ICBC Law

Blogging from Kelowna again (and a lot less rainy here than Victoria when I left this am)…

Reasons for judgement were released today awarding a Plaintiff just over $43,000 in damages as a result of a 2005 BC motor vehicle accident.

For the purpose of researching non-pecuniary damages, the key findings of fact were made starting at paragraph 132 of the judgement which I reproduce below. Of particular interest is the judge’s 25% reduction of non-pecuniary damages for the Plaintiff’s ‘failure to mitigate’ set out at paragraph 134:

[132] I conclude that the plaintiff suffered a mild to moderate soft tissue injury the symptoms of which were exacerbated by his very heavy work duties, his financial worries, and the poor health of his wife and daughter. The combination resulted in a lack of motivation to adequately do the exercises and instead, a reliance on medications, which his wife supplied. On the evidence before me, I find that the injuries to his neck and upper back had more or less resolved within ten to twelve months after the accident with occasional flare-ups. It is probable that even with appropriate exercising, these symptoms would have persisted that long because he was obliged to return to work too early.

[133] There has been a substantial impact on his enjoyment of life and I am satisfied that he is not able to participate in family activities as much as he could before, including doing the Grouse Grind and fishing with his daughter. His ability to perform previously done housework has also been affected, although I am not satisfied on the evidence of the extent of gardening/lawn mowing help required. The daughter’s boyfriend could have been called as a witness and the failure to do so or explain his absence rightly allows the defence to suggest that I should draw an adverse inference, and I do so. Nevertheless, I accept that the plaintiff is not as able to bend or stoop to paint or do repairs to the house and his car. Further, in part because of his pain, his marital relations with his wife have been affected.

[134] Taking all that into consideration I find that the appropriate compensation for his non-pecuniary loss is $40,000, but this amount must be reduced because of what I find has been a significant failure on his part to mitigate his injuries. He has failed to abide by the doctors’ and physiotherapist’s advice to engage in an appropriate exercise program. Although he said that he could not afford the program, he admitted that he had not even taken any steps to enquire as to the cost. Further, the plaintiff has not diligently performed the exercises that can be done at home and stops at the first sign of pain. He relied and relies too heavily on painkillers when, in the opinion of the medical experts, he should be properly exercising. The defendants are not obliged to compensate a plaintiff who fails to take proper steps to reduce the extent of the loss. Accordingly, I would reduce the non-pecuniary damages as well as some other heads of damages by 25% to reflect this failure and set them at $30,000.

Do you have questions about this case or ICBC claim involving soft tissue injuries that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

Reasons for judgement were released today awarding an ‘ideal Plaintiff’ just over $100,000 in total damages as a result of a 2006 BC Car Crash which occurred near Kelowna, BC.

Both fault and quantum (value of the injuries) were at issue at trial. The collision happened when the Plaintiff’s vehicle, which was stationary, was hit by the Defendant’s tractor trailer unit. The evidence that was accepted was that the tractor trailer, while passing the stationary vehicle, jackknifed to its right. The collision was significant causing about $12,000 in vehicle damage.

The Defendant gave a different version of what happened saying that the Plaintiff vehicle ’suddenly and without warning turning into his vehicle’. This was rejected.

This case is worth reviewing for Mr. Justice Josephson’s findings of credibility. In rejecting the defendant’s evidence he noted that the defence theory ‘is contrary to locig and common sense‘ and that the defendant’s testimony was ‘impatient, dogmatic and almost haughty‘.

As is often the case in ICBC claims the court heard from competing medical expert who disagreed as to the extent of the injuries sustained. Here the court preferred the evidence of the Plaintiff’s expert, a highly regarded rheumatologist who is no stranger to severe soft tissue injuries.

The court accepted the Plaintiff’s doctors evidence of injury which is summarized at paragraph 23 of the judgement reading as follows:

[23] She diagnosed the problem as being with the sacroiliac joint, a joint located between the tail bone and the hip. Ligaments cross over the sacroiliac and can be stretched in a motor vehicle accident, particularly if a foot is pressed on a brake pedal at the time, which can cause the symptoms of pain experienced by the plaintiff. While not certain, Dr. Shuckett was of the opinion that the plaintiff’s hyper-mobility may have exacerbated the injury. This type of injury is difficult to treat when, as in this case, recovery has not occurred. Medicines are not effective as the sacroiliac area does not have a rich blood supply.

In explaining why he preferred Dr. Shuckett’s evidence to the defence doctor’s evidence the court noted that:

[25] I do not place great weight on the evidence of Dr. Schwiegel, a neurosurgeon retained by the defence for an independent medical examination. Dr. Schwiegel does not possess the same degree of expertise as does Dr. Shuckett in this type of injury. He did not diagnose the involvement of the sacroiliac joint in the symptoms, though now agrees that may be the case. Put simply, I prefer the expert opinion evidence of Dr. Shuckett where it conflicts with that of Dr. Schwiegel.

The court found that the effects of these injuries were significant, summarizing them as follows:

[26] In summary, as a result of these soft tissue injuries, the plaintiff has gone from a gifted and active athlete to a person unable to engage in sports and other activities that were a large and important part of her life. It has affected her personal relationships. For example, family and friends now see her retreat to the sofa in pain after a family dinner. Only her strong will and determination has led to some improvement in her symptoms with aggressive physiotherapy. Her future remains “uncertain”. After the expiration of this much time and effort with only modest improvement, it may well be that significant symptoms will continue in the foreseeable future.

$48,500 was awarded for pain and suffering.

Also of interest is the judges awards for past and future wage loss. Here the Plaintiff was a commisioned sales person whose past income loss could not be caluclaed with real precision. Nonetheless compelling evidence was awarded that a loss occurred and an award was made. Simialry, it was found that the injuries may have an impact on future earnings and an award was made for loss of earning capacity.

In making an award for loss of earning capacity the court noted that:

[40] In this case, the plaintiff’s ability to perform at the high level she would have been performing but for the accident will be compromised by her injuries to some degree, though that degree is difficult to measure. Her determination and outstanding personal qualities will diminish that loss. Regular weekly appointments and daily multiple sessions of recommended exercises diminish her ability to perform to the same high level that she would have been able to perform but for the accident.

[41] Her physical limitations, as well, render her less marketable to potential employers in future. Employment requiring even temporary physical stress will not be available to her.

[42] The period of time that the plaintiff will be so affected is also difficult to measure. The best medical evidence is that her future is “uncertain”. That there has been so little improvement over the long period of time since the accident leads to the conclusion that recovery will more likely be long term than short.

[43] The plaintiff seeks a not unreasonable $20,000 for loss of earning capacity. I award the plaintiff $18,000.

Do you have questions about this case or an chronic soft tissue ICBC claim that wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

I’m still in (not so sunny today) Kelowna (currently on break during an icbc claim examination for discovery), so bear with me as this blog entry is a little lighter on detail than I would like.

As most ICBC injury claims lawyers know these claims can go on for years, particularly when dealing with severe injuries.

During these years you go on living life as normally as possible. You go to work, school, play sports, socialize with friends, go on holidays etc. Like most people, you probably take photos of your activities from time to time. Did you know that ICBC can sometimes get their hands on these?

Reasons for judgement were released today forcing a Plaintiff involved in a BC injury claim to produce to the Defendant any photos of him on vacation after the accident. These applicaitons are routinely made by ICBC defence lawyers and are sometimes successful.

Here the court did a great job in referring to sevaral precedents where courts have either ordered, or refused to order, the production of holiday photos of a party to a lawsuit. These cases are worth reviewing when deciding how to respond to an ICBC request that private photos be shared with them in their efforts to defend against an injury claim.

The court concluded that:

12] Here counsel on behalf of the plaintiff points out there should be evidence of the existence of photographs and then if it is established that photographs exist, that they be shown to be relevant. He also raises the issue of others being in photographs and those other people having privacy rights.

[13] I am satisfied here that the fact of the plaintiff having been on vacation is such that one can presume there are some photographs having been taken, whether by the plaintiff or by others, and of course if the plaintiff is not in the possession or control of photographs taken then nothing need be produced by the plaintiff.

[14] It is my understanding there is a discovery scheduled for the 12th of August of this year, and although the trial is not set until the 23rd of March, ‘09, I am satisfied it is not a sufficient stretch, if you will, to require there to be proof of holiday or vacation photographs prior to ordering that they be produced.

[15] So far as the privacy issues relating to others is concerned, the only interest the defendant has is in the activities of the plaintiff. The plaintiff claims damages for loss of enjoyment of life and injury to portions of the plaintiff’s anatomy as were injured in a 1998 workplace injury. There is a significant likelihood of probative value in vacation photographs, the vacation having been taken at a time when he states he was disabled from carrying on his normal work duties. Apparently the holiday in the Dominican Republic was some time between the 15th of December and the 13th of January and took place after the 6 November motor vehicle accident.

[16] So I am satisfied that there should an order go that vacation photographs taken during that time frame of the vacation to the Dominican Republic be produced, but that it be at the option of the plaintiff to delete the facial features of any persons other than himself in the photographs.

One thing all of you should know is this - If you take photos and publish them on the internet (myspace, facebook etc.) these become public and ICBC can verly likely get access to these. As an ICBC claims lawyer I have seen many instances of ICBC tracking down such photos and using these in the defence of personal injury claims.

What is more troubling is when ICBC tries to get access to clealry private photos. Cases such as this one are worth reviewing for anyone concerned about personal privacy and their ICBC claim.

Do you have questions about this case or your privacy rights and ICBC claims that you wish to discuss with a BC personal injury lawyer? If so click here to arrange a free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)