Author: admin

British Columbia Bus Accidents and the Law

Written by admin on October 22, 2008. Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released today dismissing the claim of a Plaintiff against the Greater Vancouver Transportation Authority for injuries sustained while on a bus in White Rock in 2005.
At some point after boarding the bus the Plaintiff stood up, “She held the floor-to-roof stanchion adjacent to the courtesy seat with her right hand. She rotated clockwise so that her back was to the collapsible seat. As she did so, she changed her grip in order to hold the stanchion with her left hand. (the Plaintiff) let go of the stanchion she had been holding with her left hand as she proceeded to sit down in the collapsible seat and before she was seated. (the Plaintiff) testified to her recollection that the bus accelerated from the bus stop causing her to lose her balance and to descend with some force. The sacral-lumbar portion of her back struck the plastic armrest affixed to the left side of the collapsible seat. A photograph of the injury taken later in the day indicates that the point of contact was directly on the sacral-lumbar area or the coccyx, and not to the left or right of the spine.”
The court dismissed the claim finding that “On the evidence that has been adduced, I conclude and find as a fact that the sole cause of the accident was (the Plaintiff’s) omission to take precautions to ensure her own safety on a moving bus. She omitted to hold the stanchion that was readily available to her as she sat down. I am not persuaded on a balance of probabilities that the bus was operated in any manner which could be classified as negligent.”
While this is by no means an exciting claim, Mr. Justice Pitfield did a great job in summarizing some of the authorities that deal with the duty of care owed by bus drivers to their passengers. He recited the following well known principles when dealing with injured occupants on a bus:
Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree
…once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

ICBC Tort Claims and Net Wage Loss

Written by admin on October 22, 2008. Posted in ICBC Wage Loss, Uncategorized. 108 Comments on ICBC Tort Claims and Net Wage Loss

If you have been injured in a BC motor vehicle accident and suffered a wage loss you may have had ICBC tell you that they can only pay you your ‘net wage loss’ in your tort claim.
I have often often seen ICBC calculate a person’s gross wage loss and deduct 25% to account for income taxes prior to paying the past wage loss. Is this proper? The answer is sometimes. It depends on the amnount of your past wage loss award.
Great reasons for judgement were released today by Madam Justice Boyd of the BC Supreme Court. In this case the court awarded $8,750.36 for past wage loss. ICBC then tried to deduct income taxes on this amount prior to paying it. Madame Justice Boyd summarized the applicable law very well and concluded that the leading BC Supreme Court dealing with this issue(Hudniuk v. Warkentin) applies, and using its principles
‘the Plaintiff’s net income loss should be calculated by deducting the necessary income tax from the agreed gross income loss of $8,750.36. Further, as Hudniuk requires, for the purposes of tax calculations, this formula assumes that this amount is the only income earned by the Plaintiff in 2008. Since the first day of trial was May 12, 2008, the tax rates in effect of the previous calendar year, as or December 31, 2007, are applicable‘
The court then noted that at the time personal income under $9,027 was exempt from taxation meaning the Plaintiff was entitled to the whole amount of past wage loss.
So, according to this judgement, if the past income loss you are entitled to in a BC ICBC tort claim is less than the personal income amount that is exempt from taxation you are entitled to the whole of your past wage loss.
I have heard through the grape-vine that the BC Court of Appeal will soon further clarify this area of the law, but until that time today’s case sets a great precedent for Plaintiff’s with less than $9,000 in past wage loss.

ICBC, No-Fault Benefits and 'Sickness and Disease'

Written by admin on October 21, 2008. Posted in Uncategorized. 60 Comments on ICBC, No-Fault Benefits and 'Sickness and Disease'

Interesting reasons for judgement were released today concerning traumatic injuries and pre-existing degenerative disc disease.
The Plaintiff was a building siding installer. He had a pre-existing degenerative lumbar spine condition which was largely asymptomatic, that is it caused occasional pain but did not disable him from work. He was injured in a BC car accident on November 22, 2005. He became totally disabled from his work after this collision. He applied to ICBC, and received, Part 7 wage loss benefits.
ICBC obtained a report from Dr. Dommisse in June 2006. He stated that ‘(the Plaintiff’s) complaints have been caused by this motor vehicle accident in part. His pre-existing condition is likely contributing to his ongoing symptoms….His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time.’
As a result of this opinion ICBC cut off the Plaintiff’s wage loss benefits on August 31, 2006. ICBC did so because they took the position that the Plaintiff’s ongoing disability was ‘caused directly or indirectly by sickness or disease.’
Can ICBC do that? The answer is yes. Section 96 of the Insurance Vehicle Regulation places some limits on benefits ICBC has to pay their insured including those ‘whose injury was caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part’
The Plaintiff sued ICBC asking the court to reinstate the Plaintiff’s no-fault wage loss benefits. In support of the Plaintiff’s case, Dr. Hirsch, a Physical Medicine and Rehabilitation Specialist, gave evidence that

Based on today’s obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident

(the Plaintiff) reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries. He reported that for the past four months he has not noticed any further symptomatic gains. Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.

At present and in the foreseeable future, I do not foresee that (the Plaintiff) will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.

Mr. Justice Meiklem of the BC Supreme Court dismissed the Plaintiff’s claim finding as follows:

[29] In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of (the Plaintiff’s) continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date. While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.

[30] Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.

If you are in a dispute with ICBC regarding the payment of no-fault wage loss benefits it is important to canvass decisions such as this one addressing the potential consequences of pre-existing conditions on your ICBC insurance claim. Ensure that your physicians carefully canvass the relationship between any ‘sickness or disease’ and traumatic injury when applying for ICBC no fault benefits.

More on ICBC, Rule 37B and Costs

Written by admin on October 17, 2008. Posted in Civil Procedure, Jury Trials, Uncategorized. 59 Comments on More on ICBC, Rule 37B and Costs

I have previously blogged about the new Rule 37B (here and here) which deals with formal offers of settlement and the costs consequences of trial.
The first case that I’m aware of dealing with Rule 37B in an ICBC claim was released today.
In this case both fault and quantum were at issue. The Plaintiff alleged that the Defendant was at fault for the car accident and claimed over $1million in damages. The case was presented for over one week in front of a Vancouver jury.
The case was dismissed on the issue of liability meaning that the Jury found the Plaintiff was responsible for this collision thus making her entitlement to tort damages $0.
In this case ICBC (on the defendant’s behlaf) made a pre-trial offer to settle for $35,000. This offer was made in compliance with Rule 37B.
The court refused to look at the fact that the Defendant was insured when considering ‘the relative financial circumstances of the Parties’ and concluded that the Defendant was entitled to Double Costs from the time the offer was made through trial.
I reproduce the court’s key analysis below:

a) Ought the Defendants’ Offer to Have Been Accepted?

[20] In her submissions, the plaintiff referred to the position that she said was taken by an unnamed ICBC adjuster respecting the responsibility for the collision. That view was apparently a preliminary one, the basis for which is unexplained; it was not before the jury in this case, and, in any event, the conclusion would certainly not be binding on the jury or the court.

[21] The plaintiff also referred in her submissions to the fact that she had offered to settle her claim for $160,000 plus her costs, a sum considerably less than her counsel sought from the jury.

[22] Based upon her offer compared to the position taken by her counsel at trial, the plaintiff was clearly prepared to take a considerable gamble to achieve a significant award. While it was open to the jury to make a sizeable award, in the event there was a finding of liability against the defendants, the discount the plaintiff was prepared to accept in order to settle the claim does not support the conclusion that she had confidence in the likelihood of securing a sizeable award at trial. That, in my view, is one of the factors against which the reasonableness of her refusal to accept the defendants’ offer to settle must be assessed.

[23] As I have said above, it was clearly open to the jury to dismiss the plaintiff’s claim by finding no liability against the defendants, but equally open to them to find some or even complete liability against the defendants.

[24] While the defendants argued that the jury’s verdict proves that the plaintiff ought to have accepted their offer to settle, I do not read Rule 37B as inviting that sort of hindsight analysis. Under Rule 37, an offer to settle was revoked once trial began. Although Rule 37B contains no such provision, the defendants in this case stated in their offer that it was open for acceptance “at any time before 4:00 pm, Pacific Time, or the last business day prior to the commencement of the first day of trial”. In my view, the reasonableness of the plaintiff’s decision not to accept the defendants’ offer to settle must be assessed, under that offer, only prior to the last date that the offer could be accepted, and in any case, under Rule 37B, prior to the delivery of the jury’s verdict, but not thereafter.

[25] Weighing these factors, I am unable to say that it was unreasonable for the plaintiff to have rejected the defendants’ offer to settle.

b) Relationship between the Offer and the Final Judgment

[26] Implicit in the defendants’ position on costs is the argument that the complete dismissal of the plaintiff’s claim obviates a consideration of subrule 37B(6)(b). I do not accept that that is an appropriate reading of that subrule.

[27] With respect to this subrule, the plaintiff argues that the jury’s verdict was not one that ought to have been “seriously contemplated” by the plaintiff. The difficulty with this position is that counsel for the plaintiff took no objection to the charge, which instructed the jury that it was open to them to dismiss the plaintiff’s claim if they were not satisfied that the plaintiff had established liability on the part of the defendant Priscilla C. Jang. The jury’s verdict could not in these circumstances be said to be perverse, as counsel for the plaintiff argued before judgment was entered.

[28] I do not accept the plaintiff’s submission that the jury’s verdict is difficult to accept on the evidence before it.

c) Relative Financial Circumstances of the Parties

[29] The plaintiff asserts by affidavit that her annual income is between $33,000 and $34,000 per year, and that her share of the expenses in the apartment she shares with a friend together with her own monthly expenses amount to approximately $2000 per month.

[30] The plaintiff lists a debt to her lawyers of some $29,000 as well as other debts of a further $35,000, and swears that “If I am obliged to pay ICBC’s defence costs for this trial, I will be unable to meet my ongoing expenses and debts.” I have no evidence of the extent to which the plaintiff could arrange financing to address her position, but I do not accept that her present debts or even greater financial obligations could not be accommodated by financing. While the defendants argue that the plaintiff’s obligations to her counsel are a result of her refusal to accept their offer to settle, I do not see that the cause of the plaintiff’s debts is a relevant consideration. The fact is that she is indebted to her counsel.

[31] There are, however, two difficulties with the plaintiff’s position on this factor. First, she argues that her financial circumstances are difficult. This alone is insufficient to meet Rule 37B(6)(c).

[32] Second, she places her financial position against that of ICBC, as opposed to that of the defendants.

[33] While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage. There may be good policy reasons for this. Insurance coverage limits with ICBC are not universal, and will vary from insured to insured. Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC. A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34] The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[35] There is no evidence before me as to the defendants’ financial circumstances. What little I do know of the circumstances of the defendant Pricilla C. Jang is that, at the time of the accident, she was driving her mother’s motor vehicle, and that she was employed as a parts delivery person for a motor vehicle dealership. That does not suggest to me that her financial circumstances are appreciably different from those of the plaintiff.

d) Other Factors

[36] No submissions were made by the plaintiff suggesting that there are other factors in this case that should influence the appropriate cost option to be employed in this case.

DISPOSITION

[37] While I am not prepared to find that the plaintiff’s failure to accept the defendants’ offer to settle was unreasonable, I am equally unprepared to accept that the jury’s verdict was unreasonable. I am also unprepared to conclude that there is any significant disparity in the financial circumstances of the parties so as to invoke subrule 37B(6)(c).

[38] What then, of the function of the Rules to encourage or to deter the types of conduct referred to by Cumming J.A. in Skidmore? As mentioned above, the plaintiff was prepared to take a considerable gamble to achieve a significant award. Had she succeeded, she doubtless would have sought an order for double costs against the defendants following her offer to settle.

[39] I conclude that the refusal of an award of double costs from August 11, 2008 would completely ignore the important deterrent function of the Rules. The factors set out in subrule 37B(6) do not, in this case, persuade me that such a result would be appropriate. I find that the defendants are entitled to an award of double costs beginning a reasonable period of time after which the plaintiff could consider their offer. That period I find commenced on August 18, 2008, seven days after the defendants’ offer to settle.

[40] The defendants are entitled to recover their taxable costs and disbursements of this action from its commencement until August 18, 2008 pursuant to Rule 57(9). Those costs will be taxed at Scale B.

[41] The defendants are entitled to double costs commencing August 18, 2008 and to their disbursements as incurred after August 18, 2008. The disbursements will be allowed only in the amount incurred, and not at a double rate.

$24,515 Damages Awarded for Moderate Soft Tissue Injury

Written by admin on October 16, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today awarded damages as a result of injuries sustained in a 2005 Kamloops, BC car crash.
The Plaintiff’s vehicle was rear-ended as she slowed to make a right hand turn.
Normally in such rear-end cases liability (fault) is admitted but in this case liabilty was disputed. The Defendant claimed that the accident was caused by the actions of the plaintiff when she ‘accelerated in front of him, cut him off and themn braked quite dramatically at the corner (of the intersection).’
The court rejected this defence and found that “this is not a case where the evidence supports a conclusion that the plaintiff’s vehicle cut in front of the defendant in such a way as to alleviate his responsibility‘. The defendant was found 100% to blame.
In terms extent of injury, the court made the relevant findings at paragraphg 50 of the judgement, which I set out below:
[50] I conclude that (the Plaintiff) sustained a moderate soft tissue whiplash injury in December 2005 which caused pain and discomfort to her neck and back and resulted in her experiencing headaches. These symptoms were initially acute, causing her to miss approximately three weeks of work and necessitating that she take pain medication and treatment, most notably physiotherapy. The pain and discomfort at times extended to her hip area. It gradually subsided with the passage of time. It was significantly resolved within three to four months of the accident, but she continued to experience some discomfort and limitation of her activities, albeit on a gradually improving basis, over time, up to the point of trial. At trial, all of the complaint of headache had resolved but there was some lingering discomfort and stiffness in her neck and back. That discomfort is essentially resolved at this time, and there is every reason to conclude that she has not sustained any permanent damage. With proper exercise and self-care, there will be a complete resolution
The court awarded $22,000 for these moderate soft tissue injuries, $2,163.21 for lost wages and $351 for special damages.
This is a short crisp judgement dealing with issues that often arise in ICBC claims. This case is worth reviewing for anyone involved in an ICBC injury claim to see some of the factors court’s consider when valuing soft tissue injuries and addressing the issue of fault in a rear-end crash.

$200,000 Non-Pecuniary Damages for MTBI and PTSD

Written by admin on October 14, 2008. Posted in ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC PTSD Cases. 2 Comments on $200,000 Non-Pecuniary Damages for MTBI and PTSD

Reasons for judgment were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a signficicant motor vehicle accident which occurred in Burnaby, BC in 2005.
The Defendant lost control of a garbage truck which tipped over and landed on the Plaintiff’s Honda Civic. A photo of the collision is included at paragraph 2 of the reasons for judgement and this is worth glancing at to get a feel for the severity of this impact.
The Plaintiff was knocked unconsious as a result of the crash. His Glasgo Coma Scale was 9 by the time the ambulance crew arrived and this qucikly rebounded to 15 by the time the Plaintiff arrived at hospital.
There was no dispute that the Plaintiff suffered various injuries as a result of this crash, what was at issue was the ‘nature and extent of the Plaintiff’s current condiction and the degree to which improvement may occur in the future’.
After hearing various medical evidence the court found as follows:

[35] (The Plaintiff) has clearly suffered physical and psychiatric injury as a result of the August 19, 2005 collision. I accept that his injuries caused him headaches, back pain and neck pain and pain in his shoulder. Likely, he would have had some neck and shoulder problems from his previous condition without the August 2005 injury, however that injury clearly either initiated them anew or made them worse. The physical problems |(the Plaintiff) suffered because of the August 19, 2005 collision have, by the date of the trial almost three years later, largely resolved as documented in the medical records, however his psychiatric ones have not, and there is an issue that he may still be suffering symptoms of a mild traumatic brain injury in addition to his PTSD and major depressive disorder. (the Plaintiff) was clearly rendered unconscious by some degree of impact to his head as evidenced by the ambulance crew reports, Mr. Touffaha’s observations and the glass found embedded in his scalp. I find that (the Plaintiff) probably suffered a mild traumatic injury to his brain at the time of the collision.

[36] Whether or not (the Plaintiff) still is affected by his mild traumatic brain injury is not clear, particularly because his psychiatric condition can produce the same symptoms at this point. On the balance of probabilities, I accept the opinion of Dr. Teal, the neurologist, that (the Plaintiff) has not sustained persisting cognitive impairment as a result of traumatic brain injury, and will not have any long-term cognitive sequelae as a result of a neurological injury.

[37] I also find, on the balance of probabilities that while (the Plaintiff) was initially rendered essentially catatonic for the first six months following the collision, he has since that time made significant improvement, and I accept the opinion of Dr. Wiseman that with a course of cognitive behavioural therapy conducted by a specialist in that field, he will continue to make improvements. On the other hand, I accept that he will likely continue to have problems and symptoms from his PTSD and depression for the rest of his life. I find that it is highly unlikely that (the Plaintiff)will be able to return to his employment at Coastal Ford or any other competitive employment. The medical evidence is that to the date of trial he has been unfit for employment. He is now 67 years old, an age at which neither the body nor the brain is particularly resilient. His mental state in my opinion is and will remain too fragile for him to be competitively employed.

[38] The result of this collision and its consequent injuries to (the Plaintiff) is that he has lost a large measure of who he was. While human identity is partially associated with physical ability, it is much more related to a person’s mental state and abilities. (the Plaintiff) is quite simply not the man he was. Rather than being energetically and happily employed as the lease manager for Coastal Ford, he is unemployed. Rather than being the social outgoing man he was, he is socially withdrawn and has little or no interest in conversing about anything. Rather than being the patriarch supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and children. I find there is a real likelihood he will make progress in these areas so that his life is more enjoyable, however I do not think that will extend to re-employment.

[39] I assess general damages for the loss (the Plaintiff) has suffered consequent upon the collision for which the defendants are responsible at $200,000.

Appeal of $70,000 Soft Tissue Injury Claim Dismissed

Written by admin on October 14, 2008. Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 55 Comments on Appeal of $70,000 Soft Tissue Injury Claim Dismissed

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome. The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome. In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million. Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses. The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal. In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a) Confronting the Plaintiff

[33] The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties. The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70). The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34] The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges. This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada. In this country, we have an adversarial system, not an inquisitorial one.

[35] Such a rule would be unworkable with respect to judges in our system. Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses. They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36] The rule in Browne v. Dunn is not suited for application to judges. The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation. What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible. That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37] In addition, the rule in Browne v. Dunn has not been treated as an absolute rule. Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence. This feature of the rule is not adaptable to judges.

[38] The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations. The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14). In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case. It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25). Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

ICBC Claims, Expert Evidence and Advocacy

Written by admin on October 9, 2008. Posted in Civil Procedure, Uncategorized. 53 Comments on ICBC Claims, Expert Evidence and Advocacy

If you are involved in an ICBC injury claim you likely know that ICBC may have the right to send you to a doctor of their choosing. They can do this in one of 2 ways, either pursuant to the Insurance (Vehicle) Regulation which allows ICBC to set up an Independent Medical Exam for any ‘insured’ seeking no-fault benefits, or under the Supreme Court Rules where the Defendant has the right to ‘balance the playing field’ by obtaining an independent medical exam in many circumstances.
Experts hired in such a situation can play a significant role in an ICBC claim. Much weight can be attached to what an expert has to say with issues such as causes of injuries, prognosis, reasonable treatments and future disability. Appreciating this it is important for an expert to present any opinion in a fair and balanced way. However, expert witnesses sometimes cross the line and advocate for the side that hired them.
Reasons for judgement were released today concluding that the orthopaedic surgeon hired by the Defence in a BC auto-injury case acted as an advocate.
In this case the Plaintiff was injured as a passenger in a 2003 collision. The crash was significant. The at fault driver was speeding, went through a stop sign and hit another vehicle head-on.
Just over $200,000 was awarded for the Plaintiff’s injuries and losses. In reaching this decision Madam Justice Martinson made the following findings in rejecting the evidence of the orthopaedic surgeon hired by the Defendant to assess the Plaintiff’s injuries:

[52] In my view the evidence of Dr. Schweigel should be given limited weight. He is no doubt a well-qualified orthopaedic surgeon. However, his opinion with respect to causation is based to a large extent on incorrect and incomplete information. His factual conclusions are, for the most part, inconsistent with the findings of fact made by the Court.

[53] Dr. Schweigel says in his report that (the Plaintiff) told him he had low back pain right after the accident. He rejected that statement and focused on the fact that (the Plaintiff) had not complained to his doctor about low back pain until several months later. For whatever reason, he did not have, then or later, the insurance adjuster’s notes showing that he had complained about low back pain shortly after the accident.

[54] In offering his opinion he downplayed the severity of the impact, though he agreed in cross-examination that the more severe a collision, the more likely is injury to the spine. He did not comment on the fact that (the Plaintiff’s) activities were curtailed after the accident but not before.

[55] He drew inferences from the brief clinical notes of Dr. Alderson that supported the conclusion that the pre-existing low back pain was significant. When summarizing the May 17th note, he put “less pain” when the note actually says “woke up in far less pain and is much more functional, bending without pain.”

[56] He was prepared to conclude, on very limited evidence, that the post accident incidents that were at issue likely caused the activation of the pre-existing condition.

[57] As I see it, Dr. Schweigel acted as an advocate for the defendants, not an expert whose sole purpose is to assist the Court. He highlighted all matters that would support the defence position and either downplayed or ignored those that would support the position of (the Plaintiff).

ICBC Claims and the Seperation of Fault and Quantum

Written by admin on October 9, 2008. Posted in Civil Procedure. 47 Comments on ICBC Claims and the Seperation of Fault and Quantum

While there are a host of issues involved in most ICBC injury claims (tort claims), the issues can be broken down into 2 broad categories 1. Who is at Fault (Liability) and 2. How much is the ICBC claim worth (quantum).
In a case where the issue of fault is hotly contested, is it possible to have that matter heard first before spending time (and in all likelihood a lot of money) presenting the medical evidence addressing the extent of injury? The answer is sometimes.
Reasons for judgement were released today considering exactly such an application.
The Plaintiff was injured in a motor cycle accident in 2006. He brought a personal injury claim. He asked the court to determine the issue of fault ahead of the issue of quantum of damages.
Rule 39(29) of the BC Supreme Court Rules allows such an applicaiton, particularly it holds that:
39(29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
Some of the factors a court will consider in such an application include the following:

a. A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

c Severance is most appropriate when the trial is by judge alone.

d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

e. A party’s financial circumstances are one factor to consider in the exercise of the discretion.

f. Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

In today’s case, the application was dismissed. Madam Justice Holmes of the BC Supreme Court held that:
[16] Even if a case need not be exceptional to support an order for severance, it must disclose some compelling reason for such an order. Compelling reasons must arise from the circumstances of the particular case. Although I have considerable sympathy for Mr. Biggs’ personal situation, I find no compelling reason for separate trials of liability and damages. Difficult though Mr. Biggs’ personal circumstances undoubtedly are, I am not persuaded that, in the context of the litigation as whole, they support a departure from the general practice by which all issues are determined in a single trial.

ICBC, Fraud and Jury Trials

Written by admin on October 9, 2008. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were released today dismissing a jury notice in an alleged case of Fraud against numerous defendants.
In this case ICBC was the Plaintiff. ICBC argues that ‘the defendants conspired to defraud it through various claims relating to stolen vehicles and through a collision that it says was staged and it seeks, among other remedies, an award of punitive damages.’
ICBC elected to proceed by jury trial. One of the defendant’s brought a motion to strike the jury notice. After reviewing many of the leading authorities dealing with whether a jury notice should be struck pursuant to BC Rule of Court 39(27), Mr. Justice Hinkson granted the defendant’s motion holding that he shared the same doubts that Mr. Justice Mededith held when dismissing a jury in the United Services case, particularly that:

I doubt that the jury (especially unaided by the pleadings) would understand the significance of evidence as it goes in. The length of the evidence (protracted by frequent intermissions by way of voir dire) and the variety of questions arising therefrom will be confusing. The many questions to be put to the jury at the end of the trial will be difficult to formulate for intelligent analysis by the jury. The speeches of counsel relating to those issues will be difficult to assimilate as will the judge’s charge and his review of the evidence

In sum, I conclude that a civil jury trial in the circumstances would be altogether unmanageable. Add to the reasons I have given, the complexity of jury selection alone, and the difficulty of ensuring absence of prejudice in the light of the multiplicity of parties.

To permit the trial to proceed by jury would threaten to virtually paralyze the judicial process and deny the plaintiff and some defendants and third parties their rights.