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

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Posts Tagged ‘Mr. Justice Blok’

Chronic Pain and Depression With Guarded Prognosis Leads to $180,000 Non-Pecuniary Assessment

October 18th, 2017

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

In the recent case (Ali v. Padam) the Plaintiff was a passenger in a vehicle struck by a commercial van.  Fault was admitted by the offending motorist.  The crash resulted in chronic physical and psychological injuries with a poor prognosis for substantial recovery.  In assessing non-pecuniary damages at $180,000 Mr. Justice Blok provided the following reasons:

[230]     From the evidence at trial I conclude that in the immediate aftermath of the accident Ms. Ali had pain in her right chest, right wrist, right shoulder and her back.  The other areas resolved reasonably soon but the back pain gradually increased to the point, three months post-accident, of periods of very severe pain.  This pain worsened and she began to have symptoms in her left leg.  She could not walk or stand for any extended length of time.  She soldiered on at work but avoided lifting or bending, and by the end of the work day she was exhausted.

[231]     Ms. Ali’s left leg symptoms became worse.  She was now dragging her leg as she walked.  Her back pain became worse as well.  She had disc decompression surgery, focused on her leg symptoms, in June 2014.  Her left leg symptoms improved although her back pain remained.

[232]     Ms. Ali fell into depression, and was ultimately diagnosed with major depressive disorder.  She has anxiety and nightmares and in that respect has been diagnosed with PTSD.  Her chronic pain and depression combine and aggravate one another.  She does little in the way of activities with her son aside from walking him to and from school.  She is at least somewhat dependent on others for such things as bathing, dressing and going to the toilet.

[233]     As noted earlier, Ms. Ali’s reports of her physical difficulties are, to some extent, at odds with her actual level of functioning, particularly as shown in surveillance video.  I do not suspect she is being untruthful, but instead I conclude that she sees herself as more disabled than she actually is.

[234]     Formerly a cheerful and active person, Ms. Ali has isolated herself from her loved ones.  She is irritable and ill-tempered.  Her relationship with her husband is poor.  She feels a sense of worthlessness and has had thoughts of suicide.  She does, however, have some good days when she is happy.

[235]     In brief, as a result of the accident Ms. Ali has chronic pain, PTSD and major depressive disorder that combine in a debilitating fashion and have severely affected all aspects of her life.  Although there is a consensus amongst the medical professionals that Ms. Ali should have and participate in a comprehensive, multidisciplinary rehabilitation program, those professionals essentially agree that her prognosis for recovery is “guarded” and her prognosis for a substantial recovery is poor.

[237]     I conclude that the plaintiff’s cases, in particular Sebaa and Pololos, were broadly similar to the present.  In both cases non-pecuniary damages of $180,000 were awarded.  Accordingly, I conclude that $180,000 is a proper assessment of non-pecuniary damages in this case.


$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

June 23rd, 2016

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.

In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.

In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.


$80,000 Non-Pecuniary Assessment For Chronic Knee Injury

January 23rd, 2015

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee injury caused by a collision.

In today’s case (Reddy v. Staples) the Plaintiff was involved in a 2009 collision that the Defendant accepted responsibility for.  The Plaintiff had pre-existing knee problems but the collision caused new injuries which aggravated his limitations.  The Court found the collision caused chondral injuries and these were responsible for 85% of the Plaintiff’s ongoing knee problems.  In assessing non-pecuniary damages at $80,000 Mr. Justice Blok provided the following reasons:

[115]     It is difficult to assess the contribution of each condition to the plaintiff’s current knee symptoms because the experts addressed this issue only in general, sometimes vague, terms.  It is reasonably clear that the meniscus damage that was already present at the time of the accident would have caused problems for the plaintiff, even absent the accident, until it was repaired in October 2009, and it might have continued to cause problems after that.  As Dr. Calvert said, “the majority of patients with an isolated meniscal injury do recover a good portion of their function post surgery”, thus suggesting that some do not.  Dr. Calvert said that even with just the meniscal damage and removal he would have counselled, post-surgery, against activities that involved repetitive impacts.  It is also clear from the evidence, however, that the chondral injuries to his patella and medial femoral condyle are more significant than was the pre-existing meniscal damage.  I also conclude that the risk of degenerative arthritis associated with just the meniscal injury was and is materially lower, and with a longer time frame, than it is with the chondral injuries, where osteoarthritis is already present.

[116]     Doing the best I can on an assessment of the whole of the evidence I would apportion the source of Mr. Reddy’s current and probable future knee problems as follows: 85% to the chondral injuries caused by the accident and 15% to his pre-existing meniscus damage…

[118]     I am satisfied that Mr. Reddy, 31 years old at the time of the accident, suffered a significant injury to his knee (the chondral injuries) as a result of the accident.  In addition, he had pain and stiffness in his back, neck and shoulder areas for a period of about four or five months.  His knee condition generally (that is, involving both pre-accident and accident-related causes) is frequently painful, restricts his activities and enjoyment of life, and causes him stress and anxiety.  On my assessment, 85% of those problems are attributable to the injuries he suffered in the accident.  The accident-caused injuries are degenerative, as is his pre-existing knee condition, though the degeneration associated with the accident injuries has already manifested itself and the degeneration associated with his pre-accident condition is likely to occur later, perhaps much later.

[119]     As Dr. Calvert noted, it is likely that the plaintiff will have persistent knee pain with weight-bearing activity.  He is likely to have increasing knee symptomatology in keeping with osteoarthritis and he may also require further arthroscopic surgery or even partial or full knee replacement surgery at some point in the future…

[125]     Based on the cases cited and a consideration of all of the Stapley v. Hejslet factors, and bearing in mind the 85-15 apportionment made previously concerning the cause of Mr. Reddy’s ongoing knee problems, I consider that non-pecuniary damages are appropriately assessed in the amount of $80,000.


Negligent RCMP “Bait Car” Pursuit Results in nearly $1 million in Damages

April 1st, 2014

Reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, resulting in a nearly $1 million judgement following the RCMP’s negligent response to a ‘bait car’ theft.

In today’s case (Watkins v. Dormuth) the Defendant RCMP officer was responding to a bait car activation call.  He proceeded North in the southbound lanes to get around traffic.  At the same time the Plaintiff was making a left hand turn at an intersection.  A t-bone collision occurred which resulted in serious injuries whith profound consequences and were expected to have a permanent disabling effect on the Plaintiff.  Damages of close to $1 million were assessed.

The RCMP argued the Plaintiff was to blame for the collision.  Mr. Justice Blok disagreed finding the RCMP were entirely at fault.  In reaching this conclusion the Court provided the following reasons:

[78]         The provisions show there are certain prerequisites that must be met before a police officer may exercise the privileges set out in s. 122 of the Motor Vehicle Act.  In particular, the police officer must have reasonable grounds to believe that the risk of harm to members of the public from the exercise of those privileges is less than the risk of harm to the public should those privileges not be exercised.  Even where the prerequisites are met, the driving privileges afforded by the Motor Vehicle Act must be exercised with due regard for safety, having regard to certain factors.

[79]         I conclude that Cst. Dormuth did not have reasonable grounds to believe that the risk of harm to the public from exercising emergency vehicle privileges was less than the risk to the public should he not exercise those privileges.  All he knew was that there had been a bait car activation.  An activation did not mean that there was a risk of harm to the public because an activation signal could be caused by the mere opening of the bait car door or trunk.  It did not necessarily mean the car was being driven, let alone driven in a manner dangerous to the public.

[80]         This conclusion is consistent with the detachment’s bait car policy, which provides that the normal response level to a bait car activation is Code 2, that is, by proceeding immediately but without using lights or siren.  In other words, the detachment’s own policy recognizes that a bait car activation is a non-emergency event.

[81]         The defendants assert that Cst. Dormuth was not negligent in responding at a Code 3 level because that is how he had been trained, erroneous as it was.  However, I do not see that this absolves the defendants of liability since it is plain that the training given to Cst. Dormuth was faulty….

[95]         Emergency vehicles do not have free rein in exercising the driving privileges accorded by s. 122 of the Motor Vehicle Act.  They may only do so within the limits set by the Emergency Driving Regulation and they are constrained by the duty to drive with due regard for safety: Frers, at para. 89.  I conclude that Cst. Dormuth had no basis to exercise any emergency vehicle driving privileges, and I conclude that in exercising those privileges he did not drive with due regard for safety in the circumstances of this case.

[96]         For these reasons I conclude that the responsibility for this accident rests entirely with the defendants.

 


Driver Fully At Fault For Striking Pedestrian Standing on Street Side of her Vehicle

July 23rd, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorist lost control in winter driving conditions.

In this week’s case (Lee v. Phan) the Plaintiff was struck by the Defendant’s vehicle as she was standing on the street side of her own vehicle.  The Plaintiff was retrieving groceries from her car and had to walk around the street side of her vehicle as there was a snow bank preventing her from walking to the sidewalk past the rear of her vehicle.  At the same time the Defendant was driving and was concerned the Plaintiff was going to jaywalk in front of his vehicle.   He hit his brakes and ended up steering into the plaintiff.  The Court found the Plaintiff was not about to jaywalk and the Defendant’s actions were negligent. In assessing fault fully with the Defendant Mr. Justice Blok provided the following reasons:

[50]         I find that Ms. Lee did not attempt to jaywalk across Renfrew Street, nor did she intend to do so.  There was no evidence to support this other than Mr. Phan’s impression that this is what “the shadow” seemed to be about to do.  I conclude that Mr. Phan’s impression was an erroneous one…

[56]         Both parties cited a number of cases involving collisions with pedestrians at crosswalks or collisions where wintery conditions were a significant factor.  In view of my finding that Ms. Lee made no attempt to cross Renfrew Street I do not find the crosswalk or jaywalking cases to be particularly helpful.  The winter driving cases establish little more than the general proposition that drivers should adjust their driving and use caution appropriate to the conditions…

[64]         Mr. Phan testified that he turned his vehicle into the snowbank because he felt this was his only option given his conclusion that Ms. Lee was about to jaywalk in front of him.  This, I have found, was an erroneous conclusion.  Had he continued straight ahead there would have been no collision.  Mr. Phan also seems to have been under the impression that one should never apply the brakes of a vehicle in icy conditions.  This is obviously wrong, as the appropriate response is to apply cyclical braking, as confirmed by the plaintiff’s engineer, Mr. Rempel.  For all of these reasons I conclude that Mr. Phan was negligent.

[65]         As for Ms. Lee, I am unable to accept the defendant’s suggestion that she ought to be found to be contributorily negligent.  She was not in a place that posed a hazard or obstruction to traffic, she was wearing a white coat and she was facing in the correct direction towards oncoming traffic.  The defendant has not established that Ms. Lee had any realistic opportunity to get out of the way.  I see no negligence on her part.

 


Substitution Orders in ICBC Hit and Run Claims are "Mandatory in Their Nature"

November 15th, 2012

Last year I questioned the correctness of reasons for judgement which refused to make a substitutional order in an ICBC Claim involving an unidentified motorist.  Reasons for judgement were released this week by the BC Supreme Court,  Chilliwack Registry  further addressing this area of the law finding that substitution orders are mandatory once the identity of an unidentified motorist becomes ascertained.

In this week’s case (McStravick v. Metzler) the Mr. Metzler and Ms. McStravick were occupants of a motorcycle involved in a serious collision.  An allegation was made that an unidentified motorist caused the collision.  ICBC was named as a nominal defendant under section 24 of the Insurance (Vehicle) Act.

Evidence disclosed on the eve of trial and trough witnesses during trial gave rise to identifying the unknown motorist.  The Plaintiff brought an application to substitute this person for ICBC in the lawsuit.  The motorist and ICBC vigorously oppose the application.  Mr. Justice Blok ordered the substitution and in doing so provided reasons highlighting the mandatory nature of Section 24(6) of the Insurance Vehicle Act.  The Court provided the following reasons:

[53]         I would observe at the outset that s. 24(6) of the Insurance (Vehicle) Act is mandatory in nature.  If the identity of the driver is ascertained then that person must be added as a defendant in substitution for ICBC.  The factors applicable to cases where parties are being added under the Supreme Court Civil Rules therefore have no application: Tse v. ICBC (1996), 24 B.C.L.R. (3d) 394 (S.C.).

[54]         While counsel for Ms. Sidwell concedes that the Court probably does not have jurisdiction to refuse to substitute an ascertained defendant in place of ICBC, he said that conditions may be specified, as expressly provided by s. 24(6).  However, counsel did not suggest any conditions that might be appropriate, short of refusing the application altogether.  Given the mandatory language of the section, a refusal cannot be a condition.

[55]         The mandatory language of the section also limits, and probably eliminates, any scope for the application of the equitable principle of estoppel insofar as applying the estoppel principle would operate to defeat the intent and effect of the section.

[56]         Even if there might still be some room for estoppel to operate, I am not satisfied that estoppel has been made out on the facts of this case.  Ms. Sidwell submits that as a result of the “shared assumption” of all counsel that she was not the unknown driver, she ceased being represented by counsel and did not take part in the trial.  What that submission fails to address is the fact that (1) the substitution application can be made at any time prior to judgment being granted, and (2) her interests were represented throughout by ICBC as nominal defendant.  As to the former, since s. 24(6) allows for a substitution application to be made at any time prior to judgment, a trial might well be completed before an application is made and with no hint of it beforehand.  Here, Ms. Sidwell had two years or more of advance notice and she had representation by counsel during that time.  In addition to her own counsel, counsel for ICBC represented the interests of the unknown driver, whoever that might have been, and thus in some respects at least she had two lawyers representing her interests until shortly before trial.

[57]         Ms. Sidwell complains that she was deprived of taking part in the trial, but until she was made a party she would have had no standing to take part.  She points to no prejudice associated with the fact that her interests, at least her interests in a general sense, were represented by counsel for ICBC instead of her own counsel.

[58]         Further, I do not consider that an estoppel against ever bringing a substitution application arises in this case.  Counsel for the plaintiff Metzler submits that while the last-minute disclosure of the Sidwell and Popovich witness statements revived the possibility that the plaintiffs would bring a substitution application – a possibility that counsel expressly stated at the outset of the trial – it was not until those witnesses had given evidence and their evidence tested in cross-examination that they considered the plaintiffs had a sufficient basis on which to bring the application.  In these circumstances I consider this approach to have been reasonable and prudent.  However, ICBC and Ms. Sidwell argue that the plaintiff Metzler is bound by his counsel’s letter so as to foreclose any possibility of a successful substitution application.  This would mean that even if Ms. Sidwell had expressly admitted at trial that her driving was the cause of the accident the defendants could not have substituted her as defendant in ICBC’s stead.  That cannot be correct.

[59]         Finally, there is an additional difficulty in applying an estoppel here in any event because the primary facts asserted as giving rise to an estoppel apply only to the plaintiff Metzler and not to the plaintiff McStravick.  The most that can be said in regards to Ms. McStravick is that her counsel attended a trial management conference at which the judge was told that the application was not being brought.  Only in Mr. Metzler’s case was a letter written, in arguably more definitive terms.  This leaves the unsatisfactory possibility that Ms. Sidwell might be substituted as a defendant in one case but not the other.  Fortunately I do not have to address this difficulty because I conclude that even on the strongest facts that are alleged an estoppel of the type and scope asserted does not arise.