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 Gropper’

ICBC’s Inconsistent Pleadings Following a Collision “Reprehensible”

July 26th, 2017

Reasons for judgement were published this week by the BC Supreme Court, Vernon Registry, finding that ICBC taking inconsistent positions in lawsuits for fault after a collision is ‘reprehensible’ and awarded special costs as a deterrent.

In the recent case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.

Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.

This week the Court went further and ordered special costs.  In findings this appropriate Madam Justice Gropper provided the following reasons:

[42]         I found that the inconsistent pleading by the defendant was an abuse of process because the principles such as judicial economy, consistency, finality and the integrity of the administration of justice were violated. The court cannot condone such conduct.

[43]         Abuse of process can be a basis for special costs. I find that in this case, the conduct of the defendant is of the type from which the court wants to disassociate itself, referring to Fullerton.

[44]         The defendant’s arguments about the merits of its position on the application and that special costs should only be for the application only, in my view, address the circumstances too narrowly. The plaintiff only discovered the inconsistent pleadings days as the jury trial was about to proceed; it was scheduled for 12 days; the jury panel had been summonsed; witnesses were on their way to or in Vernon to give evidence; expert witnesses were also arranged to be examined by video or in person; and the defendant’s counsel had threatened to apply for a mistrial if the inconsistent pleadings were raised before the trial judge or the jury. The application was made while the jury trial was underway. 

[45]         The repercussions of the abuse of process were wide spread and of significant expense to the plaintiff, who had marshalled all of her evidence. The defendant’s narrow approach fails to recognize that his conduct was not confined to the hearing of the application only; it went well beyond that.

[46]         Referring to the principles distilled in Westsea, I am satisfied that in awarding special costs in these unique circumstances meets the test of restraint but addresses the full impact of the defendant’s conduct; there are exceptional circumstances that justify such an order; the inconsistent positions on liability as between this action and the Yeomans’ action is reprehensible in and of itself, and amounts to an abuse of process; and the award of special costs in this action cannot be characterized as a “bonus” or further compensation for the plaintiff’s success on the application. 

[47]         The plaintiff is entitled to special costs arising from my finding that the conduct of the defendant was an abuse of process, including the costs of preparation and attendance at trial, as well as special cost of this application. The assessment of special costs is postponed until the defendant has exhausted all avenues of appeal.


Lack of Timely Notice Derails ICBC Unidentified Motorist Lawsuit

February 14th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a wrongful death allegation seeking damages from ICBC on behalf of an unidentified motorist.

In today’s case (Parmar Estate v. British Columbia) the Plaintiff estate sued numerous defendants alleging they were at fault for a fatal collision.  ICBC was named as a nominal defendant on the allegation that an unidentified motorist was responsible for the collision.  ICBC succeeded in having the claim against them dismissed for failure of the Plaintiff giving them notice of the allegation within 6 months of the collision.  In dismissing the claim against ICBC Madam Justice Gropper provided the following reasons:

[15]         I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.

[16]         Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.

[17]         The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.

[18]         I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.


Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

September 1st, 2016

Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.

In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.

Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:

[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.


“Customer Safety” Based Incident Report Ordered Disclosed as Non Privileged

August 28th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Defendant in a personal injury lawsuit to disclose an incident report created following the incident at question.

In today’s case (Smith v. Air Canada) the Plaintiff “was in her seat when a bag allegedly fell on her after a fellow passenger failed to store it securely in the overhead compartment.“.  She sued Air Canada alleging negligence.  Following the incident Air Canada created an “incident report” but refused to provide the Plaintiff with a copy of this document alleging it was created for the dominant purpose of litigation.  Madam Justice Gropper disagreed finding it was instead created primarily with customer safety in mind and ordered it disclosed. In reaching this conclusion the Court provided the following reasons:

[24]         As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.

[25]         As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.

[26]         Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.

[27]         As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master’s view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.

[28]         Having reached that conclusion, it was not necessary for Master Baker to consider the dominant purpose test. He did not conflate the two-part test as Air Canada suggests. Air Canada did not clear the first hurdle.

 


$75,000 Non-Pecuniary Assessment for Low Back Disc Protrusions With Chronic Symptoms

July 10th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury caused as a result of a motor vehicle collision.

In this week’s case (Roy v. Storvick) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault “just before the trial commenced“.  The Plaintiff, a 27 year old carpenter at the time of the crash, suffered various injuries the most serious of which involved disc injuries in his low back.  He was expected to have long term issues associated with these affecting his vocational abilities.  In assessing non-pecuniary damages at $75,000 Madam Justice Gropper made the following findings and provided the following reasons:

[50]         With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:

As a direct result of [this motor vehicle accident], this 30-year-old carpenter sustained myofascial injuries to his cervical spine and a severe injury to his lumbar region where both clinically and radiologically he has evidence of lower lumbar disc protrusions principally at the L3/L4 level where there was an associated annular tear and also at the L4/L5 level where there was a moderate midline focal disc protrusion.

[51]         Dr. Murray says that lumbar disc protrusions usually run a protracted course of recovery: a three year duration is not unusual. He expects that Mr. Roy will eventually become pain free.

[52]         In regard to Mr. Roy’s tear of the annulus fibrosus at the L3/L4 level, it can never heal as it does not have a blood supply. Dr. Murray considers that Mr. Roy will always be at risk for further episodes of lumbar disc protrusion pain. Dr. Murray continues:

… he will not be able to continue with his career as a carpenter and will need to be retrained for a less physically demanding alternate occupation. It may be difficult to find such an occupation for this man as he is very much “the sporting type”, who prior to the [motor vehicle accident] three years ago attended the gym six times a week and also played soccer twice a week….

[105]     At the time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work as a carpenter and participated regularly and enthusiastically in many sporting activities. While he is able to continue his employment, the remaining aspects of his physical activities have come to an end. In reconciling the prognosis of Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited opportunity to observe Mr. Roy. He was also apparently unclear on the degree to which Mr. Roy was engaging in exercise.

[106]     I further note that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a kinesiologist, who put him through testing and concluded that Mr. Roy’s functioning is compromised and that he will likely have increased rather than reduced pain.

[107]     I find that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy suffered a severe injury to his lumbar spine and a moderate to severe injury to his cervical spine is accurate. While Dr. Murray suggests that there may be some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing pain and discomfort….

[109]     Having reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary damages at $75,000.


Defence Psychiatrist Rejected for Basing Opinion on "Facts That Are Wrong"

May 8th, 2013

In my continued effort to highlight judicial scrutiny of expert witnesses, reason for judgement were released last week by the BC Supreme Court, Kamloops Registry, rejecting an expert psychiatric opinion.

In last week’s case (Moritz v. Schmitz) the Plaintiff was injured in a 2007 collision.  She was 17 years old at the tine and “was a healthy teenager“.  The collision caused chronic soft tissue injuries along with a worsening of pre-existing psychological difficulties.  The Court awarded $80,000 for the Plaintiff’s non-pecuniary damages.

In the course of trial the Defendant called a psychiatrist who provided an opinion that the collision was not the cause of the Plaintiff’s aggravated pscyhological difficulties.  In rejecting this opinion Madam Justice Gropper provided the following critical comments:

[70]         Dr. Solomons goes on to suggest that, in his opinion, it is “most likely that the course of her psychiatric difficulties after the accident was related to stressors unrelated to the accident”, referring to matters that occurred prior to the motor vehicle accident. He then concludes that the plaintiff would have experienced the same symptoms even if the accident had not occurred. Again, Dr. Solomons does not provide a foundation for his opinion that the problems Ms. Mortiz faced before the accident are of greater significance than those she faced because of the accident. He was aware that the plaintiff suffered from physical injuries but he does not turn his mind to whether those injuries may have affected her psychiatric functioning.

[71]         Dr. Solomons does not explain his emphasis on pre-accident events. This same observation in respect of Dr. Solomon’s emphasis on pre-accident events was made by Mr. Justice Willcock in Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at para 135:

Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident.

[72]         I also note that Dr. Solomons’ final paragraph under the “Opinion” section of his report is based on “facts” that are wrong. He says Ms. Moritz was “psychiatrically disabled before the accident and was not working at the time of the accident.” He fails to note that she was 17 years old and in grade 12 at the time of the accident. She was not psychiatrically disabled from working. He says that “[s]he had no psychiatric requirement for time off work as a result of the accident since she was already on long term psychiatric disability … .” Again, she was not off work because of her psychiatric disability before the accident; nor was she on long-term psychiatric disability. In all of the circumstances, I am unable to accept Dr. Solomons’ opinion.


$80,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Thoracic Outlet Syndrome

November 1st, 2012

Adding this this site’s archived cases addressing non-pecuniary damages for thoracic outlet syndrome, reasons for judgement were released last month addressing such an injury.

In last month’s case (Rollheiser v. Rollheiser) the Plaintiff was injured in a 2008 collision.  She suffered from long-standing Thoracic Outlet Syndrome.  The crash caused an aggravation of this condition with the Court accepting the following medical evidence:

[24]         Dr. Flaschner, a specialist in physical medicine and rehabilitation, also provided a report, dated February 2, 2012. Dr. Flaschner initially saw Ms. Rollheiser on December 2, 2009. His diagnosis included exacerbation of pre-existing TOS and musculoligamentous injuries to the cervical and thoracic spine. He states:

Ms. Rollheiser has subsequently been seen on numerous occasions for symptomatic management. She has undergone various trials of medications, local anesthetic trigger point injections botulinum toxin injections and has also been receiving regular IMS therapy from her physical therapist. Her pain has evolved as well and the current diagnoses secondary to the motor vehicle collision would include:

1.   Thoracic outlet syndrome, exacerbation of pre-existing injury.

2.   Cervical WAD II injury with chronic regional myofascial pain syndrome.

3.   Thoracic musculoligamentous injury with chronic regional myofascial pain syndrome.

[25]         Dr. Flaschner considers that Ms. Rollheiser’s symptoms will continue indefinitely.

[26]         Dr. Flaschner’s report continues:

Further symptomatic management options for the chronic regional myofascial pain syndrome would include regular physical activity from a cardiovascular perspective as well as stretching and strengthening of the painful musculature, ensuring adequate restorative sleep, various manual therapies, medications as well as needle based therapies including acupuncture, IMS, local anesthetic  trigger point injections, botulinum toxin injections or potentially fluoroscopically guided facet based procedures. It should be noted that the treatments will be expected to provide some temporary relief and would not be expected to be curative.

In assessing non-pecuniary damages at $80,000 Madam Justice Gropper provided the following reasons:

[35]         In sum, Ms. Rollheiser’s injuries have reduced her enjoyment of life. There has been impairment of family, marital and social relationships as well as physical abilities.

[36]         As noted, the case authorities provide guidance only; no two cases are exactly alike.

[37]         I agree with the defendant that not all of Ms. Rollheiser’s symptoms are attributable to the accident. It appears that some of the plaintiff’s limitations are due to the rotator cuff as opposed to injuries from the accident.

[38]         Of the authorities provided, I find Kaleta v. MacDougall, 2011 BCSC 1259 (Kaleta) to be most instructive. Justice Truscott awarded a 28 year-old male plaintiff non-pecuniary damages of $80,000 for soft tissue injuries to the knee, back, arm, shoulder and neck. Like Ms. Rollheiser, Mr. Kaleta only missed a brief period from work, although he found it to be more difficult to resume work upon his return. Again, like Ms. Rollheiser, his moderate ongoing pain was probably chronic.

[39]         Accordingly, I assess Ms. Rollheiser’s non-pecuniary damages at $80,000.


Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

August 17th, 2012

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, addressing costs consequences following a trial where a Plaintiff bested his formal settlement offer.

In the recent case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured after a RCMP officer ran a red light resulting in a collision.  The officer was found negligent at trial and damages of just over $330,000 were assessed.

Prior to trial the Plaintiff provided a formal settlement offer of $175,000.  The Plaintiff sought double costs for besting the offer.  In finding it appropriate to award double costs Madam Justice Gropper provided the following reasons:

Consideration of the factors

Was the offer one that ought reasonably to have been accepted?

[6] At the time the offer was made, the parties were approximately two weeks to trial. They had exchanged all the documents, the examinations for discoveries were complete and all the medical reports were exchanged.

[7] The defendants’ response is that the case reflected complex causation issues involving indivisible injuries.

[8] I consider this factor to favour the plaintiff’s position. While causation was a significant issue, it was addressed by the plaintiff’s physicians in their medical legal reports. The defendants did not tender any medical legal reports. The defendants had the plaintiff’s medical legal reports at the time the offer was made and was therefore in a position to evaluate the offer in spite of its consistent position in respect of causation.

Relationship of Offer and Judgment

[9] The plaintiff asserts that the offer of November 15, 2011 contained a meaningful element of compromise. He also argues that the assessment of damages significantly exceeded the compromise of settlement which the plaintiff offered two weeks before the trial. The defendants state no position in respect of this factor. This factor supports the plaintiff’s position.

Relative financial circumstances

[10] This factor is self evident: the plaintiff is an individual and the defendants have significant resources available. This factor supports the plaintiff’s position.

Other factors

[11] The plaintiff raises the defendants’ contact, particularly in regard to the question of liability.

[12] While I have found that the defendants were entirely liable for the accident, I do not consider that this constitutes a basis for awarding double costs to the plaintiff.

[13] Based upon the application of the factors referred to in Rule 9-1(6), I find that the plaintiff is entitled to his costs at Scale B up to November 14, 2011, and double costs thereafter. The plaintiff is entitled to his assessable disbursements. The double costs rule does not apply to disbursements.


"Persistence in Bringing Vexatious Litigation Has Significant Consequences"

April 18th, 2012

One myth I like to dispel is the idea that there are too many frivilous lawsuits in Court or that the system is not equipped to deal with such claims when they do arise.

Special interest groups push stories of ‘lawsuit abuse’ arguing that change is necessary.  The truth, however, is that frivolous lawsuits can and do get weeded out of Court.  As previously discussed, BC Courts have very effective tools for eliminating bad lawsuits the most powerful of which is a “vexatious litigant” order.

In short a vexatious litigant order can strip a person of their right to sue without first getting judicial approval.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making such an order. The reasons are here and are worth reviewing in full to gain insight into the consequences of such an order and the circumstances when one could be made.


$80,000 Non-Pecuniary Damage Assessment For Aggravation of Pre-Existing Back Pain; Indivisible Injuries Discussed

April 11th, 2012

Reasons for judgement were released last week assessing damages for a permanent aggravation of pre-existing back and neck injuries as a result of a collision.

In last week’s case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2009 collision.  His vehicle was struck by an RCMP cruiser that ran a red light.  The Defendant motorist claimed the crash happened due to faulty brakes but the Court rejected this suggestion and found the officer fully at fault.

The Plaintiff suffered from various pre-existing injuries including chronic back pain.  Despite this he was able to work.  Following the 2009 collision his injuries were aggravated and disabled the Plaintiff from his occupation as a truck driver.  The Plaintiff’s disability was expected to continue.   In assessing non-pecuniary damages at $80,000 Madam Justice Gropper made the following findings:

[91] The evidence supports, and I have found, that Mr. Del Giglio suffered a re-aggravation of his neck and lower back pain in the January 2009 accident. He has reached a plateau in his recovery. He has not returned to his baseline level of activity which he enjoyed before the accident. He has not returned to his pre-accident level of pain. Though initially optimistic, Mr. Del Giglio’s physicians are all of the view that his prognosis is “guarded at best.”

[92] Mr. Del Giglio has suffered pain and loss of enjoyment of his life. The injuries have had a serve impact. I accept that Mr. Del Giglio’s pain has been distressful and have affected his emotional state. Despite Dr. Monk’s not having diagnosed depression, Dr. Purtzki did find such symptoms, which are anticipatable, given the reduction in the activities, including the ability to work, which Mr. Del Giglio has experienced.

[93] On the other hand, Mr. Del Giglio has been able to maintain his musical career, a vocation that he clearly thrives upon. That is a factor which I will take into account.

[94] A further factor is that Mr. Del Giglio is aging and some deterioration in his cervical spine is, in Dr. McKenzie’s words, “not uncommon.”  I accept that he would have had some increased pain at some point, but the accident accelerated the onset…

[97] Having reviewed the cases provided, I conclude a fair and reasonable award for non-pecuniary damages is $80,000.

In addition to the above this case is worth reviewing for the Court’s discussion of indivisible injuries at paragraphs 73-86 of the reasons for judgement and the arguments of defence regarding the effects of a release for a previous collision contributing to an indivisible injury.