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 Greyell’

$75,000 Non-Pecuniary Assessment for Chronic Back and Hip Soft Tissue Injuries

January 8th, 2018

Reasons for judgement were published this week by the BC Supreme Court, Chilliwack Registry, assessing damages for chronic soft tissue injuries caused by a collision.

In this recent case (De Groot v. Heller) the Plaintiff was involved in a 2012 collision that the Defendant accepted fault for. The crash caused soft tissue injuries to her hip and low back along with an aggravation of a pre-existing arthritic condition.  The symptoms lingered to the time of trial and were expected to negatively impact her moving forward.  In assessing non-pecuniary damages at $75,000 Mr. Justice Greyell provided the following reasons:

[125]     In my view, the evidence establishes that it is likely that the Accident aggravated Ms. De Groot’s underlying arthritic condition in her left hip. There is no evidence connecting her prior back complaints with back complaints brought on by the Accident. The lay witnesses called to testify on her behalf each confirmed that she was active in regularly walking her dogs and that she engaged in such activities as hiking, canoeing and horseback riding on the trips she made to the interior. It is also clear on the evidence that, post-Accident, her ability to engage in those activities is limited…

[130]     At the time of the trial, almost five years had passed since the Accident. Ms. De Groot continues to suffer from pain in her lower back and hip, which prevents her from enjoying the activities she enjoyed prior to the Accident, and while she has not missed time from work, she has difficulty sitting for long periods. She has difficulty lifting and carrying her child, and performing heavier household tasks. She and her husband have experienced difficulty with intimacy due to her injuries from the Accident. Ms. De Groot’s prognosis for improvement is uncertain.

[131]     After considering the principles set out in Stapley and the cases referred to by counsel, I award Ms. De Groot $75,000 in non-pecuniary damages.


$110,000 Non-Pecuniary Assessment for Concussion and Chronic Low Back Pain

September 30th, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion and chronic soft tissue injuries sustained in a collision.

In today’s case (Purewal v. Li) the Plaintiff was involved in a 2012 intersection collision.  The court found the Defendant fully responsible for the crash.  The Plaintiff suffered a concussion, chronic headaches, chronic low back pain and aggravation of some pre-existing injuries.  The collision resulted in substantial time away from work along with lingering injuries at the time of trial.  I assessing non-pecuniary damages at $110,000 Mr. Justice Greyell provided the following reasons:

[156]     The impact sustained by the plaintiff’s vehicle during the Accident was unexpected and substantial. The injuries sustained by the plaintiff included a concussion when he struck his head, ongoing headaches and substantial soft tissue injuries to his shoulder, upper, mid and lower back. I find the Accident aggravated injuries sustained by Mr. Purewal in the Prior Accident. In addition, I find Mr. Purewal had interrupted sleep and developed a depressed mood as a result of his ongoing pain and discomfort which has affected his family life, including his relationship with his daughters and his wife. While Mr. Purewal has returned to work he will likely continue to suffer from lower back pain which will, over time, limit his ability to work the amount of overtime as he has in the past.

[157]     Based on the principles set out in Stapley and on my review of the cases cited by counsel Mr. Purewal’s non-pecuniary loss should be assessed at $110,000, which includes a consideration of the degenerative condition of Mr. Purewal’s lower back.


$140,000 Non-Pecuniary Assessment for Chronic Dizziness and Imbalance

December 14th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for symptoms of chronic dizziness and imbalance following a vehicle collision.

In today’s case (Kijowski v. Scott) the Plaintiff was involved in a 2011 collision caused  by the Defendant.  The Plaintiff suffered various soft tissue injuries and also suffered from chronic dizziness and imbalance issues.  These were expected to be permanent.  In assessing non-pecuniary damages at $140,000 Mr. Justice Greyell provided the following reasons:

[128]     In my view Mr. Kijowski’s injuries are considerably more significant that those sustained by the plaintiffs in the cases referred to by the defendants. As a result of his injuries, Mr. Kijowski’s life has been significantly altered in many respects: recreationally, at work, and at home. He can no longer enjoy the activities he did in the past and the prognosis for his improvement is guarded. Dr. Longridge has opined Mr. Kijowski’s dizziness and imbalance will be permanent impairments and he will have to continue with vestibular therapy indefinitely to improve his ability to function with these conditions or he will likely relapse. As he ages, he will more prone to falling and injuring himself. He has a hearing deficit as a result of damage to the cochlea which likely can be improved with binaural amplification (hearing aids). Mr. Kijowski continues to suffer from soft tissue injuries to his neck, mid and lower back which will likely improve over time with treatment. His tinnitus and hearing deficit have resulted in stress in his relationships at home. His ability to concentrate and his energy is decreased and he worries about the security of his job and the consequences that would have on his family.

[129]     After considering all the factors set out in Stapley I am of the view the appropriate amount of non-pecuniary damages is $140,000.


BC Supreme Court Awards Damages for Cost of Medical Marijuana Program

August 21st, 2014

With medical marijuana gaining more acceptance as a prescribed treatment for a variety of health conditions, costs associated with such treatments are receiving judicial consideration in personal injury litigation.

In what is at least the second decision in BC to do so (click here for the first) reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for the cost of medical marijuana.

In today’s case (Amini v. Mondragaon) the Plaintiff was injured in a 2011 collision that the Defendant accepted responsibility for.  The Plaintiff suffered various lingering injuries and a medical marijuana program was recommended to address some of the Plaintiff’s symptoms.  Mr. Justice Greyell assessed damages of $6,500 to account for the cost of this recommendation and in doing so provided the following reasons:

[133]     Dr. Hershler strongly recommended Ms. Amini be put on the Medical Marijuana Program to assist in controlling her pain so as to allow her to work on strengthening exercises for her neck and back. He was of the view this would allow her a “good chance for effective pain management”. I accept his recommendation as a reasonable one.

[134]     Dr. Hershler recommended she be prescribed ten grams of cannabis per day to be used as an ointment. He recommended this be followed with 20 sessions with a physiotherapist to build core strength and range of motion.

[135]     Dr. Hershler estimated the cost of a six month program using a dosage of 10 grams per day to be approximately $9,000. In cross-examination counsel suggested the ointment could be made at considerably less cost if the plaintiff, as a Nurse, made her own. Dr. Hershler did not disagree.

[136]     I award the plaintiff $6,500 for a Medical Marijuana Program and $1,500 for the cost of 20 physiotherapy sessions (at $75 each) to follow the medical marijuana treatments.

 


Revocation of a Formal Settlement Offer “Can Be Oral or Written”

December 16th, 2013

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, confirming a formal offer to settlement made under the BC Supreme Court Rules can be revoked verbally or in writing.

In last week’s case (Ladret v. Stephens) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff made a formal offer to settle for $75,000.  A series of informal offers were then made by the parties before the trial commenced which was ultimately adjourned as no judge was available.   Following the passage of some time defence counsel gave notice that they were accepting the $75,000 formal offer.  The Plaintiff opposed this acceptance arguing the offer was revoked.  Mr. Justice Greyell agreed and provided the following reasons:

[29]         It is my view that that offer was not open for acceptance. It is my view, based on the facts that have been placed before me, that the offer of $75,000 had been withdrawn expressly during the telephone conversation and that the defendants in accepting that offer proceeded to do so on the mistaken belief that the withdrawal of the offer had to be in writing to be effective.

[30]         I am supported in that finding by the following paragraph in an e-mail sent by the defendants to Mr. Gourlay, a portion of which reads:

The crux is your formal did not stipulate an expiration and you did not revoke it. As such, it was open for acceptance by the defendants. As it was drafted, it was open for acceptance up until judgment. Although not required by Rule 9-1, if you intended to revoke your formal you would have to do so in writing.

[31]         The case law is clear that a revocation can be oral or written. The question is whether such revocation is clearly and unequivocally given, citing Janzen v. Janzen, 2011 BCSC 1146, 2011 B.C.J. No. 1605.

[32]         In my view, given the contents of the April 22nd discussion between Ms. Owen-Blas and Mr. Gourlay, it was clear the offer of $72,500 had been revoked, that offer in itself revoking the $75,000 prior offer.


$70,000 Non-Pecuniary Assessment for Chronic Facet Joint Injury

November 21st, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back injury.

In this week’s case (Bearpark v. Lakhanpal) the Plaintiff was injured in two collisions.  The Defendants accepted fault.  The Plaintiff suffered injury to his facet joints in the L4-S1 region.  This caused chronic pain and resulted in restrictions in the Plaintiff’s ability to do heavier work.  In assessing non-pecuniary damages at $70,000 Mr. Justice Greyell provided the following reasons:

[100]     I am satisfied the evidence presents a consistent and reliable picture of the plaintiff’s injuries, which he did his best to describe in his evidence. His evidence was generally consistent with the findings of his physicians that in the two motor vehicle accidents he sustained and suffers from chronic lower back pain which originates from injury to his facet joints in the L4 – S1 region, shoulder pain which flares up (and was likely aggravated in the bus accidents) and neck pain. His neck pain has now mostly resolved…

[103]      Mr. Bearpark has been left with significant ongoing chronic lower back pain which I find is the result of an injury to his lower back in the L-5-S-1 area. I find this injury to be a direct result of the two motor vehicle accidents. The injury to his lower back bothers him more when he engages in heavy labour and limits him in the job functions he can perform. He is able to tolerate it in the sedentary position he now occupies with accommodations provided to him by his employer.

[104]      I find the injuries to his right shoulder, hand, and knee have mostly resolved. I find that his left shoulder is now more susceptible to injury as a result of an impingement in that shoulder and along with his neck, bothers him, and will likely continue to limit his functional ability when he engages in heavy labour. I find that the ongoing intermittent problems in his neck and left shoulder were caused by the motor vehicle accidents. His left shoulder injury may well have been aggravated by the First Bus Accident. That is, as the defendants submit, not a matter to be considered in this action.

[105]     The plaintiff’s main ongoing and persistent complaint is of ongoing pain in his lower back or organic problems in his lower spine as described above.

[106]     I also find that he is likely still bothered by symptoms of depression and Post Traumatic Stress, including difficulty sleeping, anxiety, and flashbacks to the motor vehicle accidents. The depression likely has an effect on the amount of pain he feels. As described in the medical evidence, the two often go hand in hand…

[110]     Mr. Bearpark is a relatively young man who, at the time of both motor vehicle accidents, had not yet settled into a career path. He was active in both sporting and social activities, although somewhat reserved and shy. The accidents have left him with ongoing chronic back pain, which limits his performance of heavier work involving lifting, bending or twisting, and intermittent pain in his neck and left shoulder. He will likely be restricted to sedentary work in the future as a result of the injuries to his back and shoulder. His physicians have recommended that conditioning and exercises may help him although, as stated above, his prognosis is “guarded”.

[111]     Taking into account the principles outlined in Stapley and the authorities referred to by counsel, I am of the view an appropriate award for non-pecuniary loss in this case is $70,000.


Lay Opinion Evidence Addressing An Athlete’s Potential

June 17th, 2013

Reasons for judgement were recently shared with me addressing the scope of permissible lay witness opinion evidence addressing an athlete’s potential to advance in a professional sport.

In the recent case (Albert v. Politano) the Plaintiff was a professional boxer who suffered a hand injury in a collision.  One of the issues canvassed at trial related to the Plaintiff’s potential to succeed in his sport.  Ultimately a jury awarded the Plaintiff substantial damages for diminished earning capacity and this verdict survived appellate scrutiny.

In the course of trial the Court was asked to address if opinion evidence relating to the Plaintiff’s potential trajectory in the boxing world was admissible from lay witnesses.  Mr. Justice Greyell agreed that it could and provided the following reasons addressing this topic:

[7]  The plaintiff seeks to admit evidence from several witnesses who were former coaches of the plaintiff or persons involved with the plaintiff in a professional capacity.  These witnesses will testify as to the plaintiff’s accomplishments, his abilities and his pre-accident potential to advance as a professional in the boxing world.

[8]  The defendants…do object to these witnesses offering opinions as to the plaintiff’s potential for advancement in the boxing world…

[9]  The general exclusionary rule for opinion evidence is often not applied for lay witness opinion…Lay witness opinion evidence is received in some circumstances because the opinion is considered helpful to the Court…

[10]  The Law of Evidence in Canada sets out four criteria upon which lay witness opinion evidence may be received in evidence at paragraph 12.14…

[11]   I find the lay witness opinion tendered by the plaintiff meets these criteria.  Each witness worked with or at least closely observed the plaintiff’s development as a boxer.  each witness is in a better position than the trier of fact to draw an inference as to the plaintiff’s future career as a boxer.  The witnesses all have experiential capacity, which I find is different from the ordinary circumstances of life (to which the jury is accustomed).  Finally, the witness’ opinion is a “compendious mode of speaking”.  In other words, the facts are too subtle and too complicated to be narrated separately and distinctly (as explained in Graat at 841).

[12]  I further note that paragraph 12.12 of The Law of Evidence in Canada states” “couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness’ perceptions.  The real issue will be the assessment and weight to be given to such evidence after it is admitted.”  This latter comment, in my view, is one which can be adequately addressed by proper instruction to the jury following examination and cross-examination.

[14]  For the reasons stated, I will permit these witnesses referred to above to give opinion evidence as to the potential for the plaintiff’s advancement as a professional boxer.

To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy    to anyone who contacts me and requests one.

 


Two Jaywalking Injury Claims Dismissed by the BC Supreme Court

May 23rd, 2013

Adding to this site’s archived case summaries of collisions invovling jaywalking pedestrians, two separate cases involving such a collision recently were dismissed at trial by the BC Supreme Court.

In the first case (Talbot v. Kijanowska) the Plaintiff, who emerged from an alleyway, was attempting to cross a street without the right of way.  The Defendant motorist did not see him in time to take evasive action.  The Plaintiff’s claim was ultimately dismissed with Mr. Justice Greyell providing the following reasons:

[34]         It is acknowledged by Mr. Talbot that he was not crossing the street at a crosswalk, marked or unmarked, at the time he struck or was struck by Ms. Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a common law duty on a person in Mr. Talbot’s position to take care of his own safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309, 48 M.V.R. (3d) 56 (S.C.) at para. 17….

38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.

[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.

Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.

[40]         The plaintiff’s action is dismissed. In the ordinary course the defendant would be entitled to costs. If there are matters of which I am unaware counsel may speak to the issue.

In the second case, (Pinsent v. Brown) the Plaintiff pedestrian was injured when attempting to cross a street in Vancouver in dark and rainy conditions.  She was not crossing at an intersection or in a crosswalk and “emerged onto the roadway from between parked cars”.  In finding the Plaintiff solely at fault for the resulting collision Madam Justice Ross provided the following reasons:

[32]         The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,…

[34]         The mere fact that the driver did not see the pedestrian before striking him, is not in itself, sufficient to establish that the driver kept an inadequate lookout: Plett v. ICBC (1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle so that he will be able to avoid striking a pedestrian who is crossing his path in a reasonable manner: Funk v. Carter, 2004 BCSC 866….

[52]         Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.

[53]         In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.

[54]         The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.

[55]         I find that Ms. Brown was not negligent in the manner she operated her vehicle. Ms. Pinsent was the sole cause of this unfortunate accident. In the result the action is dismissed.


Is Tort Reform Needed To Allow Proper Crime Victim Compensation?

January 2nd, 2013

I have previously discussed the harsh reality that when a person is injured through the intentional, criminal wrongdoing of others they often face a far tougher road to receiving fair compensation for their injuries through the legal system as compared to victims of negligently caused harm.  The reason being that when people are injured through negligence defendants are often insured to pay for the damages.  When people are injured through crime this usually is not the case leaving the victim not only with the legacy of their injuries but with a possible ‘dry judgement’ in the event they sue for damages.

Reasons for judgement were released recently by the BC Supreme Court, Port Alberni Registry, dealing with a criminal assault which made me consider this issue again.  In the recent case (Thornber v. Campbell) the Plaintiff was the victim of a “brutal and unprovoked” assault by the Defendant as the Plaintiff “lay sleeping in his bed“.  The assault caused “multiple facial, head and neck, and jaw contusions…oral/dental injuries including multiple dental fractures…PTSD…(and) recurrence of a previously-suffered Major Depressive Disorder“.

The Defendant was criminally convicted for the assault.  The Plaintiff sued for damages and had his non-pecuniary damages assessed at $125,000.   Notably the Defendant did not participate in the proceeding leading me to the suspect that this Plaintiff may have little more than a dry judgement following this assessment.   If that is the case it is worth repeating my views about whether this issue should be reviewed by the legislature to create a meaningful compensation system for victims of crime who pursue ‘dry’ damages through the tort system.  For the sake of convenience here were my previous thoughts:

The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.

In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.

When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets

There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.

The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgements.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.

Comments and feedback are welcome.

 


ICBC Denied Liability Withdrawal Following Examination for Discovery

October 15th, 2012

Reasons for judgement were recently shared with me by my colleague in Nanaimo addressing ICBC’s attempt to withdraw a formal admission of liability following examinations for discovery.

In the recent case (Smith v. Smith) the Plaintiff was injured while riding as a passenger in a vehicle involved in a 2008 roll-over collision.  ICBC initially took the position that the driver of this vehicle was negligent and responsible for the crash.  In the course of the lawsuit ICBC continued with this position and formally admitted liability.

Both the Plaintiff and Defendant were examined for discovery.  During these examinations evidence was adduced which made ICBC’s lawyer wish to raise the ‘inevitable accident‘ defence.  ICBC sought to withdraw their admission of liability arguing that ‘new information’ came to light through the discovery process.  Mr. Justice Greyell disagreed finding that the ‘new information’ was nothing more than the Defendant’s account of the collision and was available to ICBC all along.  In dismissing ICBC’s request for amended pleadings the Court provided the following reasons:

[28]  The evidence which was elicited at the examinations for discovery of the plaintiff and the defendant on February 21, 2012 was clearly available to ICBC had the adjuster chosen to request it.  There are, to use the words of Rholing at para. 18, no new facts which have come to the attention of the defendants which were not available when the admission was made.

[29]  What appears to have happened in this case is similar to what occurred in Boyd: counsel took a different view of the facts than did the adjuster when the matter was considered shortly after the accident.

[30]  Third, the plaintiff, in my view, would clearly be prejudiced should the Court allow the defendant to withdraw the admission at this late stage of these proceedings…

[31]  Accordingly, the interests of justice are not, in my view, served by permitting the defendant to withdraw his admission.

To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.