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 Murray’

Lawsuit Against Expert Witness Dismissed on Grounds of Witness Immunity

January 2nd, 2019

In British Columbia expert witnesses in litigation are granted a broad immunity in cases where they are alleged to be negligent or otherwise provide less than adequate services when testifying.  Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, applying this principle in dismissing a lawsuit against an expert witness.

In today’s case (Owimar v. Warnett) the Plaintiff was involved in several collisions and sued for damages.  In the course of the lawsuits the Defendants retained a physician who “examined the plaintiff three times, provided five medical reports from 2003 to 2013 and testified in court“.

The Plaintiff sued the Doctor and the defence counsel that retained him alleging “various kinds of fraud and negligence in their respective capacities as defence counsel and expert witness and claims that they substituted his lumbar spine x-ray taken in November 1996 with an x-ray that would disprove his claims of being injured in the MVAs.“.

The lawsuits were dismissed for various grounds with the Court noting that “the allegations advanced by the plaintiff are nothing more than wild speculation.“.  Additionally, one of the reasons dismissing the claim against the expert witness was the principle of witness immunity.  In triggering and applying this doctrine Madam Justice Murray provided the following comments:

[34]         With regard to Dr. McGraw I am satisfied that the doctrine of witness immunity applies. Under that doctrine witnesses are immune from civil liability. In addition as for expert witnesses the doctrine applies to anything they say in court as well as pre-trial activities including assessments and reports: P.(J.) v. Eirikson, 2015 BCSC 847 at paras. 21 and 25.

[35]         Our Court of Appeal recently confirmed that a professional witness who gives evidence in court is protected from civil action in 311165 BC Ltd v. Canada (A.G.), 2017 BCCA 196:

[50] It must be kept in mind that the immunities from suit that prevent claims based on evidence given in court and on bringing litigation are broad in order to protect the justice system. Witnesses should not be dissuaded from giving evidence or fettered in what they tell a court by the fear that an aggrieved person will sue them. Prosecutorial decisions must be allowed to be made in an atmosphere that is free from the chilling effects of potential civil liability. Access to the courts must not be impeded by leaving litigants in fear of being open to lawsuits brought in retaliation.

[36]         As a result of the witness immunity defence I am satisfied that the plaintiff’s allegations against Dr. McGraw will fail. Accordingly there is no genuine issue to be tried and the claim must be dismissed under Rule 9-6(5)(a).

[37]         In conclusion, having considered all of the evidence and all of the submissions I am satisfied that the action against the defendants must be dismissed as it offends Rule 9-5(1). In the alternative I am satisfied for the reasons above that the action against the defendants must be dismissed under Rule 9-6.


$80,000 Non-Pecuniary Assessment for Chronic and Disabling Soft Tissue Injuries

February 23rd, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and partly disabling injuries caused in a collision.

In today’s case (Senger v. Graham) the Plaintiff was involved in a 2014 collision.  The Defendant accepted fault.  The crash caused chronic soft tissue injury which disabled the Plaintiff from her chosen profession as a dental hygienist.  In assessing non-pecuniary damages at $80,000 Madam Justice Murray provided the following reasons:

[43]        Taking into account all of the evidence I find the following:

               i.                  The injuries suffered in the accident have interfered with Ms. Senger’s schooling, work, household and recreational activities and will continue to do so;

              ii.                  She is limited in her capacity to work as a dental hygienist and will not be able to sustain a career in that field;

             iii.                  Ms. Senger will likely never be able to work full-time;

            iv.                  Her injuries will continue to plague her for the rest of her life. It is unlikely that she will ever be pain free;

              v.                  She has reached her maximum rehabilitation;

            vi.                  Ms. Senger will always require assistance with housekeeping and yard work; and

           vii.                  She will never be able to engage in many of the activities she previously enjoyed.

[49]        Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.