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Mild Trauamtic Brain Injury (MTBI) Claim Dismissed by BC Supreme Court

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, Uncategorized.

In a striking example of how complex brain injury litigation can be, lengthy reasons for judgment were released today dismissing a Plaintiff’s claim that 2 accidents caused/contributed to a Mild Traumatic Brain Injury (MTBI).
The trial lasted over 30 days of court time spanning between November, 2006 – July 2007. The reasons for judgement give insight into just how complex the brain injury trial was. The reasons are well over 300 paragraphs long.
The Plaintiff was involved in 2 accidents. She sued for both and the trials for both claims were heard at the same time. The first accident happened in 2001 in Abbotsford BC when the Plaintiff’s vehicle was struck by a driver who failed to stop at a stop sign. Liability (fault) for this accident was admitted by the defence lawyer. The second accident happened in 2005 when the Plaintiff’s vehicle changed lanes and collided with the defendant vehicle who was pulling out from a parking lot. Liability was denied and the trial judge found the defendant was solely responsible for the accident.
With the determination of fault out of the way the court had to decide what injuries the Plaintiff suffered in both these crashes and their value. The Plaintiff said she suffered from a Mild Traumatic Brain Injury in the first accident and this injury was made worse in the second accident. This allegation was hotly contested by the defence lawyers.
The court heard from numerous witnesses including over 10 doctors. It is very common for ICBC brain injury claims to include opposing medical evidence and numerous ‘lay witnesses’ who give evidence of changes in a Plaintiff’s level of functioning after the accident. ICBC claims lawyers often refer to these witnesses as before and after’ witnesses.
The expert medical evidence included
1. The Plaintiff’s GP who diagnosed a ‘closed head injury‘
2. A Physiatrist who diagnosed ‘a head injury that has resulted in some brain dysfunction‘ along with ‘soft tissue aches and pains‘
3. A psychiatrist who treated the Plaintiff since 2002 who diagnosed ‘impairments…as a result of the accidents‘ and a ‘significant concussive injury in both accidents (which have gone on to become) a post-concussion syndrome, now persistent type…a personality change due to MTBI….a pain disorder that relates to (the Plaintiff’s) headaches and other chronic pain complaints…a post-trauma seizure disorder‘ He concluded that the Plaintiff ‘will continue to have significant disruption of her life and her ability to work is permanently compramised’.
4. A neuropsychologist who accepted the diagnosis of ‘closed head injury, possible seizure activity, chronic pain and post-concussive syndrome.’ He performed numerous tests and concluded that the Plaintiff ‘was suffering from psychological turmoil which was sufficiently severe to affect her score on neuropsychological tests’ and lastly that ‘the pattern of neurological test results was consistent with diffuse brain injury attributed as likely being caused by the car accident‘.
5. A urologist
6. A psychologist who saw the Plaintiff regularly since 2003
7. a Neurologist from the University of Colorado School of Medicine who diagnosed a ‘concussion with amnesia in the first accident and that she subsequently developed post-concussion syndrome’.
8. Another physiatrist who assessed the Plaintiff after the second accident and ‘attributed (her) symptoms after the first accident to post-concussive syndrome’. He also diagnosed various soft tissue injuries.
9. A psychologist who assessed the Plaintiff in 2006 who stated that ‘the plaintiff suffered from a brain injury based personality change arising from a frontal-lobe related impairment and emotional disturbance reactive to the trauma of the accidents‘
10. An orthopaedic surgeon who was hired by the defence lawyer. His opinion differed largely from most of the previous experts and gave evidence that:

Based on my assessment of Ms. Abma on May 9, 2003, she presented as an extremely symptom focused individual whose clinical examination strongly suggested a significant non-organic component to her various musculoskeletal/neurologic complaints. I base this latter opinion, that Ms. Abma has significant nonorganic illness, on the following findings:

1. Multiple areas of complaint.

2. No reported pain free interval.

3. Failure of all treatment modalities to date.

4. Significant pain behaviour and reaction on clinical examination.

5. Multiple areas of non-anatomic pain.

6. Regional numbness affecting her right arm.

7. Abnormal pain diagram.

All of these factors would suggest that there is a significant psychological social component influencing the reporting scenario and duration of Ms. Abma’s multiple musculoskeletal/neurologic complaints. In addition, Ms. Abma’s clinical records indicate that she suffered from anxiety/depression preceding her November 2001 motor vehicle accident, both of which can negatively influence an individual’s pain experience and their self perception of disability.

11. A Psychiatrist hired by the defence lawyer who noted that ‘there is no objective evidence to support the fact that this woman suffered any type of concussion or brain injury.’
12. An otolaryngolgist hired by the defence lawyer who ‘concludes that the plaintiff suffered a mild/modest neck sprain in the first motor vehicle accident classified as whiplash-associated disorder (WAD) Type 1. He considers that this may have re-activated the neck sprain from her 1996 motor vehicle accidents which demonstrated that her complaints continued for more than three years. Dr. Sinanan states “but for that factor, recovery from a Grade 1 WAD Type neck sprain usually is within six to eight weeks, 12 weeks at most
13. Lastly the court heard from a neurologist also hired by the defence lawyer and it was ‘uncontested’ that this doctor is the ‘foremost epilepsy expert in the Province of BC’. he concluded that the Plaintiff did not have a brain injury.
After all of this the court sided largely with the defence medical evidence. The key findings were made starting at paragraph 308 where the court held that:

[308] The most persuasive view of the plaintiff’s post-accident experience is described by Drs. Anton and Smith. Dr. Anton suggests that the plaintiff is suffering psychological injuries. Dr. Smith is also of a similar view: adjustment disorder with anxiety, which does not result from injuries sustained in either of the accidents, but arising from her belief that she is cognitively impaired as a result of the accident.

[309] I am not finding that the plaintiff is acting dishonestly. She believes that she is suffering from a brain injury. She is relying on the information she has been provided by her treating physicians. She has not proven on a balance of probabilities that she suffered a brain injury in the first accident. I find it much more likely that the psychological difficulties, including the cognitive, emotional and behavioural problems which the plaintiff has experienced, arose from her reaction to the brain injury diagnosis made by Dr. Ancill in April 2002. I do not accept the plaintiff’s assertion that all of her symptoms had their “genesis” in the motor vehicle accidents.

[310] Ultimately, I find that the injuries suffered by the plaintiff in the first accident are the physical injuries and to some extent the depression described in the evidence. The plaintiff suffered the following injuries as a result of the first motor vehicle accident on November 14, 2001:

1. aggravation of previous soft tissue injuries to her neck, back, shoulders and hips;

2. a contusion to the area above her left knee; and

3. some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries.

As a result of this finding the court largely dismissed the Plaintiff’s claims for loss of income past and future, future care needs, and her in-trust claims for voluntary services provided by her family.
Ultimately little more than compensation for pain and suffering for soft tissue injuries was awarded.
As an ICBC Injury Claims Lawyer, one of the highlights of this case for me was found at paragraph 204 of this judgement where the court discussed its view of some of the neuropsychological test results.  These tests, which can be used to see if a pattern of cognitive defecits are consistent with brain injury, have some built in ‘fail-safes’ in them.  These measures are built in to help the neuropsychologist gauge whether the patient is applying their best effort.  In other words, these built in to see if the Plaintiff may be faking the injury.
In this case the “Fake Bad Scale‘ disclosed some ‘suspicious results‘.  The various doctors placed varying levels of importance on this fact.  Madam Justice Gropper made her views quite clear at paragraph 304 where she stated that “If the testing is invalid it does not mean there is something wrong with the test,; it suggests that there is something suspicious about how the individual is responding to the testing and whether she is applying her best effort to it.  It is a factor to be considered, not simply ignored.’
This case, while perhaps lengthy and difficult to read through, is worth reviewing for anyone involved in an ICBC claim alleging Mild Traumatic Brain Injury. This is one of the most aggresively litigated injuries and this case shows just how involved these trials can be, not just from the medical side of things but from the involvement of ‘before and after’ witnesses and many intimate details of a Plaintiff’s life.
Do you have questions about this case or an ICBC claim involving Mild Traumatic Brain Injury?  Do you need advice from an ICBC claims lawyer?  If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)

$35,000 Pain and Suffering Awarded for Wrist and Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, ICBC Wrist Injury Cases, Uncategorized. 57 Comments on $35,000 Pain and Suffering Awarded for Wrist and Soft Tissue Injuries

Written reasons for judgment were released today by Madam Justice Stromberg-Stein of the BC Supreme Court awarding a Plaintiff just over $60,000 for her losses and damages as a result of a 2005 BC Car Accident.
The Plaintiff was in her mid 20’s when she was involved in an intersection crash involving a left turning vehicle. The lawyer for the offending driver admitted liability (fault) for the accident leaving the issue of quantum of damages (value of the injuries) to be addressed at trial.
The Plaintiff suffered several injuries including soft tissue injuries to her neck and lower back. Her most significant injury was a fibro-cartilage tear of her right wrist and a possible scapholunate ligament injury as well.
The Plaintiff had 14 sessions of physiotherapy which created ‘some improvement’ of her neck injury. The Plaintiff had an MRI of her wrist which revealed a tear of the triangular fibro-cartilage complex (a “TFC tear”). The Plaintiff had a cortisone injection in her wrist which offered some temporary relief. Arthroscopic surgery was also recommended by an orthopaedic surgeon but the Plaintiff elected not to have this procedure done until her son was older.
The Plaintiff’s lawyers sought just over $150,000 in damages as a result of these injuries. The defence lawyers suggested numbers were significantly lower. Such a discrepancy is common in most ICBC injury claims that go to trial.
After hearing the evidence the court awarded damages as follows:

a) $35,000.00 for non-pecuniary damages;

b) $7,812.00 for past wage loss, subject to Part 7 and statutory deductions;

c) $486.99 for special damages;

d) $20,000.00 for diminishment of earning capacity; and

e) $1000.00 for cost of future care.

The court’s discussion relating to ‘diminshed earning capacity’ is worth reading for anyone advancing an ICBC injury claim concerned with future wage loss. In this case the Plaintiff was able to return to work for a period of time following the accident before leaving the workforce on maternity leave. By the time of trial the Plaintiff was retraining for a different profession. The court agreed with the defence lawyers point that this change of careers ‘is a natural progression for somebody (in the Plaintiff’s) position‘ and the court also put weight in the defence lawyer’s position that the Plaintiff ‘never worked a full year.’
The court cited one of the better known quotes from the BC Court of Appeal addressing ‘diminished earning capacity‘ which states:
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.
The court concluded that only a ‘modest award‘ was appropriate for the Plaintiff’s diminished capacity and awarded $20,000 for this loss.
Do you have questions about an ICBC wrist injury claim or an ICBC claim involving ‘diminished earning capacity‘ (future wage loss)?  Do you need advice from an ICBC claims lawyer?  If so, click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)

Mistrial Declared for Opening Statement that Went "Over the Line"

Written by admin on . Posted in Jury Trials, Uncategorized. 50 Comments on Mistrial Declared for Opening Statement that Went "Over the Line"

In March, 2008, Mr. Justice Cole declared a mistrial after he found that the Plaintiff’s lawyer went “over the line” in his opening statements. The judges oral reasons were released in writing today.
Negligence (fault for the accident) was admitted by the defence lawyers. The Plaintiff lawyer, in the opening address to the jury, stated that ‘the defendant must pay for breaching the rules of the road.’ and referred to the defendant as falling asleep at the wheel of his car, causing the accident‘. The court characterized the general theme of the opening comments “such as to create an atmosphere of sympathy for the Plaintiff.”
The court concluced that the Plaintiff lawyer ‘did go over the line‘ and that ordering a mistrial is the ‘only fair thing to do.’
The result of the mistrial is that the jury is dismissed and the matter has to be reset for trial on a later date. Such a result brings with it delay and expense, commonly referred to as the ‘twin evils’ in the BC civil justice system.
Reading this case made me wonder whether jurors would be inflamed by such opening statements. Personally I struggle in thinking that a reasonable jury would be inflamed to such a degree by this statement that their whole view of the case would be unjustly prejudiced.
Even the judge acknowledged that ‘no one can ever tell’ if this statement caused damage to the juries ability to fairly hear the case.
In BC it is improper for lawyers to talk to jurors after the fact and poll them about their decision.  Specifically, in 1967 the BC Court of Appeal stated that lawyers who poll jurors after verdict would be in contempt of court.  This has been severely critisized by many including fellow blogger and former BC Supreme Court judge John Bouck.
Since the jurors can’t be polled I thought I’d ask my readers. What do you think? If you were sitting on a jury involving an ICBC injury claim, and the plaintiff’s lawyer told you that the Defendant fell asleep at the wheel and ‘must pay for breaching the rules of the road’ would your judgment be compromised? Would your ability to fairly value the plaintiff’s injuries be compromised? Would you feel a need to punish the defendant by awarding the Plaintiff an overly generous amount of compensation?
Please feel free to leave comments or e-mail me privately.
Do you have questions about this case or an ICBC injury claim? If so click here to arrange your free consultation with Victoria ICBC claims lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)

BC Court of Appeal Dismisses "Black Ice" Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 47 Comments on BC Court of Appeal Dismisses "Black Ice" Claim

Today reasons for judgment were released by the BC Court of Appeal dismissing the appeal of a very seriously injured Plaintiff who was involved in a single vehicle collision in 1998.
The Plaintiff was involved in a terrible motor vehicle accident. While driving from Tsawwassen to Vancouver on a January morning, his vehicle “left the road and overturned in the adjacent field. (he was) seriously and permanently injured, and had no recollection of the accident”.
There were, unfortunately, no witnesses to the accident itself.
When advancing a personal injury tort claim in BC, the Plaintiff has the burden of proof to prove why someone else is at fault for the accident. That is certainly difficult if the accident results in injuries that are so serious that they leave a person ‘with no recollection’ and even more difficult if there are no witnesses.
The Plaintiff sued the Ministry of Transportation and Highways and the contractor responsible for that particular stretch of roadway. The allegation was that they failed to adequately perform their maintenence duties. In other words, saying they should have and could have removed black ice from the scene of the accident.
The trial judge concluded that the Plaintiff failed to prove that the accident was caused by black ice and the claim was dismissed. The BC Court of Appeal dismissed the appeal concluding that “the trial judge made none of the errors alleged (on appeal). His findings of fact were well supported by the evidence.”
In reaching this conclusion the Court stated that:
The trial judge made no error by failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident. He considered the evidence for and against the appellant’s theory and determined that he had not proven, on the balance of probabilities, the essential fact that black ice was present on the highway, and therefore could not prove causation. The trial judge was under no obligation to compare the relative probabilities of the theories, and his conclusion would not have differed had he done so.
The Court does a good job in discussing the burden of proof in personal injury tort claims in BC. This case is a strong illustration of the fact that Plaintiff’s must prove, on a balance of probabilities, that someone else is at fault for their injureis to succeed in a tort claim in BC.
This case is certainly worth reading for anyone advancing a claim against the Ministry of Highways in BC alleging that they or their contractors failed to safely maintian the roads under their watch.

More on Examinations for Discovery and Your ICBC Claim

Written by admin on . Posted in Uncategorized. 118 Comments on More on Examinations for Discovery and Your ICBC Claim

Earlier this month I blogged about the Examination for Discovery process under the BC Supreme Court rules as it relates to ICBC claims. I summarized 14 broad categories that are generally canvassed by ICBC defence lawyers during the examination for discovery process.
Each discovery is unique and an effective examination is much an art as it is a science. I can’t readily blog about all the subtle tricks of the trade that I have seen used at discoveries but I can write a little more about the ‘bread and butter’ topics that are covered at discoveries.
The Law Society of BC (the organization that governs and regulates the practice of law in BC) publishes “Practice Support Checklists Manuals” on their website. These practice manuals are “are intended as a professional reference for BC lawyers only” and are published with the following warning:

The authors of the checklists have assumed that lawyers will exercise their professional judgement respecting the correctness and applicability of the material. Checklists and forms should be used only as an initial reference point. Reliance on them to the exclusion of other resources is imprudent, as conduct of each file depends on its own particular circumstances and instructions of the client.

The practice checklists should be used only as a secondary reference. For definitive answers, lawyers should refer to applicable statutes, regulations, practice directions and case law.
The Law Society of British Columbia, the Continuing Legal Education Society of British Columbia and the authors and editors of the manual accept no responsibility for any errors or omissions, and expressly disclaim any such responsibility.
With that legalese out of the way, I write this blog to point out that one of the Practice Manuals printed by the Law Society provide a checklist for defence lawyers conducting an examination for discovery of a Plaintiff in a car accident claim (and the same is used for ICBC claims plaintiff lawyers for their initial client interviews).
This manual is a great guide to give anyone facing an examination for discovery in an ICBC claim a general sense of the types of questions the lawyer may ask them.
For the convenience of my readers I have reproduced this manual below.
I point out that this manual should not be substituted for good legal advice regarding an ICBC claim, I simply reproduce this to give my readers a sense of the types of topics that may be covered during an examination for discovery in an ICBC claim.
_________________________________________________________________________________________________________

 

INTRODUCTION

Purpose and currency of checklist.

The checklist should only be used as a guideline as the nature and scope of the interview and the examination for discovery in each case are matters for your own professional judgment. Some of what follows may be appropriate for an interview but would be objectionable on an examination for discovery (e.g., prior driving record). The interview may be wide-ranging and directed to information gathering. The examination for discovery is a cross-examination and must be relevant to the pleadings.

The general framework of this checklist is relevant to most personal injury litigation; however, parts are oriented particularly toward motor vehicle accident litigation. If you use this checklist for other types of personal injury litigation, you will need to modify items 1.6 through 4.14.

New developments:

·1

Client Identification. New Law Society Rules regarding Client Identification and Verification are expected to come into effect on November 1, 2008. These new “know-your-client” Rules, generally based on the Federation of Law Societies of Canada Model Rule (http://www.flsc.ca/), represent a continuation of the legal profession’s initiatives against money laundering. All Canadian law societies are expected to adopt similar Rules in 2008.

Additional resources.

See also Introducing Evidence at Trial: A British Columbia Handbook (CLEBC, 2007); Discovery Practice in British Columbia, 2nd ed., looseleaf (CLEBC, 2004); British Columbia Motor Vehicle Accident Claims Practice Manual, 2nd ed., looseleaf (CLEBC, 2000); British Columbia Civil Trial Handbook, 2nd ed. (CLEBC, 2005); Personal Injury for Legal Support Staff —2006 Update (CLEBC, 2006); Personal Injury for Legal Support Staff (CLEBC, 2003); Personal Injury Conference—2005 (CLEBC, 2005); Defending Personal Injury (CLEBC, 2006); and Personal Injury: Advanced Issues (CLEBC, 2004).

 

  

CONTENTS

 

  
1. The Plaintiff—Personal Information
2. The Car
3. The Accident
4. At the Scene of the Accident
5. Injuries Sustained by the Plaintiff
6. Practical Consequences of Injuries
7. Plaintiff’s Medical History
8. Treatment of Plaintiff’s Injuries
9. Potential Defendants
10. Damages
11. Other Charges and Claims
 		  

CHECKLIST

 

  
1. THE PLAINTIFF—PERSONAL INFORMATION
  

1.1 Name, address, phone numbers, e-mail address, occupation, employer or school, social insurance number.

  

1.2 Personal history: birth date and place, height, weight, marital status, date and place of marriage, spouse, parents, children, dependents, previous residences for last 10 years, education, medical coverage.

  

1.3 Whether spouse is employed and, if so, the details.

  

1.4 Employment history: name, address and phone number of current employer, job title and duties, length of employment with that employer, name of immediate supervisor, remuneration (full history), hours regularly worked (and overtime), typical duties and responsibilities, future prospects, benefits (medical and dental plans, life insurance, pension, paid vacation, employer’s contribution to employment insurance (“EI”), free board and lodging, investment options, company car, union or Workers’ Compensation Board (“WCB”) involvement, paid sick leave, etc.); same details regarding previous employment, including why plaintiff left. Obtain details of any WCB claims or periods of sick leave. Request appropriate employment documents and authorizations. Obtain the name of the union and a copy of the collective agreement to determine validity of a claim for collateral benefits or other employment benefits. Obtain particulars and a copy of policy for any disability insurance for the same reasons.

  

1.5 Insurance coverage: company, claim number, name of adjuster, type of insurance, any statement made by plaintiff.

  

1.6 Driver’s licence: class, how long plaintiff has had it, any restrictions (and, if so, whether they were complied with), whether licence has been suspended for any reason in the past, prior convictions.

  

1.7 Whether plaintiff is an experienced driver and whether plaintiff has previously been involved in any accident.

  
2. THE CAR
  

2.1 Owner. If plaintiff was driver but not the owner, how did plaintiff come to be driving the car? Insurance details of vehicle owner.

  

2.2 Type of car: year, make, standard or automatic, licence number.

  

2.3 General mechanical condition and details regarding condition of brakes, steering, tires and, where relevant, head and tail lights, signal lights, horn, windshield, windows etc., including when they were last checked, and whether there have been any previous problems.

  
3. THE ACCIDENT
  

3.1 Date, time, location.

  

3.2 Plaintiff’s pre-accident condition (e.g., illness or disability affecting driving, alcohol or drug consumption, physical condition, whether tired or distracted, last sleep, day’s activities).

  

3.3 Further details about vehicles and parties involved, such as: names, addresses and phone numbers of drivers, owners, passengers, pedestrians, witnesses; types and conditions of other vehicles. Details of other driver’s insurance.

  

3.4 Road, traffic, and weather conditions, such as: time of day; lighting and visibility; position of sun; road condition; characteristics of accident location (e.g., width of road, number of lanes, straight or curved, center marking, intersections, traffic controls, pedestrian crossing areas, parked cars, any obstructions to vision).

  

3.5 Whether headlights, windshield wipers, heater, defroster, or radio were on; whether windshield was clear; whether sunvisor was being used; whether plaintiff was wearing sunglasses.

  

3.6 Whether plaintiff was wearing glasses and, if so, whether this was required under driver’s licence, and when prescription was last checked.

  

3.7 Whether plaintiff was wearing a seat belt. If so, type and was it snugly fastened? If not wearing a belt, consider information defendant may use for seat belt defence expert opinion (height, weight, body shape, torso length, clothing, type of belt). Whether there was a headrest. If so, was it adjusted for the plaintiff’s height?

  

3.8 Where plaintiff was going; point and time of departure; destination; route; familiarity with route and location; purpose of travel; whether working; whether in a hurry.

  

3.9 Details about the accident, such as: location and direction of travel of each party involved; speed at which each was travelling before accident and whether there was any slowing down or acceleration; when other vehicle was first seen; any opportunity for evasive action by either vehicle and, if so, whether it was taken; elapsed time between sight and impact; movement of other vehicle during this time; point of impact; how far vehicles travelled after impact; skid marks; location of damage to vehicles; damage to interior of plaintiff’s vehicle; deployment of air bag. Whether plaintiff’s attention was diverted for any reason, for example, was plaintiff distracted by children or other passengers, changing a radio setting, changing tapes/CD, operating a blackberry or mp3 player, or speaking on the cellular phone, etc.

  

3.10 Whether there was anyone or anything else in the car (e.g., passengers, animals, luggage). If so, where, and what happened to them or it?

  

3.11 What happened to plaintiff, including: bracing before impact; plaintiff’s impact inside the vehicle; head struck or head being thrown backwards.

  

3.12 Damage to all vehicles (location, type, severity).

  

3.13 Injuries to other parties.

  

3.14 Any other information about other parties (e.g., insurance).

  

3.15 Evidence, such as statements, sketches, available photographs, copy of police report, repair estimate.

  
4. AT THE SCENE OF THE ACCIDENT AND AFTERMATH
  

4.1 Plaintiff’s injuries, specifying location and type.

  

4.2 Plaintiff’s state of consciousness, including feelings of dizziness or disorientation; plaintiff’s emotional state.

  

4.3 Whether plaintiff realized at the time that he or she had been injured and, if so, how.

  

4.4 Whether any of plaintiff’s clothing or other personal property was damaged.

  

4.5 What plaintiff did after impact.

  

4.6 Full particulars of any treatment at the scene, including when given, by whom, type of treatment.

  

4.7 Whether police or fire department were called and, if so, details of this, their arrival, actions, and any discussions with them.

  

4.8 Whether ambulance was called and, if so, details of this, its arrival, what happened after that, and any discussions with attendants.

  

4.9 Full particulars of any conversations involved in or overheard at the scene.

  

4.10 Full particulars of any written statements given.

  

4.11 Whether plaintiff complained of any physical injuries at the time and, if so, details of this.

  

4.12 Whether anyone helped plaintiff from the car, plaintiff could walk unassisted, or a stretcher was used.

  

4.13 Whether plaintiff was treated in emergency; what treatment including:
x-rays; medication prescribed or given; length of stay in hospital before being released; name, address, and phone number of attending doctor.

  

4.14 Names, addresses, and telephone numbers of witnesses to the accident.

  
5. INJURIES SUSTAINED BY THE PLAINTIFF
  

5.1 Specific injuries: any pain, bruising, numbness, tingling, or clicking in ears or jaw, eyes, head, jaw, neck, shoulders, back, arms, chest, hands, fingers, toes, legs, hips, buttocks, knees, abdomen, other. Specify exact location and nature of pain, numbness, tingling, or clicking. Specify when problem began and how long it has lasted, whether constant or intermittent. Specify whether particular activities cause aggravation. Go through the injuries from head to toes, so none are omitted.

  

5.2 Other pain and health problems, such as: headaches, lack of concentration, memory problems, blurred vision, light sensitivity, fainting, dizziness, nausea, ringing in ears. Specify when problem began and how long it has lasted.

  

5.3 Need for any of the following: cane, crutches, wheelchair, orthopedic supports, trusses, back or neck brace, cervical collar, traction, other. Specify duration and frequency of use, place where used, who prescribed it.

  

5.4 Need for ongoing treatment including physiotherapy (see item 8). What medication has been prescribed, and what medication the plaintiff is taking.

  

5.5 Adverse reaction to medicine, anaesthetics, etc. Specify symptoms.

  

5.6 Changes in appearance, such as: limp, weight gain or loss, scars (specify size, location, whether permanent), other disfigurements.

  

5.7 Changes in emotional or psychological state, such as: tearful, angry, depressed, tired, happy, sleepy, nightmares, intrusive thoughts, insomniac, bored, discouraged, hopeful, afraid, need for psychological or psychiatric treatment, etc.

  

5.8 Whether plaintiff feels that any of the above have caused changes in appearance, dress, etc., or the way others perceive him or her (i.e., self-image).

  

5.9 Consider interviewing close family member or other witnesses regarding the effects of the injuries.

  

5.10 Obtain authorizations and request records of all medical practitioners who have treated the plaintiff. Consider request for MSP records.

  
6. PRACTICAL CONSEQUENCES OF INJURIES
  

6.1 Effect on employment:

  

.1 Whether plaintiff can still do same type of work.

  

.2 Whether plaintiff returned immediately to work. If not, why not, how much time lost, whether doctor or anyone else advised plaintiff not to return to work, loss of holiday benefits, loss of sick days, whether sick days can be accumulated and paid out.

  

.3 Whether short- or long-term benefits and whether insurer has subrogated right of recovery.

  

.4 Any adverse effect on employment, future earning capacity, long-term career plans.

  

.5 Whether required to take early retirement or suffered loss of seniority rights or employment benefits.

  

.6 Has plaintiff been accommodated at work by being assigned lesser duties?

  

.7 Get full particulars of income loss. Consider contingencies such as opportunities for advancement, alternative opportunities, supply and demand for skills. Also, whether doing the same work now involves extreme, moderate, slight or no pain.

  

.8 For a student, consider loss of or set-back in education.

  

.9 Discuss mitigation efforts (e.g., if plaintiff has had to seek new employment, what efforts were made and what responses were received).

  

.10 Consider whether less employable for all types of employment even if able to continue with same employment.

  

6.2 Effect on business:

  

.1 Whether additional employees hired to replace plaintiff, or whether business has been adversely affected (if so, why and in what way).

  

.2 Get full particulars of income loss; get plaintiff’s income tax returns and records, including business records relating to productivity, etc., as well as statements and books of account, accountant’s files, bank statements and cancelled cheques, plaintiff’s files including correspondence.

  

6.3 Effect on domestic and recreational activities:

  

.1 Whether plaintiff did them before the accident, frequency before, whether plaintiff can do them now and, if so, whether this involves extreme, moderate, slight or no pain. Examples are: lift heavy objects; drive automobile, truck, motorcycle; ride bicycle; work on auto; shovel snow; mow lawn; garden; kneel down, squat down; walk, jog, run, dance, do exercises; enjoy sexual relations; do home repairs, saw/chop wood, do wallpapering, paint walls/ceiling; lift children; do grocery shopping; make beds, do laundry, scrub floors, vacuum, cook, dust, sew;

  

use lower/higher shelves; wear high-heeled shoes; turn head to look behind when driving, put chin on chest, hold phone with shoulder, sit in bathtub with legs outstretched, sit on floor/grass/low furniture; play tennis, baseball, football, basketball, golf, etc.; hunt, fish, ride, climb mountains, etc.; snow/water ski, swim, other sports and hobbies; enjoy social life.

  

.2 Specify any other ways in which capacity to enjoy life has been affected. Which activities have been resumed or attempted?

  

.3 What vacations have been taken, delayed or cancelled?

  

6.4 Bear in mind any other special considerations such as the possibility of marriage and child bearing.

  

6.5 Expenses related to the accident, including damage to personal property, prescriptions, taxis, mileage, lost membership, etc. Obtain details of payment, whether paid by plaintiff or third party. If third party, who and on what basis.

  

6.6 Retraining, rehabilitation, or vocational counselling undertaken.

  

6.7 Obtain details of any services provided by family members or others for which the plaintiff might advance a claim and the actual cost of any such services if incurred. Determine who provided services, the number of hours spent by them, whether they had to leave a job in order to provide the services and whether these services went beyond what would be expected of a family member.

  

6.8 Obtain details of disability insurance plan and benefits received.

  
7. PLAINTIFF’S MEDICAL HISTORY
  

7.1 Plaintiff’s previous illnesses and conditions requiring medical treatment; attending physician; date; nature of illness and its duration. Include hospitalization, accidents, injuries, alternative health care.

  

7.2 Whether plaintiff has any chronic health problems.

  

7.3 Whether plaintiff used any medication/drugs regularly before the accident.

  

7.4 Whether plaintiff has ever made a previous claim for damages related to an accident or injury (in a legal action, or under Workers Compensation Act, R.S.B.C. 1996, c. 492, etc.). Get details, including outcome and consider obtaining documentation such as medical legal reports, pleadings, orders and releases.

  

7.5 Whether plaintiff has been a recipient of disability benefits (e.g., CPP benefits); obtain details of plan and benefits.

  

7.6 Whether plaintiff has ever had any insurance denied or cancelled.

  

7.7 Whether plaintiff believes present accident has aggravated an old injury or illness. Get details.

  

7.8 Whether plaintiff had physical examinations in the five years prior to the accident and, if so: date, doctor, purpose of examination.

  

7.9 Pre-accident clinical records from any relevant health care professionals if plaintiff has a previous history of injury.

  

7.10 Whether the plaintiff has had any previous psychological or psychiatric treatment for depression, anxiety, etc.

  

7.11 Whether there have been any intervening medical conditions or accidents in the post-accident period.

  

7.12 Whether plaintiff has a history of changing doctors frequently and why.

  

7.13 Post-accident clinical records.

  
8. TREATMENT OF PLAINTIFF’S INJURIES
  

8.1 Treating institutions: names, addresses, types of institution, dates of visits or stays, complaints.

  

8.2 Treating physicians, chiropractors, physiotherapists and other health care professionals giving treatment of any nature (including alternative medicine): names, addresses, specializations, dates of visits, complaints.

  

8.3 Diagnosis and prognosis of each person giving treatment each time plaintiff was examined.

  

8.4 Place and date of x-rays, MRIs, CT scans, tomographs, etc.

  

8.5 All medications (including alternative medications) prescribed or taken.

  

8.6 Future surgeries planned, future appointments set, prognosis if given.

  
9. POTENTIAL DEFENDANTS
  

9.1 Get details enabling you to identify potential defendants (e.g., consider facts that might establish vicarious liability). Consider whether province, municipality, physicians, or others might be defendants.

  

9.2 Get names, addresses, phone numbers, details of their insurance, if possible.

  
10. DAMAGES
  

10.1 Car: age, mileage; cost of car and improvements; condition before accident; damage; whether car can be repaired; whether car has been repaired; invoices and estimates. Consider whether issue of accelerated depreciation arises.

  

10.2 Damages incidental to damage to car, such as cost of renting another car while repairs are being made, and any cost of repair not covered by insurance (e.g., insurance deductible).

  

10.3 Damage to other property, such as clothing and contents of car.

  

10.4 Medical expenses.

  

10.5 Other damages incidental to personal injury, such as economic loss and loss of enjoyment of life (see item 6).

  

10.6 Obtain receipts for all expenses.

  
11. OTHER CHARGES AND CLAIMS
  

11.1 Whether criminal or quasi-criminal charges have been laid against any of the parties. If so, obtain copies of police file and trial transcripts.

  

11.2 Whether an ICBC claim has been filed and, if so, identify claims centre, claim number, and adjuster. Whether any benefits under Part 7 of the Revised Regulation Under the Insurance (Vehicle) Act, claimed and/or received. What documents given to or signed for ICBC, and any advances paid.

  

11.3 Whether there is a WCB claim (if accident arose out of and in the course of employment: Workers Compensation Act, ss. 5 and 10).

  

11.4 Whether obligation to repay or make claim for the benefit of an employer or insurer (i.e., a subrogated claim), short- or long-term benefits.

  

11.5 Obtain copies of any documents relating to ICBC claims, Part 7 benefits, WCB records, etc.

  

11.6 If there were previous accidents or WCB claims, obtain pleadings for any claims commenced and copies of any settlement documents including orders or releases.

  
12. CREDIBILITY
  

12.1 In proceeding through the interview/examination for discovery, it is important to assess your client/opposing party as a witness. This may be as simple as considering whether the person appears honest, but also may include whether the witness makes a good impression, is verbose or reticent, is nervous, is argumentative, is a poor historian, etc.

  

12.2 Consider what steps will be required to prepare your own client, including a mock examination, discussion of behaviours, etc.

12.3 In preparing to examine an opposing party, consider the most effective approach to be taken. For example, you may start with general questions and then narrow to the specific. You may also consider if and when to confront the witness with documents such as medical records or income tax returns.

  

Do you have questions about an ICBC Injury Claim or examinations for discovery?  Do you need legal advice from an ICBC claims lawyer?  If so click here for your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided throughout BC!)

More on Court Costs, Settlement Offers, and Your ICBC Claim

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If you are advancing and ICBC injury claim in BC Supreme Court, whether or not you are represented by an ICBC Claims Lawyer, you need to know something about Formal Settlement Offers. These settlement offers bring potential consequences if they are not accepted and these need to be considered when deciding whether an ICBC settlement offer is fair.
Rule 37 of the BC Supreme Court Rules permits parties to a lawsuit to make a Formal Settlement Offer and if the claim goes to trial and the settlement offer is beaten there can be significant Costs consequences (where the losing side has to pay the winning side tarriff court costs and disbursements which can easily exceed $10,000).
If you think of taking an ICBC claim to trial and winning I imagine you think of proving the other driver is at fault and being awarded money for your injuries. With formal settlement offers, winning is not quite that simple. If ICBC makes a formal settlement offer under Rule 37 and the judge or jury awards you less this can be considered a loss. Rule 37(24) sets out the consequences to a Plaintiff for failing to accept a Defendant offer to settle and ‘losing’ at trial, the subrule reads as follows:

Consequences of failure to accept defendant’s offer for monetary relief

(24) If the defendant has made an offer to settle a claim for money and the offer has not expired or been withdrawn or been accepted,

(a) if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and the defendant is entitled to costs assessed from that date, or

(b) if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

On the other side of the coin, there can be more than one way of winning. If you make a formal offer to settle your ICBC claim in compliance with Rule 37 and the judge or jury award you more money, Rule 37(23) sets out the consequences to the Defendant. The subrule reads as follows:

Consequences of failure to accept plaintiff’s offer to settle a monetary claim

(23) If the plaintiff has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted, and if the plaintiff obtains a judgment for the amount of money specified in the offer or a greater amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

Now, after absorbing all of the above you need to know that RULE 37 and 37A are being repealed as of July 2, 2008 and being replaced with Rule 37(B)!

That does not mean that you just wasted your time learning the above. If a formal offer to settle an ICBC injury claim is made before July 2, 2008 it needs to comply with Rule 37 or Rule 37A to trigger ‘costs consequences’.

To trigger costs consequences in an ICBC claim that goes to trial any offer made after July 2, 2008 has to comply with Rule 37B. To do so the offer must

1. be made in writing

2. be delivered to all parties of record, and

3. contain the following sentence “the [name of party making the offer] reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgement on all other issues in this proceeding”.

It seems that the purpose of Rule 37B) is to simplify the process of making formal settlement offers. The consequences of taking ICBC claims to court and beating (or not beating) a formal settlement offer seem to be less certain under this new rule. Rule 37B(4) sets out the consequences as follows: “The court may consider an offer to settle when exercising the court’s discretion in relation to costs”.

The options given to the court are set out in subrule 5 which states:

In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of the delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of the delivery of the offer to settle.

Subrule 6 sets out the factors a court may consider in exercising its costs discretion where a formal offer was made stating:

In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on an later date

(b) the relationship between the terms of the settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate

I for one welcome Rule 37B. One of the biggest criticisms made by plaintiff ICBC injury claims lawyers was that the old Rule 37 was unfair to plaintiffs as a person injured in a car accident was always in a worse financial position to face the consequences of losing at trial than ICBC. This lopsided reality created a lot of pressure on people advancing ICBC injury claims in BC Supreme Court to consider settlement when faced with a Rule 37 formal settlement offer.

It will be interesting to see if our BC courts, when considering “the relative financial circumstances of the parties” will consider ICBC a party to the lawsuit of an ICBC injury claim. Typically, ICBC is not named as a defendant to a ICBC Injury tort Claim, instead those at fault for the collision are named and often they simply happen to be insured by ICBC. So ICBC is not formally a ‘party’ to most ICBC injury tort claims.

If the court is willing to consider the fact that the Defendant is insured when weighing the ‘relative financial circumstances of the parties‘ then this Rule is a welcome change for anyone advancing an ICBC injury claim. If not, perhaps the court is willing to consider this under “any other factor the court considers appropriate“.

Do you have questions about an ICBC settlement offer or the Rules of Court governing settlement offers in BC Supreme Court? If so click here to arrange a free consultation with ICBC Injury Claims lawyer Erik Magraken.

 

Court "Costs" and Your ICBC Injury Claim

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Reasons for judgment were released by the BC Supreme Court yesterday awarding a Plaintiff in a BC personal injury claim “costs” despite the fact that the Plaintiff’s award was within the small claims court jurisdiction.
This case gave me a good opportunity to write a little bit about the “costs’ consequences of bringing ICBC claims to trial and I intend to make this the first of several blog entries on this topic.
If you make an ICBC claim in BC Supreme Court and win (winning meaning you obtain a judgment in your favour greater than an ICBC formal settlement offer) you are generally entitled to ‘costs’ in addition to your award of damages.
For example, if a plaintiff with soft tissue injuries brings an ICBC claim to trial and is awarded $30,000 and ICBC’s formal settlement offer was $10,000, the Plaintiff would be entitled to “Costs” in addition to the $30,000 (barring any unusual developments at trial).
The purpose of awarding the winner Costs is to compensate them for having to go through the formal court process to get what is fair. This recognzes the fact that there are legal fees involved in bringing most ICBC claims to trial and one of the purposes of Costs is to off-set these to an extent.
Costs cover 2 different items, the first being disbursements (meaning the actual out of pocket costs of preparing a lawsuit for trial such as court filing fees and doctor’s fees in preparing medical reports) and the second being Tarriff costs – meaning compensation for many of the acutal steps in bringing a lawsuit in BC Supreme Court.
The Costs consequences after a BC Supreme Court Trial could easily be in the tens of thousands of dollars and this is often the case in many ICBC claims.
Costs are discussed in Rule 57 of the BC Supreme Court Rules and this rule is worth reviewing for anyone bringing an ICBC claim to trial in the BC Supreme Court. The winner does not always get their costs, however. One of the situations when a winner may not get their costs is when they are awarded an amount of money that was in the small claims court jurisdiction ($25,000 or less).
Rule 57(10) states that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.”
As a result of this sub-rule, people who bring an ICBC claim to trial in BC Supreme Court and are awarded less than $25,000, may be disentitled to their Tariff Costs unless they can show ‘sufficient reason for bringing the proceeding in the Supreme Court.”
In this weeks judgement the court agreed that despite the fact that the Plaintiff was awarded $12,290 in damages (an award well within the small claims court jurisdiction), the Plaintiff did have sufficient reason to bring the proceedings in Supreme Court.
In reaching this decision the court referred to a leading BC Court of Appeal Case where it was held that “a Plaintiff does not have an on-going obligation to assess the quantum (value) of a claim and that the point in time for a consideration of whether a plaintiff had a sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
The lawyer for the Plaintiff argued that when the lawsuit was started they were not in a position to finalize their valuation of this claim becase they did nothave a final medical report commenting on the plaintiff’s injuries. Also that since the Defendant took an LVI (low velocity impact) position it was important to sue in Supreme Court to have an examination for discovery of the Defendant (a procedure not available in small claims court).
For those and other reasons the court agreed and awarded the Plaintiff her Tariff Costs.
Do you have questions about an ICBC Claim, or BC Court Costs that you wish to discuss with an ICBC claims lawyer? If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken.

$45,000 Awarded to Plaintiff for Post Accident Headaches

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

After a 13 day trial in Vancouver, BC,  reasons for judgement were released yesterday awarding a Plaintiff $45,000 plus special damages (out of pocket expenses for treatment of injuries) as a result of a 2001 BC car accident.  This was a ‘headache claim’ and the primary issues were whether the Plaintiff’s headaches were caused by the BC car accident and if so, how much money the injury claim was worth.
At trial the BC personal injury lawyers on opposing sides were miles apart in their view of the value of the case in their submissions to the court.  The Plaintiff’s lawyer alleged permanent impairment of her capacity to earn income and sought damages in excess of $900,000.  The personal injury lawyers defending the claim responded that the Plaintiff only suffered from mild soft tissue injuries and that damages between $10,000 – $20,000 were appropriate. 
It is quite common for lawyers on opposing sides of ICBC claims to take very different positions at trial  and this case is a good example of how far apart 2 sides to an ICBC claim can be.  In this case the Plaintiff presented a case of chronic headaches which interfered with tasks of daily living including work.  The defence lawyers presented a case alleging mild soft tissue injury with headaches resolving a short time after the accident.  At the end of the trial the court largely sided with the defence lawyer’s position. 
The Plaintiff was 19 at the time of the accident.  As she was driving the defendant turned left directly in front of her lane of travel.  She had the right of way.  She had time to step on the brake and the clutch of her vehicle, shift into neutral and brace herself for the impact.   The accident was described as a t-bone collision by the Plaintiff although the court noted that the front left portion of the Plaintiff’s car struck the driver’s side door of the other vehicle in this BC car accident claim.
As is often the case in ICBC claims alleging an ‘impaired earning capacity‘ due to a BC motor vehicle accident, the court heard from a variety of doctors as ‘expert witnesses’.
Dr. Robinson, a neurologist who specializes in headache disorders, testified on behalf of the Plaintiff.  He stated that her headaches ‘have features consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.’
Dr. Chu, a physiatrist (specialist in physical medicine and rehabilitation) testified that the accident “is the direct cause of (the plaintiff’s) mechanical left upper neck pain.  This in turn is the cause of her secondary cervicogenic headaches”
Dr. Vincent, a cutting edge specialist in Anaesthesiology and Interventional Pain Medicine, also testified and gave evidence which ended up largely supporting the Defendant’s position.  Dr. Vincent injected anaesthetic medications into the Plaintiff’s neck on two occasions.  Unfortunately neither of the injections relieved the Plaintiff’s headache.  After a rigorous cross-examination Dr. Vincent testified that the Plaintiff’s results were inconsistent with a ‘causal relationship between an injury…to the neck and the headaches the Plaintiff experiences.”
The defence lawyer relied on the opinion of Dr. Jones, a neurologist, who testified that the Plaintiff’s headaches are ‘true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine’.
The court preferred the evidence of Dr. Jones.  The court found that the BC accident ‘did cause an exacerbation of (pre-existing) headaches’ and that ‘those headaches largely resolved and (the Plaintiff) had returned to her pre-accident state of health within approximately 10 months following the accident.‘
The court found that there were problems with the Plaintiff’s evidence and that her present recall of symptoms in the months after the accident was ‘unreliable’.  The ultimate finding was that all of the Plaintiff’s headaches sinced 2002 were ‘primarily migraine headaches that she would have developed (even without the accident)’.
The court awarded $45,000 for pain and suffering and the Plaintiff’s special damages up to March 16, 2002.
This case is a great example of the different positions opposing lawyers can take in court in an ICBC claim and results such as this one should be reviewed when in settlement negotiations with ICBC for a ‘headache’ claim as a result of a car accident.
Do you have questions about this case or an ICBC headache claim?  Are you looking for a free consultation with a ICBC claims lawyer?  If so click here to arrange a free consulation with ICBC claims lawyer Erik Magraken.

Cyclist 75% At Fault for Intersection Crash for "Riding With No Reflection"

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NOTE: This case was overtunred on appeal on February 19, 2009, see my blog post of February 19 to read about this.
Reasons for judgement were released yesterday by the BC Supreme Court determining fault for a 2004 motor vehicle collision which occurred in Vancouver, BC involving a BMW and a bicyclist.
The collision happened at the intersetion of Main Street and East 2nd Avenue in Vancouver, BC.  The Plaintiff cyclist was attempting to go through the intersection when the Defendant motorist turned left and collided with him.  The light was green and the cyclist did enter the intersection “in accordance with traffic signals” when the Defendant turned into him (in other words, on a green light).  The impact was significant as the Plaintiff “hit the passenger window of the car with enough force to smash the glass and he suffered personal injuries“. 
Who was at fault for this intersection crash was the issue to be decided at trial.  The trial proceeded by way of ‘summary trial’ pursuant to Rule 18-A of the BC Supreme Court Rules.  For those not familiar with ‘summary trials’ they are commonly referred to as ‘paper-trials’ because no witnesses testify in court, rather the lawyers present their cases through sworn affidavit evidence.  There has been much criticism of this rule over the years and BC personal injury lawyers seldom use this rule to advance ICBC claims to trial.
This case is interesting for Madam Justice Griffin’s analysis in determining fault.  The 5 main factors she considered in reaching her conclusion were
1.  The speed of the car
2.  The speed of the bicycle
3.  The light conditions
4.  The location of the bicyle whent he car began its left turn
5.  The response time of the bicycle rider
The key findings of fact made at trial were that “the Plaintiff was not speeding and was properly riding his bicycle in the correct lane, the curb lane, in accordance with the traffic signals.  It is undisputed that (the bicyclist) was in breach of the Motor Vehicle Act by failing to have a headlamp or reflectors on his bicycle….Given that (the bicyclist) had no headlamp or reflectors on his bicycle, (he) was also negligent in wearing dark clothing insread of bright and reflective clothing…(he) had no opportunity to avoid the collision.  Even though the BMW was clearly poised to mnake a left turn and had its left turn signal activated, there was no reason for (him) to expect that the BMW would turn in front of him.  He would have seen that it had given way to other traffic.”
Madam Justice Griffin concluded that “the bicyclist presented an immediate hazard when the BMW began to turn the vehicle to the left…..(the driver of the BMW) should have considered (the bicylcist) to be an immediate hazard and should not have proceeded with the turn until (the bicyclist) was safely through the intersection.  As such (the driver of the BMW) was negligent.”
When both parties are at fault for a collision BC courts must determine the degrees of fault as between them.  This is required by the BC Negligence Act.  Madam Justice Griffin ruled that the Plaintiff was 75% at fault for the accident and the motorist was 25% at fault.  What this means is that the Plaintiff would only be entitled to recover 25% of the value of his injuries from ICBC in his tort claim.
In reaching this conclusion Madam Justice Griffen ruled that

[62]            The streets of Vancouver are shared by drivers and cyclists.  Those who use the streets must anticipate each other and the limitations inherent in each other’s response time and visibility. 

[63]            The plaintiff took a very big risk by riding his bicycle in the dark without any form of illumination or reflection.  He ought to have appreciated the difficulty that drivers of motor vehicles have in seeing fast-moving dark objects.  While he may have counted on the street lights to illuminate him, he was extremely careless and showed little concern for safety.

[64]            In deciding to make a left turn across the intersection, Mr. Schwartz should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane. 

[65]            In conclusion, I apportion fault for the accident 75% to the plaintiff and 25% to the defendant.

This case is a difficult precedent for any BC cyclist injured in a BC car crash who either fails to wear reflective clothing or fails to have a headlamp or reflectors on their bicylce.  It may be troubling to know that a cyclist can be found largely at fault for a collision even though he is “not speeding” “riding in the correct lane and in accordance with traffic signals”  who has “no opportunity to avoid the collision” and have “no reason to expect (a car )to turn in front of him“.
What is striking about this case is the degree of fault attibuted to the cyclist despite all the above findings.  This case serves as a stark reminder that if a cyclist fails to wear refelctive clothing or a headlamp, it may not only increase the risk of collision, but can drastically reduce the settlement value of an ICBC claim following a collision.
If you are an injured cyclist or pedestrian in a BC car crash and at the time did not have ‘any form of illumination’ you should be prepared to address the results of this case in your claim settlement negotiations with ICBC.
Do you have questions about this case, or about a BC crash involving a cyclist or pedestiran, or the issue of fault in an ICBC claim?  Are you looking for a free consultation with an ICBC claims lawyer?  If so, click here to arrange your free consultation with ICBC claims lawyer Erik Magraken.

Examinations for Discovery and Your ICBC Claim

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If you are advancing an ICBC injury claim and started a court action in BC Supreme Court you may very well have to go through an ‘examination for discovery’. I have received numerous questions about the discovery process from people involved in ICBC claims through this website and thought I would summarize some of my comments in the below blog.
The usual summary I give when explaining what an examination for discovery (XFD) is to people who are not familiar with the term is to think about a ‘deposition’ as often depicted on TV legal dramas. In essence, a discovery is a pre-trial step in which the opposing lawyers get to ask a party to a lawsuit questions about the claim.
The rules of court governing the prosecution of civil (legal actions between two private citizens) claims requires disclosure of key facts and circumstances prior to a trial. In the context of ICBC claims, the discovery process permits the other lawyer to question a plaintiff about the accident and injuries, the effects of them on the plaintiff’s life and the financial losses that are being claimed.
Examinations for discovery are conducted under oath (or affirmation) and are conducted before a court reporter. This is not a formal process conducted before a judge, rather, it usually occurs in a business office owned and operated by private court reporters. The court reporter records the questions and answers.
There are 2 very broad purposes to examinations for discovery. The first is to learn all about the other side’s case. That is, to get the Plaintiff’s evidence first hand and in person regarding the accident and injuries. This helps the other lawyer weigh the credibility and reliability of the Plaintiff and to make an assessment of whether the Plaintiff will present well in court.
The second purpose is to damage the other sides case. A lawyer conducting a discovery has the right to use the questions and answers that he/she likes and to read these into the trial record should the claim proceed to court. For this reason it is essential that anybody advancing an ICBC claim is very well prepared prior to attending an examination for discovery. Any answer given that is harmful can and likely will be used by the other lawyer to harm the case should it proceed to trial.
For an example of how an answer at an examination for discovery can harm an ICBC claim just read the recent judgment of Yapyuco v. Paul, where Mr. Justice Curtis dismissed the Plaintiff’s claim in large part due to the answers given at her examination for discovery.
Preparation for discovery is a lengthy process and I can’t summarize all the useful advice as to how best to conduct oneself in a discovery in this short blog. I will, however, point out some of the typical things canvassed at discoveries of ICBC claims below.
Normally, a Plaintiff in an ICBC claim is questioned about the 14 below categories (I should point out that discoveries at ICBC claims are not limited to these categories, these are simply general categories of questions that often come up)
1. Your Personal History – such as name, age, date of birth, place of birth and family members details
2. Your Educational History – including all levels of education and academic accomplishments
3. Your work history including contact information for all employers
4. Your plans preceding the accident in terms of personal life and vocation
5. How these plans changed as a result of the accident
6. How the accident happened including details of speed, weather, lighting, distances and all injuries sustained in the accident
7. The course of treatment taken after the accident including the names of all doctors and therapists
8. Changes in lifestyle as a result of the accident including social, recrational , family, personal and employment changes. Addressing employment usually details of lost wages or wage earninng opportunities are canvassed as well.
9. Medical and personal status prior to the accident
10. Present condition and limitations
11. Present plans for employment and whether there are any restrictions on employment
12. Future plans for treatment
13. Details of activities that have been affected by the accident related injuries
14. The details of a typical day and what it is like to live with the injuries.
No 2 discoveries are alike and I stress again that the above is nether an exhastive list of the types of questions asked at discoveries involving ICBC claims nor are all of the above categories always covered at discoveries for ICBC claims.
Assuming you have hired a lawyer to assist you with your ICBC claim he/she will be present at the discovery and will object to any inappropriate questions posed by the other lawyer. If the discovery is conducted professionally by the ICBC lawyer the objections are usually few and far between. The lion’s share of work that an ICBC claims lawyer does is conducted prior to the discovery.
A good ICBC claims lawyer will ensure a client is well prepared, understands the process and understands how the answers given can be used to hurt the claim. ICBC cases are typically ‘record intensive’ and care must be taken in preparation to review these medical and other records to consider what use they may be put to at a discovery.
Do you have questions about an ICBC claim or an examination for discovery in a personal injury claim that you would like to discuss with an ICBC claims lawyer? If so, click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.