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 Meiklem’

Saanich Police Officer Found To Use Excessive Force During Arrest

December 31st, 2018

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing $120,000 in non-pecuniary damages for a plaintiff who sustained a shoulder injury while being arrested by the Saanich police.  The Court found there was negligence however the claim was ultimately dismissed as the Plaintiff failed to provide the needed statutory notice under the Local Government Act.

In the recent case (Lapshinoff v. Wray) the Plaintiff was removed from his vehicle while being investigated for erratic driving.  The Defendant forcefully took the plaintiff to the pavement which resulted in a complex shoulder injury requiring two surgeries along with “an irreparable rotator cuff tear that is permanently disabling“.

The Court found that while the arrest was lawful the police used excessive force.  In reaching this conclusion and assessing non-pecuniary damages at $120,000 Mr. Justice Meiklem provided the following reasons:

[128]              I accept Mr. Lapshinoff’s evidence that his initial comment about his truck being hit and asking what that was about was not belligerent or loud. He had no concern about damage to his very experienced dilapidated vehicle, but that exchange and Mr. Lapshinoff’s immediate request for ID probably contributed to an antagonistic atmosphere. Constable Wray did not provide ID, and demanded Mr. Lapshinoff get out of the vehicle. Mr. Lapshinoff unlatched his seat belt but did not get out promptly. Constable Wray repeated the demand more emphatically with a profanity. Lapshinoff was in the process of complying, perhaps somewhat reluctantly, with his left foot partially out the door which he opened partly, at the same time repeating that he would still like to see ID, when Constable Wray reached over and yanked him out forcefully in the manner previously described.

[129]              The fact that Constable Wray was able to pull the 200-pound Mr. Lapshinoff out of the truck in one pull, even though he said that he did so as hard as he was able, is consistent with Mr. Lapshinoff being turned and beginning to get out on his own. If both his feet were still in the vehicle and he was facing forward when he was yanked out, it is difficult to see how he could have emerged even partially on his feet.

[130]              In my view, this very forceful removal was completely unnecessary and is only explainable as Constable Wray acting out of a loss of self control and anger, rather than necessity. He acknowledged that he did not consider any less violent means of dealing with the situation he perceived.

[131]              It is clear that he was either blind to the fact that Mr. Lapshinoff was starting to comply with his demand to get out, or that he simply expected a faster response and was making that point with physical aggression.

[132]              I note that during cross-examination Constable Wray volunteered an explanation as to how the plaintiff could have reacted differently and how it is in the interests of people to listen, even if they disagree with the reasonable grounds. He suggested that was “safest for everyone”. He neglected to practice that advice himself in dealing with Mr. Lapshinoff. He perceived Mr. Lapshinoff as belligerently wanting answers to the questions he was asking. If he was in fact providing the answers he claims he was providing and perceived that Mr. Lapshinoff was not hearing or listening him, as he testified, there were certainly safer and more reasonable measures that he could have employed to gain his attention and compliance other than yanking him out of the truck within seconds of arriving and engaging him in a tussle for a few seconds before tripping him and forcefully sending him to the ground.

[133]              The plaintiff’s right shoulder or arm struck the truck door as he was yanked out, causing it to fly open. This further demonstrates a degree of aggressiveness and lack of foresight and care for the safety of the plaintiff, which was unnecessary and disproportionate to the exigencies of the arrest. Although it is unknown whether that impact actually contributed to the plaintiff’s shoulder and arm injuries, there certainly was a foreseeable risk of injury in yanking the plaintiff through a partly open truck door.

[134]              There was also a foreseeable and unnecessary risk of injury with a 6’ 3”, 240 lb officer taking a person to the ground with a leg sweep trip while holding his upper body and falling with him.

[148]              In light of the consensus between the parties on the appropriate general damage award, which I find to be appropriate, no detailed analysis is required on that issue. I would award general damages in the sum of $120,000 against the defendant Saanich. I would not award punitive damages.


Court Critical of ICBC Practices Following Hit and Run Collisions

October 14th, 2015

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, with critical comments aimed at ICBC for their practices in dealing with hit and run claims.

In today’s case (Fitger v. John Doe) the Plaintiff was injured by the actions of an unidentified motorist.  The Plaintiff contacted ICBC shortly after the collision and “essentially took the actions suggested by his ICBC claim adjuster“.   In the lawsuit for damages ICBC then raised the standard s. 24 defence arguing the Plaintiff did not take all reasonable steps to identify the at fault motorist.  The Plaintiff argued the defense should be struck as he relied on ICBC’s guidance.  The court, while critical of ICBC’s practices, noted their actions did not go so far as to strip them of the protections of the statutory defense.  In addressing ICBC’s practices Mr. Justice Meiklem commented as follows:

[10]         Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[16]         While the doctrine of estoppel can, as a general proposition, be applied in respect of interfering with statutory rights, s. 24(5) of the Act is as much about creating an obligation on the courts to enforce an obligation on a class of claimants in the cause of preventing fraudulent claims as it is about providing a defence to ICBC.

[17]         In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).


Court Turns to Wikipedia To Address Claimed Damages for Rolfing

May 3rd, 2013

Reasons for judgement were released this week with the BC Supreme Court citing Wikipedia when assessing damages following a motor vehicle collision.

In this week’s case (Parker v. Davies) the Plaintiff was injured in a 2009 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff sustained a disc protrusion in her back and was expected to have long term symptoms as a result of this.  The Court assessed non-pecuniary damages of $90,000.

In addition to this the Plaintiff claimed fairly substantial damages for future care costs including over $24,000 for rolfing.  Mr. Justice Meiklem rejected this claim finding there was no medical evidence to justify the expense.  Prior to doing so the Court took the interesting move of referencing Wikipedia and provided the following reasons:

[40]         I had never heard of Rolfing before this trial and there was no authoritative evidence presented about what Rolfing is, much less any medical evidence that it is medically necessary in Ms. Parker’s case. I note that Ms. Henry adopted Ms. Parker’s description of Rolfing as a form of deep tissue work. Ms. Parker credits it as the most beneficial treatment that she has undergone in relieving the pain that radiates to her leg. Ms. Henry suggested that consideration be given to funding the treatment based on her understanding that it helped Ms. Parker, but would defer to a physician as to the medical benefits.

[41]         My curiosity led me to Wikipedia.org, where the following description appears:

Rolfing is a therapy system created by the Rolf Institute of Structural Integration (also referred to as “RISI”), founded by Ida Pauline Rolf in 1971.The Institute states that Rolfing is a “holistic system of soft tissue manipulation and movement education that organize(s) the whole body in gravity”. Manipulation of the muscle fasciae is believed to yield therapeutic benefits, including that clients stand straighter, gain height and move better, through the correction of soft tissue fixations or dystonia. A review found that evidence for clinical effectiveness and hypothesized mechanisms of Rolfing is severely limited by small sample sizes and absence of control arms, and that further research is needed, though controlled trials found that a single Rolfing session significantly decreases standing pelvic tilt angle, and that Rolfing caused a lasting decrease in state anxiety when compared to the control group. Only practitioners certified by RISI can use the title “Rolfer,” or practice “Rolfing,” due to service mark ownership. The Guild for Structural Integration is the other certifying body, whose graduates use the title “Practitioners of the Rolf Method of Structural Integration.”

[42]         In researching previous decisions of this court, I found two cases where Rolfing treatments were funded as part of special damages awarded, without medical evidence of medical necessity: Price v. Abdul, unreported, Vancouver Registry No B922911, BCSC, January 12, 1994; Schubert v. Knorr, 2008 BCSC 939, and one case, Cryderman v. Giesbrecht and Giesbrecht, 2006 BCSC 798, where the court acknowledged Rolfing costs as part of future care costs on the basis that, although not prescribed by her doctors, the plaintiff said the treatment gave her relief and the court found that the amount ($140 annually out of total annual care costs of $1,060) did not seem excessive.

[43]         The plaintiff in Cryderman sought a total future care costs award of $10,000, but was awarded $4,000, so the amount of the award notionally attributable to future Rolfing treatments would be approximately $550. Of course, assessing future care costs is not a precise accounting exercise, and perhaps the court felt that the very modest cost claimed obviated the need for evidence of medical necessity in that case. However, by comparison, Ms. Parker’s claim is for an award that would include $24,934 as the present value of annual Rolfing costs in the amount of $1,020 for the rest of her life expectancy. In my view, this is not a case where the court should deviate from the established principle that the appropriate award for the cost of future care is an objective one based on medical evidence. Accordingly, I will not consider potential future Rolfing costs in my assessment.

While it is easy to understand the desire to inform oneself by referencing on-line material, the same privilege clearly does not extend to a Jury as evidenced by this 2009 development where the BC Supreme Court discharged a juror for satiating his curiosity by referencing Wikipedia in the course of a trial.


Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

January 9th, 2013

When assessing damages for injuries the BC Supreme Court will not address the injuries as ‘items on a grocery list’.   The exact label attached to an injury is far less important than the ways in which an injury compromises a Plaintiff’s life.  This was highlighted in a recent judgement from the BC Supreme Court, Kamloops Registry.

In the recent decision (McKay v. Powell) the Plaintiff was involved in three rear-end collisions.  As a result she suffered from a chronic pain disorder.  As is often the case, in the course of her lawsuit the Plaintiff was assessed by a variety of physicians who had competing diagnoses for the Plaintiff’s symptoms, namely fibromyalgia vs thoracic outlet syndrome.  Demonstrating that whatever the correct diagnosis, the symptoms were caused by the collision and the plaintiff was entitled to appropriate compensation, Mr. Justice Meiklem provided the following reasons:

[44]         Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel’s diagnosis of fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there will be no full recovery…

[50]         Considering the cited cases, the individual circumstances in the present case, and the factors relevant to assessing this head of damages as set out in Stapley v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of $65,000.


It Is Not Appropriate to Order a Medical Exam By An Expert Who previously "Bordered on Advocacy"

December 10th, 2012

In my continued efforts to track judicial comments addressing expert witness advocacy, reasons for judgement were released last week by the BC Supreme Court, Cranbrook Registry, dismissing an application for a defence medical exam where the proposed examiner wrote a previous report that, in the Court’s view, “border(ed) on advocacy“.

In last week’s case (Moll v. Parmar) the Defendant sought to have the Plaintiff examined by a neuropsychologist.  Prior to the proposed exam the doctor wrote a “very vigorous critique” relating to the Plaintiff’s expert’s conclusions.  The Court held that, in such circumstances, it is “not appropriate for the court to order a medical examination…by an expert who has previously taken such a strong stance“.

In dismissing this application Mr. Justice Meiklem provided the following reasons:

[13]         Turning first to the Master’s errors alleged by the appellant, I initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig and Williams had been recruited as advocates for the defence by virtue of the nature of the defence requests to them and the nature and content of their reports, that they should be viewed as lacking the necessary objectivity to warrant being appointed by the court to conduct IMEs of the plaintiff. After considering the retainer letters and the reports of Drs. Williams and Craig, I see considerable merit in the appellant’s argument with respect to Dr. Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s report are somewhat different.

[14]         The appellant’s concern was not only the advocacy bias apprehended by the plaintiff, but also the bias concerning the plaintiff’s condition that was already demonstrated by the roles these experts were retained for and the reports they had already delivered. He considered it highly improbable and purely theoretical that either of these specialists would be able to change any previously expressed views after their examinations of the plaintiff.

[15]         Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams.

[16]         Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace.

[17]         Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.


Notice of Fast Track Action Does Not "Turn Any Action Into a Fast Track Action"

October 10th, 2012

One practice that has arisen since the new rules of court were introduced a few years ago relates to parties occasionally slotting actions into the fast track rule when the case is not suitable for fast track litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this practice finding that a Plaintiff’s claimed damages (as opposed the Defendant’s perceived valuation) is a driving force.

In last week’s case (Narain v. Gill) the Plaintiff was injured in a motor vehicle collision.  In the early stages of litigation ICBC filed a Notice of Fast Track.  Prior to trial the Plaintiff made a formal settlement offer of  $200,000 and the Defendant provided a formal offer of $102,500.  Following trial damages of $116,737 were assessed.  At issue was the appropriate costs award.   Mr. Justice Meiklem had to decide whether the Notice of Fast track made the lesser Rule 15 costs scale applcable.  In deciding that the plaintiff’s valuation is a driving factor the court provided the following reasons:

[12]         Counsel for the third party argues that the plaintiff was notified that the third party considered this to be under Rule 15-1 with the filing of the notice and a matter is only removed from fast track by court order, either by the court on its own motion, or the application of any party and the court so orders, as provided by Rule 15-1(6)…

[17]         As I read Rule 15-1(2), the simple filing of a notice of fast track action in form 61 does not turn any action into a fast track action; rather, any party may file such notice “if this rule applies to an action” [my emphasis]. It is Rule 15-1(1) that defines when the rule applies, and it is important to note that the monetary criteria set out in subrule (1)(a) depends on the total amount of money claimed by the plaintiff for pecuniary loss and to be claimed by the plaintiff for non-pecuniary loss.

[18]         Counsel for the plaintiff in the case at bar communicated to counsel for the third party his belief that the claims being advanced exceeded the $100,000.00 limit. After that communication, there was no insistence on the action proceeding as a fast track action, and it would be reasonable to infer from third party counsel’s subsequent conduct in not adding the required notation to subsequent filings, agreeing to an extension of the trial estimate to five days and making a formal offer exceeding the $100,000.00 limit, that third party counsel had tacitly agreed with plaintiff counsel’s view that this was not an action to which Rule 15-1 should apply.

[19]         In short, I do not view the failure to add the required notation to the style of cause as an irregularity curable by amendment in order to conform to reality, as was done in the Foster case. This is not an action in its infancy that would benefit from an amendment making it clear that it is subject to Rule 15-1. This action was never clearly within the definition set out in Rule 15-1(1), and the filing of a form 61 notice did not change that.

[20]         That being said, hindsight will hopefully instruct counsel to clarify opposing counsel’s intentions, and, if necessary, seek an order by consent or otherwise to avoid similar circumstances arising in the future.


"Gold-Plated" Cost of Future Care Report Judicially Criticized

January 26th, 2012

(Update June 18, 2013 – the below judicial scrutiny survived review by the BC Court of Appeal)

Following recent judicial criticism of overly robust requests for future care costs, reasons for judgement were released last week by the BC Supreme Court, criticizing a “gold-plated” expert report.

In last week’s case (Jarmson v. Jacobsen) the Plaintiff was involved in a motorcycle accident.  Although he sustained serious injuries and was awarded significant damages at trial, his claimed damages for cost of future care was met with skepticism.  In criticizing the expert evidence on this point Mr. Justice Meiklem gave the following reasons:

[115]The defendant’s closing submission listed 20 items recommended by Ms. Landy that the defendant argued were not medically supported by any evidence at trial. I agree with that submission. Many of those items would require very significant outlays, for example, a van with a lifting device to transport an anticipated power mobility device.

[116]Mr. Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality and objectivity and her reliance on facts and opinions not in evidence, and criticizing her for travelling to Dubai to interview witnesses already interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I would not go so far as to agree that  Ms. Landy became an advocate specifically for the plaintiff in this case, but it is a fair comment that she seemed to advocate an expansion of the types of items and services claimable as future care costs under the law.

[117]Ms. Landy did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.

[118]Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.

[119]Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.


$230,000 Non-Pecuniary Damage Assessment for Severe Traumatic Brain Injury

January 20th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing fault and damages as a result of a 2008 motor vehicle collision.

In this week’s case (Jarmson v. Jacobsen) the Plaintiff was riding a motorcycle with his daughter when a vehicle operated by the Defendant turned into his path of travel.  Although the Defendant denied fault the Court found his evidence “wholly unreliable” and found him fully responsible for the crash.  The collision resulted in multiple injuries to the Plaintiff including a shoulder injury, a knee injury and a severe traumatic brain injury.

Global damages of over $1 million were assessed including non-pecuniary damages of $230,000.  The consequences of the head trauma were expected to have significant effects on the Plaintiff’s long term functioning both vocationally and domestically.  The full discussion surrounding this assessment is too lengthy to reproduce here but the following key findings were made with respect to the severity of injury were made by Mr. Justice Meiklem:

[54] Dr. Miller’s DSM IV diagnostic formulation included personality disorder due to traumatic brain injury and an adjustment disorder with mixed features of anxiety and depressed mood. Based on neurological indices of severity, Mr. Jarmson suffered a severe traumatic brain injury.

[55] A further indication of the severity of the injury to Mr. Jarmson’s brain is gleaned from the evidence of Dr. Gary Stimac, a diagnostic neuroradiologist, who testified and reviewed with the court many of the scanned CT and MRI images of Mr. Jarmson’s brain. These consisted of CT images taken at Kelowna General Hospital at intervals of about 9 hours, 40 hours, and 5½ days after the collision, and a complex set of MRI images obtained April 5, 2011. Dr. Stimac’s written report of August 15, 2011(p. 5-6) notes that:

The radiology examinations, in conjunction with emergency evaluations, establish that Mr. Jarmson sustained severe injury to the head. The immediate and subsequent CT scans show the left frontal impact and the coup-contrecoup contusions. The later MRI shows diffuse brain atrophy, evidence of white matter scarring, encephalomalacia, and hemosiderin deposits from the hemorrhagic contusions.

[56] Dr. Stimac explained that the atrophy he referred to is due to the absorption/removal of necrotic tissue…

[88] I find that the fair, reasonable, and appropriate award to compensate Mr. Jarmson for his non-pecuniary losses is $230,000.


ICBC Claims, Uninsured Motorists, and the Definition of "Highway"

June 11th, 2010

Did you know that if you are injured in BC by a motorist who does not have any insurance at all you can still seek coverage of your tort claim directly from ICBC?  The reason you can do this is because of Section 20 of the Insurance (Vehicle) Act which requires ICBC to pay the damages directly when an uninsured motorist negligently injures others.

There are limits to ICBC’s liability under this section, and one such limitation is that the collision has to occur on a ‘highway‘.  If the crash does not occur on a ‘highway‘ then ICBC does not need to pay damages under section 20.  Reasons for judgement were released today by the BC Supreme Court, Prince George registry, dealing with exception.

In today’s case (Pierre v. Miller) the Plaintiff was injured in a motor vehicle collision.  The collision took place on Finlay Forest Service Road, a fairly remote road in British Columbia.   The Defendant was not insured and ICBC defended the case directly by the authority given to them under section 20 of the Insurance (Vehicle) Act.    ICBC’s lawyer brought a motion for a declaration that Finlay Forest Service Road is not a highway.

Mr. Justice Meiklem agreed with ICBC finding that the road was “a forest service road” and therefore not a highway and ordered that ICBC did not have to pay the Plaintiff anything for his injuries under section 20.

In reaching this conclusion the Court gave the following summary of the definition of “Highway” for the purpose of Uninsured Motorist Claims:

[3]             In order for ICBC to be liable to pay a claim under the provisions of the s. 20 of the IMV Act, the claim must arise out of the use or operation of a motor vehicle on a highway in British Columbia.  This follows from the definition of “claimant” and “uninsured motorist” in s. 20 of the IMV Act.  “Highway” is defined in the IMV Act as meaning a highway as defined in the Motor Vehicle Act, R.S.B.C. 1996. c. 318 (“MVA”).  The MVA definition of highway is:

“highway” includes

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an industrial road;

[4]             The MVA also defines “industrial road” as follows:

“industrial road” means industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8 (1) of the Petroleum and Natural Gas Act;

[5]             The definition of an industrial road in the Industrial Roads Act, R.S.B.C. 1996, c. 189 is not applicable in this case but the Forest Act, R.S.B.C. 1996, c. 157 definition of forest service road which is part of the definition of an industrial road in the MVA is in issue.  The Forest Act defines a “forest service road” as follows:

“forest service road” means a road on Crown land that

(a) is declared a forest service road under section 115 (5),

(b) is constructed or maintained by the minister under section 121,

(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or

(d) meets prescribed requirements;

[6]             The motor vehicle accident in this case occurred on a road known and marked as the Finlay Forest Service Road.  The applicant ICBC argues that the Finlay Forest Service Road falls within the Forest Act definition because it is declared to be a forest service road and because it was constructed or maintained by the Minister of Forests.  The respondent plaintiff argues that the Finlay Forest Service Road is a highway by way of public expenditure to which s. 42 of the Transportation Act, S.B.C. 2004, c. 44 applies and also because it is used by the general public for the passage of vehicles.  Alternatively the plaintiff argues that if the Finlay Forest Service Road is a forest service road it does not satisfy the definition under the IMV Act because it is a Community Use Forest Service Road rather than an Industrial Use Forest Service Road, it is not primarily for the transportation of natural resources or machinery materials or personal and it is not maintained by the Ministry of Forests and Range.

[7]             Another statutory provision of interest although not directly helpful in characterizing the Finlay Forest Service Road is s. 56 of the Transportation Act which enables the Lieutenant Governor and Council, with the consent of the Minister of Transportation and Highways and Minister of Forests and Range to order that a forest service road cease to be a forest service road and become an arterial highway or a rural highway.  There is no evidence that this has occurred in this case.


Humerus Fracture Non-Pecuniary Damages Assessed at $110,000

May 15th, 2010

Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, assessing damages for a comminuted fracture involving the left humerus (shoulder injury).

(Illustration provided courtesy of Artery Studios Ltd.)

Today’s case (Legault v. Brock Shopping Centre Ltd.) involved a slip and fall injury in 2005 in Kamloops, BC.  The Plaintiff was walking towards a business known as “Penny Pinchers” in Kamloops BC.  As he approached the shopping centre his foot slipped on ice and he stumbled forward falling “into the store front window“.  He suffered various injuries, the most serious of which was a fractured shoulder.

The Plaintiff was found 50% at fault for his own injuries for “not observing the ground conditions beneath his feet as he approached the sidewalk“.  The Defendant owner was also found 50% at fault for not clearing the ice with the Court finding that “the Defendant owner failed to respond to two calls from the tenant to address the condition of the parking lot.  Responding to one of these calls would likely have appraised the owner of the melting and freezing conditions that also affected the sidewalk margin area“.

The Plaintiff’s orthopaedic surgeon gave the following evidence with respect to the severity of the injury:

Mr. Legault slipped and fell through a plate glass window at a shopping mall. He sustained a number of small lacerations to his upper extremities and his lip which were sutured in the emergency department. The main impact occurred on his left shoulder and he was diagnosed with a proximal humerus fracture…Radiographs and CT scan performed December 6, 2005, revealed a comminuted intraarticular fracture of the proximal humerus with slight superior and posterior displacement of the greater tuberosity….

Mr. Legault has developed post traumatic arthritis of his left shoulder most probably secondary to a fracture sustained December 6, 2005. Although the symptoms of pain and stiffness due to arthritis may plateau, it is possible that he may experience progressive symptoms in the shoulder as time passes. As arthritis is an irreversible condition, Mr. Legault has a permanent impairment. He is likely to experience increased symptoms with repetitive activity, overhead activity, and activities which load the shoulder joint including use of vibratory tools or machinery, or heavy lifting. Surgical options for shoulder arthritis include arthrpacopy and debridement or hemi or total arthroplasty. The results of these procedures for post traumatic arthritis (as compared to degenerative osteoarthritis or rheumatoid arthritis, for example) are less favorable. In this particular patient, his complication rate would be significantly increased due to his size and longstanding diabetes.

The Plaintiff’s total damages were assessed at $354,311 but this award was cut in half to account for the plaintiff’s contributory negligence.  In assessing non-pecuniary damages of $110,000 for the Plaintiff’s shoulder injury the Court found as follows:

I am satisfied that he has suffered an injury that has resulted in a permanent partial disability and will permanently affect his enjoyment of life on a daily basis, causing him difficulty with self care hygiene, dressing, moving up and down stairs, marital intimacy, home maintenance tasks, and driving. The physical injury has also made it more difficult to manage his obesity and other health issues related to fitness. His wife testified that she feels as if she has lost her husband entirely.  He was formerly able to lift and carry heavy automobile components and use heavy power tools in the course of working on vintage cars, which was his main interest in life; but he is unable to do that and has lost much of his zest for life.

[51] The plaintiff has referred me to cases where non-pecuniary awards in the range of $125,000 to $150,000 were made and the defendant relies on cases in the range of $70,000 to $75,000. I assess Mr. Legault’s loss under this head of damages at $110,000, which is subject, of course to the 50/50 apportionment of liability, as will be the case with the awards under the remaining heads of damage.