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 ‘Madam Justice Forth’

$85,000 Non-Pecuniary Assessment for Chronic Tinnitus

August 2nd, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic tinnitus caused by a motor vehicle collision.

In today’s case (Christensen v. Jand) the Plaintiff was involved in a 2013 collision.  The Defendant denied liability but was found 100% liable at trial.  THe crash caused soft tissue injuries that largely recovered and also tinnitus which had a poor prognosis for recovery.  In assessing non-pecuniary damages at $85,000 Madam Justice Forth provided the following reasons:

51]         Accordingly, I find, on a balance of probabilities, that as a result of the accident Mr. Christensen suffered soft tissue issues, which have largely resolved, except for some mild early morning stiffness, and tinnitus, for which he will continue to suffer on a permanent basis…

[65]         Mr. Christensen has suffered a permanent injury in the form of a ringing in his ears. There is a high unrelenting squeal in his right ear. This sound was reproduced by a computer and played during the trial. The sound was highly irritating and objectionable. Mr. Christensen testified that since the accident, he has been hearing the same sound. It is with him at all times and has impacted his personality, his outlook on life, his ability to sleep, his relationship with his children, and his occupation.

[66]         There is no treatment that can stop this noise. He has had to learn to accept it but thinks about it every day. This causes him anxiety.

[67]         He finds that loud noises bother him. He has become grumpier with his children.

[68]         In order to help him sleep, he drinks. He testified that he drinks two beers and a full glass of wine every night to help him sleep. He has concerns with this consumption since alcoholism has been an issue in his immediate family.

[69]         He is not a complainer and has returned to all of his past activities, except coaching soccer. There was approximately a four to six month period when he was not running. He has returned to running approximately the same distance as before.

[70]         He immediately returned to his scheduled work and has continued working.

[71]         His sister, oldest son, and his friend Darren Babey, testified to the change in his personality in that he was grumpier and less patient after the accident. His sister was most concerned in the initial two years, when she saw signs of depression, anger, and frustration. She testified to conversations during the initial two years when she had to “talk him off the ledge a little bit when he didn’t think he could beat this” and he once told her, “he’ll commit suicide with this”. Gradually her brother started to accept the “new norm”.

[72]         It is to Mr. Christensen’s credit that he has returned to work and his activities. He has continued to care for his sons as a single father. He has been able to learn to live with the constant noise and has adjusted to life with it.

[73]         I have reviewed the various cases provided, and in assessing the particular circumstances of Mr. Christensen, I am of the view that the appropriate award for non-pecuniary damage is $85,000.


“Marginal Difference” Between Trial Result and ICBC Settlement Offer Results in Full Costs to Plaintiff

May 2nd, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff full trial costs after the Plaintiff failed to beat an ICBC settlement offer by a “marginal difference“.

In today’s case (Goguen v. Maddalena) the Plaintiff was injured in a collision the Defendant accepted fault for.  The Plaintiff proceeded to trial where he was awarded total damages of $174,360.84.

Prior to trial ICBC made a formal offer to settle for $175,000.  The Defendant argued that the Plaintiff should be deprived of some of his post offer costs for failing to beat the settlement attempt.  In finding that a “marginal difference” does not warrant such an outcome Madam Justice Forth provided the following reasons:

[39]         The plaintiff submits that the Defendant’s Offer was greater than the judgment amount by only $639.16, or approximately 0.5%. He argues that this marginal difference should afford little weight. In support, the plaintiff cites Saopaseuth v. Phavongkham, 2015 BCSC 45 at para. 74, in which Bernard J. noted that an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

[40]         The defendant submits that the Defendant’s Offer was only with respect to the plaintiff’s tort claim and that acceptance of the offer would have allowed the plaintiff to collect Part 7 ICBC benefits. Therefore, the Defendant’s Offer exceeds the trial award by a larger margin that what appears on its face.

[41]         The plaintiff, in reply, submits that he understood that any settlement offers made by the defendant were full settlements of both the tort claim and Part 7 claims against ICBC, and that at no time did defence counsel convey that Part 7 benefits would still be available in the event that the Defendant’s Offer was accepted.

[42]         With respect to Part 7 benefits, I note the first page of the Defendant’s Offer reads in part:

The Settlement Payment:

(a)     is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);

[43]         Neither counsel have provided submissions on the implications of this settlement term or the quantum of Part 7 benefits that would have likely been available to the plaintiff. As a result, it would be speculative of me to attach significant weight to the submissions on these points.

[44]         Considering the marginal difference between the Defendant’s Offer and the ultimate award, this factor is of little significance in my determination…

[52]         Taken together, the factors pursuant to subrule 9-1(6) weigh in favor of the plaintiff. As a result, I exercise my discretion to award the plaintiff costs pursuant to R 9-1(5)(c). The plaintiff is entitled to his costs at Scale B.


$135,000 Non-Pecuniary Damages for Chronic, Partly Disabling Soft Tissue Injuries

December 11th, 2017

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries caused in a motor vehicle collision.

In today’s case (Slater v. Gorden) the Plaintiff was involved in a 2014 rear-end collision.  The Defendant accepted fault.  The crash caused various soft tissue injuries which turned into a chronic problem.  The Plaintiff’s injuries disabled her from her general duties as a police officer and limited her to administrative work.  In assessing non-pecuniary damages at $135,000 Madam Justice Forth provided the following reasons:

[84]         As stated earlier, Ms. Slater suffered soft tissue injuries to her neck, left shoulder, lower back and left hip area. She continues to suffer from daily pain and stiffness primarily in her low back and left hip area.

[85]         Ms. Slater presented as someone who likes to be in control, and it appears that the ongoing symptoms and their lack of resolution have been particularly difficult for her to adjust to. She testified as to the impact that the accident has had on her life, in that she feels she has lost everything that she worked “super hard” to achieve: her career, her personal life, and her physical well-being.

[86]         With respect to her career, she has lost the ability to perform the type of police work that provided her the greatest enjoyment, that is, general duty police work out on the road. The accident has caused a significant change to Ms. Slater’s ability to undertake general police duties. She has not been medically cleared to work, and the medical opinion supports that Ms. Slater currently cannot return to general police duty. Further, it appears unlikely that she will be able to do so in the future. She has been able to remain an RCMP officer but on administrative duties only.

[87]         She is concerned that she will not have the same opportunity for advancement. She does not find her job in the Serious Crime Unit as enjoyable as her previous role, and she finds it more depressing and mentally draining as she has to deal with serious files for extended periods. Her current role mainly involves computer work in the office, which she finds far less stimulating than the general duty work.

[88]         Ms. Slater has become more withdrawn from her work colleagues, family and friends; her relationship with her common-law husband has ended; and she has not been able to participate in her children’s activities to the same extent. Her sleep is affected and she frequently wakes up at night.

[92]         I have reviewed the various cases provided, and in assessing the particular circumstances of Ms. Slater, I am of the view that the appropriate award for non-pecuniary damages is $135,000.