ICBC Law

When a BC motor vehicle accident tort claim goes to trial and a judge or jury awards pecuniary damages over $100,000 s. 99 of the Insurance (Vehicle) Act requires the award be paid periodically where it is “in the best interests of the plaintiff” to do so.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this area of law.

In last week’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a 2003 collision.  She developed Thoracic Outlet Syndrome and experienced disability related to this.  Her claim went to trial where she was awarded just over $1.2 million by a Jury.  This award was reduced somewhat by the BC Court of Appeal.

Ultimately the Plaintiff was awarded $436,000 for loss of future earning capacity.  ICBC applied under section 99 of the Insurance (Vehicle) Act to pay this portion of the judgement in monthly installments at $1,357 per month arguing that this would be in the ‘best interests‘ of the Plaintiff.  Madam Justice Griffin disagreed and dismissed the applicaiton.  In doing so the Court provided the following useful reasons:

[51]         The defendants argued that since they were only seeking a partial structured judgment, rather than a structured judgment that applied to the whole of the future damages award, the plaintiff will be left with sufficient flexibility to meet any fluctuating needs.  I am not convinced this is an entirely fair approach.  The future care award is allocated for the plaintiff’s future care needs.  Normally a person uses income to pay for extraordinary living expenses or to make choices such as repayment of debt.  If the loss of future earning capacity award is structured, the plaintiff will lose this flexibility. Such a loss of flexibility is not cured merely because only a partial structured judgment is sought.

[52]         In this case, a factor that weighs heavily is the fact that the proposed structured judgment will run for 38 years.  That means, if a structured judgment is ordered, that for 38 years of this plaintiff’s life, she will not have the ability to make her own choices about her investments or her needs, beyond what she can do with receipt of the monthly periodic sum.  None of the evidence proffered by the defendants suggested that a fixed rate of return of 2.5% would be a safe investment over 38 years.  If the financial landscape changes drastically in 25 years, the plaintiff will not have the flexibility to adapt if she is subject to the structured judgment.  However, if the financial landscape changes drastically in the next 25 years, and she has been fiscally conservative in managing a lump sum award of damages, she will have the flexibility to deal with the change in circumstances.

[53]         I come back to the principle enunciated in Lomax, namely that a damage award is the plaintiff’s own property.  Underlying this point, in my view, is the common sense observation that a central aspect of one’s dignity and humanity is the ability to control one’s own destiny by the freedom to make one’s own choices.  Where a plaintiff has been injured through the negligence of defendants, such that she has suffered a significant loss of earning capacity, as here, she has already lost some personal dignity in that her future choices have been limited due to her injuries.  In this case the plaintiff would lose additional dignity and autonomy if her ability to make her own decisions about her damages award was taken away.

[54]         Having observed the plaintiff’s evidence at trial and on this hearing before me, I was impressed with her capabilities.  I observed that she was a person who was a “go-getter” before her injuries, and she remains someone with an independent and strong personality.  I have considered all of the factors referred to above, and weighed the risks and benefits of a structured judgment against the risks and benefits of a lump sum award.  I conclude that an order that the loss of future earning capacity award be structured would not be in the best interests of this plaintiff.

[55]         I therefore dismiss the defendants’ application.

Reasons for Judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair award for pain and suffering for accident related Thoracic Outlet Syndrome.

In today’s case (Bransford v. Yilmazcan) the Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection crash involving a taxi and the issue of fault was admitted.  The matter went to trial before a Jury and they were asked to decide the value of her claim.

The evidence showed that the Plaintiff suffered from post traumatic Thoracic Outlet Syndrome.   The Plaintiff had various therapies including surgical intervention but nothing provided long term relief.  By the time of trial her symptoms kept her from competitive employment.  The Jury ultimately awarded over $1million in total compensation for her injuries and losses.  This award included $385,000 for her non-pecuniary damages.

The non-pecuniary damages award was then reduced to $327,350 to bring it in line with the general Canadian cap on non-pecuniary damages in negligence cases.  The Defendant then appealed seeking a new trial.  The BC High Court largely dismissed the appeal but did reduce the non-pecuniary damages to $225,000 which is one of the highest valuations for pain and suffering in BC for Thoracic Outlet Syndrome that I’m aware of.  In doing so the Court provided the following reasons:

[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.

When an ICBC or other injury claim goes to trial the Plaintiff needs to prove their case.   In the most basic terms this means that in a tort claim fault needs to be established along with the nature and extent of the accident related injuries and the losses that these have caused.  The Plaintiff normally does this in what’s called the Plaintiff’s ‘case in chief‘.  If the Plaintiff fails to call evidence on any of these points the case can be dismissed on a ‘no-evidence‘ motion.

Once the Plaintiff finishes calling his/her case the defence has the opportunity to call evidence to contradict the Plaintiff’s case or in support of theirs.  A Plaintiff can then call ‘rebuttal evidence‘ and this is something that often occurs in injury litigation when the Defence calls medical experts with conflicting opinions about the cause of the Plaintiff’s injuries.

There are limits on rebuttal evidence, however, and one such limit is that the evidence called in rebuttal must be truly responsive to the other sides case as opposed to addressing the points that needed to be proven in the ‘case in chief‘.  If a court concludes that rebuttal evidence is not truly responsive a court can keep it from going in.  Reasons for judgement were released today discussing this point of civil procedure.

In today’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a motor vehicle collision.  In her case in chief she called evidence discussing her accident related injuries which apparently included Thoracic Outlet Syndrome and Headaches.  The Defendants then called their expert (Dr. Makin) who addressed the cause and prognosis of the Plaintiff’s injuries.

The Plaintiff then wished to call Drs. Prout and Caillier to give rebuttal evidence.   The Defendants objected arguing that the evidence was not truly responsive and the Plaintiff was attempting to ‘split her case‘.  Madam Justice Griffin agreed that some of the evidence was indeed not true rebuttal evidence and did not allow portions of the proposed evidence in.  Specifically she found that the proposed evidence diagnosing accident related Thoracic Outlet Syndrome and Headaches could have been called in the Plaintiff’s case in chief.  Madam Justice Griffin held as follows:

[6] First, Dr. Makin was asked a number of questions in his direct evidence regarding definitions of thoracic outlet syndrome, including the question “What are two types of thoracic outlet syndrome that involve nerves?”  His evidence was that one, the type that involves nerves, is true neurogenic thoracic outlet syndrome, and that is the only type that involves the nerves.  He said a different type, disputed thoracic outlet syndrome, is a type diagnosed by vascular surgeons, and that neurologists do not agree with that classification.

[7] The implication of his evidence, including other questions he was asked in direct about how he conducted his tests, was that neurologists as a group are of the view that provocative testing reveals no clinically helpful information in diagnosing thoracic outlet syndrome and that they are opposed to vascular surgeons reaching this diagnosis.

[8] In my view this is a proper basis for rebuttal evidence on this narrow point; i.e., is a neurologist of the opinion that there can be a diagnosis of thoracic outlet syndrome in the absence of positive signs and a nerve conduction study?  And, is a neurologist of the opinion that provocative testing can be helpful in diagnosing this?

[9] The plaintiff cannot have been in a position to respond to the suggestion that neurologists do not hold that opinion as a group until the defence witness was heard on that point.  Indeed, arguably this point could not have been anticipated as it was not specifically identified in Dr. Makin’s report.

[10] I therefore conclude that it would be appropriate for the plaintiff to call rebuttal evidence of Dr. Prout to respond to this point, since Dr. Prout is a neurologist.

[11] However, Dr. Prout goes beyond this in his report and does his own evaluation and diagnosis of Hanna Bransford for thoracic outlet syndrome.  I am of the view that this goes further than proper rebuttal and runs the risk of splitting the plaintiff’s case, and so it is not appropriate.

[12] Second, Dr. Makin performed what were referred to as inching studies as part of his nerve conduction studies and reached a different diagnosis than the plaintiff’s physicians and experts, namely he diagnosed a problem with Ms. Bransford’s ulnar nerve.  I am of the view this is an appropriate matter for rebuttal evidence, namely an analysis of Dr. Makin’s nerve conduction studies and any comment disputing his findings and any contrary inching studies regarding the ulnar nerve.  This evidence would not be splitting the plaintiff’s case because the plaintiff does not assert that her diagnosis has anything to do with her ulnar nerve.

[13] I also note that the oral evidence of Dr. Makin reporting on these studies is not significantly narrowed from the point he makes in his written report and the defendants had agreed earlier that this was the proper subject of the rebuttal reports of Dr. Caillier and Dr. Prout.

[14] Further, the plaintiff could not properly have anticipated this evidence in its entirety until it was called from Dr. Makin.

[15] As for Dr. Makin’s evidence on headaches, I am of the view this is not the proper subject of rebuttal evidence, at least insofar as revealed in Dr. Prout’s report.  Headaches have always been part of Ms. Bransford’s symptoms and we have heard one plaintiff’s witness, Dr. O’Connor, describe them as cervicogenic.  Dr. Makin disagrees and describes them as migraine.  Dr. Prout does not point out any flaw in Dr. Makin’s science from a neurologist’s perspective, but really just gives an opposite opinion, an opinion that could have been given in the plaintiff’s main case.  The plaintiff was in a position to respond to the labelling of Ms. Bransford’s headaches as cervicogenic or migraine prior to the close of its case as it had notice of Dr. Makin’s description of the headache as migraine.