Author: ERIK MAGRAKEN

“Unconstitutional” ICBC Expert Witness Rule Struck Down By BC Supreme Court

Written by ERIK MAGRAKEN on October 25, 2019. Posted in BCSC Civil Rule 11.

Earlier this year BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions. The rule changes were brought without notice to the profession, were retroactive and were drafted to save a primary litigant, ICBC, money at the cost of the substantive rights of individuals before the judiciary.

In April a legal challenge was launched arguing these changes were unconstitutional.

Today the Chief Justice of the BC Supreme Court ruled on challenge and declared that these changes were “of no force and effect” due to their unconstitutional nature.

Mr. Justice Hinkson provided the following reasons finding these changes were out of line:

$70,000 Non-Pecuniary Assessment For Low Back Injury With Nerve Root Irritation

Written by ERIK MAGRAKEN on October 17, 2019. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.

In today’s case (Suc v. Skelton) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for. The crash caused a bulged disc in the Plaintiff’s low spine which contacted his nerve root at L5-S1. His prognosis for recovery was poor. The injury caused significant limitations in the types of activities the Plaintiff could participate in. In assessing non-pecuniary damages at $70,000 Madam Justice Baker provided the following reasons:

“Little Weight” Given To ICBC Experts in Three Cases Released Today

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

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money. Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims. If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions. ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash. In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

$150,000 Non-Pecuniary Assessment for Chronic Pain and Somatic Symotom Disorder

Written by ERIK MAGRAKEN on October 5, 2019. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgement were published this week by the BC Supreme Court assessing damages for chronic physical and psychological injuries following a vehicle collision.

In the recent case (Verjee v. Dunbrak) the Plaintiff was involved in a rear end collision in 2009 on Vancouver’s Lion’s Gate Bridge. The Defendants admitted fault. She suffered chronic soft tissue injuries and subsequently developed psychological symptoms including depression and a somatic symptom disorder. In assessing non-pecuniary damages at $150,000 Madam Justice Marzari provided the following reasons:

BC Court of Appeal Upholds Special Costs Award Against Disability Insurer Despite No Litigation Misconduct

Written by ERIK MAGRAKEN on September 23, 2019. Posted in Uncategorized.

Reasons for judgment were published today by the BC Court of Appeal finding that trial judges do have authority to award special costs against litigants even in circumstances where no litigation misconduct occurred.

In today’s case (Tanious v. The Empire Life Insurance Company) the Plaintiff was insured with the Defendant. She became disabled and sought long term disability benefits but the Defendant ‘rejected her claim’. The Plaintiff successfully sued and was awarded damages along with an order of special costs.

The Defendant appealed arguing the judge was wrong in awarding special costs absent litigation misconduct. The BC Court of Appeal disagreed and found that in “exceptional cases” such awards could be justified. In upholding the award the court provided the following reasons:

Police Officer in Pursuit Found Fully at Fault for Intersection Collision

Written by ERIK MAGRAKEN on September 18, 2019. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding a police officer fully at fault for an intersection collision with another motorist.

In today’s case (Burroughs v. Chiasson) the Plaintiff was an RCMP officer involved in a crash in 2013. At the time, while driving a fully marked RCMP vehicle, she “pursued a truck with an uninsured trailer by attempting to turn left, on a red light, onto Young Road from the westbound curb lane on First Avenue. While making this turn, she collided with a minivan driven by the defendant, Jennifer Chiasson. Ms. Chiasson was driving eastbound on First Avenue.”.

The RCMP officer sued the other motorist claiming damages from the collision. The claim was dismissed with the Court finding that the Plaintiff entered the intersection when it was dangerous to do so in circumstances with no particular urgency. In dismissing the claim and finding the officer fully at fault for the crash Mr. Justice Basran provided the following reasons:

Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Written by ERIK MAGRAKEN on September 12, 2019. Posted in Uncategorized.

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, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for. In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis. In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

“Troublesome” ICBC Surveillance Practices Come Under the Judicial Microscope

Written by ERIK MAGRAKEN on September 11, 2019. Posted in ICBC Privacy Issues, Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Williams v. Sekhon) the Plaintiff sustained serious and disabling injuries in a 2013 collision that the Defendant accepted fault for. In the defence of the claim the Defendants insurer, ICBC, conducted a ‘troublesome‘ amount of surveillance into the Plaintiff’s life. The Plaintiff requested that special costs be awarded for this. While the court did not go so far as to award special costs Mr. Justice Voith provided the following lengthy comments setting parameters into what is and is not reasonable surveillance:

Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Written by ERIK MAGRAKEN on September 6, 2019. Posted in Uncategorized.

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision. At the time of the crash the Plaintiff took his stepfathers car keys without permission. They lived in the same household. The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle. In the course of the evening the two boys drove around for several hours before the Accident. Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury. A jury found the driver negligent and the plaintiff contributorily negligent. A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent. The latter test was not applicable on these facts. The court was asked whether the household member rule was triggered in these circumstances. The applicable provision of the MVA reads as follows: