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 – Expert “Fact” Witnesses Entitled to Only $20 Fee for Trial Attendance

August 9th, 2018

Useful reasons for judgement were published today by the BC Court of Appeal confirming that when a professional is summoned to testify at trial about facts they have knowledge of (as opposed to privately retained expert witnesses to give opinion evidence) they are entitled to no more than the $20 fee that must accompany a subpoena.

In today’s case (Luis v. Marchiori) the Plaintiff was injured in two vehicle collisions and sued for damages.  At trial her family doctor testified but not as an expert opinion witness, but rather as a witness of fact.  The Plaintiff paid $2,651 to the doctor for this service and tried to recover this as a disbursement.  In refusing to allow this the BC Court of Appeal noted that when a professional testifies as to facts they are entitled to nothing more than any other fact witness.  The BC Court of Appeal provided the following reasons:

[5]             It is useful to begin by distinguishing between expert fact evidence and expert opinion evidence. Witnesses who become involved in litigation due to their profession—such as a treating doctor or an engineer overseeing a construction project—may be called to testify about their observations. Although the observations may be beyond the knowledge of a layperson, that testimony is not opinion evidence. Examples include a witness describing radiological images, identifying a microbe seen under a microscope, or identifying the pathological process seen on surgery or autopsy. Such evidence is sometimes described as “non-opinion expert evidence”: Robert B. White, The Art of Using Expert Evidence (Toronto: Canada Law Book, 1997), ch. 2 at 16‒21.

[6]             Justice Schultes addressed this distinction in Anderson v. Dwyer, 2009 BCSC 1872 at para. 14 in the context of the Rule requiring notice of opinion evidence:

… However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule. The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative. It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[Emphasis added.]…

[46]         Although I agree that some professions are more regularly called upon to testify in court than others, it is not readily apparent that a particular individual will be called upon more often. Further, these appeals have focused on the potential financial hardship to professionals such as physicians, engineers and lawyers called to testify as fact witnesses, but as Justice Park observed in Lonergan v. The Royal Exchange Assurance, (1831), 131 E.R. 280 at 283, “time to a poor man is of as much importance as to an attorney.” Indeed, the loss of a day’s work at minimum wage may be a greater relative hardship to a lay witness than the loss of a professional person’s earnings. In addition, to focus on monetary losses alone may be too narrow. Although some witnesses make a sacrifice of time and labour and thus of profits and wages, others sacrifice privacy, and experience the “disagreeable consequence of disclosure”: Wigmore on Evidence, vol. 8 at 72.

[47]         In my view, the interpretation Ms. Luis advances is of no small significance, departing as it would from the longstanding tradition that attendance at trial is “an inherent burden of citizenship”. As John Henry Wigmore put it so eloquently:

That the ordinary witness should be paid more than the nominal dollar — i.e., should be fully indemnified for sacrificing his day’s livelihood in order to perform his testimonial duty — is a plausible assertion. The argument against it, that the total cost of reimbursing highly paid citizens would be prohibitive, gives no real answer, for the state is bound to supply the necessities of justice however expensive. The best answer is that the testimonial duty, like other civic duties, is to be performed without pay, the sacrifice being an inherent burden of citizenship. Neither for military service nor for public office can the citizen claim that he shall be paid on a scale which will bear any equable proportion to the loss of his livelihood’s income. Any other principle would be worthy only of a purely mercenary community. If the sacrifice made is a real one, the dignity of the service rendered should ennoble it. The sense of civic duty done must be the consolation.

Wigmore on Evidence, vol. 8 at 136. [Emphasis added.]

[48]         If there are sound policy reasons for departing from that tradition and the present regime, it is in my view for the legislature and not the judiciary to effect that change.

[49]         In summary, I am of the view that the payment of an attendance fee to expert fact witnesses beyond the fee prescribed in Schedule 3 is not a disbursement recoverable from the opposing party. I would therefore dismiss the appeals, with thanks to all counsel for their able and thorough submissions.


Inspire Sports Victoria Opens Doors to BC’s Biggest Gymnastics Facility

August 6th, 2018

Inspire Sports Victoria Logo

Apologies for this off-topic post but I am proud to announce that a project I have been involved with has reached completion.

Inspire Sports Victoria, BC’s largest and newest gymnastics facility, has opened its doors in Greater Victoria!  We had a great open house this weekend.  Thank you to everyone who came by!

We couldn’t be prouder of our team for their efforts in hosting an amazing open house or more grateful to everyone from greater Victoria who took the time to come through our doors!

With the open house complete our final flooring will be installed and final equipment assembled in the coming days.  Thank you everyone who helped make the dream of bringing a world class recreational and competitive gymnastics facility to Victoria a reality!  See you all at the gym this week!

I want to thank Cleve Dheensaw of the Victoria Times Colonist for this excellent article announcing our opening.

Inspire Sports Victoria caters to physical literacy for all, from entry level recreational classes to competitive training for elite athletes.

Our website can be found here and you can also follow us on Facebook and Instagram!

 


$85,000 Non-Pecuniary Assessment for Chronic Tinnitus

August 2nd, 2018

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

In today’s case (Christensen v. Jand) the Plaintiff was involved in a 2013 collision.  The Defendant denied liability but was found 100% liable at trial.  THe crash caused soft tissue injuries that largely recovered and also tinnitus which had a poor prognosis for recovery.  In assessing non-pecuniary damages at $85,000 Madam Justice Forth provided the following reasons:

51]         Accordingly, I find, on a balance of probabilities, that as a result of the accident Mr. Christensen suffered soft tissue issues, which have largely resolved, except for some mild early morning stiffness, and tinnitus, for which he will continue to suffer on a permanent basis…

[65]         Mr. Christensen has suffered a permanent injury in the form of a ringing in his ears. There is a high unrelenting squeal in his right ear. This sound was reproduced by a computer and played during the trial. The sound was highly irritating and objectionable. Mr. Christensen testified that since the accident, he has been hearing the same sound. It is with him at all times and has impacted his personality, his outlook on life, his ability to sleep, his relationship with his children, and his occupation.

[66]         There is no treatment that can stop this noise. He has had to learn to accept it but thinks about it every day. This causes him anxiety.

[67]         He finds that loud noises bother him. He has become grumpier with his children.

[68]         In order to help him sleep, he drinks. He testified that he drinks two beers and a full glass of wine every night to help him sleep. He has concerns with this consumption since alcoholism has been an issue in his immediate family.

[69]         He is not a complainer and has returned to all of his past activities, except coaching soccer. There was approximately a four to six month period when he was not running. He has returned to running approximately the same distance as before.

[70]         He immediately returned to his scheduled work and has continued working.

[71]         His sister, oldest son, and his friend Darren Babey, testified to the change in his personality in that he was grumpier and less patient after the accident. His sister was most concerned in the initial two years, when she saw signs of depression, anger, and frustration. She testified to conversations during the initial two years when she had to “talk him off the ledge a little bit when he didn’t think he could beat this” and he once told her, “he’ll commit suicide with this”. Gradually her brother started to accept the “new norm”.

[72]         It is to Mr. Christensen’s credit that he has returned to work and his activities. He has continued to care for his sons as a single father. He has been able to learn to live with the constant noise and has adjusted to life with it.

[73]         I have reviewed the various cases provided, and in assessing the particular circumstances of Mr. Christensen, I am of the view that the appropriate award for non-pecuniary damage is $85,000.


$130,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

August 1st, 2018

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for chronic injuries.

In today’s case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision.  The Defendant admitted fault.  The Plaintiff suffered from chronic pain with a poor prognosis.  In assessing non-pecuniary damages for her injuries at $130,000 Mr. Justice Betton provided the following reasons:

[86]         The medical evidence based on multiple assessments and records reviews from both plaintiff and defence experts collectively paints a compelling picture of a plaintiff who has and continues to deal with the adverse effects of her pain. There is no doubt expressed in any of the assessments regarding the sincerity or accuracy of the plaintiff’s experience or the impact that the MVC has had on her. The unchallenged and uncontradicted evidence of her father is also corroborative of her complaints.

[87]         This is a plaintiff who has achieved great success in her career as a result of her own hard work and initiative and who stands to advance even further in that career. I am unable to conclude that she would be inclined to jeopardize that in the hope of reward in this claim.

[88]         On the whole of the evidence I find the plaintiff to be credible…

[93]         The plaintiff’s family and social relationships have suffered as a result of the MVC. She suffers a larger burden in caring for her home now that her marriage has ended. Prior to the MVC, the plaintiff had no physical limitations and had an optimistic outlook on life. The MVC diminished these aspects of herself, and she no longer benefits from the therapeutic aspects of recreational activities and social interactions…

96]         Reviewing authorities is a necessary and useful process but has its limitations. However, considering the evidence here and those cases, I conclude that an award of $130,000 is an appropriate award under this category.


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

July 9th, 2018

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

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

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

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

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

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

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

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


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

July 5th, 2018

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

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

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

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

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

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

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

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


Defendant Not Justified in Punching Mouthy and “Belligerent” Plaintiff in the Face

June 29th, 2018

Reasons for judgement were published this week by the BC Supreme Court, Smithers Registry, demonstrating that punching someone in the face is rarely the legally acceptable solution to a problem.

In the recent case (Azak v. Chisholm) the Defendant was a contractor building a retaining wall on property neighbouring the Plaintiff’s.  A verbal confrontation between the Plaintiff and Defendant occurred with the court finding “the plaintiff confronted Chisholm about the Project in a belligerent manner that Chisholm did not like” and specifically with the Plaintiff calling the Defendant “a ‘f-ing asshole” and a “white piece of shit”.

The Defendant gave evidence as follows surrounding the altercation:

Chisholm told the plaintiff that “we are going to go to work and what are you going to do about it?”  The plaintiff responded by saying: “you’re going to find out right now” and that Chisholm was a “white piece of shit”.  Chisholm testified that he perceived this as a threat and he did not want to find out what the plaintiff had in mind.  Chisholm said “I’ve had enough”, jumped down from the retaining wall and hit the plaintiff in the face.

The punch resulted in a fractured cheek and nose that requires surgical correction.

The Plaintiff successfully sued for damages. In rejecting the Defendant’s claim of self defense and noting the burden on a defendant to successfully raise the defense Mr. Justice Weatherill provided the following reasons:

[70]         I find that, regardless of the harassment and insults the plaintiff had levied at Chisholm and regardless of how long the plaintiff’s difficult behaviour had been ongoing, Chisholm had no right or justification to do what he did.  I find that, whatever threat Chisholm perceived when he was first confronted by the plaintiff on the morning of July 2, 2013 had eased well before the Assault took place.  I do not accept that Chisholm was either afraid for his own safety or that of his co-workers.  Chisholm could easily have either removed himself from the property or had Nyce mediate the situation, as he had done many times previously.  Instead, I find that Chisholm simply and regrettably let his anger and frustration get the better of him.  

[71]         I find that Chisholm’s reaction was unreasonable and totally disproportionate to the circumstance he was in and I reject his claim that he acted in self-defence.  No reasonable person in Chisholm’s shoes would have felt physically threatened by what the plaintiff had said.

[72]         I find that the plaintiff has demonstrated, on the balance of probabilities, that Chisholm committed the tort of battery upon him, that Chisholm failed to demonstrate he was acting in self-defence and, therefore, Chisholm is liable to the plaintiff in damages.


$65,000 Non-Pecuniary Assessment for Chronic “Low Level” Pain

June 21st, 2018

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which resulted in chronic, albeit ‘low level’ pain for a Plaintiff.

In the recent case (McGoningle v. Parada) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered various soft tissue injuries which largely improved however she was left with chronic low level pain.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bracken provided the following reasons:

[56]         I find that the plaintiff suffered a soft tissue injury to her neck, back and shoulders in the accident.  She experienced pain and restricted movement for a few months before things began to improve…

[59]         I find the plaintiff’s condition has clearly improved, but she still suffers a level of pain that impacts her ability to do any heavy lifting or carving of large pieces.  She is able to create small crafts and perform light duties at the soup kitchen…

[61]         I am satisfied on the evidence that the plaintiff still suffers from a low level of pain that interferes with her daily life and limits her ability to perform heavy work and causes some pain in her work creating small crafts.  It appears that a program of physiotherapy, massage therapy and acupuncture did result in improvement, but the plaintiff was either unable or unwilling to follow the recommended course of treatment…

[69]         I agree with the defendant to the extent that the plaintiff’s injuries have improved significantly since the date of the accident and, even though the plaintiff suffers from chronic pain, she has made significant progress to the point that she has almost full range of motion of her upper body, neck and shoulders with pain only at the extremes of rotation.  I find the appropriate amount for non-pecuniary damages is $65,000.


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.”  


$75,000 Non-Pecuniary Assessment for Probably Permanent Soft Tissue Injuries

June 19th, 2018

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing damages for chronic and probably permanent soft tissue injuries.

In today’s case (McColm v. Street) the Plaintiff was injured in a 2014 collision.  Fault was admitted.  The crash resulted in injury to the Plaintiff’s neck, back and shoulder.  Symptoms persisted to the time of trial.  The court noted while there was a possibility the symptoms would improve in the future it was more likely that complete recovery would not occur.  In assessing non-pecuniary damages at $75,000 Madam Justice Warren provided the following reasons:

[86]         I have concluded that as a result of the accident, Mr. McColm has suffered pain and a loss of enjoyment of life, which will continue, to some extent, into the foreseeable future and from which he is unlikely to ever fully recover.

[87]         As a result of the injuries he sustained in the accident, Mr. McColm suffered from severe pain in his neck, back and right shoulder, with associated severe headaches, for several months.  The symptoms gradually improved, but the first year after the accident was marked by significant discomfort and functional limitations.  Although the pain and other symptoms have continued to gradually improve, he has been left with ongoing sporadic pain, particularly in his shoulder.  While there is a possibility that he will continue to improve and even fully recover, it is more likely than not that his current condition is permanent.

[88]         Mr. McColm’s pain is exacerbated by certain physical activities and by heavy lifting.  The pain has resulted in the recurrence of Mr. McColm’s difficulties sleeping.  It has also affected his mood and his lifestyle.

[89]         Before the accident, Mr. McColm’s mood was good and he enjoyed spending time with Ms. Marshall and his other friends.  He maintained a very active lifestyle and enjoyed many physical activities, including fishing, camping, kayaking, cycling, and snowboarding, as well as playing hockey, soccer, golf, and disc golf.  I accept his evidence that he was a particularly daring snowboarder.  This was corroborated by Mr. Edwards and Mr. Butler.  He also played the guitar.  For the first few weeks after the accident he was largely bedridden.  Since then he has gradually returned to some physical activity but he has not been able to return to many of the more extreme physical activities, such as snowboarding and team sports.  He has been depressed and somewhat socially isolated.  His relationship with Ms. Marshall ended, although the evidence was too vague to support specific findings about the extent to which this was caused by the injuries he sustained in the accident.

[90]         The most significant of the Stapley factors in this case are Mr. McColm’s age, the impairment of his physical abilities and associated loss of lifestyle, and his emotional suffering.  Mr. McColm is relatively young and faces the prospect of a lifetime of sporadic pain and associated functional limitations.  He has had to settle for a much more routine or mundane recreational life than he enjoyed before the accident.  The pain, functional limitations, and loss of lifestyle have caused emotional suffering linked to social isolation and some degree of angst about his future…

[94]         Having considered all the authorities and the factors discussed in Stapley, I assess Mr. McColm’s non-pecuniary damages at $75,000.