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 ‘Dakin v. Roth’

ICBC Expert Evidence Rejected for Advocacy

January 10th, 2013

Adding to this site’s archived posts highlighting judicial criticism of expert witness advocacy, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, rejecting the opinion of an ICBC retained expert in a chronic pain case.

In this week’s case (Dakin v. Roth) the Plaintiff was injured in three separate collisions.  At trial she introduced evidence from a variety of medical experts including an occupational therapist.  ICBC retained an expert who criticised this evidence.  The Court, however, was ultimately critical of ICBC’s rebuttal expert’s opinion finding it was not “fair, balanced or objective“.  In rejecting the rebuttal evidence Mr. Justice Cole provided the following reasons:

[38]         What is most disturbing about Ms. Taylor’s report is that she describes what she says are discrepancies in Ms. Dakin’s reports to various medical professionals at various points in time. She then lists approximately 1½ pages of these discrepancies and states that it was appropriate for her to make these comments as they were relevant in assessing a client’s reliability. When questioned why she also did not highlight the consistencies within the plaintiff’s reports to other medical professionals, she could not provide a rational answer. I am satisfied that the only reason she provided discrepancies in the plaintiff’s reports to other medical professionals was to attack the plaintiff’s credibility. Her evidence was not fair, balanced or objective, I am satisfied that Ms. Taylor was more of an advocate on behalf of a client. I therefore reject her evidence.


Facebook Photos Found to be "Of Limited Usefulness" In Injury Claim

January 8th, 2013

Adding to this site’s archived posts addressing Facebook photos in BC personal injury lawsuits, reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding such photos to be ‘of limited usefulness‘ when assessing a chronic soft tissue injury claim.

In today’s case (Dakin v. Roth) the Plaintiff was injured in three collisions.  The Defendant unsuccessfully argued that the Plaintiff  “is not a credible witness”.  In support of this argument the Defendant introduced two years of photos taken from the Plaintiff’s Facebook profile.  In discussing the lack of impact of these photos Mr. Justice Cole provided the following reasons:

[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.