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 ‘bc car accident’

$35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

November 6th, 2008

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $45,000 in total damages as a result of a 2004 BC car crash.

The crash was significant.   The Plainitiff was travelling at 60 kilometers per hour when his vehicle was struck head on by the Defendant.  The Plaintiff’s vehicle was destroyed as a result of the impact.

The court found that the Plaintiff suffered various soft tissue injuries as a result of this crash and that these injuries plateaued by the end of 2006 to about 90% of the Plaintiff’s pre accident level.   The court’s key findings are made at paragraphs 28-31 which I set out below:

[28]            On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29]            I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30]            I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31]            I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect (the Plaintiff) in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in (the Plaintiff’s) usual activities on a sporadic basis, perhaps every month or so.

The following damages were awarded:

a)         non-pecuniary damages of $35,000.00;

b)         past income loss of $8,250.00;

c)         special damages of $2,786.15; and

d)         court order interest on the past income loss and special damages awards.

 


Left Turn Inersection Crashes and the Law in BC

October 24th, 2008

Reasons for judgement were released today by the BC Supreme Court concerning a 2005 intersection crash that occurred in the lower mainland of BC.

The Plaintiff was making a left hand turn from Hastings onto Willingdon.  At the same time the Defendant was operating a vehicle coming the opposite direction on Hastings.  A collision occurred.  There were no independent witnesses to this crash.  Both the Plaintiff and Defendant testified and as can be expected their evidence differed to several facts with each blaming the other for the crash.

Madam Justice Dardi preferred the Plaintiff’s evidence over the Defendant’s finding the Defendant testified in ‘an evasive and less straightforward manner’.

The court found that the Plaintiff was clearing the intersection on a stale yellow light and at the time the Defendant entered the intersection ‘it was not safe from him to do so on a very late stage amber or red light.  He should have stopped’.  The court found the Defendant 100% responsible for this intersection crash.

In reaching this decision Madam Justice Dardi summarized the law relating to left-hand turn intersection crashes as follows:

[34]            Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the right-of-way in situations where a driver is making a left turn:

When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[35]            An immediate hazard exists if the oncoming vehicle must make a sudden or violent avoiding action to prevent a collision: Aerabi-Boosheri v. Retallick, [1996] B.C.J. No. 143 at para. 8.

[36]            Section 128 of the MVA governs the duties of drivers when a traffic light turns yellow.  It states, as far as is relevant, as follows:

128      (1)        When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a)        the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety…

[37]            Who has the statutory right-of-way is informative; however, it does not determine liability in an accident.  Drivers with the statutory right-of-way must still exercise caution to avoid accidents where possible.  In Walker v. Brownlee, [1952] 2 D.L.R. 450, Cartwright J. states at paras. 46-47:

[46]      The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

[47]      While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

The Plaintiff suffered from various soft tissue injuries.  The court summarized the Plaintiff’s injuries at paragraph 57 as follows:

[57]            Dr. Steinson was an impressive witness.  I accept his opinion that the plaintiff has developed a myofascial pain syndrome in his neck and trapezius as a consequence of the injury in the motor vehicle accident.  I also find that the episodic pain that the plaintiff continues to experience is mild to moderate.  Dr. Steinson’s prognosis for the plaintiff is guarded.  Based on the medical evidence, the likelihood is that the plaintiff’s symptoms will continue to improve over the next few years although there is a possibility that his episodic pain may persist further into the future

The court awarded the following damages:

(1)        Non-pecuniary loss $30,000;

(2)        Loss of future earning capacity $20,000;

(3)        Cost of future care $2,000; and

(4)        Special damages $500.


$70,000 Pain and Suffering for Neck Injury and Debilitating Headaches

August 1st, 2008

In reasons for judgement released today, Mr. Justice Bernard of the BC Supreme Court awarded a Plaintiff just over $200,000 in compensation for losses as a result of a 2005 BC car accident.

The accident involved a left-hand turning defendant who failed to see the Plaintiff’s vehicle. The result was a significant, near head on collision. Fault was admitted leaving only the issue of quantum of damages to be decided at trial.

The court’s key findings of fact were made at paragraphs 34-35 of the judgement where it was held that the Plaintiff suffered from debilitating headaches as a result of the BC car crash, that the headaches continue to plague him and that the source of these headaches is the neck injury the Plaintiff suffered in the crash. The court also found that these injuries where likely to plague the Plaintiff for 3-5 years following the trial.

The Plaintiff was a young man starting out in a career in the entertainment industry. The court accepted that the injuries took away his ability to take full advantage of various opportunities that were open to him in his career and this ‘loss of oportunity’ will continue into the future as a result of the on-going injuries.

In the end the court assessed damages as follows:

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

This case is interesting for the court’s comments on the use of the various doctor’s clinical records at trial. As any ICBC claims lawyer knows, Plaintiff’s in personal injury claims are often exposed to hard cross-examinations based on previously recorded statements contained in medical records.

When you go to the doctor he/she usually notes your complaints. These ‘clinical notes’ are often put to use by ICBC lawyers to cross examine a Plaintiff’s testimony discussing the extent of injuries and symptoms. Here, the court found that the Plaintiff held up to cross examination very well and made some very practical comments about the reliability of clinical records, namely:

[35] I accept (the Plaintiff’s) evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.


$40,000 Pain and Suffering for "Very Unique' Ankle Injury

July 11th, 2008

Reasons for judgement were released today awarding a Plaintiff a total of$71,060.06 as a result of personal injuries which were caused by a 2004 BC car crash.

This was a left-turn intersection case involving a semi-truck and a mini-van. The semi truck turned left in front of the mini-van at an intersection causing a collision. The Plaintiff was a passenger in the mini-van. She ‘braced herself (for the collision) by holding the sides of the seat and placing her feet on the dash’.

Fault for the accident was admitted. The issue at trial was the extent of the injuries sustained and their value.

The court concluded that the Plaintiff suffered from soft tissue injuries to her neck back and jaw which ‘had all effectively cleared up within some 6-7 months after the accident‘.

The Plaintiff also suffered injuries to her knee and ankles which ‘progressed to the point where she could return to work in July, 2005‘. The exact nature of these injuries were ‘bilateral ankle bone contusions and patellofemoral discomfort‘. The court found that these injuries were chronic and that ‘she will have continuing pain from time-to-time (in her ankle) of more likely on a diminishing basis‘.

The court awarded $40,000 for non-pecuniary damages (pain and suffering).

This case focused largely on credibility. The court concluded that the plaintiff ‘has exaggerated her ongoing pain’. This case is worth reviewing for anyone advancing an ICBC injury claim as an example of how BC courts deal with the credibility (truthfulness) of a witness.

Here the court found that the Plaintiff was not truthful when describing the extent of her pain and that she misled the court when addressing past wage loss.

Specifically, the court found that:

[56] Following the adjournment of the trial to October, it became clear from the evidence led by the defence from West Jet’s representatives and employment records that the plaintiff’s position on picking up shifts was not true. In fact, the employment records in evidence confirm that the plaintiff began picking up more work than she was scheduled within a month of returning to regular hours of employment in July of 2005. From the evidence of the West Jet supervisor the plaintiff could routinely work 30 hours a week or less simply by working the hours that she was scheduled but it is clear from the employment records she chose to work more than 40 hours per week by picking up shifts from fellow agents following her return to work in July 2005 and commencing in August 2005.

[57] From a review of her employment records relating to her employment before the accident it became crystal clear that since she began working at West Jet Ms. Polson has routinely lobbied her fellow agents for more work as evidenced from commentary in work reviews directed to her in 2005 and 2006.

[58] Primarily relative to these inconsistencies relating to her employment following the accident, I have, regretfully, come to the conclusion that the plaintiff, in her direct evidence, led the court to believe that she was unable to work additional hours that she had worked prior to the accident and wanted fewer hours of employment because of the pain working additional hours caused her when, in fact, she volunteered for and obtained additional hours notwithstanding the additional pain she asserts.

[59] Likewise, with respect to the medical evidence and her contention that the pain levels at the time of trial were in the ranges she described, this level of pain is inconsistent with her attendances at her treating physician’s office. As indicated previously, following her return to work in July 2005 I can count, from the clinical records, only one occasion prior to her attendance for a medical/legal report to be provided by Dr. Gorman some 13 months after returning to work. While there are complaints of depression, as already indicated, there is ample clinical notations to indicate pre-existing problems with depression and fatigue which cannot be causally connected to this motor vehicle accident without more.

[60] Although the plaintiff testified that she routinely suffers from pain in her neck at a 7 out of 10 pain level when at work, and frequently rubs her neck as a result, only one witness testified that she had seen the plaintiff sometimes stretching her neck, perhaps once a week, and only occasionally sitting on an exercise ball provided by her employer. With respect to rolling her ankle at work and the resulting limp thereby occasioned, Ms. Polson described herself rolling her ankle frequently at work and limping frequently at work for approximately 3 or 4 times a day, but no witness testified to having seen Ms. Polson limping or rubbing her ankle. While her co-worker Amanda Fraser-Doyle testified that Ms. Polson had slowed down since the accident, this would be inconsistent with the actual hours worked and voluntarily picked up by Ms. Polson after returning to work.

[61] One other matter of evidence also needs to be dealt with. Tricia Spencer, the administrative assistant for West Jet at the Prince George operations, testified to having observed the plaintiff at the Christmas party in December 2006 where she described the plaintiff as “enjoying herself on the dance floor for a relatively substantial time and was unable to notice any pain behaviour while she was dancing”. While Ms. Spencer agreed that she did not have much casual conversation with the plaintiff at this time, she maintained her observations of the plaintiff’s abilities on the dance floor.

Credibility of a Plaintiff is vital in all ICBC injury claims, particularly those where the injuries cannot be verified through objective measures such as X-rays or MRI findings. In such cases courts are very careful in assessing a Plaintiff’s credibility prior to awarding damages for injuries. Cases such as this one are worth reviewing if you are proceeding to trial in an ICBC injury claim to see what kinds of factors the court can consider when weighing a person’s credibility.


$45,000 Awarded to Plaintiff for Post Accident Headaches

June 10th, 2008

After a 13 day trial in Vancouver, BC,  reasons for judgement were released yesterday awarding a Plaintiff $45,000 plus special damages (out of pocket expenses for treatment of injuries) as a result of a 2001 BC car accident.  This was a ‘headache claim’ and the primary issues were whether the Plaintiff’s headaches were caused by the BC car accident and if so, how much money the injury claim was worth.

At trial the BC personal injury lawyers on opposing sides were miles apart in their view of the value of the case in their submissions to the court.  The Plaintiff’s lawyer alleged permanent impairment of her capacity to earn income and sought damages in excess of $900,000.  The personal injury lawyers defending the claim responded that the Plaintiff only suffered from mild soft tissue injuries and that damages between $10,000 – $20,000 were appropriate. 

It is quite common for lawyers on opposing sides of ICBC claims to take very different positions at trial  and this case is a good example of how far apart 2 sides to an ICBC claim can be.  In this case the Plaintiff presented a case of chronic headaches which interfered with tasks of daily living including work.  The defence lawyers presented a case alleging mild soft tissue injury with headaches resolving a short time after the accident.  At the end of the trial the court largely sided with the defence lawyer’s position. 

The Plaintiff was 19 at the time of the accident.  As she was driving the defendant turned left directly in front of her lane of travel.  She had the right of way.  She had time to step on the brake and the clutch of her vehicle, shift into neutral and brace herself for the impact.   The accident was described as a t-bone collision by the Plaintiff although the court noted that the front left portion of the Plaintiff’s car struck the driver’s side door of the other vehicle in this BC car accident claim.

As is often the case in ICBC claims alleging an ‘impaired earning capacity‘ due to a BC motor vehicle accident, the court heard from a variety of doctors as ‘expert witnesses’.

Dr. Robinson, a neurologist who specializes in headache disorders, testified on behalf of the Plaintiff.  He stated that her headaches ‘have features consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.’

Dr. Chu, a physiatrist (specialist in physical medicine and rehabilitation) testified that the accident “is the direct cause of (the plaintiff’s) mechanical left upper neck pain.  This in turn is the cause of her secondary cervicogenic headaches”

Dr. Vincent, a cutting edge specialist in Anaesthesiology and Interventional Pain Medicine, also testified and gave evidence which ended up largely supporting the Defendant’s position.  Dr. Vincent injected anaesthetic medications into the Plaintiff’s neck on two occasions.  Unfortunately neither of the injections relieved the Plaintiff’s headache.  After a rigorous cross-examination Dr. Vincent testified that the Plaintiff’s results were inconsistent with a ‘causal relationship between an injury…to the neck and the headaches the Plaintiff experiences.”

The defence lawyer relied on the opinion of Dr. Jones, a neurologist, who testified that the Plaintiff’s headaches are ‘true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine’.

The court preferred the evidence of Dr. Jones.  The court found that the BC accident ‘did cause an exacerbation of (pre-existing) headaches’ and that ‘those headaches largely resolved and (the Plaintiff) had returned to her pre-accident state of health within approximately 10 months following the accident.

The court found that there were problems with the Plaintiff’s evidence and that her present recall of symptoms in the months after the accident was ‘unreliable’.  The ultimate finding was that all of the Plaintiff’s headaches sinced 2002 were ‘primarily migraine headaches that she would have developed (even without the accident)’.

The court awarded $45,000 for pain and suffering and the Plaintiff’s special damages up to March 16, 2002.

This case is a great example of the different positions opposing lawyers can take in court in an ICBC claim and results such as this one should be reviewed when in settlement negotiations with ICBC for a ‘headache’ claim as a result of a car accident.

Do you have questions about this case or an ICBC headache claim?  Are you looking for a free consultation with a ICBC claims lawyer?  If so click here to arrange a free consulation with ICBC claims lawyer Erik Magraken.


Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

May 29th, 2008

Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.

The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.

A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.

Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.

With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.

The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:

Athey v. Leonati

Resurfice Corp. v. Hanke

The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.

The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.

For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”

For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.

The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).

If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.

Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.


BC Supreme Court Awards $16,324 For Soft Tissue Injuries in an LVI Accident

May 27th, 2008

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.

The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.

The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.

The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.

This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.

The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.

In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”

Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.

The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.

In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.

Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.