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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 ‘Car Accident’

More on Examinations for Discovery and Your ICBC Claim

June 13th, 2008

Earlier this month I blogged about the Examination for Discovery process under the BC Supreme Court rules as it relates to ICBC claims. I summarized 14 broad categories that are generally canvassed by ICBC defence lawyers during the examination for discovery process.

Each discovery is unique and an effective examination is much an art as it is a science. I can’t readily blog about all the subtle tricks of the trade that I have seen used at discoveries but I can write a little more about the ‘bread and butter’ topics that are covered at discoveries.

The Law Society of BC (the organization that governs and regulates the practice of law in BC) publishes “Practice Support Checklists Manuals” on their website. These practice manuals are “are intended as a professional reference for BC lawyers only” and are published with the following warning:

The authors of the checklists have assumed that lawyers will exercise their professional judgement respecting the correctness and applicability of the material. Checklists and forms should be used only as an initial reference point. Reliance on them to the exclusion of other resources is imprudent, as conduct of each file depends on its own particular circumstances and instructions of the client.

The practice checklists should be used only as a secondary reference. For definitive answers, lawyers should refer to applicable statutes, regulations, practice directions and case law.

The Law Society of British Columbia, the Continuing Legal Education Society of British Columbia and the authors and editors of the manual accept no responsibility for any errors or omissions, and expressly disclaim any such responsibility.

With that legalese out of the way, I write this blog to point out that one of the Practice Manuals printed by the Law Society provide a checklist for defence lawyers conducting an examination for discovery of a Plaintiff in a car accident claim (and the same is used for ICBC claims plaintiff lawyers for their initial client interviews).

This manual is a great guide to give anyone facing an examination for discovery in an ICBC claim a general sense of the types of questions the lawyer may ask them.

For the convenience of my readers I have reproduced this manual below.

I point out that this manual should not be substituted for good legal advice regarding an ICBC claim, I simply reproduce this to give my readers a sense of the types of topics that may be covered during an examination for discovery in an ICBC claim.

_________________________________________________________________________________________________________

 

INTRODUCTION

Purpose and currency of checklist.

The checklist should only be used as a guideline as the nature and scope of the interview and the examination for discovery in each case are matters for your own professional judgment. Some of what follows may be appropriate for an interview but would be objectionable on an examination for discovery (e.g., prior driving record). The interview may be wide-ranging and directed to information gathering. The examination for discovery is a cross-examination and must be relevant to the pleadings.

The general framework of this checklist is relevant to most personal injury litigation; however, parts are oriented particularly toward motor vehicle accident litigation. If you use this checklist for other types of personal injury litigation, you will need to modify items 1.6 through 4.14.

New developments:

·1

Client Identification. New Law Society Rules regarding Client Identification and Verification are expected to come into effect on November 1, 2008. These new “know-your-client” Rules, generally based on the Federation of Law Societies of Canada Model Rule (http://www.flsc.ca/), represent a continuation of the legal profession’s initiatives against money laundering. All Canadian law societies are expected to adopt similar Rules in 2008.

Additional resources.

See also Introducing Evidence at Trial: A British Columbia Handbook (CLEBC, 2007); Discovery Practice in British Columbia, 2nd ed., looseleaf (CLEBC, 2004); British Columbia Motor Vehicle Accident Claims Practice Manual, 2nd ed., looseleaf (CLEBC, 2000); British Columbia Civil Trial Handbook, 2nd ed. (CLEBC, 2005); Personal Injury for Legal Support Staff —2006 Update (CLEBC, 2006); Personal Injury for Legal Support Staff (CLEBC, 2003); Personal Injury Conference—2005 (CLEBC, 2005); Defending Personal Injury (CLEBC, 2006); and Personal Injury: Advanced Issues (CLEBC, 2004).

 

 

CONTENTS

 

 
1. The Plaintiff—Personal Information

2. The Car

3. The Accident

4. At the Scene of the Accident

5. Injuries Sustained by the Plaintiff

6. Practical Consequences of Injuries

7. Plaintiff’s Medical History

8. Treatment of Plaintiff’s Injuries

9. Potential Defendants

10. Damages

11. Other Charges and Claims

 

 

CHECKLIST

 

 
1. THE PLAINTIFF—PERSONAL INFORMATION

 

1.1 Name, address, phone numbers, e-mail address, occupation, employer or school, social insurance number.

 

1.2 Personal history: birth date and place, height, weight, marital status, date and place of marriage, spouse, parents, children, dependents, previous residences for last 10 years, education, medical coverage.

 

1.3 Whether spouse is employed and, if so, the details.

 

1.4 Employment history: name, address and phone number of current employer, job title and duties, length of employment with that employer, name of immediate supervisor, remuneration (full history), hours regularly worked (and overtime), typical duties and responsibilities, future prospects, benefits (medical and dental plans, life insurance, pension, paid vacation, employer’s contribution to employment insurance (“EI”), free board and lodging, investment options, company car, union or Workers’ Compensation Board (“WCB”) involvement, paid sick leave, etc.); same details regarding previous employment, including why plaintiff left. Obtain details of any WCB claims or periods of sick leave. Request appropriate employment documents and authorizations. Obtain the name of the union and a copy of the collective agreement to determine validity of a claim for collateral benefits or other employment benefits. Obtain particulars and a copy of policy for any disability insurance for the same reasons.

 

1.5 Insurance coverage: company, claim number, name of adjuster, type of insurance, any statement made by plaintiff.

 

1.6 Driver’s licence: class, how long plaintiff has had it, any restrictions (and, if so, whether they were complied with), whether licence has been suspended for any reason in the past, prior convictions.

 

1.7 Whether plaintiff is an experienced driver and whether plaintiff has previously been involved in any accident.

 
2. THE CAR

 

2.1 Owner. If plaintiff was driver but not the owner, how did plaintiff come to be driving the car? Insurance details of vehicle owner.

 

2.2 Type of car: year, make, standard or automatic, licence number.

 

2.3 General mechanical condition and details regarding condition of brakes, steering, tires and, where relevant, head and tail lights, signal lights, horn, windshield, windows etc., including when they were last checked, and whether there have been any previous problems.

 
3. THE ACCIDENT

 

3.1 Date, time, location.

 

3.2 Plaintiff’s pre-accident condition (e.g., illness or disability affecting driving, alcohol or drug consumption, physical condition, whether tired or distracted, last sleep, day’s activities).

 

3.3 Further details about vehicles and parties involved, such as: names, addresses and phone numbers of drivers, owners, passengers, pedestrians, witnesses; types and conditions of other vehicles. Details of other driver’s insurance.

 

3.4 Road, traffic, and weather conditions, such as: time of day; lighting and visibility; position of sun; road condition; characteristics of accident location (e.g., width of road, number of lanes, straight or curved, center marking, intersections, traffic controls, pedestrian crossing areas, parked cars, any obstructions to vision).

 

3.5 Whether headlights, windshield wipers, heater, defroster, or radio were on; whether windshield was clear; whether sunvisor was being used; whether plaintiff was wearing sunglasses.

 

3.6 Whether plaintiff was wearing glasses and, if so, whether this was required under driver’s licence, and when prescription was last checked.

 

3.7 Whether plaintiff was wearing a seat belt. If so, type and was it snugly fastened? If not wearing a belt, consider information defendant may use for seat belt defence expert opinion (height, weight, body shape, torso length, clothing, type of belt). Whether there was a headrest. If so, was it adjusted for the plaintiff’s height?

 

3.8 Where plaintiff was going; point and time of departure; destination; route; familiarity with route and location; purpose of travel; whether working; whether in a hurry.

 

3.9 Details about the accident, such as: location and direction of travel of each party involved; speed at which each was travelling before accident and whether there was any slowing down or acceleration; when other vehicle was first seen; any opportunity for evasive action by either vehicle and, if so, whether it was taken; elapsed time between sight and impact; movement of other vehicle during this time; point of impact; how far vehicles travelled after impact; skid marks; location of damage to vehicles; damage to interior of plaintiff’s vehicle; deployment of air bag. Whether plaintiff’s attention was diverted for any reason, for example, was plaintiff distracted by children or other passengers, changing a radio setting, changing tapes/CD, operating a blackberry or mp3 player, or speaking on the cellular phone, etc.

 

3.10 Whether there was anyone or anything else in the car (e.g., passengers, animals, luggage). If so, where, and what happened to them or it?

 

3.11 What happened to plaintiff, including: bracing before impact; plaintiff’s impact inside the vehicle; head struck or head being thrown backwards.

 

3.12 Damage to all vehicles (location, type, severity).

 

3.13 Injuries to other parties.

 

3.14 Any other information about other parties (e.g., insurance).

 

3.15 Evidence, such as statements, sketches, available photographs, copy of police report, repair estimate.

 
4. AT THE SCENE OF THE ACCIDENT AND AFTERMATH

 

4.1 Plaintiff’s injuries, specifying location and type.

 

4.2 Plaintiff’s state of consciousness, including feelings of dizziness or disorientation; plaintiff’s emotional state.

 

4.3 Whether plaintiff realized at the time that he or she had been injured and, if so, how.

 

4.4 Whether any of plaintiff’s clothing or other personal property was damaged.

 

4.5 What plaintiff did after impact.

 

4.6 Full particulars of any treatment at the scene, including when given, by whom, type of treatment.

 

4.7 Whether police or fire department were called and, if so, details of this, their arrival, actions, and any discussions with them.

 

4.8 Whether ambulance was called and, if so, details of this, its arrival, what happened after that, and any discussions with attendants.

 

4.9 Full particulars of any conversations involved in or overheard at the scene.

 

4.10 Full particulars of any written statements given.

 

4.11 Whether plaintiff complained of any physical injuries at the time and, if so, details of this.

 

4.12 Whether anyone helped plaintiff from the car, plaintiff could walk unassisted, or a stretcher was used.

 

4.13 Whether plaintiff was treated in emergency; what treatment including:
x-rays; medication prescribed or given; length of stay in hospital before being released; name, address, and phone number of attending doctor.

 

4.14 Names, addresses, and telephone numbers of witnesses to the accident.

 
5. INJURIES SUSTAINED BY THE PLAINTIFF

 

5.1 Specific injuries: any pain, bruising, numbness, tingling, or clicking in ears or jaw, eyes, head, jaw, neck, shoulders, back, arms, chest, hands, fingers, toes, legs, hips, buttocks, knees, abdomen, other. Specify exact location and nature of pain, numbness, tingling, or clicking. Specify when problem began and how long it has lasted, whether constant or intermittent. Specify whether particular activities cause aggravation. Go through the injuries from head to toes, so none are omitted.

 

5.2 Other pain and health problems, such as: headaches, lack of concentration, memory problems, blurred vision, light sensitivity, fainting, dizziness, nausea, ringing in ears. Specify when problem began and how long it has lasted.

 

5.3 Need for any of the following: cane, crutches, wheelchair, orthopedic supports, trusses, back or neck brace, cervical collar, traction, other. Specify duration and frequency of use, place where used, who prescribed it.

 

5.4 Need for ongoing treatment including physiotherapy (see item 8). What medication has been prescribed, and what medication the plaintiff is taking.

 

5.5 Adverse reaction to medicine, anaesthetics, etc. Specify symptoms.

 

5.6 Changes in appearance, such as: limp, weight gain or loss, scars (specify size, location, whether permanent), other disfigurements.

 

5.7 Changes in emotional or psychological state, such as: tearful, angry, depressed, tired, happy, sleepy, nightmares, intrusive thoughts, insomniac, bored, discouraged, hopeful, afraid, need for psychological or psychiatric treatment, etc.

 

5.8 Whether plaintiff feels that any of the above have caused changes in appearance, dress, etc., or the way others perceive him or her (i.e., self-image).

 

5.9 Consider interviewing close family member or other witnesses regarding the effects of the injuries.

 

5.10 Obtain authorizations and request records of all medical practitioners who have treated the plaintiff. Consider request for MSP records.

 
6. PRACTICAL CONSEQUENCES OF INJURIES

 

6.1 Effect on employment:

 

.1 Whether plaintiff can still do same type of work.

 

.2 Whether plaintiff returned immediately to work. If not, why not, how much time lost, whether doctor or anyone else advised plaintiff not to return to work, loss of holiday benefits, loss of sick days, whether sick days can be accumulated and paid out.

 

.3 Whether short- or long-term benefits and whether insurer has subrogated right of recovery.

 

.4 Any adverse effect on employment, future earning capacity, long-term career plans.

 

.5 Whether required to take early retirement or suffered loss of seniority rights or employment benefits.

 

.6 Has plaintiff been accommodated at work by being assigned lesser duties?

 

.7 Get full particulars of income loss. Consider contingencies such as opportunities for advancement, alternative opportunities, supply and demand for skills. Also, whether doing the same work now involves extreme, moderate, slight or no pain.

 

.8 For a student, consider loss of or set-back in education.

 

.9 Discuss mitigation efforts (e.g., if plaintiff has had to seek new employment, what efforts were made and what responses were received).

 

.10 Consider whether less employable for all types of employment even if able to continue with same employment.

 

6.2 Effect on business:

 

.1 Whether additional employees hired to replace plaintiff, or whether business has been adversely affected (if so, why and in what way).

 

.2 Get full particulars of income loss; get plaintiff’s income tax returns and records, including business records relating to productivity, etc., as well as statements and books of account, accountant’s files, bank statements and cancelled cheques, plaintiff’s files including correspondence.

 

6.3 Effect on domestic and recreational activities:

 

.1 Whether plaintiff did them before the accident, frequency before, whether plaintiff can do them now and, if so, whether this involves extreme, moderate, slight or no pain. Examples are: lift heavy objects; drive automobile, truck, motorcycle; ride bicycle; work on auto; shovel snow; mow lawn; garden; kneel down, squat down; walk, jog, run, dance, do exercises; enjoy sexual relations; do home repairs, saw/chop wood, do wallpapering, paint walls/ceiling; lift children; do grocery shopping; make beds, do laundry, scrub floors, vacuum, cook, dust, sew;

 

use lower/higher shelves; wear high-heeled shoes; turn head to look behind when driving, put chin on chest, hold phone with shoulder, sit in bathtub with legs outstretched, sit on floor/grass/low furniture; play tennis, baseball, football, basketball, golf, etc.; hunt, fish, ride, climb mountains, etc.; snow/water ski, swim, other sports and hobbies; enjoy social life.

 

.2 Specify any other ways in which capacity to enjoy life has been affected. Which activities have been resumed or attempted?

 

.3 What vacations have been taken, delayed or cancelled?

 

6.4 Bear in mind any other special considerations such as the possibility of marriage and child bearing.

 

6.5 Expenses related to the accident, including damage to personal property, prescriptions, taxis, mileage, lost membership, etc. Obtain details of payment, whether paid by plaintiff or third party. If third party, who and on what basis.

 

6.6 Retraining, rehabilitation, or vocational counselling undertaken.

 

6.7 Obtain details of any services provided by family members or others for which the plaintiff might advance a claim and the actual cost of any such services if incurred. Determine who provided services, the number of hours spent by them, whether they had to leave a job in order to provide the services and whether these services went beyond what would be expected of a family member.

 

6.8 Obtain details of disability insurance plan and benefits received.

 
7. PLAINTIFF’S MEDICAL HISTORY

 

7.1 Plaintiff’s previous illnesses and conditions requiring medical treatment; attending physician; date; nature of illness and its duration. Include hospitalization, accidents, injuries, alternative health care.

 

7.2 Whether plaintiff has any chronic health problems.

 

7.3 Whether plaintiff used any medication/drugs regularly before the accident.

 

7.4 Whether plaintiff has ever made a previous claim for damages related to an accident or injury (in a legal action, or under Workers Compensation Act, R.S.B.C. 1996, c. 492, etc.). Get details, including outcome and consider obtaining documentation such as medical legal reports, pleadings, orders and releases.

 

7.5 Whether plaintiff has been a recipient of disability benefits (e.g., CPP benefits); obtain details of plan and benefits.

 

7.6 Whether plaintiff has ever had any insurance denied or cancelled.

 

7.7 Whether plaintiff believes present accident has aggravated an old injury or illness. Get details.

 

7.8 Whether plaintiff had physical examinations in the five years prior to the accident and, if so: date, doctor, purpose of examination.

 

7.9 Pre-accident clinical records from any relevant health care professionals if plaintiff has a previous history of injury.

 

7.10 Whether the plaintiff has had any previous psychological or psychiatric treatment for depression, anxiety, etc.

 

7.11 Whether there have been any intervening medical conditions or accidents in the post-accident period.

 

7.12 Whether plaintiff has a history of changing doctors frequently and why.

 

7.13 Post-accident clinical records.

 
8. TREATMENT OF PLAINTIFF’S INJURIES

 

8.1 Treating institutions: names, addresses, types of institution, dates of visits or stays, complaints.

 

8.2 Treating physicians, chiropractors, physiotherapists and other health care professionals giving treatment of any nature (including alternative medicine): names, addresses, specializations, dates of visits, complaints.

 

8.3 Diagnosis and prognosis of each person giving treatment each time plaintiff was examined.

 

8.4 Place and date of x-rays, MRIs, CT scans, tomographs, etc.

 

8.5 All medications (including alternative medications) prescribed or taken.

 

8.6 Future surgeries planned, future appointments set, prognosis if given.

 
9. POTENTIAL DEFENDANTS

 

9.1 Get details enabling you to identify potential defendants (e.g., consider facts that might establish vicarious liability). Consider whether province, municipality, physicians, or others might be defendants.

 

9.2 Get names, addresses, phone numbers, details of their insurance, if possible.

 
10. DAMAGES

 

10.1 Car: age, mileage; cost of car and improvements; condition before accident; damage; whether car can be repaired; whether car has been repaired; invoices and estimates. Consider whether issue of accelerated depreciation arises.

 

10.2 Damages incidental to damage to car, such as cost of renting another car while repairs are being made, and any cost of repair not covered by insurance (e.g., insurance deductible).

 

10.3 Damage to other property, such as clothing and contents of car.

 

10.4 Medical expenses.

 

10.5 Other damages incidental to personal injury, such as economic loss and loss of enjoyment of life (see item 6).

 

10.6 Obtain receipts for all expenses.

 
11. OTHER CHARGES AND CLAIMS

 

11.1 Whether criminal or quasi-criminal charges have been laid against any of the parties. If so, obtain copies of police file and trial transcripts.

 

11.2 Whether an ICBC claim has been filed and, if so, identify claims centre, claim number, and adjuster. Whether any benefits under Part 7 of the Revised Regulation Under the Insurance (Vehicle) Act, claimed and/or received. What documents given to or signed for ICBC, and any advances paid.

 

11.3 Whether there is a WCB claim (if accident arose out of and in the course of employment: Workers Compensation Act, ss. 5 and 10).

 

11.4 Whether obligation to repay or make claim for the benefit of an employer or insurer (i.e., a subrogated claim), short- or long-term benefits.

 

11.5 Obtain copies of any documents relating to ICBC claims, Part 7 benefits, WCB records, etc.

 

11.6 If there were previous accidents or WCB claims, obtain pleadings for any claims commenced and copies of any settlement documents including orders or releases.

 
12. CREDIBILITY

 

12.1 In proceeding through the interview/examination for discovery, it is important to assess your client/opposing party as a witness. This may be as simple as considering whether the person appears honest, but also may include whether the witness makes a good impression, is verbose or reticent, is nervous, is argumentative, is a poor historian, etc.

 

12.2 Consider what steps will be required to prepare your own client, including a mock examination, discussion of behaviours, etc.

12.3 In preparing to examine an opposing party, consider the most effective approach to be taken. For example, you may start with general questions and then narrow to the specific. You may also consider if and when to confront the witness with documents such as medical records or income tax returns.

 

Do you have questions about an ICBC Injury Claim or examinations for discovery?  Do you need legal advice from an ICBC claims lawyer?  If so click here for your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided throughout BC!)


BC Court of Appeal Orders New Trial in Left Hand Turn Accident Case

May 27th, 2008

Today the BC Court of Appeal overturned a jury verdict finding a left hand turning motorist completely at fault for a motor vehicle collision and awarding the injured Plaintiff over $1.2 Million in compensation for serious injuries.

The car accident happend in 2000 in Coquitlam BC. The Plaintiff was travelling southbound in the right hand lane on North Road. There was stopped traffic in the two southbound lanes to his left. The Defendant was travelling North on North Road and attempted to make a left hand turn into the Lougheed Mall parking lot. At this time he collided with the Plaintiff’s vehicle.

The jury found the left-hand driver 100% at fault for this collision.

The jury went on to award damages as follows:

Non-pecuniary damages (pain and suffering) $300,000

Past Loss of Income: $275,000

Loss of Future Earning Capacity: $650,000

Cost of Future Care: $15,000

At trial the defence lawyer asked the judge to instruct the jury on the provisions of s. 158 of the Motor Vehicle Act. This section prohibits a driver from overtaking and passing a vehicle on the right when the movement cannot be made safely. The trial judge chose not to instruct the jury about this section.

The BC Court of Appeal held that it was an error in law not to do so, specifically that:

[11] In my opinion it was, in the circumstances of this case, a serious non- direction, amounting to a misdirection, to fail to draw the provisions of s. 158 to the attention of the jury. Section 158(2)(a) prohibits a driver from overtaking and passing another vehicle on the right when the movement cannot be made in safety. The jury could not have had a proper understanding of the parties’ relative obligations, and the standard of care each was to observe, without an instruction on the meaning and application of that section.

[12] I do not think this Court could properly decide how, if at all, fault should be apportioned. That question requires an appreciation of all the evidence, as well as a consideration of the credibility of the two drivers and the other witnesses.

[13] In my opinion, there must be a new trial on the issue of contributory negligence.

The Court ordered that the jury’s judgement be set aside and that the proceeding be generally returned to the BC Supreme Court for a new trial.

The result is, over 8 years after a very serious accident with serious injuries, If the Plaintiff is not able to come to a settlement of his ICBC Claim he will have to be involved in a second trial to address the allegations that he was partially at fault for his injuries and to prove the value of his losses all over again.

Section 158 of the BC Motor Vehicle Act is a rarely cited section but one of significant importance. Simply because you are in a through lane and are not governed by a stop sign or stop light does not mean you always have the right of way. If vehicles in your direction of travel have stopped and it is not clear why they have stopped it may not be safe to proceed. In this case it appears that vehicles may have stopped to permit the Defendant to turn left and the Plaintiff continued on. This case illustrates the potential use Section 158 of the Motor Vehicle Act may have for left hand turning motorists involved in a collision.

Do you have questions about this case or fault for an accident involving a left-turning vehicle that you wish to discuss with an ICBC Claims Lawyer? Click here to arrange a free consultation with ICBC Claims lawyer Erik Magraken.


$19,840 Awarded for 15 Month Soft Tissue Injuries

May 23rd, 2008

In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.

The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.

A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.

The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”

The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.

In the end the court awarded damages as follows:

Pain and Suffering: $15,000

Past Wage Loss: $4,790.50

Mileage Expenses for treatments: $50

This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.

Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.


PTSD and Chronic Pain Claims Dismissed, $36,260 Awarded for Soft Tissue Inuries and Anxiety

May 22nd, 2008

BC Courts have heard many ICBC claims involving PTSD and Chronic Pain Syndrome. In reasons for judgement released this week Mr. Justice Cullen heard and dismissed a PTSD claim and Chronic Pain Syndrome claim as a result of a motor vehicle collision.

In 2004 the Plaintiff, who was a passenger in her boyfriend’s vehicle, was involved in a collision where her vehicle rear-ended the vehicle in front of her. The accident occurred on Nanaimo Street in Vancouver, BC. She advanced a tort claim against her boyfriend who was deemed to be the at-fault driver (a tort claim is the legal term used to describe a civil action, such as an ICBC claim for damages against an at fault driver).

ICBC, on the boyfriend’s behalf, admitted fault but disputed the alleged injuries. The Plaintiff claimed to suffer from soft tissue injuries to her neck and back, a myofacial pain syndrome and/or a pain disorder and post-traumatic stress disorder.

As in alsmost all ICBC claims involving alleged chronic pain, the court heard from a number of expert witnesses including the Plaintiff’s family doctor, a physiotherapist, a physiatrist (rehabilitaiton specialist) a psychologist and an orthopaedic surgeon. The orthopaedic surgeon was a defence witness who conducted an ‘independent medical exam’ of the Plaintiff pursuant to the BC Rules of Court.

In the Plaintiff’s case evidence was led that she suffered from a ‘myofacial pain syndrome’ which was described as ‘a central nervous system disorder with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points…areas in the muscles that are rich in nerve endings’.

A psychologist testified that the Plaintiff suffered from a Post Traumatic Pain Disorder (PTSD) and also that she suffered from ‘many symptoms of a pain disorder’.

The orthopaedic surgeon, who is often used by ICBC, testified that the Plaintiff suffered from soft tissue injuries to her neck, upper back and shoulders, along with some cuts and bruises. He dismissed the connection of the Plaintiff’s low back complaints to the accident by stating “There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA”. He then testified that his physical examination of the Plaintiff was ‘completely normal’ and he regarded any soft tissue injuries sustained by the Plaintiff as resolved.

In the end the court rejected the Plaintiff’s claim for PTSD and Chronic Pain Disorder and found that the Plaintiff suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder. The court also found that the Plaintiff’s low back symptoms which developed 3 months post accident were causally connected to the accident either through compensatory back pain of through myofacial pain syndrome. The court also found that the Plaintiff suffered from anxiety as a result of the accident and awarded $35,000 for pain and suffering, $560 for past out of pocket expenses and a further $700 to permit the Plaintiff to attend further counselling sessions with her pscyhologist to treat her anxiety.

This judgement is worth a quick read if you are advancing an ICBC claim involving chronic pain or PTSD to see some of the factors courts look at when weighing competing medical evidence. The judgement seems to be a compromise between the competing evidence accepting that the Plaintiff’s injuries, while not PTSD or Chronic Pain Syndrome, were not resolved by the time of trial. When considering settling an ICBC claim it is good to become familiar with how courts treat similar injuries and what the various outcomes at trial can be.

Do you have questions about an ICBC claim involving PTSD or Chronic Pain that you want to discuss with an ICBC Claims Lawyer? If so, click here to contact ICBC Claims Lawyer Erik Magraken for a free consultation.


BC Supreme Court Awards $50,000 Non-Pecuniary Damages for Dislocated Elbow

May 20th, 2008

In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.

The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.

The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:

[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.

The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement.  This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury.  The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss.  After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.

Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.

This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow.  The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement.  If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.

Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.


Damages of $216,430 Awarded for 2 rear-end collisions

May 12th, 2008

In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.

The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.

The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.

A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.

This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.

After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.

Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work

In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.

In the end the court awarded damages as follows:

For the Accident of May 18, 2002:

Non-pecuniary damages

$30,000.00

Past income loss
(subject to deduction for Income tax)

$5,939.18.

For the Accident of May 5, 2005

Non-pecuniary damages

$52,500.00

Past income loss
(subject to deduction for Income tax)

$62,499.00

Loss of Future Earning Capacity

$45,500.00

Cost of Retraining

$2,730.00

Cost of Future Care

$15,300.00

Special Damages
(Not apportioned)

$1,926.39


Court Awards $25,000 Pain and Suffering for Shoulder Injury

April 17th, 2008

In reasons for judgement released today from a Rule 66 “fast-track” trial, Mr. Justice Masuhara awarded a Plaintiff a total of $27,427.67 in compensation as a result of a September, 2004 rear-end accident which occurred in Coquitlam, BC.

The Plaintiff, a 33 year old female at the time of the accident, suffered soft tissue injuries including headaches, dizziness, nausea, sleep disturbance, and various soft tissue injuries.

The majority of the Plaintiff’s pain resolved by the time of trial with the exception of pain in her shoulder girdle and mid back.

The Plaintiff’s family physician testified that she suffered from “soft tissue injuries to her neck and upper back as a result of the accident.” Treatments included trigger-point injections to the Plaintiff’s right shoulder blade muscles.

A physiatrist also gave expert opinion evidence that the accident caused neck injuries that had resolved and further had caused “injuries to her right posterior shoulder girdle region and mid back”. He expected the Plaintiff to make a good or very good recovery but his prognosis of a complete resolution was guarded.

The ICBC lawyer defending the case called an orthopaedic surgeon who had examined the Plaintiff on behalf of the defence. He testified that the Plainitff “suffered a mild to moderate soft tissue injury to her neck and upper back areas“, that he “would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the accident ” and that the “ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the accident“.

The court accepted the evidence of the Plaintiff’s physicians and found that the Plaintiff’s “persisting symptoms in the area of her right shoulder blade are as result of the accident”.

Damages were awarded as follows:

1. Non-pecuniary (pain and suffering): $25,000

2. Past Wage Loss: $974.67

3. Special Damages (out of pocket expenses) $1,453

Mr. Justice Masuhara deals with some common arguments often advanced by ICBC lawyers defending these types of claims including attacks on the Plaintiff’s credibility. His findings were favourable to the Plaintiff and a quick read of this judgement reveals some of the accusations Plaintiff’s often face whem advancing ICBC claims.


BC Court of Appeal Increases Pain and Suffering Award to $42,000

April 9th, 2008

In reasons for judgement released today, the Honourable Madam Justice Newbury of the British Columbia Court of Appeal increased the pain and suffering award for a BC auto accident victim from $15,000 to $42,000.

The Plaintiff was a 70 year old female. At trial in the British Columbia Supreme Court, the trial judge found that the Plaintiff suffered a soft tissue injury, namely a muscle strain to the trapezius area but concluded that “the evidence was not sufficient to establish a causal connection between the accident and the increase in frequency and intensity of (the Plaintiff’s) dizziness“.

On appeal, counsel for the Plaintiff argued that the trial judge was simply wrong in saying there was ‘no medical evidence’ that supported the causal connection between the accident and the Plaintiff’s increase in frequency and intensity of dizziness.

At trial an ENT specialist testified that “in my opinion the increased dizziness (experienced by the Plaintiff )subsequent to the accident in 2004 is probably from the accident in 2004“. Given this evidence the BC Court of Appeal agreed with the submission of Plaintiff’s counsel and concluded that the appeal must be allowed.

Normally when an appeal is allowed a new trial is ordered.  Running a second trial is obviously time consuming and costly.  Fortunately for the Plaintiff, the trial judge stated that he would have awarded between $40,000 and $45,000 for pain and suffering had he found that the Plaintiff’s dizziness was related to the 2004 car accident. Given this helpful finding, and to save the parties from the expense of another trial, the BC Court of Appeal exercised their discretion to substitute the higher award of $42,000 for pain and suffering.


Taxi Driver found 10% At Fault For Leaving High Beams On

April 8th, 2008

In a judgement released today by the British Columbia Supreme Court, Madam Justice Humphries concluded that a taxi driver was 10% at fault for 2 young girls’ injuries because he left his high beams on thus obstructing the view of on-coming traffic in the early morning of September 6, 2003 in Langley, BC.

The taxi did not hit the girls, rather, the taxi driver’s fault rested with the fact that he stopped his taxi on the side of the highway to engage some potential passengers in conversation with his high beams on. The passengers were a group of 5 young people who had left a party and were looking for a taxi ride home. The taxi driver declined to give this group of 5 people a ride because his vehicle only had 4 available seatbelts.

After being rejected by the taxi driver the young people headed back across the street into the lane of westbound traffic. Unfortunatley the driver of a vehicle driving in the westbound lane failed to see the people and struck 2 young girls with her vehicle.

The court found that the girls, the taxi driver, and the westbound vehicle were all partly at fault. In assessing 10% of the blame to the taxi driver Madam Justice Humphries stated “He did not keep a lookout for oncoming traffic and he left his high beams on. This constitutes a departure of the standard of care expected of a prudent driver and was a contributing cause of the accident.

If a person in British Columbia is partially to blame for an accident, it is important to seek compensation from all others who are at fault. Failing to do so will result in the Plaintiff receiving less than full compensation for injuries caused by the fault of others. This is called “several liability”. This decision is a great illustration of Plaintiff’s counsel seeking compensation from all those responsible for car accident related injuries. Had the taxi driver not been sued, on this reasoning, the young girls would have had the value of their claim reduced a further 10 percent.

Feel free to contact the author if you have questions about several liability and a current ICBC claim.


Judge states that $184,000 jury award is "Inordinately low" for Chronic Pain Disorder

March 31st, 2008

In reasons for judgment released today, the Honourable Madam Justice Loo stated that the jury’s verdict in a case involving serious injuries including concussion, neck and back injuries, depression and a chronic pain disorder, was ‘inordinately low’ and not supported by the evidene.

The plaintiff was a 28 year old corrections officer who sustained serious injuries in an October, 2003 motor vehicle collision when his vehicle was struck by a semi-tractor trailer that ran a red light.

The jury heard 10 days of evidence. During this time a series of unusual developments occurred (the details of which could be found in Madame Justice Loo’s judgment at paragraphs 12-16) which include a juror getting discharged as a result of an anxiety attack, a juror getting discharged for unusual behaviour which caused him to be hospitalized and the jury discussing the case prematruely and against an express caution from the trial judge not to do so.

After hearing all the evidence the jury awarded $32,550 for past income loss, $17,673.86 for special damages, $30,000 for pain and suffering and loss of enjoyment of life, $75,000 for future loss of earning capacity and $28,205 for future care costs.

Madame Justice Loo felt compelled to take the unusual step of commenting on the jury’s verdict and did so in detail. This was apparently done with a view towards assisting the British Columbia Court of Appeal in a judgment that very likely will be appealed. After pointing out that this jury spent no more than 2.5 hours in deliberations, Madame Justice Loo held that ‘no jury reviewing all of the evidence as a whole could have reached such a verdict’.