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ICBC, Aggravation of Prior Injuries and "Failure to Mitigate"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding damages to a Plaintiff as a result of a 2003 rear-end accident.
In this case the court found that the Plaintiff ‘had significant problems with her neck and back prior to the 2003 collision…..that the collision markedly aggravated her pre-existing condition. Her level of functioning has gradually improved between the time of the collision and the time of the trial….(although) she continues to suffer greater pain and disability than she did before the collision.‘
In valuing the Plaintiff’s accident related pain and suffering at $50,000, the court made the following findings:
It is clear that Ms. Antoniali was suffering from a previous injury to her back and neck at the time of the November 2003 collision. I am satisfied that the November collision caused substantial new or aggravated injury to Ms. Antoniali’s lower and mid back. She has suffered substantial disability, pain and suffering for the approximately four and one-half years since the collision. She has not been able to engage in most of the recreational pursuits that she engaged in before the collision. Her enjoyment of her new role as a mother has been negatively impacted. However, not all of the pain and disability she suffered during this period was attributable to the November collision. In the absence of the new injury she suffered in that collision she would have been troubled by the likely continuation of her pre-collision back and neck difficulties. I am satisfied that an award of $50,000 for non-pecuniary general damages for her collision related injuries, both past and future, is appropriate to reflect her loss. I assign those damages approximately equally to the pre-trial and post-trial periods.
In addition to interesting comments made about the aggravation of pre-existing injuries, the court made some key findings regarding ‘failure to mitigate’.
When a person is injured in a BC car crash and makes and ICBC tort claim, that person has a duty to take reasonable steps to minimize their losses. This is called the ‘duty to mitigate’. In this case the court found that the Plaintiff did fail to mitigate her losses and reduced some of her damages by up to 50% as a result of this failure. The key finding fueling this decision was that the Plaintiff’s symptoms would have been lessened had she followed the recommended program of stretching and exercises recommended by her physician.
In discussing the law of failure to mitigate Mr. Justice Preston referenced some well known passages canvassing this area of the law – for your convenience I will reproduce these below:
From Graham v. Rogers

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.

From Humphrey v. Rancier Estate

Another issue in assessment of damages, both non-pecuniary and pecuniary, is the plaintiff’s alleged failure to mitigate. The plaintiff has followed all her medical advice with the exception of reducing her weight. She was grossly obese before the accident, weighing about 260 pounds; she is not quite five feet tall. She now weighs over 200 pounds and continues to be grossly obese. There is no doubt on the medical evidence and the evidence of the therapists that her disability and pain would be less if she lost a considerable amount of weight.

The question is whether the plaintiff has taken reasonable steps to minimize her loss. The court must assess whether this test has been met by looking at all the circumstances of the case. Here we have an obese lady before the accident – someone who had been obese all her adult life. Her brother and sister are both obese. She appears, as her counsel put it, to be a weak woman in the sense that she has not had very good success at controlling her smoking or her eating on a consistent basis in the past despite medical advice and despite her clear efforts. She has tried to lose weight and has succeeded to an extent, at least temporarily. She is still trying, she says.

Of equal importance to the principle that the plaintiff must act reasonably in minimizing her loss and her damages, is another principle, namely that the defendant takes his victim as he finds him or her. In the circumstances in this case, given the plaintiff’s pre-accident history of obesity, given her particular personality, given her honest efforts from time to time to lose weight and kept it off, I am not satisfied that it can be said that the plaintiff has acted unreasonably and has failed to mitigate her damages, with the result that her damages should be lessened because she has not lost weight.

From Sagave v. Townsend

A defendant who injures a plaintiff is not entitled to expect perfection from the injured person in pursuing rehabilitation. The plaintiff must be reasonable and sincere in her efforts to promote recovery. The plaintiff was less than perfect, and undoubtedly paid a price in pain and discomfort on occasion. I accept however the plaintiff met a reasonable standard of care concerning exercise with regard to her own rehabilitation.

The defendant has not met the onus of proof required for the plaintiff to be found to have contributed to her own damages. In the assessment of her non-pecuniary damages however I have taken account of the need for the plaintiff to follow an almost daily regime in the future and assumed she will benefit accordingly.

This case serves as a striking example that an unreasonable failure to follow medical advice can have a severe impact on an ICBC claim. Here the Plaintiff’s awards for post trial pain and suffering, post trial loss of earning capacity and post trial cost of medical care were reduced by 50%!

Moving Down to Small Claims Court

Written by admin on . Posted in Civil Procedure, Uncategorized. 54 Comments on Moving Down to Small Claims Court

So you are injured in a BC car accident and start an ICBC claim. ICBC makes an inadequate settlement offer for your pain and suffering and you start a lawsuit in BC Supreme Court. Then, your injuries take a turn for the better and you realize your claim can adequately be dealt with more efficiently in Small Claims Court. Can you apply to move your claim down? Absolutely!
Section 15 of the Supreme Court Act allows for such an application. Specifically, s. 15 reads as follows:

Transfer to Provincial Court

15 A judge or master may transfer proceedings to the Provincial Court of British Columbia if

(a) the proceedings are within the jurisdiction of the Provincial Court under the Small Claims Act,

(b) a party to the proceedings applies to the judge or master, or all parties to the proceedings agree to the transfer, and

(c) the judge or master considers it appropriate to do so.

Both Supreme Court and Small Claims Court have their own strengths and weaknesses as forums for advancing ICBC injury claims. The decision of which court to sue in is not always an easy one and it is a good idea to get a free consultation with an ICBC claims lawyer before deciding how to proceed. It is reassuring, however, to know that after you start in Supreme Court you can bring an application to transfer the proceeding to the lower court.
Today, reasons for judgement were released allowing just such an applicaiotn that is worth reviewing for anyone involved in an ICBC Supreme Court claim that is considering moving down to the Provincial Court.

BC Court of Appeal Orders New Trial After Jury Dismisses ICBC Injury Claim

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized.

The BC Court of Appeal released reasons for judgement today ordering a new trial after a Jury dismissed a claim for damages as a result of a 2002 BC car accident. In doing so the BC Court of Appeal has made some helpful comments on the law relating to “adverse inference”.
When an ICBC claim is brought to trial various witnesses are called in support of the claim. Most importantly, expert witnesses (doctors and other specialists) are often called to give evidence with respect to the extent of the injuries caused by the car accident and their prognosis. If a Plaintiff fails to call one or more of his treating doctors, the ICBC lawyers can ask the judge (or jury) to draw an ‘adverse inference’. Basically, this means that the ICBC lawyer can ask the judge to draw a negative inference from the failure to call a witness who one would expect to have something relevant to say.
Typically, people injured in BC car accidents involved in ICBC claims see several different doctors. Most people have a GP, when the GP is not available they go to walk-in-clinics. Sometimes they are treated by emergency physicians and also referred to specialists by either their GP or such appointments can be arranged privately for litigation purposes.
It could be prohibitively expensive to bring an ICBC case to trial if one was required to bring every single doctor who assessed a plaintiff after a car accident to testify. Not only would this extend the length of the trial it would also add significantly to the expense as doctors are permitted to charge fees for their legal consultation services.
In this case the Plaintiff’s were a husband and wife. Their vehicle was rear-ended by a vehicle driven by the Defendant. Fault for the accident was admitted leaving the issue of damages.
At trial evidence was presented alleging that the Plaintiff’s suffered injuries to their neck, back, knees, shoulder, with headaches and other problems.
The jury outright dismissed the lawsuits, basically finding that neither of the Plaintiff’s suffered any compensable injuries in the BC car crash.
The Plaintiff’s appealed alleging that the trial judge made 4 errors in the course of the trial, namely that:

1) the trial judge erred in allowing the respondent to seek an adverse inference for failure of the appellants to call evidence from all their doctors;

2) the trial judge erred in not allowing the clinical records to go before the jury;

3) the trial judge erred in allowing the respondent to cross-examine extensively on collateral issues in regards to Mr. Buksh; and

4) the jury verdict is perverse in finding no injury to either appellant in the face of uncontradicted evidence to the contrary.
In respect of the adverse inference, here the ICBC defence lawyer argued that the jury should draw such an inference because the Plaintiff’s did not call all of the doctors who saw them after the crash. This included walk in clinic doctors and other physicians who had limited involvement in the treatment of the Plaintiff’s. The judge instructed the Jury that such an inference ‘may’ be drawn.
Our Court of Appeal ordered a new trial. In reaching this conclusion the Court of Appeal made some helpful comments about the law of adverse inference in ICBC claims in the last 10 paragraphs of the judgement which I reproduce below:

[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.

[33] A judge trying a case with a jury is bound to instruct the jury as to the applicable law, and thereby to assist the jury in its consideration of the evidence and determination of the facts. Whether an adverse inference is drawn from failure to call a witness is a question for the trier of fact. In this case, I cannot say the trial judge erred in the content of the instruction she gave the jury on the matter of adverse inferences. However, it bears reminding that the delivery of medical care is not now as it was in 1964 when Mr. Justice Davey made his comments in Barker. There is, today, a proliferation of “walk-in” medical clinics where the role of the “walk-in” clinic physician may be more limited than was the role of a family physician in 1964. Further, even people who have a family doctor may attend one or more such clinics as a matter of convenience, but still rely upon their family physician for core medical advice and treatment. The proposition stated by Mr. Justice Davey does not anticipate this present model of medical care. Likewise, the discovery process available to both sides of a lawsuit is not now as it was in 1964 when, in explaining his view on the need to call all treating physicians, Mr. Justice Davey referred to the professional confidence between a doctor and the patient. Today, the free exchange of information and provision of clinical records through document discovery raises the possibility that an adverse inference may be sought in circumstances where it is known to counsel asking for the inference that the opinion of the doctor in question was not adverse to the opposite party.

[34] Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel. Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[35] In this environment, and bearing in mind the position of a lawyer bound to be truthful to the court, it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.

$75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 50 Comments on $75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

OK, I’m back in Kelowna, but this time more for pleasure than business, so this case summary will be a little light on the usual details.
Reasons for judgement were relesed today finding a motorist at fault for a 2003 impact with a cyclist. The Plaintiff suffered serious injuries and was awarded close to $500,000 in compensation for his losses and injuries.
In this case the cyclist was travelling on the side-walk. This is prohibited in law but simply violating the motor vehicle act does not automatically make one negligent for an accident. In this case the court found that while the cyclist was unlawfully riding on the sidewalk, he was not responsible for the accident because this did not cause the accident, rather
“the accident was caused by (the Defendant) either failing to stop his vehicle before driving across the sidewalk in accordance with s. 176(1) of the Act, or by failing to look to his right before starting motion after looking away for a period of time during which a person could have appeared to the right of his vehicle.”
Here the court found that the Plaintiff was a credible witness that did not exaggerate his symptoms. The injuries were summarized by the Plaintiff’s treating family physician as follows:
fracture of the distal tibia, laceration of his scalp, laceration of his left shin, post-traumatic periostitis of the left shin, a partial tear of his anterior tibiofubular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa in the ankle/heel area).
In other words, a very serious ankle injury.  Evidence was also led that the Plaintiff suffered from a Mild Traumatic Brain Injury (MTBI) and that this resulted in some on-going cognitive problems.
The Plaintiff was a young man who suffered from a significant period of disability and there was evidence of some permanent partial disability.
Damages were assessed as follows:

a. Cost of future care: $73,078.00

b. Lost wages: $185,684.40 less the amount actually earned by the Plaintiff from December 3, 2003 to the date of trial;

c. Loss of future wages: $72,526.40.

d. Loss of earning capacity: $80,000.00

e. Non-pecuniary damages: $75,000.00

f. Special damages: $2,811.45.

g. In-trust claim: $14,040.00

$70,000 Pain and Suffering for Neck Injury and Debilitating Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today, Mr. Justice Bernard of the BC Supreme Court awarded a Plaintiff just over $200,000 in compensation for losses as a result of a 2005 BC car accident.
The accident involved a left-hand turning defendant who failed to see the Plaintiff’s vehicle. The result was a significant, near head on collision. Fault was admitted leaving only the issue of quantum of damages to be decided at trial.
The court’s key findings of fact were made at paragraphs 34-35 of the judgement where it was held that the Plaintiff suffered from debilitating headaches as a result of the BC car crash, that the headaches continue to plague him and that the source of these headaches is the neck injury the Plaintiff suffered in the crash. The court also found that these injuries where likely to plague the Plaintiff for 3-5 years following the trial.
The Plaintiff was a young man starting out in a career in the entertainment industry. The court accepted that the injuries took away his ability to take full advantage of various opportunities that were open to him in his career and this ‘loss of oportunity’ will continue into the future as a result of the on-going injuries.
In the end the court assessed damages as follows:

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

This case is interesting for the court’s comments on the use of the various doctor’s clinical records at trial. As any ICBC claims lawyer knows, Plaintiff’s in personal injury claims are often exposed to hard cross-examinations based on previously recorded statements contained in medical records.
When you go to the doctor he/she usually notes your complaints. These ‘clinical notes’ are often put to use by ICBC lawyers to cross examine a Plaintiff’s testimony discussing the extent of injuries and symptoms. Here, the court found that the Plaintiff held up to cross examination very well and made some very practical comments about the reliability of clinical records, namely:

[35] I accept (the Plaintiff’s) evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

Sacroiliac Joint Injury nets $48,500 Pain and Suffering in BC Car Crash

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Sacroiliac Joint Injury nets $48,500 Pain and Suffering in BC Car Crash

Reasons for judgement were released today awarding an ‘ideal Plaintiff’ just over $100,000 in total damages as a result of a 2006 BC Car Crash which occurred near Kelowna, BC.
Both fault and quantum (value of the injuries) were at issue at trial. The collision happened when the Plaintiff’s vehicle, which was stationary, was hit by the Defendant’s tractor trailer unit. The evidence that was accepted was that the tractor trailer, while passing the stationary vehicle, jackknifed to its right. The collision was significant causing about $12,000 in vehicle damage.
The Defendant gave a different version of what happened saying that the Plaintiff vehicle ‘suddenly and without warning turning into his vehicle’. This was rejected.
This case is worth reviewing for Mr. Justice Josephson’s findings of credibility. In rejecting the defendant’s evidence he noted that the defence theory ‘is contrary to locig and common sense‘ and that the defendant’s testimony was ‘impatient, dogmatic and almost haughty‘.
As is often the case in ICBC claims the court heard from competing medical expert who disagreed as to the extent of the injuries sustained. Here the court preferred the evidence of the Plaintiff’s expert, a highly regarded rheumatologist who is no stranger to severe soft tissue injuries.
The court accepted the Plaintiff’s doctors evidence of injury which is summarized at paragraph 23 of the judgement reading as follows:
[23] She diagnosed the problem as being with the sacroiliac joint, a joint located between the tail bone and the hip. Ligaments cross over the sacroiliac and can be stretched in a motor vehicle accident, particularly if a foot is pressed on a brake pedal at the time, which can cause the symptoms of pain experienced by the plaintiff. While not certain, Dr. Shuckett was of the opinion that the plaintiff’s hyper-mobility may have exacerbated the injury. This type of injury is difficult to treat when, as in this case, recovery has not occurred. Medicines are not effective as the sacroiliac area does not have a rich blood supply.
In explaining why he preferred Dr. Shuckett’s evidence to the defence doctor’s evidence the court noted that:
[25] I do not place great weight on the evidence of Dr. Schwiegel, a neurosurgeon retained by the defence for an independent medical examination. Dr. Schwiegel does not possess the same degree of expertise as does Dr. Shuckett in this type of injury. He did not diagnose the involvement of the sacroiliac joint in the symptoms, though now agrees that may be the case. Put simply, I prefer the expert opinion evidence of Dr. Shuckett where it conflicts with that of Dr. Schwiegel.
The court found that the effects of these injuries were significant, summarizing them as follows:
[26] In summary, as a result of these soft tissue injuries, the plaintiff has gone from a gifted and active athlete to a person unable to engage in sports and other activities that were a large and important part of her life. It has affected her personal relationships. For example, family and friends now see her retreat to the sofa in pain after a family dinner. Only her strong will and determination has led to some improvement in her symptoms with aggressive physiotherapy. Her future remains “uncertain”. After the expiration of this much time and effort with only modest improvement, it may well be that significant symptoms will continue in the foreseeable future.
$48,500 was awarded for pain and suffering.
Also of interest is the judges awards for past and future wage loss. Here the Plaintiff was a commisioned sales person whose past income loss could not be caluclaed with real precision. Nonetheless compelling evidence was awarded that a loss occurred and an award was made. Simialry, it was found that the injuries may have an impact on future earnings and an award was made for loss of earning capacity.
In making an award for loss of earning capacity the court noted that:

[40] In this case, the plaintiff’s ability to perform at the high level she would have been performing but for the accident will be compromised by her injuries to some degree, though that degree is difficult to measure. Her determination and outstanding personal qualities will diminish that loss. Regular weekly appointments and daily multiple sessions of recommended exercises diminish her ability to perform to the same high level that she would have been able to perform but for the accident.

[41] Her physical limitations, as well, render her less marketable to potential employers in future. Employment requiring even temporary physical stress will not be available to her.

[42] The period of time that the plaintiff will be so affected is also difficult to measure. The best medical evidence is that her future is “uncertain”. That there has been so little improvement over the long period of time since the accident leads to the conclusion that recovery will more likely be long term than short.

[43] The plaintiff seeks a not unreasonable $20,000 for loss of earning capacity. I award the plaintiff $18,000.

Another ICBC Intersection Crash

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

I’ve said it before an I’ll say it again, the issue of FAULT and ICBC claims tends to be most heavily disputed when dealing with left hand turning vehicles in intersection crashes.
Reasons for judgement were released today determining fault as a result of a 2004 intersection crash that occurred in Vernon, BC.
The Plaintiff was travelling through the intersection. The Defendant, travelling from the opposite direction, was intending to make a left hand turn. A significant collision happened. The issue of fault was decided by Mr. Justice Brooke.
This is an interesting case because it appears that the Plaintiff suffered a serious brain injury (a frontal lobe injury) as a result of this crash. When motorists suffer from brain injuries in car accidents it is not unusual for them to suffer a period of amnesia, either before, during or after the event. Here it appears that the trauma of the crash caused the Plaintiff to have no recall of the crash.
How then, do you prove your case when you can’t remember what happened? This case shows some of the usual trial strategies in such a situation. In this case the defendant’s examination for discovery transcript was utilized, lay witnesses were called, the investigating police officer who took scene measurements was called as to where expert accident reconstruction witnesses.
In the end the court found that the Plaintiff vehicle was speeding at the time of the crash and that the left turning driver failed to see a ‘dominant’ vehcile that was ‘there to be seen’. The court reference s. 174 of the BC Motor Vehicle Act in finding the left hand turner largely at fault. The court also found the speeding ‘through’ driver at fault.
In BC personal injury claims, if both parties are at fault the court has to determine the degree of fault of each party. Here the court assigned 20% of the blame to the speeding through vehicle and 80% against the left hand turning vehicle.
One matter worth noting is the effect of the traffic ticket. Here the defendant was ticketed for ‘failing to yield on a left-hand turn.’. He paid the ticket. Such an act is an ‘admission against interest’ and a court can use this ‘admission’ to help decide who is at fault. However, such an admission is not binding on the court. Here the defendant testified that when he gets a ticket he pays it. The court found him to be a straighforward and credible witness and accpeted that in not disputing the ticket that spoke to his characger rather than admission of fault.

Chronic Pain Syndrome and Fractured Spine Net $60,000 for Pain and Suffering

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

In a judgement released today a total of $81,694 was awarded in compensation as a result of a 2004 ‘chain rear end’ accident in BC.
The accident involved mutliple vehicles and the force of the crash was enough to write off the Plaintiff’s car. Fault was admitted by ICBC leaving only quantum of damages at issue.
As a result of crash the court found that the Plaintiff suffered from a fracture at T12 and a disc injury to T11 / T12 and perhaps T9 / T10 (basically fractures to the mid back) and that the Plaintiff ‘has gone on to develop a chronic pain syndrome with discomfort, sleep disturbance and depression.
The court went on to award $60,000 for pain and suffering, $20,000 for Loss of Earning Capacity and just over $1,000 in special damages (out of pocket expenses as a result of the accident.)
This case is worth reading for the judge’s discussion of credibility. When people complain of ‘chronic pain’ in an ICBC claim their credibility is always at issue. The reason is obvious, pain cannot be measured objectively. People can only describe their pain and a judge or jury can believe this descrpiton or reject it. In this case the judge had problems with the Plaintiff’s credibility but accepted that her chronic pain syndrome was legitimate.
More interesting is the judge’s comments on the credibility of the expert witnesses that testified. In this case ICBC, on behalf of the Defendant, hired an orthopaedic surgeon to examine the Plaintiff. He testified, in essence, that the Plaintiff had no serious injuries or ongoing problems. The court rejected this doctor’s evidence finding that ‘it was obvious to me that he had not spent as much time, nor was he as objective in his assessment of the Plaintiff (as her own physicians were). (ICBC’s doctor) impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefoe attach little wieght to his evidence.
This case is also worth reviewing for the judge’s great summary of the law relating to future wage loss at paragraphs 34 and 35.

$108,924 Awarded for Chronic Low Back Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries and losses arising from a 2006 BC car accident.
This was primarily a low-back soft tissue injury case. The Plaintiff did have other injuries but these largely resolved.
Fault was admitted for the accident, as such, the trial focussed exclusively on quantum (value of the injuries).
In reading the reasons for judgement Mr. Justice Metzger was obviously impressed with the Plaintiff. ICBC’s defence (assuming of course that the defendants were insured by ICBC) was largely rejected.
The court summarized the plaintiff’s injuries and course of recovery as follows:

[14] I am satisfied that within seven to ten months of the accident, the plaintiff recovered from any significant discomfort or effect of injuries to his shoulder, wrist, right foot and right side. Although Mr. Raper’s low back pain does not prevent him from working, or from mountain scrambling, I am satisfied that his physical ability in these pursuits has been compromised. His ability to perform his work to his previous standards and to enjoy his sports activities has been decreased.

After naming some precedents dealing with low back injuries the court went on to award $35,000 for non-pecuniary damages (pain and suffering).
This case is worth reading for the court’s discussion of future wage loss or loss of future earning capacity. In this case the Plaintiff returned to work shortly after the accident and continued to work through to trial. Despite this the court found that he was entitled to an award for loss of future earning capacity because he could no longer do general carpentry work (something that he has done in the past during slow cycles of employment) and that he lost the opportunity tow obtain a management position in his current line of work. In these circumstnaces the court awarded $55,000 for loss of earning capacity.
This case, and many like it, goes to show that simply because a person recovered from injuries to the point that they are able to return to work does not preclude an award for future wage loss. There are many factors to consider when valuing a future wage loss in an ICBC claim. In this case Mr. Justice Metzger did a good job summarizing the law and repeated one of the quotes that all ICBC claims lawyers should be aware of, namely that:
Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

ICBC Claims and your Vacation Photos

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 111 Comments on ICBC Claims and your Vacation Photos

I’m still in (not so sunny today) Kelowna (currently on break during an icbc claim examination for discovery), so bear with me as this blog entry is a little lighter on detail than I would like.
As most ICBC injury claims lawyers know these claims can go on for years, particularly when dealing with severe injuries.
During these years you go on living life as normally as possible. You go to work, school, play sports, socialize with friends, go on holidays etc. Like most people, you probably take photos of your activities from time to time. Did you know that ICBC can sometimes get their hands on these?
Reasons for judgement were released today forcing a Plaintiff involved in a BC injury claim to produce to the Defendant any photos of him on vacation after the accident. These applicaitons are routinely made by ICBC defence lawyers and are sometimes successful.
Here the court did a great job in referring to sevaral precedents where courts have either ordered, or refused to order, the production of holiday photos of a party to a lawsuit. These cases are worth reviewing when deciding how to respond to an ICBC request that private photos be shared with them in their efforts to defend against an injury claim.
The court concluded that:
12] Here counsel on behalf of the plaintiff points out there should be evidence of the existence of photographs and then if it is established that photographs exist, that they be shown to be relevant. He also raises the issue of others being in photographs and those other people having privacy rights.

[13] I am satisfied here that the fact of the plaintiff having been on vacation is such that one can presume there are some photographs having been taken, whether by the plaintiff or by others, and of course if the plaintiff is not in the possession or control of photographs taken then nothing need be produced by the plaintiff.

[14] It is my understanding there is a discovery scheduled for the 12th of August of this year, and although the trial is not set until the 23rd of March, ’09, I am satisfied it is not a sufficient stretch, if you will, to require there to be proof of holiday or vacation photographs prior to ordering that they be produced.

[15] So far as the privacy issues relating to others is concerned, the only interest the defendant has is in the activities of the plaintiff. The plaintiff claims damages for loss of enjoyment of life and injury to portions of the plaintiff’s anatomy as were injured in a 1998 workplace injury. There is a significant likelihood of probative value in vacation photographs, the vacation having been taken at a time when he states he was disabled from carrying on his normal work duties. Apparently the holiday in the Dominican Republic was some time between the 15th of December and the 13th of January and took place after the 6 November motor vehicle accident.

[16] So I am satisfied that there should an order go that vacation photographs taken during that time frame of the vacation to the Dominican Republic be produced, but that it be at the option of the plaintiff to delete the facial features of any persons other than himself in the photographs.

One thing all of you should know is this – If you take photos and publish them on the internet (myspace, facebook etc.) these become public and ICBC can verly likely get access to these. As an ICBC claims lawyer I have seen many instances of ICBC tracking down such photos and using these in the defence of personal injury claims.

What is more troubling is when ICBC tries to get access to clealry private photos. Cases such as this one are worth reviewing for anyone concerned about personal privacy and their ICBC claim.