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 Ball’

Court Critical of Doctor’s “Self Diagnosed” Personal Injury Claim

April 10th, 2018

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, making critical findings in a personal injury claim.

In today’s case (Nagaria v. Dhaliwal) the Plaintiff, a physician, was injured in a 2014 rear end collision.  The Defendant admitted fault.  The Plaintiff received little medical care following the crash instead relying largely on self diagnosis and self treatment.  The Court rejected the severity of the Plaintiff’s advanced claim finding “the plaintiff is not a reliable witness nor a competent historian. There is considerable exaggeration in his evidence.”

The Court criticized the Plaintiff’s self-treatment and credibility with the following comments:

[42]         The plaintiff repeatedly testified that he chose not to follow the course of medical treatment against the advice of Dr. Strovski because he said that it would leave his patients wanting for his medical care. Leaving aside prescribed medication entirely, I find this explanation to be inconsistent with the policy of the College of Physicians on “Treating Self” and contrary to the simple skills of organization that following the prescribed treatment regime would have required.

[43]         The “Treating Self” policy is clear that self-treatment may affect the objectivity of the medical treatment which a doctor provides. Exceptions, according to the policy, may be made when “the medical condition is minor or emergent; and no other physician is readily available.” Curiously, when this passage was read to the plaintiff during cross-examination, he ignored the above quoted lines and spoke only about self-prescribing narcotic medications which had nothing to do with the case at bar. The plaintiff was evasive in failing to respond to the fact he had self-diagnosed a soft tissue injury and self-prescribed a course of treatment. The circumstances did not involve an emergent situation. The alleged medical condition was not minor; as had it been a minor condition, this action would not have been commenced in this Court. I do not accept the explanation that following the advice of Dr. Strovski would have left the plaintiff unable to practice medicine or otherwise provide services to his patients.

[46]         In this case, the plaintiff did not follow the policy of his profession as he failed to record any of his own symptoms, their occurrence, development, or resolution. Further, he refused a prescribed treatment regime in favour of self-treatment. As noted above, the explanation for self-treatment by the plaintiff lacks objectivity, the very flaw recognized by the College of Physicians and Surgeons.

Mr. Justice Ball found the Plaintiff suffered only minor soft tissue injury and assessed damages at $19,000.  In reaching this assessment the Court provided the following reasons:

[81]         The plaintiff was not a reliable nor a credible witness for the reasons which I have outlined above. The prognosis of Dr. Rickards — if the prescribed treatment plan were followed — expected the reduction or resolution of the symptoms of the plaintiff within a two to four month period. On the evidence before this Court, I am satisfied that the injury caused by the accident, which has been proven on a balance of probabilities, was a minor soft tissue injury. Had the prescribed treatment regime — initially prescribed by Dr. Strovski in 2011 — been followed by the plaintiff, the injury and its symptoms would have resolved in the two to four month period suggested by Dr. Rickards. The failure of the plaintiff to follow the prescribed treatment regime was unreasonable as found above, and constitutes a failure to mitigate.

[82]         The soft tissue injury did not interfere with the ability of the plaintiff to continue his medical practice six days a week or otherwise interfere with his chosen medical speciality. The activities of the plaintiff outside of his practice — sporting activities in particular — have been reduced to some degree, but it is not possible to speculate how those activities have been affected by the soft tissue injury given the lack of evidence on this topic. Further, without completion of the prescribed treatment regime by the plaintiff, the extent and duration of the reduction of activities cannot be predicted and has not been proven.

[83]          In these circumstance, and after a review of the authorities cited above and by counsel, the award of non-pecuniary damages in this case is $19,000. The failure of the plaintiff to mitigate his loss will result in a reduction of that award by ten per cent (10%). The total award for non-pecuniary damages is therefore $17,100. Based on my findings above, the claim for special damages has not been made out and there will accordingly be no award of special damages in this case.


“Clearly Established Under Canadian Law” That the Low Velocity Impact Defense Misses the Mark

December 18th, 2015

Although the “Low Velocity Impact” defense seems to be raised less and less, occasionally it still rears its head in personal injury trials.

Today, reasons for judgement were released by the BC Supreme Court, New Westminster Registry, finding that this defense misses the mark.

In today’s case (Duda v. Sekhon) the Plaintiff was injured in two relatively minor collisions.  The Court ultimately awarded the Plaintiff damages for his injuries but prior to doing so made the following pointed comments about the merits of the LVI Defence –

[62]         Counsel for the defendants spent considerable time and effort making the submission that the two accidents did not cause significant motor vehicle damage. However, it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.


Rheumatoid Arthritis Claim Rejected Following Low Velocity Collision

December 11th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the allegation that a collision caused a Plaintiff to suffer from rheumatoid arthritis.

In today’s case (Kabani v. Lee)  the Plaintiff was involved in a relatively modest collision in 2010.  The Defendant was responsible for the crash.  The Plaintiff argued that the collision caused her to develop rheumatoid arthritis, a “painful auto-immune disease that bilaterally attacks the joints in the human body“.  In rejecting this argument Mr. Justice Ball provided the following reasons:

[25]         In Hunt v. Ugre, 2012 BCSC 1704 at para. 121, Justice Dardi notes that the court must be cautious when inferring causation from a temporal sequence (i.e. from a consideration of pre-accident and post-accident condition). Dardi J. states:

In cases where causation is asserted primarily on a temporal relationship between the negligent conduct and [the] injury in question, the authorities mandate that a “close scrutiny of the evidence is required because the inference from a temporal sequence to a causal connection is not always reliable”.

[26]         The potential for a link between trauma and rheumatoid arthritis was canvassed in a medical discussion paper (mentioned above) entitled “Trauma and Inflammatory Arthritis” prepared by the Ontario Workplace Safety and Insurance Appeals Tribunal in September 2008 by Dr. Dafna D. Gladman, an acknowledged expert in rheumatology and internal medicine with a particular interest in inflammatory arthritis (filed as Exhibit 7 at trial). Dr. Gladman’s publications and teachings were referred to and relied upon by Dr. Yorke in his evidence. At page 2 of the paper, Dr. Gladman discusses the etiology and pathogenesis of the disease. Dr. Gladman notes at the outset that “[t]he cause of rheumatoid arthritis is unknown.”  At page 5, under the heading “Role of Trauma”, Dr. Gladman states “… a specific role for trauma in the development of rheumatoid arthritis has not been proven.”

[27]         Dr. Yorke presents a clear opinion against trauma being capable of causing rheumatoid arthritis. It is of some interest that his scientific opinion in this regard has changed over the years, evidenced by the expert opinion he rendered in Charbonneau v. ICBC, 1991 New Westminster Registry C890102 (B.C.S.C.), where Justice Mackinnon stated that Dr. York was “emphatic” that the plaintiff had rheumatoid arthritis and that it was precipitated by an accident.

[28]         The only medical evidence suggesting a link between the Accident and the onset of rheumatoid arthritis is Dr. Watterson’s opinion that the trauma from the Accident played a “possible role” in the development of rheumatoid arthritis. A “possible role”, when considered alongside the other medical evidence indicating that a link between trauma and rheumatoid arthritis has not been proven, does not satisfy me that the Accident caused or contributed to Ms. Kabani’s rheumatoid arthritis.

[29]         Regardless of any temporal link, there is simply no medical opinion upon which the Court can rely in this case to establish on a balance of probabilities the necessary causal link between the Accident and Ms. Kabani’s rheumatoid arthritis. The reports received by Dr. Witherspoon from Dr. Kelsall support the conclusion that the Accident did not cause Ms. Kabani’s rheumatoid arthritis.


Motorist Liable for Collision After Blanketing Other Vehicle in Snow

September 22nd, 2014

Update December 16, 2015the reasoning in the below decison was upheld by the BC Court of Appeal today.

Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for a single vehicle collision.

In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

In finding the passing vehicle was fully at fault for passing when it was unsafe to do so Mr. Justice Ball provided the following reasons:

[17]         To determine whether the driver of the SUV was negligent, the Court must follow the analysis outlined in Crocker and Rowe. The driver of the SUV, as the driver of a vehicle overtaking another vehicle on the highway, owed a duty of care to the plaintiff. That duty is statutorily mandated in ss. 157-159 of the MVA.

[18]         Those sections also outline the required standard of care. Section 157 requires that the driver of an overtaking vehicle may only pass another vehicle on the left side “at a safe distance and must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle”. Section 159 states that “a driver of a vehicle must not drive to the left side of roadway when overtaking and passing another vehicle unless the driver can do so safely.”

[19]         In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have – or should have – appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.

[20]         There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.

[21]         Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.

[22]         No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.

[23]         In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.


Summary Trials Are Not Trials For the Purpose of Discontinuing Lawsuits

May 28th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff can discontinue a lawsuit when a matter is set for summary trial.

In today’s case (Binary Environments Ltd v. Batyka) the Plaintiff brought a lawsuit which was set for a summary trial following a case planning conference.  Before the summary trial took place the Plaintiff unilaterally discontinued the lawsuit relying on Rule 9-8(1) which reads “At any time before a notice of trial is filed in an action, a plaintiff may discontinue it in whole or in part against a defendant by filing a notice of discontinuance in Form 36 and serving a filed copy of the notice of discontinuance on all parties of record.”.

The Defendant brought a motion seeking to set aside the discontinuance arguing “the Plaintiff cannot escape by the side door” on the cusp of summary trial.

Mr. Justice Ball dismissed the motion finding the Plaintiff was within their rights in discontinuing finding that a summary trial is not a notice of trial.  In reaching this conclusion the Court provided the following reasons:

[25]         Additionally, setting aside the notice of discontinuance would also be contrary to Rule 9-8(1) as setting a matter for summary trial is not the same as setting a matter for a full trial: Strata Plan No. 36 v. Wilson, [1998] B.C.J. No. 308 (S.C.) at para. 12. A summary trial is a distinct mechanism with its own procedures and safeguards: Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd.[1989] B.C.J. No. 1003 (C.A.).

[26]         I therefore decline to set aside the plaintiff’s notice of discontinuance and dismiss that application.

The Court did, however, order that the discontinuance be with prejudice should the Plaintiff ever start similar litigation.  In exercising its discretion under Rule 9-8(8) the Court reasoned as follows:

[23]         Rule 9-8(8) provides:

Unless the court otherwise orders, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action…

[31]         The final matter which must be decided here is whether the notice of discontinuance filed by the plaintiff be order to be a defence to any subsequent proceeding for the same or substantially the same cause of action. From the review conducted by counsel for defendant of the affidavits prepared support of the summary trial application taken together with the admission by counsel for the plaintiff that he was instructed to call no evidence in the event this matter did come forward for trial, the only rational conclusion can be drawn is that this matter must in fairness finally come to an end. I therefore pursuant to Rule 9-8(8) that discontinuance of action is a defence may subsequent proceeding or the same or substantially the same cause of action.

 


Loans From Your Mother “Are Not Special Damages”

March 18th, 2014

Update February 3, 2015 – the below judgement was successfully appealed and remitted for a new trial.  The appeal was based on grounds other than the below excerpt.

________________________________

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, confirming that the principle sum borrowed when in need following collision related injuries is not a recoverable special damage.

In this week’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision.  The Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000.  The Court noted considerable credibility concerns with the Plaintiff’s evidence and rejected much of his claim.  Included in the rejected damages were funds sought due to loans from family members.  In rejecting this portion of the claim Mr. Justice Ball provided the following reasons:

[184]     Monies Mr. Healey borrowed from his mother or others are not “special damages”. Mr. Healey testified that he did not recall the use to which the borrowed monies were put. Mrs. Healey testified that the borrowed money was used to pay household expenses including rent. Consequently, no evidence before the Court demonstrates that borrowed monies were used in any way, for instance, for therapy for injuries the accident caused that somehow would relate the borrowing to the accident.

[185]     Second, only interest paid on borrowed money would be a “special damage.” And absolutely no evidence before this Court demonstrates that any interest was agreed or paid in relation to the claimed loans. Consequently: no amount is allowed for the borrowed monies: Choma v. Canadian Vehicle Leasing Limited, [1982] B.C.J. No. 1036 (S.C.) and Wong v. Hemmings, 2012 BCSC 907.