“Ironic” ICBC Expert Witness Position Criticized by BC Supreme Court

As readers of this blog know the BC Government recently overhauled the Rules of Court to limit the number of expert witnesses that can be used in personal injury prosecutions.  This rule is subject to a constitutional challenge and its future is uncertain.  The rule was implemented with the goal of simply saving ICBC money.

With this background in mind interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, commenting on “ironic” submissions from a Defendant relating to the need for expert evidence.

In today’s case (Sekhon v. Gill) the Plaintiff was involved in three collisions and sued for damages.  Liability was admitted for all three crashes.  In the course of trial the Plaintiff presented various expert evidence.  The Defendant suggested even more experts should have been called by the Plaintiff and requested that an adverse inference be made because the Plaintiff did not call her family physician to testify.

Mr. Justice Smith refused to draw an adverse inference and made the following comments about the “ironic” request by ICBC that a Plaintiff should call more expert evidence when they lobbied for rule changes limiting the rights of litigants regarding expert testimony:

[59]         Based on the evidence in this case and the currently applicable authorities, I find there is no basis on which to draw the adverse inference sought by the defendants.

[60]         There is also a further, emerging reason for the court to be cautious about drawing an adverse inference against any party for failing to call specific or additional medical experts. The Lieutenant Governor in Council has recently enacted Rule 11-8 of the Supreme Court Civil Rules…

[61]         This new rule does not apply to cases coming to trial before December 31, 2019 (see Rule 11-8(11)(a)(ii) of the Supreme Court Civil Rules), so does not directly govern this case. However, it clearly indicates a policy to place limits on the number of experts appearing in these kind of cases and the associated expense to the parties.  The Attorney-General has publicly stated that the rule was introduced as part of an effort to control the Insurance Corporation of British Columbia’s litigation costs.  In the circumstances, it is more than a little ironic to hear defence counsel argue that the plaintiff has failed to call enough experts.

[62]         In Mohamud, Fisher J. referred to a plaintiff being expected to call “all doctors” who attended her for important aspects of her injuries. To the extent that was intended to refer to those doctors being called to give expert opinion, that is an expectation the court will no longer be able to have under the new rule. Indeed, plaintiffs who have been treated by multiple doctors will be prima facie barred from calling all of them as experts, no matter how much assistance they may have to offer the court.

[63]         Where a case requires opinions from specialists who assess the plaintiff for medical legal purposes only, a plaintiff may be barred from introducing any opinions from day-to-day treating physicians. The circumstances in which the court can be asked to draw an adverse inference may therefore become even more limited when the new rule comes into effect.

CBD Oil and Medical Marijuana Costs Recovered in Personal Injury Claim

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for personal injuries which included the successful recovery of money spent for CBD oil and medical marijuana to treat chronic pain.

In today’s case (Culver v. Skrypnyk) the Plaintiff was injured in two collisions.  These resulted in partly disabling chronic back and leg pain.  The treatments attempted over the years included the use of CBD oil and medical marijuana.  The Court awarded recovery for the costs of these medications noting they were reasonably incurred special damages.  In reaching this conclusion Mr. Justice Davies provided the following reasons:

[258]     Mr. Culver incurred the expense of $903.32 for medical marihuana and CBD oil to help with the pain and difficulty with sleeping that he was suffering from because of his injuries. Dr. Burlin suggested that he do so and Mr. Culver reports that he obtained some relief from his use of those products.

[259]     Although I denied Mr. Culver’s claim for purchase of CBD oil as a component of his cost of future care I did so because of Dr. Burlin’s inability to testify as to the future benefits of that product for Mr. Culver’s future care.

[260]     I am satisfied that the lack of proof of medical necessity for future care does not preclude reimbursement of Mr. Culver for the costs incurred by him for medical marihuana and CBD oil as special damages.

[261]     I find that the expenditure of the funds for marihuana and CBD oil at the time those cost were incurred in circumstances in which Dr. Burlin was prepared to suggest the use of those products to assist Mr. Culver’s recovery establishes medical justification. Mr. Culver’s testimony as to the benefits he received from the expense establishes the reasonableness of the expense incurred. I am satisfied that the products would not have been purchased but for the injuries suffered by Mr. Culver as a result of the defendants’ negligence.

[262]     In result I find that Mr. Culver is entitled to reimbursement by the defendants for the special damages he has incurred in the total amount of $18,091.

$200,000 Non-Pecuniary Assessment for Post Concussion Syndrome With Poor Prognosis

Reasons for judgement were published today by the BC Supreme Court, Campbell River Registry, assessing damages for chronic consequences from a head injury.

In today’s case (Mickelson v. Sodomsky) the 50 year old plaintiff was involved in a 2015 T-bone collision.  The Defendant admitted liability.  The crash resulted in a mild traumatic brain injury and the plaintiff developed post concussion syndrome with a poor prognosis for further recovery.  The consequences of the injury were largely disabling.  In assessing non-pecuniary damages at $200,000 Mr. Justice Thompson provided the following reasons:

[35]         I accept the evidence of Dr. Cameron and Dr. Muir that Ms. Mickelson suffered a mild traumatic brain injury in the MVA. She continues to suffer the effects of a post-concussive syndrome. I conclude that she will continue to adapt to these deficits, but the evidence does not make room for any optimism that she will achieve further recovery.

[36]         Over the period of time since the MVA, I am satisfied on the basis of all of the evidence that her cognitive issues have been multi-factorial: I accept that it is difficult to tease out how much of her cognitive difficulties are accounted for by post-concussive syndrome versus depression and anxiety versus chronic pain. That said, as time has gone on, the partial lifting of her depression and the decrease in her pain have not resulted in a significant improvement in cognitive function. This lends weight to Dr. Friesen’s interpretation of the neuropsychological test findings as being consistent with frontal lobe injury.

[37]         I am satisfied on a balance of probabilities that, but for the MVA, Ms. Mickelson would not have the cognitive deficits that partially disable her. I conclude that Ms. Mickelson falls into the 10 to 20 percent of unfortunate people that do not recover from the effects of a mild traumatic brain injury…

[41]         In fixing the amount of non-pecuniary damages in this case, the central consideration is the post-concussive syndrome. It has altered Ms. Mickelson’s previously vibrant personality and stunted her capacity to function at a high level. It has also resulted in termination of her education plans and career plans. Considering all of the Stapley circumstances, and that she has lost a modest amount of her capacity for domestic chores, I assess her non-pecuniary damages at $200,000.

ICBC Ordered To Pay “Accelerated Depreciation” Damages Following Vehicle Collision

As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged.  The reason for this is quite simple.  When a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.

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ICBC Criticized For Not Practicing What It Preaches

In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.

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BC Vehicle Collision Expert Witness Restrictions Relaxed

Earlier this year BC’s Attorney General announced changes to the BC Supreme Court Rules limiting how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.  The rule change was brought in without notice and without support from the Rules committee.
The retroactive and without notice restriction was subject to much criticism and judicial challenges were swiftly brought.  The Government has backed down and before a judicial challenge was ruled on they amended the rule to delay its application only to trials set from 2020 onward.
The new Order in Council, approved and ordered today, reads as follows:
1 Rule 11-8 (11) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is repealed and the following substituted:
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of claim was filed before February 11, 2019:
(a) the limits set out in subrule (3) do not apply (i) to any report of an expert that was served in accordance with these Supreme Court Civil Rules before February 11, 2019, or (ii) to the vehicle action if the trial date set out in the notice of trial filed in relation to the vehicle action is on or before December 31, 2019;
(b) the limits set out in subrule (8) do not apply (i) to amounts that were necessarily or properly incurred for expert opinion evidence before February 11, 2019, or (ii) to the vehicle action in the circumstances referred to in paragraph (a) (ii).

ICBC Ordered to Pay $33,264 in Costs For Unreasonable Refusal to Settle Injury Claim

Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial.  Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision.  The Defendant admitted fault.  The crash resulted in chronic pain with a poor prognosis.  This in turn resulted in real disability and significant past and future medical costs and wage loss.  The Plaintiff made a formal settlement offer of $480,000.  ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000.  ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim.  Unreasonable positions by litigants have consequences.  Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly.  In reaching this assessment of costs Master McDiarmid provided the following reasons:

[1]             This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.

[2]             The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…

[94]         That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.

[95]         The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.

[96]         If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.


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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.

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