Skip to main content

Interest on Disbursements in Injury Claims Recoverable "As a Matter of Principle"

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 48 Comments on Interest on Disbursements in Injury Claims Recoverable "As a Matter of Principle"


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating a welcome development in BC personal injury law.
As discussed on previous occasions, injury lawsuits can be expensive and oftentimes individuals rely on their lawyers to finance the costs necessary to prosecute their claim.  These costs can easily add up to tens of thousands of dollars and significant interest can accrue on these expenses (called disbursements).  After claim settlement or trial a debate often arises as to who should pay the interest on disbursements.
Earlier this year Mr. Justice Burnyeat held that “The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.” Last week a case was released going further holding that in the appropriate circumstances interest charged by lawyers for financing disbursements can be recoverable as a disbursement.
In last week’s case (Basi v. Atwal) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff hired a lawfirm that financed the prosecution of the claim.  The lawfirm did so through a line of credit which in turn charged interest.  The interest was passed on to the client.  After settlement ICBC argued that the interest charged was not a reasonable disbursement.  Registrar Bolton disagreed and provided the following instructive reasons:
…In… Milne v. Clarke [2010], BCSC 317, the learned judge quite clearly says that the successful party is entitled to interest on a specific disbursement where the provider of the service in question had charged interest to counsel for that party.
I see no reason in principle to distinguish this decision on the basis that in the Milne case, the interest has been charged by the provider of the service to the law firm and, therefore indirectly to the client, whereas here the interest is being charged directly by the lawyers pursuant to an agreement they have with their own bank.
So I am satisfied that the charge is potentially proper, give the appropriate circumstances.  Here, the circumstances are that the law firm has an arrangement with its own bank to fund disbursements.  They are funded on the basis of an agreement of paying six percent over prime.  I am satisfied that that is a reasonable interest rate in these circumstances…
So to summarize: first of all, I accept that the principle of allowing interest is one that the law recognizes, at least since this decision of Mr. Justice Burnyeat.  Secondly, I am satisfied that the accounting that would be required to satisfy the court that the charge does relate specifically to this particular file, has been properly done.  Thirdly, I am satisfied that the interest rate being charged by the bank is reasonable…
In those circumstances, that only leaves the question of amount to be decided…as a matter of principle, or law, I suppose, I am satisfied that a claim for interest here is proper.
As readers of this blog know, I like to link to the full judgments of the cases discussed here.  As of the date I write this post Basi v. Atwal remains unpublished.  I will link to the case should this change but in the meantime am happy to e-mail a full copy of the case to anyone who may need it.

Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required

Written by admin on . Posted in BC Supreme Court Costs Cases, ICBC Privacy Issues, Uncategorized. 49 Comments on Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required


If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue.  As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements.  This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision.  In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000.   About 16 months later the Plaintiff accepted the offer.  The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.
After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000.   Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff.  These accounts totalled almost $20,000.
The Plaintiff argued that ICBC’s disbursements were unreasoble.  Eventually the BC Supreme Court was asked to decide the issue.  Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000.  In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11]         As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12]         I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

Plaintiff's "Disadvantaged" Financial Circumstances Disentitle ICBC to Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 40 Comments on Plaintiff's "Disadvantaged" Financial Circumstances Disentitle ICBC to Costs


There have been many cases dealing with “the relative financial circumstances of the parties” focussing on whether a Defendant is insured in deciding the costs consequences after trials with formal settlement offers. (The BC Court of Appeal weighed in on this issue earlier this year deciding insurance can in fact be considered).  There have not, however, been many cases dealing with the Plaintiff’s finances (or lack thereof) as a compelling circumstance.  This overdue issue was addressed earlier this week by the BC Supreme Court, Victoria Registry.
In today’s case (Dickson v. ICBC) the Plaintiff was injured in a bicycle accident involving an unknown motorist.  He sued ICBC under s. 24 of the Insurance (Vehicle) Act.  ICBC denied fault on behalf of the unknown driver.  Prior to trial ICBC offered to settle the issue of fault on a 50/50 basis.  The plaintiff rejected this offer and went to trial where Madam Justice Russell found both parties equally at fault.
Typically, when ICBC matches or beats their formal offer at trial, ICBC becomes entitled to post offer costs.  Madam Justice Russell refused to follow this usual course, however, noting that the Plaintiff’s financial circumstances put the plaintiff at a ‘serious disadvantage‘.  In awarding the Plaintiff costs to the time of the offer and depriving both parties of post offer costs Madam Justice Russell held as follows:

[13]    It is my view that the plaintiff’s position is one of serious disadvantage as a result of the accident.  I recall that he was unable to work for a long period of time as a result of his injury and was still unable to return to work by the time of the hearing.

[14]    The plaintiff is the sole support of his family and either had run out of disability benefits or was close to the end of those benefits by the time of the summary trial…

[17]    I view the financial circumstances of the plaintiff as compelling on the issue of whether double costs should be awarded.

[18]    In Osooli-Talesh v. Emami, 2008 BCSC 1749, the offer to settle matched the judgment achieved and Sigurdson, J. concluded that the court may award payment of double costs where an offer to settle matches the results at trial.  However, he went on to consider all the factors listed in Rule 37B.  He determined that the parties had divided success and should therefore bear their own costs.

[19]    I am guided by that decision and consider it apposite to the circumstances of this case.

[20]    I award costs of this case to the plaintiff to the date of the receipt of the defendants’ offer to settle and order both parties to bear their own costs thereafter.

Cross Examination Beats Up RCMP Officer's Injury Claim

Written by admin on . Posted in Civil Procedure, Uncategorized. 68 Comments on Cross Examination Beats Up RCMP Officer's Injury Claim


As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.
ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:
[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…
[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…
[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…
[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…
[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…
[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.
Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

BC Injury Trials and Adequate Reasons for Judgement

Written by admin on . Posted in Civil Procedure, Uncategorized. 52 Comments on BC Injury Trials and Adequate Reasons for Judgement


As previously discussed, Judges presiding over Civil Trials in BC have a duty to provide adequate reasons for judgement explaining why they arrived at their decision.  Failure to do so could result in a new trial.  Reasons for judgement were released today by the BC Court of Appeal further discussing this area of law.
In today’s case (Bjornson v. Shaw) the Plaintiff was injured in a BC collision.  She sued for damages and was awarded over just over $565,000 in total damages by Mr. Justice Scarth.
The Defendant appealed this award arguing that the Trial Judge failed to provide adequate reasons for judgment.  The BC Court of Appeal agreed an ordered a new trial.  In doing so the Court provided the following reasons addressing the need for sufficient reasons for judgement:

[18]         In Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 317 D.L.R. (4th) 419 para. 62, Doherty J.A., writing for the Court, affirmed that a determination of whether reasons properly fulfill their objectives must be examined in the context of the proceedings from which they emanate, including the issues raised, the evidence adduced, and the submissions of counsel. As well, he provided this guidance in assessing the adequacy of reasons:

[61]      Reasons for a decision serve several salutary purposes. Where there is a right of appeal from that decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review. Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis: R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 25-26; R. v. Braich, [2002] 1 S.C.R. 903, at para. 31; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 15-18, 52-53.

[19]         Applying those principles here, the only issue at trial was quantification of damages. The gap between the parties’ positions was substantial. While the trial judge found the respondent a credible witness, she was still obliged to prove her damages under each head, and there was conflicting evidence from other sources on important issues that had to be resolved. Various inferences were open to the trial judge, depending on the facts he found and the weight he gave to them…

[26]         The respondent is correct in saying a trial judge need not address each detail of the evidence, or set out every aspect of his analysis. I also accept that judges commonly quantify damages in an amount that falls between the positions taken by the parties. I am nevertheless persuaded the reasons in this case fail to fulfill the objectives established in F.H. v. McDougall. They do not sufficiently explain or justify the awards made. They do not let the appellant know why she did not succeed in limiting the damages. They preclude meaningful appellate review in that the absence of critical factual findings and analysis limits the parties’ ability to identify reviewable errors.

[27]         Deficient reasons constitute an error of law: Law Society of Upper Canada v. Neinstein at para. 94. The appropriate remedy must be a new trial. It is thus unnecessary to consider the second ground of appeal.

[28]         I would accordingly allow the appeal and direct a new trial.

ICBC's Hit and Run Appeal "Doomed to Failure"

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.


Reasons for judgement were released today by the BC Court of Appeal dismissing ICBC’s appeal of judgment finding them liable for injuries caused during a 2004 “gas and dash” incident.
In today’s case (Nayar v. ICBC) the Plaintiff was the owner of a gas station.  An unknown motorist fuelled her vehicle and attempted to drive away without paying.  The Plaintiff confronted the unknown motorist and stood in front of her vehicle.  The motorist then inched forward and revved her engine.  The Plaintiff placed his palms on the hood of the vehicle at which time the motorist “accelerated to 100 kph while (the Plaintiff) lay on the hood of the vehicle, and then turned sharply, throwing him to the pavement“.
The Plaintiff could not ascertain the identity of the driver so he sued ICBC for compensation under section 24 of the Insurance (Vehicle) Act.  At trial ICBC argued that “the plaintiff is wholly to blame for his injuries“.  Madam Justice Gropper disagreed finding ICBC liable to pay the Plaintiff damages.  In doing so the Court made the following findings:

[]           It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault.  The events and the injuries which the plaintiff sustained were due to Jane Doe’s blameworthiness.  Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff’s injuries were the actions of Jane Doe.

[]           Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase.  The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases.  This is a much more infallible gas-and-dash avoidance procedure.

[]           In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[]           Judgment is therefore entered against the nominal defendant, ICBC.

ICBC appealed this finding although the appeal was dismissed for lack of timely prosecution.  ICBC Applied to reinstate the appeal but this failed as well with the BC High Court finding that ICBC’s appeal was ‘doomed to failure’.  The Court of Appeal provided the following useful reasons:

[6] I am unable to see any error in principle in the reasons expressed for dismissing the application to reinstate the appeal. In my view, it is clear Groberman J.A. considered each of the criteria that govern the kind of application that was before him. As he stated, it was not for him to assess whether the appeal would succeed or fail save for the very limited purpose of deciding whether it was appropriate to reinstate it. That required him to consider the merit in the one ground of the appeal advanced. Having done so, he determined it was insufficient to justify reinstatement, which was the issue before him. That was his determination to make. I see nothing inconsistent in his effectively characterizing the merits of the appeal as being so very weak as to render the appeal doomed to failure. For the purpose of considering reinstatement, he did not have to decide there was absolutely no merit in the appeal to conclude it was doomed, only that there was insufficient merit to justify its being reinstated.

Wage Loss Claims, Document Disclosure and Proportionality

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure, ICBC Privacy Issues, ICBC Wage Loss, Uncategorized.


As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process.  The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.  In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.
Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.
In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision.  The Plaintiff was injured and claimed damages.  The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity”  The Plaintiff refused to provide these and a motion was brought seeking production.    Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:

[5]             I am not going to make the order sought.  I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis.  To ask that all the bank statements be produced is a broad, broad sweep.

[6]             Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there.  Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.

[7]             It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years?  If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.

[8]             The banking records.  I am also persuaded by Mr. Bolda’s argument, and a  common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income.  And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.

[9]             I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed.  There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.

More on the Two Roles of ICBC – Adjusters and Admissions Against Interest

Written by admin on . Posted in Uncategorized. 50 Comments on More on the Two Roles of ICBC – Adjusters and Admissions Against Interest

As a monopoly insurer ICBC usually fulfills 2 roles in BC auto injury claims.  First ICBC is responsible for processing claims for Part 7 Benefits.  Second ICBC is usually behind the defence of tort claims against at fault motorist in British Columbia.   For anyone involved in a BC vehicle collision it’s important to appreciate this dual role before contacting ICBC to discuss your claim.  I discussed this earlier this year in the below video:

Since ICBC is in the business of defending tort claims you need to be aware that statements you make to your adjuster can be used against you in your personal injury trial as ‘admissions against interest‘.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, demonstrating this.
In today’s case (Cross v. Cross) the Plaintiff was involved in a 2008 collision.   Both the Plaintiff and Defendant were insured with ICBC.   The Plaintiff was disabled from work for several months following the collision.  He dealt with ICBC directly following the crash and discussed his injuries and disability.
At trial ICBC’s adjuster testified about these discussions in support of an argument that the Plaintiff’s wage loss was not entirely due to the collision but also due to other factors.  Mr. Justice Williams rejected this submission and awarded the Plaintiff damages for his wage loss claim.
Despite the lack of success behind the adjusters evidence, this case demonstrates that ICBC adjusters can and do use statements made by individuals against them in the course of a personal injury lawsuit.  The Court provided the following reasons addressing the Plaintiff’s wage loss claim and the adjuster’s evidence:

[27]         There was another point raised by Ms. Chiasson that is relevant to the issue at hand. She reports that, at or near the conclusion of the program, she “discussed return to work plans with Russell and he stated at the present time he does not have transportation to his pre-injury employment and therefore has not contacted his employer regarding a return to work.”

[28]         This is something of a recurring theme for the defence. The insurance adjuster who had conduct of the file testified as to a conversation that she had with the plaintiff, enquiring about his status and his return to work. She says he told her he was not back at work and when she asked why, part of his answer was to the effect that he didn’t have transportation to get there. He also made reference to his doctor’s advice…

[40] Finally, there is the matter of the plaintiff having told Ms. Chiasson and the adjuster that getting to work would be a problem. I accept that there were conversations of that general tenor. However, I also accept the evidence of the plaintiff that he had the means available to him to get to work. The reason he didn’t go back was because his injuries were still active to an extent that they rendered him unable to do the physical work his job required…

[48]         In view of the findings I have made, it follows that the plaintiff is entitled to recover his wage loss from the date of the accident through to the point in time that he returned to work, June 1, 2009.

[49]         Counsel have agreed that the quantum of that loss is $35,767.

$70,000 Non-Pecuniary Damages for Subacromial Impingement

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for an injury causing chronic shoulder impingement.
In today’s case (De Gaye v. Bhullar) the Plaintiff was involved in a 2005 collision in Surrey, BC.   The Defendant ran a red light and struck the Plaintiff’s vehicle with considerable force.  Fault for the crash was admitted.  The trial focussed on the value of the Plaintiff’s claim.
The Plaintiff sustained various injuries, the most serious of which was subacromial impingement to his left shoulder.

Madam Justice Bruce assessed non-pecuniary damages at $70,000 and in doing so made the following findings:
[87] While the expert medical opinions are unanimous that Mr. De Gaye also suffered a left shoulder injury during the accident when he struck the seatbelt harness, there is a dispute as to whether the muscle and ligament damage included thoracic outlet syndrome. Dr. Vaisler and Dr. Stewart-Patterson believe that Mr. De Gaye has a shoulder impingement that would be best managed by arthroscopic surgery followed by a three month recovery period with physiotherapy. Their clinical observations and physical examinations support this opinion. Dr. Vaisler and Dr. Stewart-Patterson also believe that the findings in the ultrasound report are consistent with a shoulder impingement and that this test corroborates their clinical observations. …
[89] On balance, I prefer the opinions of Dr. Stewart-Patterson and Dr. Vaisler. Their opinions are supported by physical tests and clinical observations over a combined period of almost three years between January 2007 and September 2009. While the cortisone injections have not relieved Mr. De Gaye’s pain, there is a significant failure rate in the accuracy of such injections and the ultrasound report suggests there is a mild shoulder impingement according to the opinions of Dr. Vaisler and Dr. Stewart-Patterson…

[92]         While it is apparent that Mr. De Gaye’s loss of enjoyment of life, physical pain, and emotional suffering has continued for over five years since the accident, it is undeniable that the symptoms have drastically improved since March 2005. The back and neck pain reoccur infrequently with extended use or exercise. The primary injury remains the shoulder impingement; however, there is an 80% chance that arthroscopic surgery will relieve the pain symptoms even with repetitive use. The migraine headaches remain problematic but controllable with prescription medication.

[93]         The cases cited by the parties are helpful because they show the range of possible damages for pain and suffering; however, each case must be decided on its own particular facts. In light of the length of time Mr. De Gaye has suffered from his injuries, the serious nature of those injuries and their significant impact on his recreational and work life, balanced against the improvements he has had over time and the high probability of successful surgery for his left shoulder, I find that an award of $70, 000 is appropriate in all the circumstances.

More Than Lawyer's Say Needed For MRI's to be Recoverable Disbursements

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Civil Procedure, Uncategorized.


Further to my previous post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing when an MRI is a reasonable disbursement in a personal injury lawsuit.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC collisions.  He sued for damages and settled his claims prior to trial.  However, the parties could not agree on whether some of the Plaintiff’s disbursements were reasonable.  The parties applied to the Court to resolve the issue and Registrar Sainty held that the Plaintiff’s privately retained MRI was not a recoverable disbursement.  The Plaintiff appealed this ruling.  Mr. Justice Ehrcke dismissed the appeal and in doing so made the following comments about MRI’s in personal injury lawsuits:

[33]         The applicant submits that the Registrar erred in principle by saying that there must be a medical reason for ordering the MRI. In my view, the applicant’s submission seeks to parse the Registrar’s decision too finely. In reviewing the Decision of the Registrar with the appropriate level of deference, it would be wrong to focus on a single word or a phrase taken out of the context in which it occurs.

[34]         When read in context, the Registrar’s reason for disallowing the cost of the MRI is that she found it was not necessarily or properly incurred. In coming to that conclusion, she took into account that no medical professional had advised counsel of the probable utility of an MRI in the particular circumstances of this case. Mr. Fahey had deposed in para. 11 of his affidavit that he was unaware of the plaintiff exhibiting any objective signs of injury when he ordered the MRI scans.

[35]         I am unable to find that the Registrar acted on a wrong principle in disallowing the cost of the MRIs in this case, and I would not interfere with her Decision.

To be on the safe side it is a good idea to have a treating medical practitioner requesting an MRI or other diagnostic test to maximize the chance that these expenses will be recoverable disbursements.