot accept that she presented herself to Dr. Levin in that manner.

[83]         I therefore conclude that Dr. Levin lacked the required impartiality and objectivity to provide reliable evidence about Ms. Thompson’s post-Accident condition.

[84]         With regard to the reports of both Dr. Ancill and Dr. Levin, I also do not find it particularly helpful to know whether Ms. Thompson meets the criteria for specific psychiatric disorders set out in the DSM 5. In assessing damages, the question is whether Ms. Thompson’s symptoms are genuine, whether there is a substantial connection between those symptoms and the defendant’s negligence, and the effect that those symptoms have had on the plaintiff.

[85]         After reviewing both opinions, I give no weight to either. It seemed to me that Dr. Ancill was going out of his way to identify every possible mental illness suggested by Ms. Thompson’s reported symptoms, while Dr. Levin seemed anxious to convey the impression that Ms. Thompson was in no distress whatsoever.


$65,000 Non-Pecuniary Assessment for Partly Disabling Mechanical Neck and Back Pain

June 6th, 2017

Reasons for judgement were published today by the BC Supreme Court, New Westminster registry, assessing damages for partly disabling injuries sustained in a collision.

In today’s case (Riley v. Ritsco) the Plaintiff was involved in a 2011 collision.  The Defendant was found fully liable.  Following the collision the plaintiff suffered from chronic neck and back pain with associated symptoms and a poor prognosis for full recovery.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bowden provided the following reasons:

[42]         In summary, Dr. Adrian opined as follows:

1.     The mechanical neck, mid and lower back pain experienced by the plaintiff are consistent with suffering an injury to the spinal tissue and are causally related to the motor vehicle accident.

2.     The headaches experienced by the plaintiff are triggered by neck pain and related to his neck injury.

3.     The plaintiff’s left shoulder pain symptoms are causally related to the accident.

4.     The plaintiff’s left knee pain symptoms are causally related to the accident.

5.     While the plaintiff experiences psychological and cognitive symptoms, Dr. Adrian deferred to specialists in psychiatry to comment on the nature of those symptoms.

6.     As several years have passed since the accident, the prognosis for further recovery from the injuries suffered in the accident into the future is poor.

7.     The plaintiff will probably continue to experience difficulty performing activities that place physical forces onto his neck, back, left shoulder and left knee. He will probably continue to experience difficulty performing employment, recreational and household activities involving prolonged sitting, standing or walking, awkward spinal positioning, heavy or repetitive lifting, stooping, repetitive neck motion, repetitive reaching, climbing or jarring activities.

8.     The plaintiff’s physical limitations are unlikely to improve into the future and he is permanently partially disabled due to injuries suffered in the accident.

[43]         The plaintiff has undergone a variety of treatments for his injuries following the accident including 134 physiotherapy treatments, 64 massages, acupuncture and chiropractic treatments. This has given him some relief but the pain symptoms referred to by Dr. Adrian continue.

[57]         I accept Dr. Adrian’s description of the injuries suffered by the plaintiff as a result of the collision. It appears that the plaintiff has endured pain of different levels and at different times during the years following the accident. He was totally disabled from work for about 14 months and he will likely continue to experience some pain in the areas of his body where he was injured for the remainder of his life. He is described by Dr. Adrian as suffering a permanent partial disability as a result of the accident. His injuries have negatively affected his ability to work as a millwright as well as a number of his recreational activities…

[62]         While Dr. Adrian opines that the plaintiff would find certain functions at work to be difficult he did not say that the plaintiff was unemployable. There is also insufficient evidence, and none from an expert, to establish that the plaintiff suffered psychological damage from the accident. Indeed, Dr. Adrian defers to specialists such as a psychiatrist regarding the nature of the plaintiff’s psychological state.

[63]         Unlike Mr. Mandra, the plaintiff in the case at bar did not present evidence from an occupational therapist or a psychiatrist.

[64]         Considering the factors referred to in Stapley v. Hejslet and the particular circumstances of the plaintiff I have concluded that an award of $65,000 is appropriate for non-pecuniary damages.


Supreme Court of Canada – Mental Injury Compensable Without “Recognized Psychiatric Condition”

June 2nd, 2017

Important reasons for judgement were published today by the Supreme Court of Canada discussing the legal threshold in lawsuits seeking damages for mental injuries caused by the negligence of others.

In today’s case (Saadati v. Moorhead)  the Plaintiff was involved in a collision and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  The BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.

The Supreme Court of Canada reinstated the trial award noting the Court of Appeal was in error and that a recognized psychiatric condition is not a pre-requisite to compensation for mental injury.  In reaching this conclusion Canada’s highest court provided the following reasons addressing compensable mental injury in negligence litigation:

[35]                          In short, no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury. Indeed, there is good reason to recognize the law of negligence as already according each of these different forms of personal injury — mental and physical — identical treatment. As the Court observed in Mustapha (at para. 8), the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort”. Continuing (and citing Page v. Smith, at p. 188), the Court explained that, “[i]n an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may . . . soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law” (emphasis in original; see also S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 124). This is entirely consistent with the Court’s longstanding view, expressed over a century ago, by Fitzpatrick C.J. in Toronto Railway, at pp. 269-70:

It would appear somewhat difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock . . . . The nature of the mysterious relation which exists between the nervous system and the passive tissues of the human body has been the subject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. . . . I cannot find the line of demarcation between the damage resulting to the human [body] . . . and that which may flow from the disturbance of the nervous system . . . . The latter may well be the result of a derangement of the relation existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The victim is incapacitated . . . .

Or, as Davies J. (as he then was) added in Toronto Railways (at p. 275), “[t]he nervous system is just as much a part of man’s physical being as the muscular or other parts”. In a similar vein, Lord Macmillan, in Bourhill v. Young (at p. 103), said “[t]he distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system.”

[36]                          It follows that requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. And it does so for no principled reason (Beever, at p. 410).  I would not endorse it.

[37]                          None of this is to suggest that mental injury is always as readily demonstrable as physical injury. While allegations of injury to muscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones are objectively verifiable. Mental injury, however, will often not be as readily apparent. Further, and as Mustapha makes clear, mental injury is not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference with their mental health, there is no legally cognizable right to happiness. Claimants must, therefore, show much more — that the disturbance suffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears” that come with living in civil society (Mustapha, at para. 9). To be clear, this does not denote distinct legal treatment of mental injury relative to physical injury; rather, it goes to the prior legal question of what constitutes “mental injury”. Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance (although not, as the respondents say, to show its classification as a recognized psychiatric illness).

[38]                          Nor should any of this be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment (Mulheron, at p. 109). To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. As Thomas J. observed in van Soest (at para. 103), “[c]ourts can be informed by the expert opinion of modern medical knowledge”, “without needing to address the question whether the mental suffering is a recognisable psychiatric illness or not”. To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.


$85,000 Non-Pecuniary Assessment for L1 Fracture and Concussion

May 31st, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.

In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013.  The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion.  The second aggravated some of her symptoms.  By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain.  In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:

[183]     I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….

[185]     The plaintiff was virtually couch bound for a number of weeks after the First Accident.

[186]     The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.

[187]     The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…

[190]     The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.

[191]     Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.


BC Court of Appeal Discusses the Unique Limitation Periods in Local Government Act

May 31st, 2017

Reasons for judgement were published today by the BC Court of Appeal discussing the unique nature of the notice limitation period for suing local governments.

In today’s case (Anonson v. North Vancouver) the Plaintiff was injured when her bicycle was struck by a truck.  After starting a lawsuit she obtained an order allowing her to add the City of North Vancouver as a Defendant.  The City was never given notice under the 2 month provisions required by the Local Government Act.  The question was whether the City could rely on this defense after being added to the lawsuit because ” It is settled law that the addition of a party to an action pursuant to R. 6-2(7) of the SCCR on the basis that it is “just and convenient” to do so generally will engage s. 4(1) of the Limitation Act and eliminate a party’s accrued limitation defence

The Court of Appeal held that the notice limitation period is unique from the Limitation Act and a local government can indeed still take advantage of this defense even after being added as a party to an existing lawsuit.  In reaching this conclusion the Court of Appeal reasoned as follows:

[38]         In British Columbia, notice provisions for local government have been interpreted as substantially different from limitation period provisions. The Legislature chose to treat local government differently from other litigants by requiring that local government be given notice within a short period following an incident to allow the City to investigate the potential claim.

[39]         Unlike the Limitation Act, s. 736 of the LGA (and the former notice provisions in s. 286 of the LGA and s. 755 of the Municipal Act) are not akin to a lapse of time in which to bring an action. The notice provisions do not function in the same way as limitation period provisions for the following reasons: (1) non-compliance with s. 736 of the LGA or its predecessors does not prevent a plaintiff from commencing or maintaining an action; (2) unlike the more objective language of s. 4(1) of the Limitation Act, the discretionary saving provision of s. 736(3) may or may not act as a bar to an action; and (3) the trial or appeal court must determine whether the discretionary saving provision applies based on the evidentiary record.

[40]         The notice provisions of the current and former legislation have never been captured by s. 4(1) of the Limitation Act when a party is added to an action because the trial or appeal court must first determine whether the saving provision applies. Neither Bannon, which interprets differently worded legislation, nor Neilson, which assumes that s. 4(1) of the Limitation Act is engaged, are applicable to this issue.


$90,000 Non-Pecuniary Assessment for Chronic Wrist Injury

May 30th, 2017

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic wrist injury.

In today’s case (Ackerman v. Pandher) the Plaintiff was involved in a 2011 collision.  The Defendants admitted fault.  The Plaintiff worked as a tile setter and the chronic injury disabled him from his profession.  In assessing non-pecuniary damages at $90,000 Mr. Justice Schultes provided the following reasons:

[29]         The medical evidence about Mr. Ackermann’s wrist injury and its effects was not disputed. It indicates that he suffered what is known as a “perilunate dislocation injury[1]” in the accident. This results in “significant soft tissue/ligamentous disruption within the wrist.[2]” Some degree of stiffness is usually seen in patients with this type of injury and his ongoing symptoms are considered to be “reasonable given the nature and extent of his injury.[3]” When he was examined in May of 2015 he had flexion (moving the hand downward from a horizontal position) of only 20%, although his abilities to pinch and grasp were good[4]. His prognosis is for increasing arthritis in the joint as a result of the injury, “with gradually worsening pain and limitation.[5]” A consulting orthopedic surgeon described his condition in 2015 as “chronic and static with a very high likelihood of deteriorating over time.[6]

[30]         If his pain worsens he may require a partial or total wrist fusion, which “typically improve[s] pain however at the cost of significant range of motion.” A total fusion would mean that he could no longer flex or extend the wrist.[7] For now his symptoms can be “slightly improved” by the intermittent use of a brace and by anti-inflammatory medication.[8]

[31]         With respect to work prospects, the orthopedic surgeon offered the opinion that “[b]etween the associated pain and the limited range of motion to his wrist, [he does] not believe that there is any chance of Mr. Ackermann returning to a physical job involving extensive use of his right wrist.” Nor did he believe that there were any “interventions” that would allow Mr. Ackermann to do so[9].

[32]         During his evidence, Mr. Ackermann demonstrated the restrictions in his range of motion of his right wrist and how moving the wrist forward and backward or from side to side causes him pain.

[33]         When he attempted to return to work after the accident he quickly found that the pain in his wrist made it impossible to perform the essential tasks of tile setting.

[34]         This injury has also undermined his ability to engage in the extensive range of physical activities that made up his life outside of work. These have included gardening, shovelling manure for his wife’s chickens, performing home maintenance tasks and minor renovations, playing sports as part of his Sunday social activities and playing with his grandchildren. He also cannot go hunting because of the effect on his wrist of firing a gun.

[35]         Using his wrist to do work of any kind causes a burning pain which is severe enough that it can also wake him up at night. He always feels pain to some extent but if he “takes it easy” it is lessened…

[132]     I think that in this case Mr. Ackermann’s circumstances demonstrate a meaningful requirement for solace, one that is greater than his physical injury might otherwise suggest. It was not contested that he was previously a person for whom the ability to interact physically with the world, and his identity as a “worker” in both his actual employment and his home life, were extremely important. The pain that is brought on by the use of his wrist is serious enough, but in my view a critical aggravating factor has been the comprehensive undermining of his sense of capability in the parts of his life that he otherwise found the most fulfilling. Even though he was rather stoic when giving his evidence, the overall sense he projected of someone who has been cut adrift from the previous fundamentals of his life was still palpable.

[133]     Taking care to distinguish these effects from the harm that has been caused to his earning capacity, which is of course to be dealt with separately, I conclude that an award of $90,000 under this heading is appropriate.


Driver 25% At Fault For Being Rear Ended Due to “Sudden Stop”

May 23rd, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing a motorist 25% at fault for a crash despite being rear-ended.

In today’s case (Gibson v. Matthies) the Plaintiff was operating a motorcycle travelling behind the Defendant.  The Defendant brought his vehicle to a “sudden stop” prior to attempting a left hand turn.  The Plaintiff was unable to react in time and rear-ended the Defendant vehicle.  The Court found that the Plaintiff was negligent but also gave the Defendant 25% of the blame for his sudden stop.  In reaching this conclusion Mr. Justice Crawford provided the following reasons:

[174]     Therefore I accept Mr. Kramer’s evidence that the truck came to a sudden stop, and if I were to speculate, it may have been that Mr. Matthies was debating whether he was going to make a left turn in front of the oncoming traffic but decided it was safer to come to a stop, albeit quickly.

[175]     In the circumstances, Mr. Kramer, who was watching the red truck, was able to brake and evade the truck by swerving to his right and into the ditch and Mr. Matthies recalled seeing Mr. Kramer’s motorcycle beside him at that time.

[176]     Mr. Gibson, according to the evidence, had been trailing behind Mr. Kramer but closer to the centre line.

[177]     Mr. Gibson said he checked his rear-view mirror for the traffic behind him and looked up to see Mr. Matthies’ truck already stopped. He said he could not go left into the oncoming traffic, or go right, probably because Mr. Kramer had slowed because of Mr. Matthies’ truck slowing, and therefore Mr. Kramer’s motorcycle was relatively close to his right and he could not safely veer right. So he braked, the motorcycle “laid down” and the motorcycle slid into the back of Mr. Matthies’ truck. Mr. Matthies said he looked back to see Mr. Gibson’s motorcycle sliding into the rear of his truck. I credit Mr. Matthies for an extremely quick reaction, to accelerate his truck so that the motorcycle struck the rear of his truck as it was already starting to pull away and Mr. Gibson, who was catapulted from his motorcycle, somersaulted onto the roadway behind Mr. Matthies’ accelerating truck. Had Mr. Matthies not acted so promptly, Mr. Gibson may have been injured far more seriously.

[178]     Ms. Steele’s evidence to some degree confirmed Mr. Kramer’s evidence as to not seeing a turn signal and there being a discussion between Mr. Kramer and Mr. Matthies about leaving the scene of the accident.

[179]     The primary onus however, in law (and in common sense), falls on Mr. Gibson as he is the rear motor vehicle, to keep a safe distance from the vehicle ahead. In addition, I find contributing negligence of both he and Mr. Matthies, Mr. Matthies for a sudden stop and Mr. Gibson for lack of lookout. The lack of lookout has two facets; a failure to see the truck slowing and stopping suddenly; and that in turn meant Mr. Gibson continued at cruising speed while Mr. Kramer slowed, and Mr. Gibson lost his ability to veer right behind Mr. Kramer.

[180]     Both parties are in agreement in terms of applying the provisions of the Negligence Act, R.S.B.C. 1996, c. 333, s. 1. I find that the larger burden should fall on the plaintiff and thus I conclude that Mr. Gibson is at 75% at fault for the accident and Mr. Matthies at 25%.


212,000 Reasons not to Drive Drunk

May 23rd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, illustrating the potentially steep financial consequences of impaired driving.

In today’s case (Hamman v. ICBC) the Plaintiff was involved in a rear end crash.  He was the offending motorist.  He was insured by ICBC but was denied coverage for the crash due to allegations of impaired driving.  An occupant in the faultless vehicle was injured and ICBC ultimately settled the claim for $212,000.

ICBC then sought repayment from the Plaintiff.  The Plaintiff sued ICBC arguing they should not have denied coverage.  Mr. Justice Kent disagreed and ordered the plaintiff pay back ICBC the full amount, plus interest and court costs.  In upholding the breach of insurance the Court provided the following reasons:

[64]         I have no hesitation in concluding that Mr. Hamman was severely impaired by alcohol at the time of the accident.  His explanation of his activities that day and the amount of alcohol he had consumed is confused and unconvincing.  At the scene of the accident he appeared “out of it”.  He smelled of alcohol and he displayed significant comprehension difficulties.  He failed the roadside alcohol screening test.

[65]         It was a relatively clear night and the road surface was dry.  The highway was relatively straight.  The construction zone was illuminated by lights and a flashing arrow merger sign.  There was nothing to diminish the visibility of either the construction zone or the numerous vehicles that had come to a stop before it without incident.

[66]         At the police station he was noted to have slurred speech, flushed complexion, and blood-shot eyes.  He was falling asleep both in the police car and eventually at the police station itself.

[67]         And then, of course, there are the blood-alcohol readings obtained through the Data Master breath testing.  Those readings, .17% and .18% reflect substantial intoxication by alcohol.  They also put the lie to Mr. Hamman’s claim that he had only consumed a couple drinks on the evening in question.  That level of intoxication also explains Mr. Hamman’s difficulties with visual perception (depth and distance) and inability to first notice and then react to the otherwise clearly visible vehicles stopped on the highway ahead of him at the construction zone.

[68]         The evidence is overwhelming, and I have no hesitation in finding as a fact, that at the time of the accident Mr. Hamman was driving his vehicle under the influence of alcohol to such an extent that he was incapable of its proper control.  In doing so he breached the terms and conditions of his insurance policies and his liability coverage for the accident was rightly denied by ICBC.

[69]         Mr. Hamman’s action is dismissed.  ICBC’s counterclaim is allowed and damages are awarded to ICBC against Mr. Hamman in the amount of $212,000 together with interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.


$100,000 Non-Pecuniary Assessment for Breast Pain and Chronic Neck Pain

May 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a collision.

In today’s case (Kingston v. Warden) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The crash resulted in chronic neck pain along with a breast injury that did not subside until surgical intervention.  The Plaintiff chose to have breast augmentation during the surgery and the Court found that only a percentage of the cost of the procedure was compensable.

In assessing non-pecuniary damages at $100,000 for these injuries Madam Justice Duncan provided the following reasons:

[126]     I find on a balance of probabilities that the accident caused an injury to the plaintiff’s neck which has not fully subsided. With a focussed exercise program and possibly some injection treatments, the plaintiff may improve but there was no evidence the neck pain would ever go away. The complaint of neck pain is subjective, but the medical experts for both parties largely agreed that the plaintiff presented with soft tissue injury to her neck.  

[127]     I find on a balance of probabilities that the accident caused the plaintiff to feel pain in her left breast which was not alleviated until after the revision surgery. I acknowledge Dr. Malpass’s expert report was not as detailed as it should have been, in that he did not include with it the depiction of asymmetry he described in his evidence. I also acknowledge that the plaintiff appears to have taken advantage of surgical intervention to increase the size of the implants and re-position her nipples, rather than simply seek to be restored to her pre-accident appearance. Nonetheless, I do not accept the plaintiff was making up the pain or concerns about asymmetry to take advantage of surgery that might be eventually covered by a damage award stemming from the accident.

[128]     I find on a balance of probabilities that the accident intensified the plaintiff’s headaches and caused them to be more frequent, but that in the time since the accident they have essentially returned to the pre-accident level, based on her report to Dr. Sovio…

[136]     Before the accident the plaintiff was an active, fit person. While the defendant, Mr. Warden, characterized the accident as fairly minor, I accept the plaintiff’s perception of the accident as frightening to her. The plaintiff suffered soft tissue injuries in addition to a worsening of headaches. Her neck pain continues to limit her activities, although the experts have said she can return to her usual activity level, bearing in mind she may not be able to snowboard or do other activities for as long or as vigorously as before the accident. 34

[137]     The plaintiff underwent surgery to address pain and the appearance of her left breast, which conditions resulted from the accident. The plaintiff suffered a loss of self-esteem and increased her consumption of alcohol to cope with her pain, although I cannot find she has proven an addiction to alcohol stemming from the accident. I accept that the plaintiff has isolated herself from her formerly active social life and her relationship with her husband is not as close as it was before the accident.

[138]     In all the circumstances I am satisfied an award of $100,000 for non-pecuniary damages is fit in the plaintiff’s case.