ICBC Law

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic Sacroiliac Joint Ligament Injury as a result of two motor vehicle collisions.

In today’s case (Keenan v. Fletcher) the Plaintiff was involved in 4 separate collisions.  She sued for damages and all four claims were heard together.  The Court found that the Plaintiff suffered no injuries in the first two crashes and dismissed those lawsuits.

The Court did, however, find that the Plaintiff suffered injuries in the third and fourth collision, most notably a chronic ligamentous injury to the right sacroiliac joint.  Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $60,000 although this assessment was then reduced by 20% to take into account various other factors which contributed to the Plaintiff’s difficulties.  In assessing damages Mr. Justice Gaul provided the following reasons:

[98] Under the heading “Diagnosis”, Dr. Hershler opined:

The history and physical findings are consistent with an injury to the right sacroiliac joint. The injury is probably primarily ligamentous, however there is evidence of mechanical malalignment and increased tightness and tenderness in the right paraspinal, as well as increased tightness in the right leg secondary to this injury….

[119] The injuries to Ms. Keenan’s neck and shoulder have resolved themselves to a considerable degree. To a lesser extent, the injury to Ms. Keenan’s lower back has also improved. I find that the improvement in Ms. Keenan’s physical condition is directly attributable to her intense drive and will to get better. I also find that it was though this sheer determination that Ms. Keenan has been able to manage and limit the impact of these injuries on her life.

[120] Given the passage of time since the injuries developed and the fact that Ms. Keenan continues to experience low level pain and discomfort in her back on a reasonably regular basis and the occasional episode of intense pain, I am persuaded the injury to Ms. Keenan’s back is the key and principal injury that has resulted from MVA #3 and MVA #4. As I have noted, Ms. Keenan is a determined person and I have no doubt that her strength of character has been and will continue to be one of the reasons why she manages so well in spite of the discomfort she experiences in her back.

[121] In my opinion, the evidence supports the conclusion that Ms. Keenan will most likely experience the occasional severe flare-up of her back pain which will likely have a negative impact upon her ability to perform her police duties, including voluntary overtime….

[148] I am satisfied that this pain has on occasion had a reasonably pronounced impact upon Ms. Keenan’s ability to enjoy all facets of her life. In the period of time immediately after MVA #4, the pain was practically constant and debilitating. Over time the pain has become more tolerable and manageable. The medical evidence points to the fact that this back pain has decreased with the passage of time; however, there is a real possibility that it will continue to flare-up and cause Ms. Keenan significant difficulties for her at work as well as at home…

[151] I am satisfied that an award of $60,000 appropriately compensates Ms. Keenan for the non-pecuniary damages she has suffered as a result of MVA #3 and MVA #4. Applying the 20% discount for the contingencies I have previously noted, I award Ms. Keenan $48,000 for her non -pecuniary damages.

As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.

In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.

ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:

[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…

[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…

[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…

[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…

[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…

[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.

Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a left sided Thoracic Outlet Syndrome (TOS) which arose after a series of accidents.

In today’s case (Lee v. MacLean) the Plaintiff was involved in two 2003 motor vehicle accidents.  The Defendants were found liable for the collisions focusing the trial on the cause of the Plaintiff’s injuries and their value.

Determining the cause of the Plaintiff’s injuries was no easy task as the Plaintiff was injured in previous motor vehicle collisions and continued to suffer pain from those events.   By the time of his 2003 accidents the Plaintiff still had pain in his neck, right shoulder and lower back as a result of his previous accidents.  The 2003 accidents aggravated these injuries and caused new symptoms.  Specifically the Court found that the 2003 collisions “triggered the onset of the thoracic outlet symptoms on (the Plaintiff’s) left side“.

The Court heard expert evidence from Dr. Peter Fry, a vascular surgeon with expertise in thoracic outlet syndrome.  He provided the following evidence with respect to the cause and severity of the Plaintiff’s left sided TOS:

I think significantly at the present time he shows evidence of more serious compression of the thoracic outlet given that there is clinical evidence that the venous drainage of the arm on the left is impaired compared to the right side.  This is an indication of fairly severe compression in this area, basically involving not only the vein but the artery where you can develop a bruit or turbulence during provocative testing for thoracic outlet syndrome and the reproduction of neurological symptoms that appear to involve both upper and lower plexus.

This being the case, I think it is highly that at some point in time Mr. Lee is going to require definitive surgery for thoracic outlet syndrome on the left.

I would opine that the accident of October 2003 was most likely responsible for provoking or exacerbating symptoms on the left side in a setting where he clearly had previous compression of the thoracic outlet and was therefore somewhat vulnerable to this injury.

Mr. Justice Gaul assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000.  The court then reduced this award by 25% to take into account the Plaintiff’s pre-existing injuries.  Mr. Justice Gaul provided the following reasons:

[118]     Applying the principles enunciated in Filsinger, I am satisfied Mr. Lee is both a “crumbling skull” and “thin skull” plaintiff.  The determination of which depends upon the precise injury.

[119]     The neck, right shoulder and lower back pains Mr. Lee complained of following the 2003 Accidents were quite similar to those he complained of after the 1990s Accidents.  I am satisfied that these symptoms would have continued to manifest themselves even if Mr. Lee had not been involved in the 2003 motor vehicle accidents.

[120]     With respect to the left side of Mr. Lee’s body, the issue is more difficult.  I accept the evidence of Dr. Fry that in 1998 Mr. Lee exhibited signs of thoracic outlet syndrome on the left side of his body, even though Mr. Lee was asymptomatic at the time.  I am persuaded by the evidence of Dr. Fry and Dr. Shuckett that the nature of Accident #1 and Accident #2 were such that they triggered the onset of the thoracic outlet syndrome symptoms on Mr. Lee’s left side and are therefore attributable to those accidents.

[121]     I also find that the concentration problems, headaches and associated vision problems that arose after the 2003 Accidents can at least be partially attributed to those accidents…

[123]     Given the pre-existing condition of Mr. Lee and the fact that the symptoms on the right side of his body were likely to have continued, notwithstanding the 2003 Accidents, I find that it is appropriate to make a 25% reduction in the non-pecuniary damages as well as the award for loss of earning capacity…

[135]     I found Mr. Lee to be a credible witness when he described the timing, nature and extent of his injuries.  In doing so, I accept that he had pre-existing pains prior to the 2003 Accidents, some of which were identical to those which developed after the 1990s Accidents.

[136]     Mr. Lee is entitled to be compensated for his injuries.  I do not find those injuries to have been as trivial or transient as suggested by the defendants.  On the whole I favour Mr. Lee’s description of the injuries and find that an appropriate award for non-pecuniary damages to be $85,000.  There will, however, be a 25% contingency discount to this amount on account of Mr. Lee’s pre-existing physical ailments.

[137]     As a result, the award for non-pecuniary damages is $63,750.

You can click here to read my archived posts of other recent BC Injury Cases awarding damages for accident caused Thoracic Outlet Syndrome.

When two vehicles enter an uncontrolled intersection at approximately the same time and a collision occurs, how do you determine who’s at fault?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of the law.

In today’s case (Vagramov v. Zipursky) the Plaintiff was involved in a 2004 car crash in Vancouver, BC.  The Plaintiff entered an uncontrolled intersection and collided with the Defendant’s vehicle which was attempting to cross the intersection at the same time.  Mr. Justice Gaul found that the Defendant was 100% responsible for the collision.  In doing so the Court provided the following useful summary of some of the legal principles that come into play in BC uncontrolled intersection crash lawsuits:

[129] The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the manner in which automobiles are driven on the roadways of our province. Section 144 of the MVA deals with the issue of careless driving, stating:

(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.

[130] Section 173(1) of the MVA sets out the statutory rules of the road for vehicles that approach an uncontrolled intersection of the nature present in the case at bar.  That section provides:

Except as provided in section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.

[131]     The law relating to the duties of motorists as they approach uncontrolled intersections was set out in the seminal case of Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) [Brownlee].  The following observations of  Mr. Justice Cartwright, at 461, are apposite to the case at bar:

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[132]     Another oft-cited case in the area of the duty of servient drivers is the Manitoba Court of Appeal decision in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 (Man. C.A.) [Scheving].  In his written reasons for a unanimous court, Mr. Justice Schultz articulates the appropriate principles to follow in cases such as the one presently before the court, at 358-359:

I think it fair to infer that this provision [the section of the Manitoba Highway Traffic Act that is similar to s. 175(1) of the BC Motor Vehicle Act] was made for the purpose of controlling automobile traffic, the speed of which makes impractical and ineffective a rule giving priority to whichever vehicle first reaches an open intersection. It need hardly be emphasized that inevitably there is confusion and great danger inherent in races to get to such an intersection, underlining the necessity for the present right-of-way rule. The word “approximately” as used in the above subsection means “about” or “nearly” and is the direct opposite of “exactly” or “precisely”. Therefore a vehicle approaches an intersection “at approximately the same time” as another vehicle if it approaches slightly before or slightly after such vehicle. Because the vehicle from the left reaches the intersection first — momentarily or a fraction of a moment ahead of the vehicle from the right– it cannot be said that the vehicle from the right has not approached it at “approximately” the same time.

What may be referred to as the old rule — that the car first reaching the intersection has the right-of-way — may properly be applied under certain circumstances. Thus, When the vehicle on the left reaches an open intersection substantially in advance of the vehicle on the right, i.e., where the vehicle on the right is at such a distance and travelling at such a speed that there is no reasonable danger–no apparent danger–of collision to be apprehended if the driver on the left proceeds into the intersection, then, under such circumstances, the driver on the left can with safety and with reason proceed into the intersection. However, it is obvious that under such circumstances, there being no question of precedence involved, there is no question of right-of-way involved either.

Prior entry into an intersection does not mean priority by a matter of a few feet or by a fraction of a second ahead of another vehicle; it means entry into an intersection with the opportunity of clearing it without obstructing the path of another vehicle under normal circumstances. “Who hit whom” is not the test.  The driver on the left, even though he may reach the intersection first, must yield the right-of-way to the driver on the right where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continue the same course at the same speed.