Author: ERIK MAGRAKEN

ICBC Expert Witness Rejected for “Tailoring His Evidence” For the Insurer

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting and outright criticizing the opinion of an expert physician who routinely is hired by ICBC for defence medical exams.

In today’s case (Moges v. Sanderson) the Plaintiff suffered injuries in three collisions.  The defendants accepted fault for the crashes.  The Plaintiff suffered a variety of physical and psychological injuries as a result.  In the course of the lawsuit ICBC obtained a medico-legal report from a psychiatrist they routinely hire who provided opinion evidence minimizing the connection between any psychological consequences and the collisions.  In rejecting this opinion evidence as being tailored to the defence and evidencing bias Madam Justice Shergill provided the following criticism:

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BC Liberals Promise Hybrid System of ICBC and Private Insurance With Choice of Coverage and Rights

The BC NDP and Green Party voted in mandatory no-fault insurance.  In short this means that later next year, if you or your loved ones are struck by a careless driver and injured you have no right to sue them for your full damages.  Instead you are at the mercy of ICBC to administer a limited selection of ‘no-fault’ benefits and nothing more.  If ICBC does not administer these fairly you do not have the right to take them to court instead being limited to a provincially created tribunal for dispute resolution.

Today the BC Liberals announced their election platform for ICBC noting they will create a hybrid market with both ICBC and private insurers competing for your business.  Their platform apparently will allow ICBC to corner the no-fault market with British Columbians having the choice to buy such limited coverage with ICBC or to buy ‘tort’ coverage with private insurers giving them the right to claim full damages from at fault motorists.

The Liberals’ press release provided the following details:

BC Liberals will open up the market to give British Columbians true choice in auto insurance by ending the ICBC monopoly and letting drivers pick the best rate available to save money.

A BC Liberal Government will:

  • End the ICBC monopoly and give drivers the choice to purchase vehicle damage coverage (collision, comprehensive, specified perils and liability insurance for property damage) direct from the private market.
  • Give drivers the choice to purchase the best rate for accident benefits coverage for bodily harm and injury from either the private market (tort system) or ICBC (no-fault system).
  • Give all new drivers credit for two years of driving experience, increasing to four years if a new driver has completed driver education. This will result in significantly lower premiums for new drivers with clean records who demonstrate safe driving habits and will be available to both new drivers with their own policies and parents with children listed as occasional drivers.
  • Return excessive premiums charged by ICBC during 2020 to their rightful owners- the drivers of BC – this should have been done months ago, as other provinces have already done, but the NDP want to bribe you with your own money to get your votes in this election. Don’t let the NDP take your money and then try to buy your votes to get it back.

CRT Dismisses “Placeholder” ICBC Benefits Lawsuits

Earlier this year BC’s Civil Resolution Tribunal (“CRT”) noted that their forum cannot be used to preserve limitation periods for ICBC no fault benefit lawsuits where no such past benefits are outstanding.  Last week the CRT confirmed this position by dismissing such a ‘placeholder’ lawsuit.

In last week’s case (Yousefi v. ICBC) the Applicant filed a CRT action to preserve the right to seek ICBC no fault benefits should any such benefits be denied.  The CRT noted that such claims cannot be indefinitely paused and if they are not withdrawn must proceed to judgement were they will be dismissed if no past benefits are outstanding.

The CRT reached similar conclusions in two sister decision released at the same time (Shin v. ICBC and Bali v. ICBC)

In reaching such a disposition in this case  Vice Chair Andrea Ritchie provided the following reasons:

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CRT Sidesteps First Opportunity To Add Clarity to BC’s “Minor” Injury Law

As of today BC’s Civil Resolution Tribunal (“CRT”) which as been granted near exclusive jurisdiction to determine if injuries are “minor” as defined by the Insurance (Vehicle) Act has yet to rule on any case providing any assistance in interpreting this new (and constitutionally challenged) legal scheme.

Earlier this year the CRT was asked to set aside a “minor” injury settlement after the applicant discovered a disc bulge.  The CRT refused to do so.  Today reasons for judgement were published (Bajracharya v. Rahul) by the CRT inovlving a collision claim disputing the ‘minor’ injury designation.  Despite this opportunity the CRT refused to dive into the topic finding that the Applicant was liable for the collision thus dismissing the claim and finding that the minor injury question did not need to be answered.  In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:

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Motorist Ordered to Pay $1,805 for “Accelerated Depreciation” Following Collision With Porsche

As discussed numerous times on this site BC law recognizes that if property is damaged by the wrong doing of another and if that property is then worth less even after all reasonable repairs have been made the ‘accelerated depreciation’ can be recovered against the at fault party.

In the first Accelerated Depreciation claim heard by BC’s Civil Resolution Tribunal such damages were awarded to the owner of a Porsche that was damaged in a collision.

In today’s case (Lai v. Leung) the Applicant’s vehicle was struck by the Respondent who admitted fault of the crash.  The impact caused damages which cost over $6,500 to repair.   The Applicant consulted with an appraiser who provided evidence that as a result the vehicle will be worth less on the open market.  ICBC refused to recognize this.  Both ICBC and the at fault motorist were sued but the tribunal noted that ICBC was not a correct party in such a dispute and the claim is properly brought against the at fault motorist with ICBC simply playing the role of their insurer.

In siding with the Applicant and accepting the expert opinion of the Fournier Auto Group Tribunal Member Trisha Apland provided the following reasons in ordering that $1,805 in damages for Accelerated Depreciation be paid:

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“Minor Injury” Settlement Not Set Aside Following Subsequent Discovery of Disc Bulge

In what I believe is the first case of BC’s Civil Resolution Tribunal addressing ‘minor’ injuries under the ever changing ICBC legal landscape reasons for decision were published earlier this month refusing to set aside a ‘minor injury’ settlement after the discovery of a disc bulge.

In the recent case (Naqvi v. ICBC) the applicant was involved in a collision in May, 2019.  His doctor diagnosed him as suffering injuries to the right shoulder, right upper back, and left lower back radiating to the left hip with an optimistic prognosis to make full recovery.  Believing these were caught by the minor injury regulation the application settled his claim for $6,890 which included non-pecuniary damages at the capped amount for such injuries.

Subsequent to settlement the applicant discovered he had a disc bulge in his spine and argued this new diagnosed injury falls outside of the ‘minor injury’ definition and accordingly sought to set the settlement asise.  The CRT refused to allow this arguing a binding settlement was reached that was “not grossly unfair or unconscionable“.  In refusing to allow the settlement to be set aside tribunal Vice Chair Andrea Richie provided the following reasons:

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Staged Collisions Leading to ICBC Payouts Lead to Civil Fraud Judgment

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding numerous defendants were involved in several staged collisions.

In the recent case (ICBC v. Singh) several defendants were sued for fraud by ICBC to recover money the insurer paid out from the claims.  Much of this was for vehicle damage claims and other various accident benefits.  Injury claims were advanced by some of the parties as well but adjudication of those were put off until the determination of the fraud claims.

In total ICBC paid out over $83,000 plus additional legals costs related to the claims to date.  In finding the collisions staged and ordering repayment of the damages Madam Justice Duncan provided the following reasons:

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$9,076,854 Judgement For Plaintiff With Catastrophic Brain Injury Following Tractor Trailer Collision

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages at over $9 million for a Plaintiff who sustained life altering injuries following a tractor trailer collision.

In today’s case (Uy v. Dhillon) the Plaintiff’s vehicle was struck by a tractor trailer while driving on the Coquihalla highway in British Columbia’ interior.  The Defendant denied fault but was found liable at trial with that finding being confirmed by the BC Court of Appeal.

This resulted in “a serious brain injury in the Accident that has resulted in a significant degree of cognitive impairment” for the Plaintiff.   The brain injury rendered him totally unemployable with deficits so profound that he required “24-hour care and supervision for the rest of his life. “.

Upper limit non-pecuniary damages of $388,177 were awarded.  The bulk of the judgement centered around the cost of 24 hour lifetime care which the Court assessed at over $7 million.  In finding the injuries warranted non pecuniary damages at the rough upper limit Mr. Justice Skolrood provided the following reasons:

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$65,000 Non Pecuniary Assessment for Fractured Collarbone and Anxiety

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a fractured collarbone sustained in a collision.

In today’s case (Folk v. Folk) the Plaintiff was 5 years old and riding as a passenger in a vehicle involved in a collision which caused a fractured collarbone.  This injury healed fully in 2 months.  The Plaintiff also suffered anxiety for several years following the crash.  The Plaintiff attributed various other symptoms to the crash but the Court found causation could not be established.  In assessing non pecuniary damages at $65,000 for the collision related injuries Madam Justice Gropper provided the following reasons:

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Plaintiff Stripped of Partial Costs For Trial Judgment Below Advance Payments

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry addressing a somewhat unique fact pattern of what costs consequences should be after trial where a Plaintiff was awarded damages below the amount of money they received prior to trial by way of advances paid by the Defendants.

In today’s case (Singh v. Chand) the Plaintiff sued for damages as a result of two collisions.  The claim for the second collision was dismissed.  The Defendants for the first crash admitted liability.  Prior to trial they advanced the Plaintiff $250,000.   They agreed that they would not seek repayment regardless of the outcome of the trial.   At trial the Plaintiff’s damages were assessed below this amount with $137,288 being awarded.

The Court found that in these circumstances the Plaintiff should recover costs to the date of the advance payment and the Defendants entitled to their costs from that date onward.  In reaching this decision Madam Justice Watchuk provided the following reasons:

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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