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 ‘examinations for discovery’

Absent Agreement Discoveries To Take Place At Lawyers Office

October 1st, 2014

Reasons for judgement were released today (Schroeder v. Sweeney) by the BC Supreme Court, Kelowna Registry, addressing a practice point.  Where are examinations for discovery to take place if the parties can’t agree?  Master McDiarmid ruled that the default is the lawyer’s office of the party being examined.  The court provided the following reasons:

[4]             Subrule 7-2(11) needs a bit of analysis. It provides, firstly, that you are to find a Registry closest to where the party to be discovered resides in British Columbia and then you are to find a location within 30 kilometres of that registry. It does not say that the discovery is to take place at the registry, although in the past that is where discoveries did take place. All of the larger registries had rooms where examinations for discovery occurred. It is true that often the most convenient location is the place where the court reporters carry on their business.

[5]             However, I have always understood the default position (for parties resident in B.C.) to be that if the parties could not agree, the party would be discovered at that party’s counsel’s office.

[6]             There are reasons why that is convenient to the party. One reason is that the full documents in the possession of that party will be available. A second is that the party being examined is in a surrounding where that party’s counsel practises and so the party is presumably somewhat more comfortable there.

[7]             In responding to this particular application, I reviewed some comments — and not unreasonable comments by the plaintiff, where he deposes basically, that yes, he  could go to the court reporter’s office, but he does depose to some issues with parking. That does, to some extent, impact on his convenience. It seems to me though that the — what I am going to call the default provision which was certainly the provision I understood as counsel was that if parties could not agree, the discovery should take place at the office of the counsel representing the party to be discovered. The matter is somewhat of an important practice point.

[8]             I am dismissing the application and ordering that the discovery take place at the office of the plaintiff’s counsel. The part of the application that the plaintiff attend Okanagan Court Reporters is dismissed and instead of that, the order is that the plaintiff attend at examination for discovery at the offices of his counsel.


Examination For Discovery Continuations When Cases Removed From Fast Track

January 16th, 2014

Typically the BC Supreme Court rules allow examinations for discovery to last  up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours.  What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.

In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision.  She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests.  The matter then was removed from the fast track and a further discovery was sought.  The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons:

[20]         The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.

[21]         The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.

[22]         Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.

 


The New Rules of Court and Examinations for Discovery

November 4th, 2010

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the scope of permissible questions at examinations for discovery under the new Civil Rules.  In short, the Court noted that although the New Rules contain some changes with respect to the time permitted for discovery, precedents developed under the former rules remain good law with respect to permissible questions.  The court also addressed the factors that can be considered in extending an examination for discovery.

In today’s case (Kendall v. Sun Life Assurance Company) the Plaintiff had disability insurance with the Defendant.  The Plaintiff sued claiming the Defendant improperly denied her insurance benefits.  In the course of the lawsuit the Plaintiff examined a representative of Sun Life for discovery.  During the course of discovery Sun Life’s lawyer caused “so much disruption” with interfering objections that Plaintiff’s counsel terminated the examination prematurely and walked out.

The Plaintiff brought a motion compelling the representative to attend discovery again to complete the examination, to answer the questions that were objected to and to extend the time of discovery beyond the permitted 7 hours.  Madam Justice Griffin granted the motion and in doing so made the following comments about the scope of permissible discovery questions under the new rules:

[6]             Rule 7-2(18)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules of Court] sets out the scope of examination as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, …

[7]             Despite a variety of substantive changes to the Rules of Court enacted effective July 1, 2010, the scope of examination for discovery has remained unchanged and is very broad….

[13]         While the scope of examination for discovery has not changed with the new Rules of Court brought into force on July 1, 2010, the length of examination for discovery is now limited to seven hours or any greater period to which the person to be examined consents: Rule 7-2(2).

[14]          The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery.  The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial.

[15]         While the time limit on examination for discovery creates an incentive on the examining party to be efficient, it unfortunately also creates a risk that counsel for the examinee will be inefficient by unduly objecting and interfering on the discovery, for the purpose of wasting the limited time available.  If that party is economically stronger than the examining party, it also can strategically increase the costs of litigation this way, by burdening the financially disadvantaged party with having to bring a court application to obtain a proper discovery.

[16]         The proper conduct of an examination for discovery within the spirit of the Rules thus relies on the professionalism of counsel for the party being examined.

[17]         As held by the Ontario Superior Court in Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), 83 O.R. (3d) 438 at para. 4:

Improper interference by counsel in the other party’s discovery undermines the purposes of discovery, prolongs it, fosters professional mistrust and generally offends the overall purpose of the Rules….

[18]         A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery. ..

[52] In summary, the majority of objections made were not valid. The objections were undue interference in the flow of the examination for discovery.  It may or may not be the case that some of the questions were worded awkwardly and may have been seeking evidence of marginal relevance.  The examining party who frames questions badly runs the risk that the evidence obtained will end up being of no value.  Nevertheless, considerable respect ought to be shown for the professional judgment of counsel for the examining party on how to best approach an examination for discovery.  It is not up to counsel for the party being examined to dictate the opposing side’s decisions on which relevant areas of questioning should be the focus of the discovery.  It is also not in accord with the object of proportionality to make it the function of the court to become involved in micro-managing examination for discovery questions.

In addition to the above this case is worth reviewing in full for the Court’s discussion of the many specific objections that were raised.  In particular, the Court held that it is permissible in lawsuits for denied insurance benefits to ask the insurer’s representative about their general practices.


Taking the Mystery Out of Examinations For Discovery

August 13th, 2010

As I previously discussed in the below video, examination for discovery is a process where the opposing side in a BC Supreme Court lawsuit can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s performance can play a key role in whether the case settles or proceeds to trial.

Most people have some anxiety and apprehension before discovery.  One reason for this is because the discovery process is unfamiliar and often Plaintiff’s don’t know what to expect.  The best way to ease this anxiety is to learn about the process ahead of time.  To that end I’ll let you in on a secret:  Most Defence lawyers in ICBC claims use a cheat sheet to guide their questions.  This cheat sheet is the Law Society of BC Practice Checklists Manual and the most up to date version was recently released by the BC Law Society.  You don’t need to be a lawyer to get a copy, it’s available free on-line and can be found here.

Most ICBC defence lawyers use this or a similar checklist to structure their questions.  More junior lawyers typically follow the script fairly closely while more experienced lawyers deviate frequently.  Whoever your opposing lawyer may be you can bet they will cover many of the topics highlighted on this checklist at your examination for discovery.

If you spend some time going over this form you will learn not only what types of areas will be covered at your discovery but also why these questions will be asked.  With this knowledge hopefully the discovery process will be a little less mysterious and less stressful.


Just Because You Have It Doesn't Mean You Should Use It – Trials and Discovery Evidence

July 2nd, 2010

As I’ve previously discussed, one of the main purposes of an examination for discovery is to ‘discover‘ evidence that can help your case or hurt your opponents.

After a discovery a lawyer can read relevant portions of the transcript in at trial and the evidence can have the same weight as if it was given live in Court.   However, just because you have evidence obtained from a discovery does not mean it should be used.

If you read evidence in that advances your opponents case (or that contradicts yours) the Court can rely on this to dismiss your lawsuit.  Reasons for judgement were released today by the BC Court of Appeal discussing this principle and some of its limits.

In today’s case (Duncan v. Mazurek) the Plaintiff, a pedestrian who was jay-walking, was struck by the Defendant’s vehicle.  At trial both the Plaintiff and the Defendant were found at fault.  The Defendant successfully appealed and a new trial was ordered.  Before reaching this verdict the BC High Court had the opportunity to discuss the weight of discovery evidence at trial.

During the trial the Plaintiff read in portions of the Defendant’s examination for discovery.  Some of the evidence apparently contradicted the evidence supportive of the Plaintiff’s case.  The Defendant argued that doing this  amounted to the Plaintiff adopting the Defendants evidence and leaving the trial judge with no choice but to accept it.  The BC Court of Appeal disagreed however provided the following caution about reading in unhelpful evidence from a discovery transcript:

[30] The defendant, relying on Chetwynd-Palmer v. Spinnakers, [1993] B.C.J. No. 95 (S.C.) and Tsatsos v. Johnson (1970), 74 W.W.R. 315, says that by reading in that discovery the plaintiff adopted and approbated his evidence, and the trial judge is not entitled to reject it and choose a different version more favourable to the plaintiff. I am not convinced those cases go that far. While the plaintiff may be at some risk in reading in such evidence as part of her case, where there is contradictory evidence it is my view that the trial judge must retain discretion to weigh it all in reaching his findings

Before you read in discovery evidence ask yourself if the evidence helps your case or hurts your opponents.  If the answer is no to both questions you should think twice before letting the evidence go before the Court.


More on Trials and Examinations For Discovery – Keeping Evidence Out For Lack of Relevance

April 9th, 2010

As I’ve previously written, evidence given by a party at examination for discovery can be damaging.  The opposing side can read in portions of the transcript to the trial judge in an effort to advance their case or hurt yours.

A limit on this is relevance.  If the proposed discovery questions and answers are not relevant (even if no objection to relevance was made at the examination for discovery) a trial judge can keep the evidence from going in.  Reasons for judgement were released yesterday by the BC Supreme Court, Victoria Registry, dealing with this practice point.

In yesterday’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.   At trial the Plaintiff’s lawyer attempted to read in portions of the examination for discovery evidence obtained in pre-trial investigations.  Mr. Justice Macaulay refused to let certain portions of the proposed evidence in on the basis that it was not relevant.  While the result reached in this case is very fact specific the Court provided the following useful summary of the law of relevance and discovery evidence:

[4] The subrule, as applicable here, reads:

(27)      (a)        If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27(4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against

(i)         the adverse party who was examined,

(ii)        the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27(4) to (12), or                      …

[5] A plain reading of Rule 40(27)(a) strongly suggests that the evidence an examining party seeks to read in must be admissible in the usual sense; that is, the evidence must be relevant and not subject to any exclusionary rule. Even if the evidence is admissible, the wording further suggests that the court has a residual discretion to exclude it. In my view, the latter requires me to consider whether admitting the evidence at this stage of the trial would result in unfairness…

[11] I must determine questions of relevance having regard to the issues framed in the pleadings. Throughout, I have applied the description of relevance that Cory J. set out in R. v. Arp, [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 at para. 38:

38        … To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Citation omitted.] As a consequence, there is no minimum probative value required for evidence to be relevant. [Citation omitted.]

As is well known, questions of relevance are largely determined by applying common sense and experience within the above framework.

[12] I also take into account the more recent statement of the Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 30:

[30]      Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38 …

As readers of this blog know the BC Supreme Court Rules are being overhauled effective July 1, 2010.   The Rule discussed in this post is reproduced in almost identical form and can be found at Rule 12-5(46) so this case ought to retain its value as a precedent moving forward.


Examinations For Discovery and Your BC Injury Claim – A Video Introduction

March 23rd, 2010

Here is a video I’ve uploaded to YouTube discussing examinations for discovery in BC Injury lawsuits:

An Examination for Discovery is a process where the opposing side can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s evidence can play a key role in whether the case settles or proceeds to trial.

In ICBC claims some of the usual topics that are covered are the circumstances of the accident, the injuries sustained, the expenses incurred, the course of recovery of the injuries, wage loss details and other the effects of the accident related injuries on lifestyle  (You can click here to read a more in depth article about what is covered at a Discovery).

I hope this introductory video and the linked articles take some of the mystery out of the process.


ICBC Injury Claims, Disclosure Requirements and Credibility

December 31st, 2009

Litigants in the BC Supreme Court have to make pre-trial disclosure in a variety of ways.  Some of this compelled disclosure may reflect poorly on a party’s credibility but if the documents or evidence is otherwise producible it must be disclosed to the other side despite the potentially harmful effects on your case.  What about documents or facts that don’t relate to the lawsuit directly but do address a parties credibility?  Can these documents be forced to be disclosed?

The answer is usually no.  Credibility, as important as it is, is considered a ‘collateral issue‘ in litigation and matters relating solely to credibility are deemed irrelevant in terms of pre-trial disclosure.  Reasons for judgement were released today by the BC Supreme Court discussing this.

In today’s case (Bay v. Pasieka) the Plaintiff was involved in a 2005 intersection car crash in Kelowna, BC.  The Plaintiff sued the alleged at fault motorist.   In the pre-trial discovery process the Defendant stated he had no recollection of the accident.  In exploring why the Defendant had no recollection the Plaintiff’s lawyer asked him whether he might have been taking any medication at the time of the crash which may have affected his memory to which he replied “I don’t know if I took medication that would affect my memory“.

The Plaintiff’s lawyer brought a motion for the production of the Defendant’s MSP history along with clinical records of treating physicians who cared for the Defendant in the relevant time frame to test “the creditility of the defendant” and to provide “some explanation for why he has no recollection of the accident“.

Master Young ultimately dismissed the motion holding that the evidence on the application was not sufficient for production of the sought records.  Before reaching this conclusion Master Young made some useful comments with respect to sought disclosure in ICBC Injury Claims relating solely to issues of credibility.  Specifically she held as follows:

Credibility is a collateral issue, as stated in the decision of Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78 (S.C.), and that decision says that it is not a matter which can be examinable in discovery. The defendant quotes from the decision in Roberts v. Singh, 2006 BCSC 906, which confirms that principle and quotes several other decisions which I have reviewed..These records are only being demanded to challenge his credibility, which is not a relevant issue.

There is caselaw that suggests that matters relating solely to credibility may be produced when punitive damages are being claimed (see for example Rioux v. Smith; 1983, 43 BCLR 392) but otherwise it is important to note that credibility is a ‘collateral issue‘ and not relevant for the purposes of pre-trial disclosure.


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!)


Examinations for Discovery and Your ICBC Claim

June 4th, 2008

If you are advancing an ICBC injury claim and started a court action in BC Supreme Court you may very well have to go through an ‘examination for discovery’. I have received numerous questions about the discovery process from people involved in ICBC claims through this website and thought I would summarize some of my comments in the below blog.

The usual summary I give when explaining what an examination for discovery (XFD) is to people who are not familiar with the term is to think about a ‘deposition’ as often depicted on TV legal dramas. In essence, a discovery is a pre-trial step in which the opposing lawyers get to ask a party to a lawsuit questions about the claim.

The rules of court governing the prosecution of civil (legal actions between two private citizens) claims requires disclosure of key facts and circumstances prior to a trial. In the context of ICBC claims, the discovery process permits the other lawyer to question a plaintiff about the accident and injuries, the effects of them on the plaintiff’s life and the financial losses that are being claimed.

Examinations for discovery are conducted under oath (or affirmation) and are conducted before a court reporter. This is not a formal process conducted before a judge, rather, it usually occurs in a business office owned and operated by private court reporters. The court reporter records the questions and answers.

There are 2 very broad purposes to examinations for discovery. The first is to learn all about the other side’s case. That is, to get the Plaintiff’s evidence first hand and in person regarding the accident and injuries. This helps the other lawyer weigh the credibility and reliability of the Plaintiff and to make an assessment of whether the Plaintiff will present well in court.

The second purpose is to damage the other sides case. A lawyer conducting a discovery has the right to use the questions and answers that he/she likes and to read these into the trial record should the claim proceed to court. For this reason it is essential that anybody advancing an ICBC claim is very well prepared prior to attending an examination for discovery. Any answer given that is harmful can and likely will be used by the other lawyer to harm the case should it proceed to trial.

For an example of how an answer at an examination for discovery can harm an ICBC claim just read the recent judgment of Yapyuco v. Paul, where Mr. Justice Curtis dismissed the Plaintiff’s claim in large part due to the answers given at her examination for discovery.

Preparation for discovery is a lengthy process and I can’t summarize all the useful advice as to how best to conduct oneself in a discovery in this short blog. I will, however, point out some of the typical things canvassed at discoveries of ICBC claims below.

Normally, a Plaintiff in an ICBC claim is questioned about the 14 below categories (I should point out that discoveries at ICBC claims are not limited to these categories, these are simply general categories of questions that often come up)

1. Your Personal History – such as name, age, date of birth, place of birth and family members details

2. Your Educational History – including all levels of education and academic accomplishments

3. Your work history including contact information for all employers

4. Your plans preceding the accident in terms of personal life and vocation

5. How these plans changed as a result of the accident

6. How the accident happened including details of speed, weather, lighting, distances and all injuries sustained in the accident

7. The course of treatment taken after the accident including the names of all doctors and therapists

8. Changes in lifestyle as a result of the accident including social, recrational , family, personal and employment changes. Addressing employment usually details of lost wages or wage earninng opportunities are canvassed as well.

9. Medical and personal status prior to the accident

10. Present condition and limitations

11. Present plans for employment and whether there are any restrictions on employment

12. Future plans for treatment

13. Details of activities that have been affected by the accident related injuries

14. The details of a typical day and what it is like to live with the injuries.

No 2 discoveries are alike and I stress again that the above is nether an exhastive list of the types of questions asked at discoveries involving ICBC claims nor are all of the above categories always covered at discoveries for ICBC claims.

Assuming you have hired a lawyer to assist you with your ICBC claim he/she will be present at the discovery and will object to any inappropriate questions posed by the other lawyer. If the discovery is conducted professionally by the ICBC lawyer the objections are usually few and far between. The lion’s share of work that an ICBC claims lawyer does is conducted prior to the discovery.

A good ICBC claims lawyer will ensure a client is well prepared, understands the process and understands how the answers given can be used to hurt the claim. ICBC cases are typically ‘record intensive’ and care must be taken in preparation to review these medical and other records to consider what use they may be put to at a discovery.

Do you have questions about an ICBC claim or an examination for discovery in a personal injury claim that you would like to discuss with an ICBC claims lawyer? If so, click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.