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 ‘Mr. Justice Armstrong’

Video Surveillance Helps Deflate Personal Injury Claim

April 6th, 2017

In the world of personal injury lawsuits, video surveillance usually amounts to hours of filming benign activity entirely consistent with a Plaintiff’s known injuries.  Occasionally, however, video helps capture images inconsistent with a Plaintiff’s presentation.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with such an outcome.

In today’s case (Ma v. Haniak) the Plaintiff was involved in three collisions and sued for damages.  Fault was admitted by the Defendant motorists.  The Plaintiff was self-represented and sought approximately $1.4 million in damages.  The Court largely rejected the Plaintiff’s claims and awarded a small fraction of her sought damages.  In reaching the conclusion that the Plaintiff’s claim was exaggerated Mr. Justice Armstrong noted as follows when reviewing video surveillance evidence:

[114]     The defendants tendered video surveillance of Ms. Ma from 2007, 2009 and 2011.

[115]     On September 21, 2007, Ms. Ma was observed working with her brother in their newspaper delivery business. Mr. Maung is seen loading the car with the newspapers. She appears to move without any restrictions in her range of movement and appears to be flexible and capable of moving bundles of newspapers. Although she shows no overt signs of pain, it is not possible to ascertain her actual condition from the video.

[116]     Ms. Ma was able to crouch down, reach in and manually rearrange paper in her car and move several paper bundles.

[117]     Mr. Maung appears physically capable of moving bundles of newspapers to the vehicle from nearby pallets.

[118]     Between October 29, 2009 and November 2, 2009, Ms. Ma was observed and filmed by a private investigator. She was seen driving, entering and exiting her Mazda MPV without any apparent difficulty. Her movements seemed unrestricted and flexible; she carried a cane but did not use the cane to stabilize her walking or support herself.

[119]     In August 2011, more than one-and-a-half years after MVA #3, Ms. Ma was observed and filmed by a private investigator; the recording lasts between 30 and 40 minutes of film.

[120]     At Ms. Ma’s examination for discovery, she testified that she suffered pain when carrying things. She said she avoided carrying items and used the basket on her walker when necessary.

[121]     Nevertheless, on August 9, 2011 Ms. Ma was attending an appointment with Dr. Magrega and used her walker when entering and leaving the office. Later that day she is seen walking and carrying items at a McDonald’s restaurant without any apparent limitation or need for assistance. On that day Ms. Ma is seen exiting her vehicle and walking towards a restaurant with a normal gait, moving at a normal speed and without the benefit of a walker or wheelchair. She collects food from a counter and carries a tray with a drink on top and a separate bag to a table inside the restaurant; she then walks outside to her car carrying a drink and a bag for a person in the vehicle. Ms. Ma’s comportment in this video is significantly different than her comportment at trial. At trial, she used a walker to move in the room and to the witness box. She did not demonstrate the marked flexibility and physical movement that appears on the video.

[122]     What is observed on the video demonstrates significantly less restricted movement than she described in her testimony.

[123]     She testified that when using the sliding doors to enter her van, she suffered severe pain and relied on family members and a cane to open and close the doors when possible. On the date of the video, she is seen freely opening and closing the doors, leaning in and delivering food to others who had not come into the restaurant. The video of the plaintiff was dramatically different from her self-described limitations.

[124]     She testified that if she bumped into a person while being out and about, she would experience excruciating pain; she is seen to be bumped while in the restaurant lineup and shows no evidence of excruciating pain.

[125]     On the video, she was clearly functioning without evidence of pain or limitation in her movement. She walked briskly and without the use of a cane or walker. Her facial expression showed no evidence of pain or discomfort.

[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

[127]     Her only explanation for the apparent differences between her testimony and the video presentation was that she was “tricked” at the discovery. She also said that the limitations in her ability to move or walk distances without a walker do not become apparent until she has been active for approximately ten minutes.

[315]     I agree with the defence that the plaintiff’s claim concerning the level of pain she has experienced after the accidents is wholly inconsistent with her appearance at trial and on the surveillance videos. Although the August 2011 video was taken almost five years before trial, the plaintiff’s examination for discovery evidence, which was given within two weeks of the video, is telling. It contradicted the plaintiff’s appearance in the video surveillance films. Her testimony and use of a walker at trial was consistent with her evidence at the examination for discovery but equally inconsistent with observations of her in the various surveillance videos. From these inconsistencies, I make an adverse finding about Ms. Ma’s credibility.


Court Finds ICBC Under No Legal Duty To Inform an Insured of Hit and Run Claim Obligations

June 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.

In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision.  After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene.  The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.

At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist.  The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC.  Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists.  The Court provided the following reasons:

[119]     The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:

[45]      As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

[125]     Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.


“Miscontruction of the Facts” Leads to Expert Opinion Rejection

September 18th, 2014

Earlier this month I discussed the “Garbage In Garbage Out” Principle which basically means an expert opinion based on flawed facts is of little value to the Court.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry demonstrating that an opinion based on misconstrued facts is not helpful.

In today’s case (Gillespie v. Yellow Cab Company Ltd.) the Plaintiff was involved in two collisions and sustained a head injury.  He suffered from ongoing cognitive problems at the time of trial and damages of $85,000 were assessed for his non-pecuniary loss.

The Defendants argued that the Plaintiff did not sustain a head injury but instead suffered from a “metabolic syndrome” unrelated to the crash.  In rejecting this opinion the Court noted that the Defendant’s expert’s report was based on flawed facts and provided the following reasons:

202]     Dr. Eisen’s report described both accidents as being “of a mild nature”.

[203]     He did not view photographs of the plaintiff’s car in the first accident until after he presented his report. He was not aware his car was a total loss or that there was $4,900 damage to the taxi and $6,900 damage to the cube van. Although the doctor described the plaintiff’s windshield as “shattered” he did not know where he obtained that information.

[204]     Although the second accident was evidently quite minor, in my view, Dr. Eisen was clearly in error in describing the December 2009 accident this way. Although no questions were asked to clarify “mild” “moderate” or “severe” the evidence points to the first accident being in the range of two moderate collisions involving two impacts. Dr. Eisen did not view the photographs of the damage to the three vehicles nor understand the force of impact that led to Mr. Gillespie striking his head. The apparent damage to all three vehicles, the blow to his head, and the description of the impacts during the accident are inconsistent with Dr. Eisen’s conclusion that this was a mild impact collision.

[205]     In this regard I conclude that Dr. Eisen’s opinion was based on a clear misapprehension of the accident and the injury mechanism. This factor alone diminishes the weight of his report.

[206]     The evidence is uncontroversial that Mr. Gillespie’s head struck and shattered the windshield in spite of the airbag deploying.

[207]     I observed that Dr. David concluded that Mr. Gillespie’s inner ear dysfunction occurred because of direct impact, acoustic trauma from airbag deployment, and the explosive forces associated with airbag deployment.

[208]     Dr. Eisen formed his opinion that Mr. Gillespie’s ongoing cognitive symptoms following the accident are the product of metabolic syndrome based on his assumptions that Gillespie’s past and ongoing health included evidence that he was diabetic and had impaired glucose function, was obese, had untreated hypertension, and had impaired lipid metabolism. He described his condition of metabolic syndrome on the basis of those four factors…

[211]     Not only was the expert’s opinion based on a clear misapprehension of the accident and the initial injury mechanism but also, in the end, Dr. Eisen’s analysis of the underlying data was so flawed that his opinion that the plaintiff suffered from metabolic syndrome is markedly unreliable…

[217]     However, Dr. Eisen seems to have ignored that Dr. Levis, Fraser Health Concussion Clinic and Dr. Foti recorded the plaintiff’s complaints of short-term memory loss, reversing numbers, headaches, dizziness, and difficulty word-finding from December 21, 2009 until October 2011. Clearly, his cognitive problems persisted throughout the months after the accident without abatement; they did not re-emerge 11 -12 months later as assumed by Dr. Eisen. This error by Dr. Eisen relating to his ongoing cognitive impairment would likely have affected his opinion if he had relied on more accurate information.

[218]     Dr. Eisen’s misconstruction of the facts leading to his conclusion that the plaintiff did not suffer a head injury in December 2009 is a significant flaw in his opinion. Further, his opinion that Mr. Gillespie developed unrelated cognitive problems in 2011 because he was experiencing metabolic syndrome is not supported by the facts or his own opinion that some of the indications of Mr. Gillespie’s altered state of mind in the interval after the accident were indications of an accident related to mild traumatic brain injury.

[219]     … I treat his report with little to no weight…


$60,000 Non-Pecuniary Assessment for Chronic Shoulder Injury With Favourable Prognosis

July 11th, 2013

Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, addressing such an injury.

In this week’s case (Proctor-McLeod v. Clarke) the Plaintiff was injured in a 2008 rear end collision.  The 51 year old plaintiff suffered a variety of soft tissue injury including a chronic shoulder injury which continued to pose problems at the time of trial.  Despite the chronic nature of her symptoms the ultimate prognosis was a favourable recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Armstrong provided the following reasons:

[67]         The onset of the plaintiff’s shoulder symptoms was brought on by the defendant’s negligence. The medical opinions suggest that these symptoms may have never appeared if the plaintiff was not injured in the accident. Dr. Hawkins did not explain to my satisfaction why he believed that the shoulder pain would have become symptomatic if the plaintiff had not been injured. In my view, the accident was part of the cause of the plaintiff’s ongoing complaints. Common sense dictates that there is a causal connection due to the uninterrupted continuation of these symptoms, albeit on an intermittent basis.

[68]         I accept Dr. Hawkins’ opinion that further treatments might result in a resolution of her shoulder symptoms and that her soft tissues have improved significantly. The plaintiff has been suffering from the after effects of the calcium deposits and friction in the coracoacromial arch in her shoulder. The plaintiff’s continued pain from flare ups would not have happened but for the accident. Although she made a good recovery from her other injuries, there is persisting pain developing intermittently in her neck and radiating to her left arm. This causes her pain levels to rise from a daily level of three out ten to six or seven out of ten. These estimates are of limited use; however they do give a subjective measure of the plaintiff’s perception of her condition during flare ups of symptoms.

[69]         I conclude that the plaintiff’s symptoms will likely resolve over time….

[93]         … I have assessed the plaintiff’s loss at $60,000 for non-pecuniary damages.


No Costs for ICBC Insured Defendant After Beating Formal Settlement Offer in Liability Trial

June 21st, 2013

Three years ago the BC Court of Appeal clarified that a Defendant’s insured status can be taken into account when considering costs consequences in a trial where a formal settlement offer was in place.  Reasons for judgement were released this week by the BC Supreme Court heavily relying on this factor in denying a Defendant post offer costs.

In this week’s case (Currie v. Taylor) the Plaintiff was involved in a 2008 collision.  Prior to trial ICBC offered to settle the issue of liability with the Defendant shouldering 41% of the blame.  The plaintiff rejected this offer and proceeded to trial where a less favorable split of 75/25 was obtained.

The Defendant sought post offer costs.  Mr. Justice Armstrong did strip the Plaintiff of trial costs but did not award these to the Defendant either.  In reaching this conclusion the Court provided the following comments about the significance of the Defendant’s insured status:

[65]         The defendants accept that the plaintiff is financially disadvantaged and that they are represented by an insurer. The defendants’ bill of costs has been presented in the sum of $30,000.32 whereas the plaintiff has disclosed an expenditure of disbursements exceeding $56,000. The plaintiff has not provided a draft bill of costs and I accept that the majority of those disbursements may relate to the issue of quantum. There is simply insufficient evidence on this point to influence the decision.

[66]         However, I am guided by the comments of Sewell J. Wong-Lai where he said:

[52]      I have also given consideration to the relative financial circumstances of the parties. The plaintiff has very limited means. The defendants are covered by insurance and in a very real sense it is the defendants’ insurer who is at risk in this action. I am entitled to take this factor into consideration in exercising my discretion: see Smith v. Tedford, 2010 BCCA 302, 7 B.C.L.R. (5th) 246. Given these circumstances, it is obvious that the relative financial consequences of depriving the plaintiff of her costs are much greater to the plaintiff than to the defendants.

[67]         I accept that there is a significant disparity between the financial resources of the parties and that the plaintiff has very limited means whereas the defendants are supported by an insurer and are at little risk in this action.

[68]         I will not order the plaintiff to pay the defendants’ costs after the delivery of their offer to settle. I have accepted the plaintiff’s arguments: there was a reasonable explanation for the plaintiff’s failure to accept the offer, the magnitude of the plaintiff’s claim is substantial, and there is a substantial discrepancy in the resources of the parties.

[69]         Accordingly, the plaintiff will recover 25% of his costs at Scale B until the date of trial. The defendants will not recover costs.

 


Negligent Commercial Bus Driver Escapes Liability Due to Waiver of Liability; Legislative Intervention Required?

November 9th, 2012

 

UPDATE  – April 30, 2014 – The below decision was overturned by the BC Court of Appeal

I have previously discussed the real world consequences of waivers of liability and the fact that these can strip people seriously injured through the fault of others of meaningful legal recourse.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, creating a troubling precedent allowing such a waiver to stand in the context of a motor vehicle collision claim.

In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler  BC to participate in various activities including a zip lining experience.  Transportation to and from Whistler was provided the by the Defendant.   During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“.  The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.

Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”.  The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages.  The Defendant admitted he was negligent but the waiver was upheld dismissing the plaintiff’s claim.  In doing so Mr. Justice Armstrong provided the following reasons:

[80]         In my view, the Release is a clear and relatively easy to read document. Although some of the print is small, large capitalized portions of the Release draw attention to the important features of safety, assumption of risks, release of liability and waiver of claims. A reasonable person would recognize the purpose and extent of the document, including the connection between the release and travel to and from the tour site.

[81]         I have concluded that the defendants were not obliged to point out the waiver clauses, with specific reference to the bus transportation to and from the tour site. There were no distinct features of the bus trip as opposed to the other zip line activities that should have been brought to the plaintiff’s attention…

[93]         I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.

This is a troubling finding and can pave the way for commercial vehicle operators requiring customers to sign waivers of liability in essence shielding these operators in the face of negligently caused injuries.  Mr. Justice Armstrong held such a result “is not contrary to public policy“.  In reaching this conclusion the Court provided the following reasons:

92]         However, in this case, the Release does not impact public policy or the statutory automobile insurance scheme. This Release deals only with the plaintiff’s right to recover damages from the defendants caused by the defendants’ negligence. The statutory scheme is not engaged until there has been a determination, or settlement, of a complainant’s entitlement to money as compensation for injury suffered as a result of the negligence. In my view, the plaintiff’s argument does not engage a debate about public policy.

I understand the decision is being appealed and I will author a follow up post after the Appellate Court addresses this issue.

Assuming, however, that this result is correct it is one which clearly calls out for legislative intervention.  If the law requires motorists to carry Third Party liability coverage to ensure those injured through their carelessness have recourse to damages the law should not permit waivers to apply to strip innocent individuals of this statutorily required protection.


Motorist With Right of Way Found 25% at fault for Speeding and Failing to Keep a Proper Lookout

October 24th, 2012

The below decision was upheld in reasons for judgement released in February 2014 by the BC Court of Appeal

_________________________________

As previously discussed, having the right of way is not always enough to escape fault (or partial fault) for a collision.  If a dominant motorist fails to react reasonably in the face of an obvious hazard liability can follow despite having the right of way.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.

In this week’s case (Currie v. Taylor) the Defendant was travelling down highway 97 near Vernon, BC.  The Plaintiff, approaching from the Defendant’s right, left his stop sign attempting a left hand turn.

The Defendant had the right of way and the Plaintiff’s actions were found to be negligent.  The Defendant, however, was also found at fault for speeding and failing to react reasonably to the obvious hazard that the Plaintiff created.  In assessing the Defendant 25% at fault Mr. Justice Armstrong provided the following reasons:

[48]         The defendant Sharp’s evidence is confusing. He saw the Taxi moving away from the stop line but he did not take any evasive steps during the 10 seconds the Taxi was travelling across Highway 97. He looked into his rear view mirror but he had no time to avoid the accident. He confirmed that his vehicle did not decelerate significantly when he took his foot off the brake before impact; there was no reason that he could not have gone into the right lane before reaching the Intersection…

[128]     The defendant Sharp, travelling 33 km/h over the posted limit, would have reduced the time available to take evasive action or stop and would not have collided with the plaintiff in any event. It seems to me that the defendant Sharp, having seen the plaintiff start before he left the stop line and after, neglected to keep a proper lookout for the emergency that was developing in front of him…

[131]     Neither the defendant Sharp nor Mr. Tuckey had any difficulty in identifying the bright yellow Taxi as it was stopped on Meadowlark Road. The defendant Sharp’s discovery evidence was equivocal as to what he saw before impact. He first testified that he saw the Taxi leaving the stop line and followed it across his path, but then he indicated he had not seen the Taxi after it left the stop line. At that juncture he ought to have been aware the plaintiff might cross over into his lane…

[150]     It is clear that if the defendant Sharp’s speed had been as little as 110 km/h, the plaintiff would have cleared the Intersection without incident. Although speed, in itself, is not necessarily a breach of the standard of care I have concluded that the defendant Sharp’s speed was more than one third higher than the posted limit and his speed that interfered with his ability to take evasive steps. He would have had more time to react to the hazard and could have avoided the accident by steering and/or braking. In the circumstances he could otherwise have performed those manoeuvres which a reasonably careful and skilled driver might have taken. I have concluded that his lack of attention to the Taxi after it left the stop line, coupled with his excessive and unsafe speed, were a breach of his duty of care to the plaintiff…

[183]     In my view the plaintiff was obliged to yield the right-of-way and failed to do so, likely because he did not see the Van which was clearly visible. The defendant Sharp travelled at a speed more than one third above the limit and failed to take any timely measures to avoid the collision. The defendant Sharp also failed to keep a proper lookout and that, combined with his speed, deprived him of the opportunity to avoid the collision. In the end, when he realised that the Taxi was moving in front of him he looked to the right to attempt a lane change but was travelling too fast to be able to change lanes. I conclude that the plaintiff was more blameworthy. I apportion the liability for this collision 75% to the plaintiff and 25% to the defendants.


ICBC Hit and Run Claims, Reasonable Efforts and Estoppel

August 15th, 2012

Further to my previous posts discussing legal obligations when seeking compensation following an unidentified motorist collision in BC, interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, suggesting that in the right circumstances estoppel could be used to overcome a ‘failure to take reasonable efforts to identify the Defendant’ defence after a collision has been reported to ICBC.

In this week’s case (Springer v. Kee) the Plaintiff was injured in a 2008 collision.  The at fault driver fled the scene before the plaintiff could identify them.  The plaintiff reported the claim to ICBC and to the police but did not take any steps after this to try and identify the at fault motorist.

The plaintiff brought an action seeking compensation from ICBC pursuant to Section 24 of the Insurance (Vehicle) Act.  ICBC brought an application to dismiss the lawsuit arguing the plaintiff failed to take all reasonable steps to identify the motorist after reporting the claim.  Mr. Justice Armstrong agreed and dismissed the claim.  Before doing so, however, the Court criticized ICBC’s actions and suggested that if estoppel was plead the outcome may have been different.  The Court provided the following reasons:

[92] I accept the view that ICBC was not obliged to warn the plaintiff of his ongoing obligations in the immediate aftermath of his reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.

[93] In my view, although not obliged to advise people of their obligations under s. 24(5), ICBC ought to recognize the risks that laypeople will rely on remarks made by adjusters suggesting settlements can be expected without warning that the claim will be denied if s. 24(5) is not complied with. Regrettably, I also note that the “Helping You with Your Hit and Run Claim” pamphlet published by ICBC that was given to the plaintiff by the adjuster does not mention the implications of s. 24(5) of the Act.

[94] Counsel for the plaintiff mentioned the concept of waiver, but did not argue this as a case of estoppel and the pleadings do not advance any claim against ICBC except as nominal defendant.

[95] Section 24(5) does not permit me to consider the actions of ICBC in the assessment of the plaintiff’s obligations under the Act. That may be the subject of a waiver or estoppel, which is outside of the scope of this application.

[96] For the reasons given by Barrow J. in Tessier, I am unable to conclude that the actions of ICBC excuse Mr. Springer’s inaction in the weeks following the accident. Therefore, I would dismiss the argument of the plaintiff in this case; I cannot grant judgment because he did not take all reasonable steps to ascertain the identity of the unknown driver as required under s. 24(5) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.


More on Responsive Opinion Evidence Admissibility

August 13th, 2012

Reasons for judgement were published recently by the BC Supreme Court, Vancouver Registry, addressing responsive expert reports and the discretion of the Court to adjourn a trial to permit late expert evidence to be introduced.

In the recent case (Lennox v. Karim) the Plaintiff was injured in a 2003 collision.   87 days prior to trial the Plaintiff served a medico-legal report diagnosing the Plaintiff with a meniscal tear.  The Defendant obtained a report addressing this injury and served it on the Plaintiff.  This report was served in less than 84 days before trail.  The Plaintiff objected arguing this report was late and that it was not truly responsive.  Mr. Justice Armstrong disagreed and admitted the report finding that it was responsive, and if not, the trial should be adjourned to allow admission of the report to address the relatively late disclosure of the meniscal tear.  The Court provided the following reasons:

[38] In this case, Mr. Lennox failed to alert the defendant to the central issue of a torn meniscus. His pleadings indicated an injury of both knees without any reference in specific to the torn meniscus. This is significant in this case, because the plaintiff was under the obligation to obtain a court order to permit Dr. Stewart to testify and if that order had been applied for, the defendant would have been put on notice at an earlier time as to the issue which became central to this case.

[39] In my view the Leith report, in the words of Smith J., is not a freestanding medical opinion that ought to have been served under Rule 11-6(3). It is in its entirety a responsive opinion directed solely to one opinion of Dr. Stewart relating to the plaintiff’s medical condition, that being the torn meniscus…

[42] If I am wrong in this decision, it would have also been my further opinion that in the circumstances of this case the defendant would have otherwise been entitled to an adjournment of the trial to secure the medical report of Dr. Leith if it was not otherwise admissible under 11-6(4). It seems to me that 11-1(2) is purposely directed at requiring the plaintiff and defendant to avoid the last minute introduction of medical evidence in cases which may have proceeded for many years on a different track or a different theory. I note that neither of the experts described in the CPC report have been or are going to be called as witnesses in this case, but I am not required to deal with that issue.

[43] It seems to me that Dr. Leith’s report can simply be admitted and I can ignore those provisions which in my view are not appropriate.


Soft Tissue Injury Damages Round Up – The Kelowna Road Edition

August 1st, 2012

As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements.  Sometimes, however, the volume of decisions coupled with time constraints makes this difficult.  After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.

In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted.    He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back.  His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment.  In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:

[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

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In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island.  Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

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(UPDATE March 19, 2014 - the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle.  The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)      the plaintiff’s “original position” immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

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In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained soft tissue injuries to his neck and back.   The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial.  In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.