In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.
The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.
The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:
 In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.
The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement. This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury. The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss. After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.
Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.
This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow. The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement. If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.
Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.
In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.
In written reasons for judgement released today, a Plaintiff who was injured in a 2003 single vehicle accident was awarded a total of $229,890 for his injuries and losses.
The Plaintiff, who was 18 at the time, was the centre passenger in a pick-up truck that lost control. The accident was significant. The truck “crossed a cattle guard and then hit loose gravel. The Driver lost control and the truck slid off the embankment. It rolled a number of times and apparently flipped end over end once. In ended up lying on its right side.”
For a time, the Plaintiff lost consciousness. He suffered a concussion and for a while suffered symptoms of headaches, light headedness, imbalance and tinnitus (ringing in the ears.) These symptoms resolved by the time of trial. He also had a neck injury which largely resolved and a shoulder injury which fully resolved by the time of trial.
The Plaintiff’s main injury by the time of trial was chronic low back pain.
4 doctors testified on the Plaintiff’s behalf. His family doctor painted a positive picture of the Plaintiff.
A specialist in physical medicine and rehabilitation (physiatrist) testified that the Plaintiff suffered from a soft tissue injuries to the cervical and lumbar spine (neck and low back).
A rheumatologist testified that the Plaintiff suffered from chronic back pain and that this pain “would have a significant negative influence upon his ability to compete in the workforce in the area of strenuous laboring jobs.”
A specialist in occupational medicine testified that the Plaintiff had not recovered from the soft tissue injuries to his back and that “it is unlikely the Plaintiff will have full resolution of his back injuries“.
The defence had the Plaintiff assessed by an orthopaedic surgeon. This is a common choice of ICBC for their ‘independent medical exams” when dealing with soft tissue injuries. The doctor hired by the defence testified that one of the factors leading to the Plaintiff’s ongoing complaints was ‘psychosocial factors‘ and that he would ‘strongly recommend that the plaintiff be assessed by a psychiatrist“.
The court preferred the evidence of the Plaintiff’s physicians and stated that “I conclude there is little, if anything, in (the defence doctors) report that would detract from the evidence from the other medical personnel or the lay witness evidence with respect to the Plaintiff’s present condition“.
In the end, damages were assessed as follows:
Past Wage Loss
Future Wage Loss
Cost of Future Care
You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasobly so, that the lawyer is acting for you and not ICBC, right? Not always…
Lawyers typically have many clients. Many ICBC claims lawyers work both sides of the fence, that is, they represent injured people in advancing ICBC claims on some files and on other files they represent ICBC in defending against ICBC injury claims. Other lawyers restrict their practice to one side or the other.
Many people see lawyers working both sides of the fence as an inherent conflict of interest. They want their lawyer to represent injured people only, not insurance companies. Others like the idea that their lawyer also represents ICBC sometimes because perhaps such a lawyer has better insight into the defence tactics used by ICBC.
The problem, and the reason why I write this post, is that sometimes the potential conflict of interest is much worse than simply having a lawyer who works both sides of the fence. It is a problem of a lack of informed consent.
ICBC has contracted with many law-firms in BC for services in the defence of motor vehicle accident claims. ICBC requires some of these firms to sign an agreement called the Strategic Alliance Agreement (SAA).
Under the SAA, law firms whose lawyers are retained to act for ICBC are not permitted, when representing a plaintiff on another file, to sue ICBC for bad faith or to seek punative, aggravated or exemplary damages against ICBC.
Specifically, the SAA states that “ICBC may impose penatlies against the firm…..(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insureds…”
Also, that “members of the legal firms team will not directly or inderectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.”
What a conflict of interest!
The Law Society of BC (the institution that governs lawyers in BC) has held that it is ok for a lawyer who represents ICBC and who is bound by the terms of the SAA to also act against ICBC in another claim. HOWEVER, clients need to be advised about this potential conflict of interest. Sepcifcially, “A lawyer (bound by the SAA) may properly act against ICBC for clients whose cases fall outside of the restrictions. However, a lawyer acting in these circumstances MUST ADVISE THESE CLIENTS OF THE LAWYER’S RELATIONSHIP WITH ICBC AND THE IMLICATIONS OF THE RESTRICTIONS THE LAWYER IS UNDER.
It is all about informed consent. There is nothing wrong in hiring a lawyer to represent you who has signed the SAA but you are entitled to know about these restrictions. If you know about these restricitons you may not want to hire such a lawyer and instead retain an icbc claims lawyer who is not bound by any contractual restrictions with ICBC. Ask your lawyer if he signed the SAA, you may be surprised by the answer.
If your lawyer signed the SAA and did not tell you this up front, you were deprived of an opprotunity to make an informed decision. If this occurred you may want to ask yourself why your lawyer kept this information from you…?
Do you need to speak with an ICBC Claims Lawyer? Contact Erik Magraken for a free consulation.
In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.
The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.
The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.
A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.
This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.
After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.
Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work”
In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.”
In the end the court awarded damages as follows:
For the Accident of May 18, 2002:
Past income loss
For the Accident of May 5, 2005
Past income loss
Loss of Future Earning Capacity
Cost of Retraining
Cost of Future Care
One of the benefits of having a crown corporation monopoly insurer (ICBC) in BC is that they must file annual reports accessible to members of the public. These annual reports can be found on-line and contain volumes of information regarding ICBC and their financial status.
One of the most interesting facts published annually by ICBC is the amount of money they pay ‘expert physicians’ who do work on ICBC’s behalf. This information is known to most ICBC claims lawyers and I thought some of my readers would be interested in this data as well.
As of the writing of this post the 2007 annual report is not available but the 2006 report is. Below is a list of some of the physicians who billed significant amounts to ICBC for their services in 2006. I will be sure to publish the highlight physician billings from ICBC’s 2007 report once available.
Dr. Kevein Favero (Orthopedic Surgeon, Langley, BC): $245,483
Dr. N. K. Reebye (Physical Medecine and Rebabilitation, New Westminster): $275,336
Dr. Peter M. Rees (Neurologist, Burnaby): $225,330
Dr. J. F Schweigel (Orthopedic Surgeon) : $796,012
Dr. D. M. Laidlow: (Physical Medicine and Rehabilitation, Westbank) $101,539
Dr. Robert W. McGraw: (Orthopedic Surgoen, Vancouver) $253,240
Dr. T O’Farrell: (Orthopedic Surgoen, Kelowna) $111,162
Dr. James Warren: (Orthopedic Surgoen, Victoria) $87,207
Dr. O. M. Sovio: (Orthopedic Surgeon, Abbotsford) $203,892
Dr. H. Davis: (Psychiatrist, Vancouver) $113,950
Dr. Marc Boyle (Orthopaedic Surgeon, North Vancouver) $287,860
Dr. Paul Bishop (Vancouver, BC) $321,137
Dr. Mark Crossman (Physical Medicine and Rehabilitation, Vancouver) $111,441
Dr. I. G. Dommisse (Orhopaedic Surgoen, New Westminster) $194,612
Dr. H. E. Hawk (Orthopedic Surgeon, Vancouver) $336,650
In an important judgment released today by the BC Court of Appeal, the law relating to what inferences a court can draw regarding liability (fault) when a vehicle leaves its lane of travel was clarified.
As in many areas of law, there were some competing authorities addressing this topic and today’s judgment reconciled these. For anyone advancing a tort claim as a result of a single vehicle accident in BC this case is must reading.
In 2002 the Plaintiff’s were injured when the driver of their vehicle lost control in winter driving conditions. The accident was significant. The truck “traversed a bridge, travelled about ten feet after leaving it, and then rolled over and landed on its wheels below the road, resulting in injury to the Plaintiffs“.
The Plaintiffs sued several parties as a result of this accident, most importantly the driver of the vehicle. The Trial Judge found that the Plaintiffs “had failed to prove negligence on (the drivers) part” and that the driver “had driven with reasonable care and that any presumption of negligence arising from his loss of control was rebutted by his explanation that the truck had fishtailed when it went over a bump between the road surface and a bridge.”
The Court of Appeal upheld the trial judgement. In doing so some important clarifications in the law were made.
The Appellant sought to rely on the judgment of Savinkoff v. Seggewiss, in which the court held that “sliding out of control…gives rise to an inference of negligence…in that (the driver) was either not sufficiently attentive to the road conditions, or he was driving too fast, or both.” In Savnikoff the court quoted with approval a passage from an old case where it was held that “if roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace“.
In today’s judgment the Court of Appeal referred to the authoritative judgment of Fontaine v. British Columbia. In that decision the Supreme Court of Canada held that “(the bald proposition that an inference of negligence should be drawn whenever a vehicle leaves the roadway in a single vehicle accident) ignores the fact that whether an inference of negligence can be drawn is highly dependent upon the circumstces of each case“.
The Court reconciled the Fontaine and Savinkoff decisions as follows:
If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the matter suggested, I believe the decesion has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to ‘explain’ how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at paragraph 53 of her reasons, such an inference will be ‘highly dependant on the facts’ of the case and the explanation required to rebut it will ‘vary in accordance with the strength of the inference sought to be drawn by the plaintiff.
Bottom Line: If a driver loses control of a vehicle he/she is not automatically at fault nor is there a shifting of the burden of proof. The court simply MAY draw the inference that he/she is at fault and whether it is appropriate to do so is ‘highly dependant on the facts of each case’.
In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
 I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:
a. non-pecuniary damages: $40,000;
b. past loss of income and employment insurance benefits: $9,187.60;
c. loss of future earning capacity: $10,000;
d. special damages: $586.43;
e. pre-judgment interest.
I have blogged several times with respect to ICBC’s LVI (Low Velocity Impact) Defence with a view towards educating BC vehcicle collision victims that ICBC’s LVI Policy is not the law, rather it is an internal policy geared towards saving ICBC money.
ICBC’s LVI policy, when used in the defence of an injury claim, is often rejected by BC courts. The LVI policy has one fatal flaw, assuming that the amount of vehicle damage (or lack therof) is related to the severity or possibility of sustaining injury.
This week reasons for judgement were published in which the ICBC defence lawyer ran the LVI Defence. Mr. Justice Macaulay rejected this defence and in doing so used the best language I have yet come across as an ICBC claims lawyer in explaining the flaw in the LVI Program’s logic. At Paragraph’s 3-4 the court summaries the evidence led by the ICBC defence lawyer as follows:
 According to Jiang, a line of traffic was stopped waiting for the left-turn signal. When the light changed, the line started to move. Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it. He said the vehicles “barely touched” and that the impact was “very light, just a little boom”.
 The evidence of the ICBC estimator confirms that the impact was relatively minimal. The Lubick vehicle sustained cosmetic damage to the rear bumper.
Mr. Justice Macaulay then goes on to dismiss the logic behind the LVI policy in very strong words. At paragraphs 5-6 of the judgement the court takes the following very harsh view of the so called LVI Defence:
 The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer,  B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:
I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.
 I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.
Do you have questions about an LVI claim denial? If so feel free to contact the author of this article for a no-obligation consultation.
In brief reasons for judgement released today by the BC Supreme Court, Madam Justice Morrison awarded a 33 year old Plaintiff $18,000 for pain and suffering (non-pecunairy damages) for injuries as a result of a 2005 motor vehicle accident.
The Plaintiff’s vehicle was rear-ended in Delta, BC in August, 2005. There was relatively little vehicle damage.
The Defendant’s lawyer admitted fault for the accident. The Defence ran what can be called ICBC’s Low Velocity Impact Defence, that is the defence lawyer led evidence that this was a ‘low impact’ collision with little damage to the vehicles. The Defence lawyer suggested that an appropriate pain and suffering award was $3,000.
The court made a positive finding with respect to the Plaintiff’s credibility. The court qualified the Plaintiff’s massage therapist as being capable of giving expert evidence with respect to massage therapy.
The court accepted that the Plaintiff suffered from pain and discomfort until 2007 when the soft-tissue injuries healed. In short, the Plaintiff suffered from soft tissue injuries affecting her neck and shoulders. The acute phase of injury lasted several months and gradually improved by the time of trial. The court accepted that the Plaintiff was fully recovered by the time of trial.
The Plaintiff had no lost wages as a result of the accident. $18,000 was awarded for pain and suffering for these injuries.
This case is worth a quick read as it is a great example of an LVI claim going to trial, having all the evidence heard in two days, and receiving timely reasons for judgement. Counsel for the Plaintiff did a great job getting this matter tried and having the client compensated for an amount outside of ICBC’s soft tissue injury settlement guidelines and outside of ICBC’s LVI policy.
Paragraph 37 of Madam Justice Morrison’s reasons for judgement was the highlight for me where she dismissed the LVI defence by stating as follows:
The motor vehicle accident was a minor one, with minor damage to her vehicle, but as Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) reminds us, a minor motor vehicle accident does not necessarily mean minor injuries. In Boag v. Berna, 2003 BCSC 779, Mr. Justice Williamson reflected at paragraph 12, “That a piece of steel is not dented does not mean that the human occupant is not injured.”
Cases such as these are certainly key ammunition should you wish to take an LVI case to trial. If you have questions about this case or potential settlement of a similar ICBC claim feel free to click here to contact the author of this article.
In reasons for judgement released today, Madam Justice Morrison awarded a total of $550,828 in compensation for an August, 2004 motor vehicle collision.
The Plaintiff was a 45 year old senior commercial lines insurance underwriter. She was injured in a rear-end collision. As in most ICBC rear-end collisions, the defence lawyer admitted fault on behalf of the defendant leaving only quantum of damages (value of the claim) at issue.
A neurosurgeon who testified on behalf of the Plaintiff was found to give ‘compelling’ evidence. In summarizing the Plaintiff’s injuries the neurosurgon stated as follows
“My diagnosis is soft tissue injuries to the lumbar spine, referable to the motor vehicle accident in question, traumatic left L3-4 disc herniation causing left L4 nerve root pain and contributing to low back pain. In my opinion, it is also possible that the motor vehicle accident may have negatively impacted on the eventual outcome from the right L5-S1 disc herniation. The preoperative CT scan did show a focal disc herniation at the right L5-S1 level. This was confirmed on the post motor vehicle accident MRI scan. It is conceivable that the force that was sustained during the motor vehicle accident could have further damaged the compressed right S1 nerve root. In other words, were it not for the accident, her outcome from the right L5-S1 discectomy may have been better“
Commenting on the vocational impact of the injuries the Plaintiff’s neurosurgeon stated that:
“It is my opinion that (the Plaintiff) will be left with permanent back pain. This will result in some limitation of her vocational potential, especially as it relates to jobs that require a lot of sitting, repetitive twisting or turning of the lumbar spine, or lifting.“
The trial judge reached a favourable conclusion regarding the Plaintiff’s claim stating that:
“On causation, I am satisfied, on a balance of probabilities, that the motor vehicle accident of August 8, 2004, more likely than not, was the cause, or contributed to the injuries of the plaintiff. No other conclusion makes sense. The chronic pain would not have occurred except for that accident. I conclude, on a balance of probabilities, that the right-sided pain would not have recurred, but for that accident, and that the left-sided pain was due to the accident, without question“
After accepting virtually all of the Plaintiff’s evidence Madam Justice Morrison awarded damages as follows:
Non Pecuniary Damages (pain and suffering): $100,000
Special Damages: $7,828
Past Income Loss: $73,000
Loss of income earning capacity: $200,000
Cost of Future Care: $170,000