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 Bracken’

Indivisible Injury Principle Applied Where Injuries Aggravated in Limitation Barred Event

March 28th, 2017

Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.

In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions.  The first in 2011.  She sued the at fault motorist who admitted liability.  She was involved in a second collision in 2014.  She was a passenger in her husband’s vehicle.  He was at fault for the second crash but she chose not to sue and the limitation period to do so expired.  The second crash aggravated the injuries from the first.

The Defendant argued that the Plaintiff’s damages must be reduced to the extent that the second crash aggravated them.  The Court disagreed noting the principle of indivisible injury allows the Plaintiff to fully recover damages from the first Defendant who is then burdened to seek indemnification from other contributing tortfeasors.  In applying the indivisible injury principle in the Plaintiff’s favour Mr. Justice Bracken provided the following reasons:

[117]     In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident.  She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.

[118]     In Bradley v. Groves, 2010 BCCA 361 at paras. 32 – 34, the court said:

[32]      There can be no question that Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]      The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]      That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[119]     In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident.  He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible.  The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act.  Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.

[120]     At para.60, Burnyeat J. stated:

[60]      I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[121]     In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.

[122]     I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu.  There was no right of action in British Columbia against the person liable for the second accident.  In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.

[123]     In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

[124]     It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband.  That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff. 

[125]     The plaintiff obviously knew of her right to commence an action from the time of the accident.  The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident.  I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.


Liability Findings in Tort Action Binding in Subsequent HCCRA Prosecution

December 20th, 2013

Reasons for judgment were published this week by the BC Supreme Court concluding that a trial court’s findings of liability are binding in subsequent Health Care Costs recovery prosecutions undertaken by the Province.

In the recent case (British Columbia v. Tekavec) the Defendant owned an apartment building.  A guest fell from the balcony and sued for damages.  The Defendant was found liable and ordered to pay damages.  Prior to trial the Province initiated collateral proceedings under the HCCRA.  They did not participate in the tort trial.  After trial they continue the HCCRA prosecution against the Defendant. The Defendant brought an application to strike the Claim.  Mr. Justice Bracken held that the action can continue and further that Defendant cannot re litigate the issue of liability as it was fully canvassed in the tort trial.  In reaching this conclusion the Court provided the following reasons:

[42]         While the Province could have joined in the original action to fully advance its claim, it chose not to.  Perhaps that decision resulted from the conclusion in Gosselin that the Act did not apply to the injuries Mr. Jack suffered before the Act came into force so the Province concluded it could not take an active role in the original action and had to proceed with an independent action.

[43]         Whatever the reason, it seems clear that the court in the original action thoroughly canvassed the issues the defendant has raised in its Response to Civil Claim filed in this action.  I accept that the Province was sufficiently privy to the original action to engage the doctrine of issue estoppel.  The Province had a right to participate with the plaintiff and had a participatory interest in the outcome.  If the court had determined that the defendant was not negligent that outcome would have bound the Province for the purposes of this proceeding.

[44]         The defendant referred to MacIver v. The Queen, 2005 TCC 250, as support for its submission; however, that case is distinguishable on its facts and was not a case where conclusions were reached after a full trial on the very issues the defendant wishes to raise again in this action.  It is not appropriate to allow the same issues to be canvassed again in this action.

[45]         The issues of liability and contributory negligence were fully dealt with and the defendant has exhausted any rights of appeal.  I am satisfied that the defendant is prevented from raising any defence related to his liability or the plaintiff’s contributory negligence in this action.


ICBC Ordered to Cover Damages for Corvette Crash at Western Speedway

July 17th, 2012

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, discussing the limits of the ICBC coverage exclusion for crashes which occur during “performance driver training

In today’s case (Nye v. ICBC) the Plaintiff was the owner of a Corvette.  He joined the Victoria Corvette Club which arranged for a private autocross event at the Western Speedway.  While participating in this event the Plaintiff crashed his vehicle with the Court summarizing the collision as follows:

[13] The plaintiff experienced no problems with the course until he came to a series of turns around some pylons placed several metres apart.  He entered that part of the course without difficulty and he safely manoeuvred around all of the pylons except for the last one.  As he attempted to complete his turn around the last pylon he felt he was too close to it and he said that when he attempted to put his foot on the brake pedal to slow down his foot slipped off the brake pedal and onto the accelerator causing his vehicle to lurch forward.  As a result he momentarily lost control and the vehicle collided with a concrete retaining wall.  The plaintiff was shaken up, but not injured; however, his car was severely damaged.

The Plaintiff had collision coverage with ICBC but they refused to cover the loss arguing the crash occurred during a ‘speed test‘ during ‘performance driver training‘.  Mr. Justice Bracken rejected ICBC’s arguments and ordered the damages to be covered finding that while the collision did occur during ‘advanced driving training‘ there was no element of a speed test at the time.  The Court provided the following reasons:

[19] Section 2(1) of the Regulation states:

Unless otherwise provided in a special coverage certificate, the Act and this regulation do not apply in respect of

(f)         a vehicle being used in a contest, show or race, or in advanced or performance driver training, if

(i)         the activity is held or conducted on a track or other location temporarily or permanently closed to all other vehicle traffic, and

(ii)        there exists an element of race or speed test.

(2)        In subsection (1)(f), “element of race or speed test” means driving at high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[37] On the evidence, I am satisfied that the activity in which the vehicle was used was an event that can fairly be described as advanced driver training.  An instructor was available and did introduce the plaintiff to the course in his first slow drive around the course.  A club session was held in advance to provide guidance to participants on how to drive the course.  The plaintiff did not actually receive any direct instruction on how to handle his vehicle on the course; however, there was some general guidance on what he should expect…

[39] I am also satisfied on the evidence that the event was held on a closed track.  While there was evidence of one non-participating vehicle intruding onto the track during the plaintiff’s first run, it was clear that the vehicle should not have been there and that the driver had proceeded past a flag person or club member stationed at the entry point for the purpose of keeping non-participants off the course…

[41] The remaining issue is whether the defendant has proven that there was an element of race or speed test in the event.  To repeat, the defendant must establish that

… there exists an element of race or speed test, which means driving at a high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[49] Here, the evidence does not support the conclusion that the plaintiff was assessing his vehicle’s limitations in speed, acceleration, turning or braking.  I find he was driving his vehicle well within its limitations of speed and turning, and I accept his evidence that the accident resulted when his foot slipped from the brake to the accelerator, causing the vehicle to accelerate directly into the retaining wall.

[50] In the result, I find the defendant has failed to establish that the plaintiff was operating his vehicle in breach of the Regulation or his insurance policy.  I find that he is entitled to coverage under his own damage provisions of the policy of insurance issued by the defendant.


Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules

April 26th, 2012

Unreported reasons for judgement recently came to my attention addressing, for what I believe is the first time since the New Rules came into force, the issue of whether a party can elect trial by jury when a new Notice of Trial is issued if they failed to so elect in the fist instance.  In short the Court held this is not permitted.

In the recent case (Hung v. Sellars, BC Supreme Court Duncan Registry) the Plaintiff was injured in a motor vehicle collision.  The case was set for trial and neither party filed a notice requiring trial by jury.  The trial was adjourned by consent.   The Plaintiff filed a new notice of trial (as is required by BC Supreme Court Practice Direction 25).  The Defendant then filed a notice requiring trial by jury.

The Plaintiff brought an application to strike the Jury Notice.  Mr. Justice Bracken granted the application noting that the Rules only allow a jury notice to by filed with the initial notice of trial.  In doing so the Court provided the following reasons:

[13]  As noted, the authorities have held the election whether the trial be by judge alone or by judge sitting with a jury contemplates that the election will be made promptly after the first notice of trial.  Some latitude is possible where a party seeks to make an election outside the tie limited by the rules in certain restricted circumstances.

[14]  In some cases, such as removal from the fast track process where there is no right of jury trial, the parties can make the eelction upon a new notice of tiral being filed…

[15] In this case, a jury notice, in accordance with the principle in Hoare v. Firestone and Pelech v. Pelech, could have been filed and served after the first notice of trial that was issued in this action.  The jury notice should have been filed and delivered within the rules after the date of the first notice of trial…Therefore the notice requiring trial by jury in this case…is struck as being filed outside the tine allowed by Rule 12-6.

As of today’s date this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.


$40,000 Non-Pecuniary Assessment for "Stabalized and Static" Soft Tissue Injuries

April 23rd, 2012

A not uncommon pattern for many people who experience soft tissue injuries following a motor vehicle collision is an acute phase of injury followed by a gradual period of improvement where the injuries, while largely recovered, do flare with heavier activity.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, assessing damages for such an injury.

In last week’s case (Stein v. Kline) the Plaintiff was involved in a 2008 rear-end collision.  ICBC admitted fault on behalf of the rear driver.   The collision resulted in little vehicle damage but the Plaintiff nonetheless sustained injuries.   After a short period of disability the Plaintiff was able to resume work and over a period of several months was able to resume recreational activities.  Despite this his injuries remained vulnerable to aggravation with physical activity.  In assessing non-pecuniary damages Mr. Justice Bracken provided the following reasons:

[31] The only medical evidence is contained in the report of Dr. Smith.  His report of July 28, 2011 states:

In summary, it is my opinion that Mr. Stein suffered injuries as a result of the motor vehicle accident of June 19, 2008.  It is my opinion that he suffered a musculoligamentous strain of the neck, scapular area and low back.  The strain of the scapular area and low back were mainly on the right hand side.  After the accident he was not fit to work until July 30, 2008 and he was then on light duty for the next several weeks.  Mr. Stein was treated with physiotherapy.  He was treated with anti-inflammatory drugs and occasionally a muscle relaxant.  He was shown a stretching program for his neck and lower back and has been able to control his symptoms with these stretching exercises since stopping physiotherapy in late 2008.  Mr. Stein still gets flares of scapular area pain and low back pain if he is overly active.  He is able to participate in his work on a regular basis and does virtually all the work he did before although he tries to avoid heavy lifting.  He is fit to participate in hockey, golf and other sports although he does these less frequently than in the past.  Any overuse causes him to have some flare up of pain in the scapular area or the lower back which usually settles within a few days.  He has intermittent spasm in the neck and lower back on examinations depending on his activities in the previous few days.

It is my opinion that Mr. Ron Stein’s injuries are soft tissue in nature.  His injuries have stabilized and have been quite static for the past year with only occasional flare-ups related to overuse.  He may require some intermittent physiotherapy or massage therapy in the future if he has increased pain or spasm but generally he is managing this well with a home exercise program.  It is now more than three years since the initial injury and it is my opinion that Mr. Ronald Stein is likely to have some ongoing muscle tenderness and occasional flare-ups as he has been doing for the last several months.  His injuries are not in any bone or joint and he is not going to be subject to an increased risk of osteoarthritis.

[32] In these circumstances, it is my view that the cases of Reyes v. Pascual and Schulmeister v. Furmanak are the most comparable.  The cases referred to by the plaintiff are in my view cases where the injuries were more serious.

[33] Based on the evidence presented and a review of the applicable case law, I find an appropriate award for non-pecuniary damages in this case is $40,000.  This award is perhaps somewhat generous given the evidence, but it reflects the fact that the plaintiff is still experiencing some pain more than three years post-accident.  While he is able to continue with these activities, he has occasional limitations that are attributable to his injuries from the accident and he still experiences some activity-induced pain.


ICBC "Does Not Have Any Duty" To Tell You When Your Claim Expires

March 30th, 2012

Limitation periods are important.  If your case is not settled before your limitation period expires a formal lawsuit needs to be filed within time otherwise the right to pursue the claim effectively disappears.

When dealing with ICBC directly it is important not to rely on them for assistance in bringing limitation periods to your attention.  They are under no duty to tell you when your limitation is coming up.  ICBC is allowed to ‘run the clock’.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this reality.

In today’s case (Field v. Harvey) the Plaintiff was injured in a 2008 collision.  In her dealings with ICBC some discussions were had regarding settlement with ICBC writing a ‘without prejudice‘ letter referencing bills for massage therapy indicating that “we can discuss this at the time of settlement“.

The Plaintiff never did settle her claim.   She commenced a formal lawsuit but did so after her limitation period expired.  The Plaintiff argued that ICBC should be estopped from relying on the limitation period because of ICBC’s letter discussing settlement.  Mr. Justice Bracken disagreed and dismissed the lawsuit.  In doing so the Court provided the following words of caution:

[27] Finally, the defendants argue that ICBC does not have any duty, statutory or otherwise, to inform potential claimants of the specific date on which the right to commence an action upon a claim will expire…

[30] It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire….

[36] The plaintiff relies solely on the December 15, 2008, letter for her argument that the defence of estoppel can be applied as a defence to the provisions of the Limitation Act. That letter explicitly states: “[n]othing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.”

[37] A reasonable interpretation of this letter in no way evidences a representation or promise, by convention or otherwise, to waive or extend the applicable limitation period. In my opinion, it does quite the opposite by warning the plaintiff that, although all claims are negotiated toward the goal of settlement, time is still running.

[38] Limitation periods exist, in part, to encourage plaintiffs to bring their actions in a timely manner. The plaintiff has failed to bring her action in a timely manner and has not satisfied this court that there exists a lawful reason for her failure to comply with the provisions of the Limitation Act.

[39] The plaintiff’s cause of action is therefore dismissed, pursuant to s. 9 of the Limitation Act, as having been commenced after the expiry of the applicable limitation period.


QEEG Evidence Not Admissible In BC Brain Injury Claim

August 3rd, 2011

(Image courtesy of Wikipedia)

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, addressing the admissibility of QEEG Evidence in a brain injury claim.  In short the Court held that while such evidence may be admissible in appropriate cases, the evidence presented in the case was insufficient to meet the threshold test of reliability to admit “novel” evidence.

In this week’s case (Bialkowski v. Banfield) the Plaintiff was injured in a motor vehicle collision.  He allegedly suffered a traumatic brain injury.  In support of his claim he tired to introduce QEEG evidence  tendered through a neuropsychologist.  Mr. Justice Bracken declined to let the evidence in finding that the neuropsychologist was not properly qualified to introduce the QEEG evidence and further the evidence was not proven to be reliable.  In excluding the evidence Mr. Justice Bracken provided the following summary of his findings:

[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain.  Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head.  The electrical activity is then recorded either on paper, or digitally on a computer.  The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique.  It uses computer assisted analysis of EEG tests.  The raw EEG data is digitized and analyzed by means of a mathematical algorithm.  It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis.  Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis.  In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan.  I conclude it will not assist the trier of fact.  As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future.  As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible.  Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders.  …  Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert.  QEEG does not meet the requisite reliability threshold and is still novel science.


Plaintiff Unsuccessfully Sues for Being Run Over By Car While Cleaning It

April 21st, 2011

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.

In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:

[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.


More on the Law of Multiple Defence Medical Exams in Injury Litigation

April 13th, 2010

Further to my previous posts on this topic, the law is well settled that the BC Supreme Court can order a Plaintiff involved in an injury lawsuit to undergo multiple defence medical exams in appropriate circumstances in order to ‘level the playing field‘.

There are many reported court cases considering such applications and today reasons for judgement were released by the BC Supreme Court, Victoria Registry, providing a concise summary of some of the legal principles at play when ICBC or another defendant wishes to have a Plaintiff assessed by multiple doctors.

In today’s case (Hamilton v. Pavlova) the Plaintiff was involved in a 2002 BC car crash.   The Plaintiff alleged that she suffered a mild traumatic brain injury (MTBI) in the crash which affected her cognitive functioning and had been assessed by at least 14 doctors since the time of her accident.

The Plaintiff attended two independent medical exams at request of the defendants, the first with an orthopaedic surgeon and the second with a neurologist.  The neurologist provided an opinion that “there was no evidence to support a diagnosis of brain injury“.  The Defendants then requested the Plaintiff to be assessed by a psychiatrist.  The Plaintiff refused and this resulted in a court motion to force attendance.

Mr. Justice Bracken dismissed the motion finding that the defendants were seeking to “bolster the opinion (of the neurologist they chose) by providing a similar opinion from someone with perhaps a more appropriate specialty“.  Before reaching this conclusion Mr. Justice Bracken provided the following very useful summary of some of the factors Courts consider in requests for multiple ‘independent’ medical exams:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives:  Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 at para. 17, andChristopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances:  Wildemann v. Webster, supra, at p. 3.

As previously pointed out, the BC Supreme Court Rules are being overhauled in July 2010.  Under the new rules the Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I plan to follow the law as it develops under the new rules and will report how our Courts apply the concept of proportionality to multiple defence medical exams in ICBC and other BC Personal Injury Litigation.


$35,000 Non-Pecuniary Damages for Chronic Low Back Pain With Poor Prognosis

April 4th, 2010

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $64,000 in total damages as a result of BC car crash.

In this week’s case (Elgood v. Ellison) the Plaintiff was injured in 2006 when he was struck by a vehicle in Langley, BC.  The Plaintiff was walking in a marked cross-walk with the right of way when the Defendant driver made a left hand turn and struck the Plaintiff.  Fault was admitted and the trial focused solely on the value of the Plaintiff’s claim.

The Plaintiff suffered minor injuries to his legs and neck which quickly and fully recovered.  His most serious symptom was low back pain which persisted from the time of the accident through trial.   The evidence accepted by the Court was that the Plaintiff had mechanical pain around the lumbar spine and that these symptoms may be an ongoing problem for the Plaintiff.

(highlighted portion of illustration depicts the lumbar spine)

In awarding the 65 year old Plaintiff $35,000 for his non-pecuniary damages Mr. Justice Bracken made the following notable findings:

[39]        Dr. Hirsch concluded that the plaintiff has made a full recovery with respect to his legs and that he had a relatively minor neck injury that has now essentially resolved.

[40]        The more difficult problem is the lower lumbar spine area and Dr. Hirsch said that this condition was likely caused by the accident.  He described it as likely mechanical in nature and that it is exacerbated by stress or loading on the back.  He believes that the plaintiff should continue his home-based exercise program and perhaps attend for structured appointments with a kinesiologist or physiotherapist.  He also thought that some exercise such as tai chi, yoga, pilates or water-based exercises would be helpful.

[41]        He concluded that the plaintiff’s restrictions were attributable to chronic low back pain that was caused by the accident and that the prognosis for complete recovery was guarded given the plaintiff’s age and the duration of the symptoms.

[42]        He did believe that the plaintiff should be capable of performing his domestic chores but that he may have to pace himself and that he will have ongoing problems with more strenuous activities such as lifting, snow shovelling or completing significant household repairs.  He did not foresee any need for future care or for any surgery.

[43]        In summary, it appears that the plaintiff’s leg and shoulder injuries resolved very quickly and his neck pain diminished gradually over time, to the point where it is now only occasional pain and of a non-debilitating nature.  He had some early headaches which have now become occasional.

[44]        The significant pain that the plaintiff suffers is chronic low back pain that Dr. Hirsch predicts will likely be with him for the foreseeable future.  No doubt the low back pain will prevent him from doing many jobs, particularly those that require long periods of sitting.  Given his age and background, it is most likely that sedentary jobs will most likely be what are available to him.  He has sharply reduced his recreation, although some of the intense recreational and physical activities engaged in by the plaintiff would likely diminish in intensity over time due to the normal aging process regardless of his injury.  He will likely still have the ability to engage in mild recreational activities. The plaintiff says that even mild recreation or physical activity is too painful for him.

[45]        As Dr. Hirsch pointed out at p. 6 of his January 20, 2009 report:

Three years have elapsed since Mr. Elgood suffered his low back injury in the subject motor vehicle accident.  Given the duration of his symptoms, the prognosis regarding complete resolution of his low back pain has to be viewed as guarded at this juncture.  Given the temporal profile to date, I would consider it more likely than not that Mr. Elgood will experience low back pain indefinitely.  Low back symptoms of sufficient intensity will probably limit his ability to perform tasks which biomechanically stress his low back…

[51] While the plaintiff has been able to carry on with work, he and his wife both said that he has only been able to do so by enduring a level of chronic pain.  Based on the opinion of Dr. Hirsch, which I accept, his condition is not likely to be alleviated over time.  Bearing in mind his age and the impact of his injuries on his personal life and work life since the accident, in my view, the range of damages is between that of the plaintiff and defendant and I assess general damages at $35,000.