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.

Posts Tagged ‘Agony of Collision’

$210,000 Non-Pecuniary Damage Assessment for Frontal Lobe and Brachial Plexus Injuries

August 8th, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for severe injuries following a motor vehicle collision.

In last week’s case (Harrington v. Sangha) the Plaintiff was struck by a tractor trailer in 2007.  Another motorist who initially lost control causing the tractor-trailer to collide with the Plaintiff was found fully liable for the incident.   The Plaintiff suffered a frontal lobe brain injury in addition to a brachial plexus injury.

(Frontal Lobe Graphic via Wikipedia)

The Plaintiff was disabled from employment as a result of the pain from the brachial plexus injury and the cognitive changes due to the frontal lobe injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $210,000 Mr. Justice Willcock provided the following reasons:

[183] There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

[184] Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

[185] It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

[186] On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.


Affidavits and Exhibits: Take Care To Review the Whole of the Evidence

May 6th, 2011

Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.

In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.

The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.

The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.


$135,000 Non-Pecuniary Damages Awarded for Torn Pectoralis Major Muscle

August 4th, 2010

(UPDATE: May 9, 2012 … The Trial Judge’s findings regarding liability were appealed.  The Appeal was dismissed today.)

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding just over $450,000 in damages for injuries and losses arising out of a 2006 BC Motor Vehicle Collision.

In today’s case (Power v. White) the Plaintiff was involved in a 2 vehicle collision.  As the Plaintiff was driving down the Island Highway a deer ran into his lane of travel threatening collision.  The Plaintiff reacted suddenly by changing into the right lane and braking as hard as he could.  Unfortunately this was not sufficient and the Plaintiff’s vehicle struck the deer.  Shortly afterwards the Defendant, who was travelling in the right lane, collided with the rear of the Plaintiff’s vehicle.  Fault was at issue however the Mr. Justice Verhoeven found that the Plaintiff reacted reasonably to the threatened collision and that the Defendant was 100% at fault for failing to drive with all due care and attention.

The Plaintiff suffered various injuries the most serious of which was a tear to his pectoralis major muscle.  This injury did not fully heal and was expected to effect the Plaintiff well into the future.  The Plaintiff’s family doctor provided the following evidence with respect to the severity of this injury:

In review, Mr. Power sustained injuries to his right pectoralis major (partial tear) to the right T-6 area as well as some transient injuries to the soft tissues in his right shoulder and base of neck and right buttock area. These complaints started after his accident and have been persistent and continuous since that time. Institution of physiotherapy, chiropractic and exercised based therapy have been useful in increasing some of his functional capacity since the accident, but have plateaued in that the pain from either his right pectoralis area or the T-6 area have limited any further advancement of intensity or duration of his exercise. These injuries have significantly limited his recreational activities, particularly swimming, biking and running as well as his ability to care for his house and yard, particularly the use of his power saw, shovels and mowing his lawn. At work he generally does not have a lot of limitation as he is able to get up from his seat when he needs to but does have limited sitting capacity as has previously been outlined. He does and would have some problems turning some of the heavy valves and climbing the ladders if there is a breakdown at the mill, however he does have a partner and this has generally worked out that the partner has done this.

Mr. Power has sustained significant injuries from the accident. His functional limitations have been outlined in detail. They are significant for his recreational and household and yard activities. At this time I do not see a significant future recovery for these and at the moment I am unable to find a surgeon who would consider repairing this injury, although I will persist in searching the literature for a possible solution for this problem. Mr. Power has shown he is determined to remain active, having returned to work promptly after his accident, followed all of my instructions as well as his therapist’s instructions to the letter and done a persistent and significant job in increasing his activities to what is now his limit due to pain in the aforementioned areas and I do not see his disabilities resolving in the near future.

Mr. Justice Verhoeven awarded the Plaintiff $135,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court provided the following reasons:

[82]         In this case, Mr. Power has suffered a very significant and permanent loss to the lifestyle he previously enjoyed. Virtually all of his previous physical activities have been severely curtailed. Prior to the accident Mr. Powers physical vigour was central to his life and lifestyle. His mood and emotional well being have been negatively affected. His relationship with his wife has been harmed. His ability to improve and maintain his property, quite obviously a source of great pleasure and pride to him formerly, is all but completely gone. He has not and will not in future be as physically fit as he previously was. It is reasonable to infer that this may affect his health long term. I think it likely that Mr. and Mrs. Power will sell their five acre property and move into a residence that does not require so much effort to maintain…

[84]         In all these circumstances, I assess the plaintiff’s non-pecuniary loss at $135,000.


Can You Successfully Sue For Injuries in a "No Impact" Collision?

May 26th, 2010

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.

The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.

Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:

[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…

[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…

[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.


Agony of Collision Explained

April 21st, 2010

This morning I was doing some quick research on the law of “agony of collision” and turned to my favourite practice guide for a quick answer.  Surprisingly I could not find a chapter discussing this topic so thought I would write my own summary.

In British Columbia our Courts have applied the “agony of collision” doctrine when discussing the issue of fault for a car crash when a motorist is faced with an imminent danger.   In these circumstance it is unfair to judge the reactive steps a motorist takes with 20/20 hindsight.  Instead the actions of the motorist need to be assessed with the reality of the “agony of collision” in mind.

This doctrine was summarized well in two BC cases I dug up today.  The first is Gerbrandt v. Deleeuw where Mister Justice Hunter stated as follows:

10           An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited , (1941) 3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber , (1974) 3 W.W.R. 97 (Sask. Q.B.)):

” Under circumstances of imminent danger an attempt to avoid a collision by turning one’s course instead of stopping the vehicle is not necessarily negligence.  Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence . . . one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

11           In Gill v. C.P.R. , (1973) 4 W.W.R. 593 Mr. Justice Spence speaking for the court said the following:

” It is trite law that, faced with a sudden emergency the creation of which the driver is not responsible, he cannot be held to a standard of conduct which one sitting in the calmness of a Courtroom later might determine was the best course … “

The doctrine is traced back to even deeper roots by the BC Court of Appeal in Tubbs v. O’Donovan where the BC High Court cited cases dating back to the early 1900’s applying this doctrine.  The Court held as follows:

Perfection is not demanded in emergent circumstances, as was well explained many years ago by this Court in Wood and Fraser v. Paget (1938), 53 B.C.R. 125 (C.A.), when it adopted this passage from Bywell Castle(1879), 4 P.D. 219 (C.A.):

For in my opinion the sound rule is, that a man in charge of a vessel is not to be held guilty of negligence, or as contributing to an accident, if in a sudden emergency caused by the default or negligence of another vessel, he does something which he might under the circumstances as known to him reasonably think proper; although those before whom the case comes for adjudication are, with a knowledge of all the facts, and with time to consider them, able to see that the course which he adopted was not in fact the best.

and this passage from Wallace v Bergius, [1915] S.C. 205, at 210:

I think the driver of a motor car is in the same position as the master of a ship in this respect, that if at the last moment he reasonably judges that a collision is absolutely inevitable unless he does something, and if that something might avoid a collision, he acts perfectly reasonably in taking that course.