ICBC Law

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.

In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).

The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”

Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

On Friday the  BC Supreme Court released reasons for judgement in 2 cases dealing with soft tissue injuries which I summarize below to continue to grow this free database of ICBC Injury Claims Judgements. Additionally, both of these cases contain a useful analysis of Plaintiff credibiilty and are worth reviewing for anyone interested in this area of the law.

In the first case, Skusek v. Gill, the Plaintiff was injured in 2 BC car crashes, the first in 2000 and the second in 2006.  Liability was admitted in both cases leaving the court to deal with quantum of damages (the value of the plaintiffs injuries and losses).

The Plaintiff was 22 years old by the time of trial.  She suffered various soft tissue injuries in both collisions which did not fully resolve.  Mr. Justice McEwan of the BC Supreme Court largely accepted the evidence of Dr. Ames who summarized the Plaintiff’s injuries as follows:

[20] The plaintiff saw Dr. Janet Ames on August 22, 2007.  Dr. Ames took a history which suggested significant ongoing pain from the first accident which was seriously aggravated by the second:

After the first accident on January 12, 2000 the symptoms included headaches, neck pain, lower back pain, pain between the shoulder blades and bilateral hip pain.  She commented her entire back hurts.  At the time of the second accident she was still going for chiropractor treatment and physiotherapy.  The patient would place her recovery at about 50 percent before the second accident.

After the second accident the patient describes becoming a lot worse in all of the previously symptomatic areas and specifically the right hip became worse.  There were bruises from the seat belt.  The left anterior ribs felt “out of place” (later resolved with chiropractor care).

[21] She note the following symptoms on her examination:

1. There is pain across the low back, left greater the right.  The pain does not consistently radiate down the legs.  There is occasional pain down both anterior thighs not going past mid thigh.  There is no tingling or numbness associated with this.  There is no history of bowel or bladder control problems.  The patient describes pain in the area of the right hip and points to the lateral aspect of the hip.

2. There is pain in the mid back area, left worse than right.  This does not radiate around the chest or through to the front.  There is no history of tingling or numbness.

3. There is a history of headaches described as frontal, temporal and from neck tension.  The frequency and severity varies.  There is no pain down the arms and no tingling or numbness.  Caffeine intake is 1 c. of coffee or tea every two or three weeks and chocolate about twice a week.  The patient will be seeing a Neurologist in February 2009, arranged by Harris Johnsen.

4. The patient comments that she has a lot of stomach aches daily.

5. Sleep varies depending on the pain level.

[22] The prognosis was as follows:

The prognosis for the various injuries is good as there are no clinical findings consistent with a serious injury.  This excludes the problem with the headaches.  The patient will be assessed by a Neurologist who will comment on the diagnosis and prognosis with regards to the headaches.

Determining when the symptoms will come under good control and/or resolve is very difficult.  The patient may benefit considerably from low dose Amitriptyline to improve sleep and a consistent core stability/strengthening program with one or one supervision.  The supervision from a Pilates instructor would continue until she was on a full program and was aware of how to progress the exercises.  This usually takes about eight sessions over eight weeks.  The patient then graduates to doing the exercises on their own or joining a small group.

Damages of $50,000 were awarded for the Plaintiffs non-pecuniary loss (money for pain and suffeirng and loss of enjoyment of life) and $60,000 was awarded for the young Plaintiff’s diminished earning capacity.

Paragraphs 41-48 of this judgement are worth reviewing for anyone interested in some of the factors courts look at when weighing a Plaintiff’s credibility in soft tissue injury cases.

In the second soft tissue injury case released on Friday (Mohamadi v. Tremblay) the Plaintiff was awarded $10,000 for non-pecuniary damages as a result of injuries sustained in a 2006 BC car crash.   In valuing the Plaintiff’s injuries at this modest figure Mr. Justice Truscott of the BC Supreme Court summarized the injuries as follows:

[91] It is extremely difficult to determine the value of the plaintiff’s claims with all of the inconsistent evidence he has given and the lack of supporting evidence from his doctors.

[92] I do accept that in the motor vehicle accident of February 14, 2006 the plaintiff sustained soft tissue injuries to his neck, back and left shoulder, accompanied by headaches.

[93] I am prepared to accept that his soft tissue injuries lingered on for a period in the order of two years on a mild basis but thereafter I conclude that he had recovered with no long term consequences.

[94] I accept that his headaches lasted for a short period of time but thereafter this complaint is not supported by his physicians and I reject his evidence that his headaches continued thereafter.

This case is also worth reviewing for the court’s discussion of plaintiff credibility in soft tissue injury claims.  Many of the Plaintiff’s claims were rejected by the Court.   Specifically in paragraphs 95-113 the court gives reasons for rejecting many of the Plaintiff’s claims and these paragraphs contain a useful discussion for anyone interested in some of the factors courts consider important when weighing credibility in ICBC Injury Claims.