Author: ERIK MAGRAKEN

“No Weight” Placed on Opinion of ICBC Medical Expert in Injury Case

Written by ERIK MAGRAKEN on December 10, 2019. Posted in Uncategorized.

In the latest example of a pattern that is all too common in injury litigation, reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, rejecting and placing “no weight” on the medical evidence of an expert retained by a Defendant’s insurer.

In today’s case (Sharma v. Chui) the Plaintiff was involved in a 2012 crash that the Defendant accepted liability for. The Plaintiff suffered chronic soft tissue injuries as a consequence of the crash which were partially impairing in her functioning. In the course of the lawsuit ICBC, the defendant’s insurer, retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and the likelihood of the injuries persisting into the future. In rejecting this opinion and placing ‘no weight‘ on it Madam Justice Sharma provided the following critical comments:

Yet To Be Produced Defence Medical Report Derails Request For Second Defence Medical Exam

Written by ERIK MAGRAKEN on December 3, 2019. Posted in Uncategorized.

Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced. Today similar reasons were published by the BC Supreme Court, Vancouver Registry.

In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages. In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing. After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist. The Plaintiff declined.

The Defendant brought an application to compel attendance. In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report. Master Cameron provided the following reasons:

ICBC Hit With Double Costs For “Unreasonable” Settlement Refusal

Written by ERIK MAGRAKEN on December 3, 2019. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering that double costs be paid to a plaintiff who was awarded substantially more at trial than they were willing to settle their claim for.

In today’s case (Miller v. Resurreccion) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff offered to settle their claim for $200,000 plus costs and disbursements. ICBC, as insurer for the Defendant, refused offering a little more than half this amount. The Plaintiff proceeded to trial where her damages were assessed at $440,057.

The Plaintiff asked for double costs for trial. In finding such an award was warranted due to ICBC’s “unreasonable” refusal to accept the Plaintiff’s offer Madam Justice Baker provided the following reasons:

Non Disclosed Defence Report Thwarts Request for Second Independent Medical Examination

Written by ERIK MAGRAKEN on November 22, 2019. Posted in Uncategorized.

Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.

In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages. In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.

The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.

The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment. In short the litigation ‘playing field’ may already be even. In dismissing the application Master Keighley provided the following reasons:

Imminent Trial Thwarts Defense Clinical Record and Medical Examination Request

Written by ERIK MAGRAKEN on November 20, 2019. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, denying a defence application for production of various clinical records and requesting a defence medical exam largely based on the proximity of trial.

In the recent case (Shannon v. Cook) the Plaintiff was involved in a vehicle collision and claimed damages. Various pre collision medical records were produced. With trial only three months away the Defendant brought an application for a host of further records to be produced along with a request for a further defence medical examination.

The Court dismissed both applications finding that with the trial being just around the corner the expert medical evidence should be mature and it was simply too late in the process for such an application to be granted. In dismissing the applications Master Cameron provided the following reasons:

Expert Report Privilege Waived With Disclsoure to Disability Carrier

Written by ERIK MAGRAKEN on November 19, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff involved in a vehicle collision injury claim to turn over an otherwise privileged report to the Defendant because the report had been previously disclosed to the Plaintiff’s disability benefits provider.

In today’s case (Malimon v. Kwok) the Plaintiff was involved in a 2015 collision and sued for damages. In the course of the lawsuit the Plaintiff obtained a medico-legal report from a physiatrist. The Plaintiff did not disclose the report to the Defendants maintaining a claim of litigation privilege.

The Plaintiff did share a copy of the report with her long-term disability benefits provider hoping it would assist in their assessment of her claim.

The Defendants succeeded in obtaining an order that the above disclosure waived litigation privilege and the BC Supreme Court ordered that a copy be provided to them. In reaching this decision Master Elwood provided the following reasons:

Motorist Ordered To Pay $34,980 in Damages Following “Road Rage Incident”

Written by ERIK MAGRAKEN on November 18, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.

In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel. The Plaintiff was concerned that the Defendant was not paying adequate attention. The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant. The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.

The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages. Mr. Justice Walker provided the following findings regarding liability:

$75,000 Non-Pecuniary Assessment for Mild/Moderate Soft Tissue Injuries With Resulting Chronic Pain

Written by ERIK MAGRAKEN on November 14, 2019. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries as a result of a motor vehicle collision.

In today’s case (Dueck v. Lee) the Plaintiff was injured in a 2016 collision which the Defendant admitted fault for. The crash resulted in mild/moderate soft tissue injuries some of which lingered and led to chronic pain. The prognosis for full recovery was poor. In assessing non-pecuniary damages at $75,000 Mr. Justice Giaschi made the following findings and provided the following reasons:

ICBC Expert Opinion “Of Little To No Assistance To the Court”

Written by ERIK MAGRAKEN on November 4, 2019. Posted in ICBC Thoracic Outlet Syndrome Cases.

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding that an ICBC hired expert witness’ opinion was “of little to no assistance to the Court“.

In today’s case (Tench v. Van Bugnum) the Plaintiff was injured in two collisions that the Defendants admitted fault for. The Plaintiff presented evidence that the collisions resulted in chronic Thoracic Outlet Syndrome (“TOS”) resulting in significant impairment. The Defendant’s insurer, ICBC, hired a doctor who did not examine the Plaintiff and provided an opinion rejecting the diagnosis. In dismissing this opinion as being of ‘little to no assistance‘ Madam Justice Fleming provided the following reasons:

BC Court of Appeal Upholds Costs Awards To Plaintiff To Avoid “Pyrrhic Victory”

Written by ERIK MAGRAKEN on November 4, 2019. Posted in BCSC Civil Rule 9.

In 2017 the BC Supreme Court awarded a litigant injured in a vehicle collision costs despite receiving a jury verdict far less than a pre-trial settlement offer from ICBC. The court concluded that if the Plaintiff was stripped of costs and ordered to pay ICBC’s costs the result would result in pyrrhic victory inconsistent with the result the jury was looking to achieve.

ICBC appealed arguing they should have been awarded costs. In reasons released today (Bains v. Antle) the BC Court of Appeal dismissed the appeal and found the trial judge properly exercised their discretion in this case. The Court provided the following reasons: