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More on Rule 37B and ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 112 Comments on More on Rule 37B and ICBC Injury Claims

Reasons for judgement were released today by the BC Supreme Court providing more interpretation to Rule 37B in the context of ICBC Claims.  (for background on Rule 37B and ICBC Claims see my former blog posts).
In today’s case (Jacobs v. McLaughlin) the Plaintiff sued 3 separate Defendants as a result of 3 separate accidents.  All 3 Defendants made formal settlement offers before trial.   2 of the Defendants bested their formal settlement offers at trial.  At issue was what costs consequences should follow as a result of this.
The court summarized the case law to date interpreting Rule 37B with the following analysis:

[20]            The new rule broadens the discretion of the court, permitting it “to take offers to settle under the rule into account based on the factors set out later in the rule”:  Cowichan Bay Contractors Ltd. v. Insurance Corporation of British Columbia (29 July 2008) Victoria 05/1639, at para. 5 [Cowichan Bay]. 

[21]            Unlike its predecessor, Rule 37B does not mandate outcomes; if the plaintiff fails to beat an offer to settle, it does not mean that the plaintiff will automatically be deprived of costs, as this “interpretation would fetter what is clearly intended to be an unfettered discretion”:  Bailey v. Jang, 2008 BCSC 1372, [2008] B.C.J. No. 1952, at para. 19 [Bailey].

[22]            In addition to providing for the court’s discretion to consider offers to settle, the new rule is permissive in its effect:  British Columbia Society for the Prevention of Cruelty to Animals v. Baker, 2008 BCSC 947, [2008] B.C.J. No. 1635 [B.C.S.P.C.A.].  Subrule (5) empowers the court to deprive a party, in whole or in part, of costs to which it would otherwise be entitled, or award double costs of all or some steps taken in the proceedings.

[23]            The policy underlying the new Rule 37B remains the same as under the former Rule 37:  to encourage reasonable early settlement of disputes “by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted”:  Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, at para 16; Abma v. Paul, 2009 BCSC 60, [2009] B.C.J. No. 87, at para. 23.  The rule also exists to “deter certain kinds of conduct”:  Bailey, at para. 18. 

Rule 37B(6)(a):  Reasonableness of the Offers to Settle

[24]            The onus is on the defendants to establish that the offer was one that the plaintiff ought reasonably to have accepted:  B.C.S.P.C.A., at para. 36.

[25]            The plaintiff submits that this Court should not give any weight to the defendants’ offers to settle not solely because they were unreasonable, but because she was incapable of accepting any of the offers in isolation of the others.  The plaintiff relies on Carvalho v. Agnotti, 2008 BCSC 386, [2008] B.C.J. No. 559 [Carvalho], to support her argument.

[26]            In Carvalho, the defendants made separate offers related to two separate car accidents involving the plaintiff.  Mr. Justice N.H. Smith held that the substantial overlap in damage claims precluded acceptance of only one of the offers; instead, the plaintiff had to consider the two offers together.  In this case, each of the three accidents caused separate and discrete injuries to Ms. Jacobs.  Plaintiff’s counsel had overwhelming evidence prior to the onset of Ms. Jacobs’ MS that there were no “overlapping” injuries.  Carvalho is distinguishable on this basis. 

[27]            I am satisfied that the factual evidence before the plaintiff should have led her to conclude that the offers could have been accepted in isolation of each other.  This is not the imposition of hindsight reasoning, as argued by the plaintiff.  Rather, it is the fair assessment of the factual evidence before the plaintiff as it related to her claim. 

[28]            Ms. Jacobs submits that at the date of delivery, following so soon after the third motor vehicle accident and the definitive diagnosis of her MS, she did not have an opportunity to obtain medical and legal opinions respecting the role of the trauma in the exacerbation of her MS.

[29]            Under Rule 37B, a party must be afforded a reasonable period of time to “consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected”:  Coquitlam (City) v. Crawford, 2008 BCSC 1507, [2008] B.C.J. No. 2095, at para. 17 [Coquitlam].

[30]            All parties agree that the plaintiff required a reasonable opportunity to investigate this allegation before deciding to reject the offers to settle. 

[31]            The defendants state that there should have been a reasonable time period in which to investigate the MS causation issue after July 17, 2006, when the issue became “alive”.  The defendants submit that by December 31, 2006 the plaintiff should have been able to fully assess the legal principles and scientific research on the MS causation analysis as it related to her claim.  Thus, they submit, it would have been reasonable for Ms. Jacobs to accept their offers to settle by that time.

[32]            I note that the plaintiff amended her statement of claim to include the MS causation issue in October 2006.

[33]            The plaintiff submits that it was reasonable for her to advance the MS causation issue up until a few weeks before trial, as her particular claim was supported by medical science, her physicians, and the law in British Columbia. 

[34]            At a pre-trial settlement conference on September 27, 2007, Mr. Justice Halfyard commented that the defendants’ defenses on the MS causation issue were strong and it would be difficult for the plaintiff to prove this allegation on a balance of probabilities. 

[35]            The plaintiff argues that it was unreasonable to accept the offers to settle after the settlement conference because it would have had serious cost implications for the plaintiff, ultimately leaving her with no compensation and in a deficit position, notwithstanding the admitted negligence of the defendants.  Thus, the plaintiff submits, at no time was it reasonable for her to accept the offers to settle.

[36]            The trial commenced on October 14, 2007. 

[37]            The plaintiff appears to have initiated the investigation into her injuries and their relationship to her MS around November 16, 2006, which is the date of Ms. Jacobs’ first appointment with Dr. Devonshire.  However, any serious evaluation into this claim occurred much later; all reports relating to the plaintiff’s MS were dated July 2007 (Devonshire report) and August 2007 (Rathbone, Freeman, and Bateman reports), with the requests for these reports dated between two and four months prior to their receipt.  The majority of Ms. Jacobs’ appointments related to these reports took place in the late spring and early summer of 2007. 

[38]            I find it difficult to accept Ms. Jacobs’ argument that it was unreasonable at essentially all times to accept the offers because she expected to succeed on the MS causation issue, given that she ultimately abandoned the argument.  At some point, the medical and legal research done by counsel should have suggested that the factual and scientific evidence linking Ms. Jacobs’ injuries and her MS were not sufficient to bring to trial.  As Mr. Justice Hall noted at para. 16 of Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, [2009] B.C.J. No. 52:

[16]      It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process.  The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation.  The rules should discourage the continuance of doubtful cases or defences.  This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations.  Such considerations should, among other things, encourage reasonable settlements.

[39]            I accept the defendants’ submission that at some point before the settlement conference, neither the factual nor the scientific evidence supported the MS causation issue allegation.  Knowing this, plaintiff’s counsel took the gamble anyway.

[40]            Taking into consideration when the statement of claim was amended to include the MS causation issue, and the plaintiff’s receipt of her experts reports, I am satisfied that the plaintiff should have been able to evaluate her claim by August 15, 2007.  At this point, the MS causation issue should have been abandoned, and the McLaughlin and Meehan offers ought reasonably to have been accepted.

[41]            The plaintiff further submits that accepting the two offers which exceeded the judgment in this case would have saved neither time nor money, as the case against Ms. Moyer would have commenced in any event, and this court would have been required to hear all the evidence related to the three accidents. 

[42]            There are two difficulties with this submission.  First, the injuries sustained in the accidents were discrete, thus, a claim against Ms. Moyer would not have required any evidence pertaining to the accidents involving Ms. McLaughlin and Ms. Meehan.  Second, there are multiple purposes for assessing offers to settle in the award or deprivation of costs under Rule 37B, only one of which is indemnification.

Rule 37B(6)(b):  Relationship Between the Terms of 
Settlement Offered and the Final Judgment of the Court

[43]            Subrule 37B(6)(b) could be used to assess, among other things, whether an offer is strategic (MacKinlay v. MacKinlay Estate, 2008 BCSC 1570, 44 E.T.R. (3d) 48) or confers a significant benefit aside from costs:  B.C.S.P.C.A., at para. 34. 

[44]            The plaintiff submits that this Court should look at the difference between the global amount offered by the defendants and the global damages awarded by this Court and hold that the amount is insignificant.  However, the offers were not made globally. 

[45]            I find that the differences between the offers to settle and the awards of both defendants are significant.  The plaintiff recovered approximately 60% of the amount on offer by the defendant McLaughlin and precisely 60% of the amount on offer by the defendant Meehan. 

Rule 37B(6)(d):  Any Other Factor the Court Considers Appropriate

[46]            The defendants argue that the old Rule 37(24) and the plaintiff’s unreasonableness should be considered.

[47]            First, the defendants point out that they had no ability to structure offers with regard to the current rule, as they were made two years before it came into effect.  The issue of the application of Rule 37B in the context of settlement offers made prior to its enactment was considered by Mr. Justice Macaulay in Cowichan Bay, who stated the following at para. 12 of his oral judgment:

[12]      Finally, I take into account that at the time the offer was made in this case, the parties then reasonably expected that the rule in its then form would govern the consequences of the offer.  Accordingly, there is no question that the plaintiffs have had notice of the potential consequences throughout the proceedings.

[48]            I agree with the defendants that there was an expectation at the time the offers were made that success on the part of the defendants would inevitably give rise to an award of costs.  This factor will diminish in significance over time, but so long as there is litigation involving offers to settle under the former rule, the consequences under that regime are factors to consider.

[49]            The defendants also argue that the court should impose a penalty on Ms. Jacobs.  The plaintiff caused a great deal of unnecessary costs and resources, which were expended by both sides in this litigation.  In particular, the defendants prepared for a 30-day trial, and then had to modify this preparation after the plaintiff abandoned the MS causation issue on the first day of trial.  This, alone, added significant costs to the defendants. 

[50]            The purposes of Rule 37B, to promote settlement, prevent unnecessary claims, and deter poor conduct, will lose its efficacy if a reasonable party is denied relief after attempting to resolve the case by settlement.

 

ICBC Claims, Future Wage Loss and the Ability to Work in Your Chosen Profession

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

Imagine sustaining permanent and partially disabling injuries in a BC Car Accident through the fault of another.  Despite your permanent injuries you are able to carry on in your own chosen profession.  Are you entitled to be compensated for future wage loss in your ICBC tort claim or does the fact that you can work in your own occupation restrict such an award?  Reasons for judgement were released by the BC Supreme Court today dealing with this issue.
In today’s case (Ayoubee v. Campbell) the now 34 year old Plaintiff was injured in a multiple vehicle collision which occurred in September, 2003.    The Plaintiff sustained serious injuries including a herniated disc (at the L5 / S1 Level) with associated pain down his leg and mechanical back pain in the collision.  At the time of the accident he had just begun a computer course at BCIT and intended to make a career from the opportunities that this education would provide.  Despite his serious injuries he was able to complete his studies then found and maintained employment in his chosen field.
In awarding $100,000 for non-pecuniary damages the court accepted that the Plaintiff will have some permanent pain and made came to the following conclusion with respect to his injuries:
[104]        I accept Mr. Ayoubee’s evidence that he has never been pain free since the accident, although he has managed to control the level of pain through exercise and stretching.  He has attempted to function as fully as he can, despite the limitations he now contends with.  In the past year, however, his leg has deteriorated and the quality of his life has diminished even further.  Surgery may help with the pain, but he will likely be left with residual numbness and discomfort, and the back pain will remain.  As a result of the accident, he has lost the quality of life of an active young man.
Madam Justice Humphries engaged in a lengthy discussion addressing the Plaintiff’s loss of future earning capacity.  The court found that given the Plaintiff’s permanent injuries certain occupations will be closed to the Plaintiff, however, the Plaintiff ‘is not foreclosed form the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time employment ever since.’
In assessing the Plaintiff’s impaired earning capacity (future wage loss) at $80,000 Madam Justice Humphries made the following analysis:

[89]            In my view, this is a case in which it would be more appropriate to award a lump sum for loss of capacity.  There are a significant number of jobs that Mr. Ayoubee can no longer do, jobs of the type he once held and which could still provide him with opportunities for part time income enhancement that he now must forego.

[90]            As well, he is not as attractive an employee on the open labour market as he once was, given his chronic pain and inability to work without breaks.

[91]            He will also be unable to work while he recovers from surgery, which it is likely he will undergo once he has seen Dr. Dommisse.  Dr. Yu suggests the recovery time would be two or three months.  The defendants calculate the loss attributable to those months, reduced by the possibility that Mr. Ayoubee might decide not to have the surgery, and suggested that the applicable rate should be his salary level in 2005 when, in their position, he should have mitigated his damages.  The defendants arrived at a figure of approximately $7,700.  The plaintiff did not address that issue.

[92]            Surgery may improve Mr. Ayoubee’s leg pain, although the doctors differ on whether this is still realistic.  In any even he will be left with back pain.  I take into account that, of the two, the leg pain has always been the most severe, and is the cause of his greater restrictions at present.  On the other hand, given the back pain, there is no suggestion that he will be able to undertake moderate to heavy physical employment again.

[93]            An important factor that distinguishes Mr. Ayoubee’s case from those in which very high awards have been made for future loss is that he is not foreclosed from the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time ever since.  He does not require retraining.  His employability does not depend on his ability to do heavy physical labour and he never intended that it should, although there is a substantial possibility that he might have supplemented his income occasionally with the type of job he held at Rona, if he were still able to do so.  

[94]            Considering that some future wage loss will be attributable to the surgery, and considering the diminution in the capital asset of his employability generally, I set his future loss, including his loss of capacity, at $80,000.

Loss of Commission Income and ICBC Injury Claims

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today (Tong v. Sidhu)awarding a Plaintiff $30,000 for non-pecuniary damages (pain and suffering) as a result of injuries sustained in a 2007 BC Car Accident.  
Mr. Justice Cohen of the BC Supreme Court made the following findings with respect to the Plaintiff’s injuries:
[40]            In my opinion, the medical evidence and the plaintiff’s testimony supports the conclusion that the plaintiff suffered mild to moderate soft tissue injuries, and that he has made an overall improvement to a level where if he dedicates himself to learning and correctly performing the exercises recommended by Dr. King he will probably experience a full recovery within six to twelve months.
[52]            Upon a consideration of the severity and duration of the plaitniff’s accident related injuries and symptoms, and upon a review of the authorities on the range of the general damages submitted by the parties, I find that an award of $30,000 is a fair and appropriate sum to compensate the plaintiff for his general damage claim.
The Plaintiff, who was a commodities broker, also alleged a past and future loss of income although these claims were dismissed.   The Plaintiff sought approximately $50,000 for past income loss and $44,000 for future income loss.
In dismissing these damages Mr. Justice Cohen found that the Plaintiff ‘has not proven on the requisite standard that he has suffered past or future income loss‘.  Following this conclusion Mr. Justice Cohen engaged in a lengthy analysis of the Plaintiff’s claim for lost income and stated as follows:

[63]            First, the only documentary evidence the plaintiff has brought forward to support his claim are his income tax returns and payroll slips for 2007 and 2008.  Although he signed an authorization for release of employment information to the defendant, the onus remains on the plaintiff to bring to court any records which would help him to identify the details of his earnings history.  He has not produced any employment records to indicate or establish a month over month or year over year trend based on details of income from client or personal trading accounts.

[64]            Moreover, the plaintiff did not elicit evidence from Mr. Mok on his commission earnings to provide some comparative evidence regarding the level of earnings from commissions experienced by commodities brokers at Union Securities, or for that matter evidence of the earnings of brokers in other firms with a similar level of experience and client base as that of the plaintiff.

[65]            With respect to Mr. Mok, he and the plaintiff were performing the same work and both were earning income from commissions generated by client trades, as well as income from self trades.  Mr. Mok did say that he had two streams of earnings and that while his earnings from trades in his own account would not be shown on his T4, both streams of income were shown on his income tax returns.  He said that earnings from trading on his own account would be declared under the item of “business income” in his income tax returns.

[66]            I find that the plaintiff’s evidence on his precise earnings was at times both contradictory and confusing.

[67]            For example, the plaintiff was asked in chief about the line in his 1999 income tax return for “business income”, which shows an amount of $20,805.89 gross and a net loss of $8,323.15.  Although the plaintiff initially testified that the loss amount was due to amounts that he had to pay out of his pocket for losses sustained by his clients due to his trading errors, he later changed this testimony to say that the business income item related to a tax shelter investment that he had made, and that this was the amount reported to him by the company as a unit holder.  With respect to where he reported his income from self trades he said that he did not report this income in his income tax return as the earnings had gone into his RSP account, although he produced no records to substantiate his evidence on this point.

[68]            Finally, I think that there is evidence that completely undermines the plaintiff’s assertion that he is entitled to damages for loss of income, past or prospective.

[69]            In cross-examination, the plaintiff agreed with defence counsel that it was not common for him to make earnings in excess of $100,000.  He agreed that his earnings jumped substantially in 2004 because of the financing he worked on.  He also agreed with the figures from his income tax returns that since 2001, with the exception of 2004, he has earned in the range of $40-50,000 annually.  He agreed that 2004 was unusual, adding that it was unusual in the sense that his hard work paid off.  He also agreed with counsel that the last year he earned a figure in the same range was in 1996.  He agreed with counsel that his average income for the past 7 years has not been in the $80,000 range, but rather closer to $50,000.

[70]            The plaintiff agreed with counsel that based on his average earnings over the period leading up to the accident that his income in 2007 was similar to what he had earned in earlier years, with the exception of the year 2004.

[71]            The plaintiff testified that for the years 2001-2008 he would rank himself against his peers as being in the middle of the pack, and not on average a top performer.  He agreed that his assessment of his ranking has not changed since the accident, and also agreed that essentially, with the exception of 2004, his income has not significantly changed.

[72]            Counsel reminded the plaintiff of his evidence that his focus and concentration had been affected by the accident and he was asked whether it had affected his number of clients, to which he replied that he gained and lost clients for all kinds of reasons.  When counsel suggested to the plaintiff that he had not lost clients as a result of the accident, he replied that he may have lost or gained clients during the period following the accident.  He was not able to say whether in fact the accident related injuries had resulted in a loss of clients.

[73]            Mr. Steven Engh is manager of sales at Union Securities.  He met the plaintiff when they both worked at C.M. Oliver.  He was asked how he would rank the plaintiff as a commodities broker. He replied that the plaintiff would fall in the middle of the pack, and that as far as he knew this had been the case for the past five years.  He also said that all of the brokers in his firm have been affected by the current securities market conditions and that this would include the plaintiff’s area of trading.  He did agree with plaintiff’s counsel in cross-examination that the securities business is very demanding and that it takes a focused person to succeed.

[74]            In the result, I find that on the whole of the evidence the plaintiff has failed to prove his income loss claim. With the exception of the year 2004, the plaintiff’s history of earnings in the seven years leading up to the accident disclose a trend of income much closer to the $50,000 range than his claim of $80,000.  This is clearly borne out by his income for the year 2006, a year in which he was completely healthy, had his list of prospects, and presumably was focused and determined to increase his income to a level closer to his exceptional result in the year 2004.  Yet, his income for the year 2006, at least from commissions on trades, was not very far off his usual annual earnings in the $50,000 range.

[75]            In my opinion, the evidence falls far short of the claim that the plaintiff is making for income loss, past and prospective, and therefore this head of damage must be rejected.

This case is worth reviewing for anyone on commissioned or self employed basis who suffers a wage loss in an ICBC Injury Claim to see how courts scrutinize such claims and to get some insight into the factors and the type of evidence courts find useful in determining whether there has been a past loss of income.

Special Costs Awarded for 'Reprehensible' Behaviour by Law Firm

Written by admin on . Posted in Uncategorized. 61 Comments on Special Costs Awarded for 'Reprehensible' Behaviour by Law Firm

In reasons for judgement released today (Chudy v. Merchant Law Group) the BC Court of Appeal upheld a trial judge’s award for special costs.
The Plaintiff was involved in a serious motor vehicle collision in 1995.  The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.
A fee dispute arose after this settlement and litigation ensued.   At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm.  This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.
The lawfirm appealed for various grounds.  In a split decision handed down several months ago, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.
Today’s appeal provided supplemental reasons dealing with the narrow issue of whether the trial judge was correct in awarding special costs against the law firm.  In upholding the award, the Court of Appeal said the following with respect to the law of ‘special costs’ and to the behaviour of the Defendant Law Firm:

[6]                The trial judge discussed the claim for special costs at some length at paras. 216 to 261 of his reasons for judgment which are indexed as 2007 BCSC 279.  It is not disputed that he correctly stated the applicable law: 

[255]    In Garcia v. Cresbrook Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.) [Garcia], the Court of Appeal considered the type of conduct required for an award of special costs under the Rules of Court, B.C. Reg. 221/90.  After reviewing decided cases and the relationship of “special costs” to the concept of “solicitor-and-client costs”, Lambert J.A. (for the Court) stated at ¶ 17:

Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui, and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leung in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”.  As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning.  It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke.  Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

[7]                Davies J. stated his conclusion on the costs issue thus: 

[257]    I am satisfied that the conduct of the Merchant Law Group in this case was reprehensible within the meaning attributed in Garcia.  The conduct and actions of the Merchant Law Group would be deserving of rebuke in an ordinary commercial transaction.  In the context of litigation involving its own clients and the integrity which the Court and the public are entitled to expect from those who are privileged to be members of the legal profession, it was both outrageous and scandalous.

[258]    I order that the plaintiffs recover special costs from the Merchant Law Group from the commencement of this litigation and throughout, including all costs related to the third party proceedings brought against Mr. Shaw.  Those proceedings were, in my view, not only devoid of evidentiary substance but also unnecessarily added to the length of these proceedings.

[259]    Any costs that were paid to the plaintiffs pursuant to previous orders of the Court shall, of course, be deductible from the award of special costs.

[8]                Before stating the above conclusion, the judge described the conduct of the appellant law firm.  In the court’s view, the bad conduct began with a pre-litigation letter from Mr. Merchant to the Law Society of British Columbia dated 2 December 2003 in which he falsely claimed for the appellant a solicitor’s lien on the Chudy file.  He also prepared a fictitious fee account to the Chudys.  This “foreshadowed the way in which the Merchant Law Group was prepared to defend against the plaintiffs’ claims” (para. 251).  In our opinion, this did not amount to a colouration of the judge’s assessment of litigation conduct.  It was properly seen as an attempt by the appellant to put a chill on the appellant’s unsophisticated former clients.  This conduct was not a factor in the assessment of punitive damages.  Rather, the award of punitive damages was based on an earlier breach of fiduciary duty.  In these circumstances, an improper attempt by a legal professional to discourage a claim against that professional, although done before commencement of the action, is properly taken into account when considering litigation conduct.  The trial judge’s conclusion at para. 225 that Mr. Merchant’s evidence about the draft account and an accompanying letter to the respondents “was a disingenuous attempt to cover up the fact that he did not want the plaintiffs to have the file and that he was prepared to go to unethical lengths to avoid delivering it to them” is unassailable.  It was bad enough that Mr. Merchant improperly claimed the lien.  But he exacerbated that conduct by offering an explanation at trial that was contrived.  That was litigation conduct properly considered on the claim for special costs. 

[9]                The appellant has not demonstrated error on the part of the trial judge in his conclusion that the conduct of the appellant during this litigation, both pre-trial and during the trial, was reprehensible as that term is used in Garcia.  The evidence abundantly supports the conclusion.  The appellant brought pre-trial motions that were without merit; it brought a specious application, based in part on false evidence, challenging the jurisdiction of the court to try the matter; it avoided a peremptory trial date by adding Mr. Shaw as a third party but did not require him to file a defence, did not examine him for discovery, did not cross examine him at trial with respect to its allegations against him, and in a lengthy written submission at the end of the trial, did not refer to its claim over against Mr. Shaw (the trial judge tersely dismissed the third party claim); it brought a motion (returnable on the date scheduled for the hearing of a R. 18A application for a summary trial brought by the respondents) for removal of the respondents’ counsel on ridiculous grounds, a tactic which the trial judge at para. 236 stated, with the benefit of his unique perspective of the appellant’s entire conduct, “was not only without merit but was calculated to prevent the Rule 18A application from proceeding as ordered”; on the hearing of the respondents’ R. 18A motion, Mr. Merchant produced a large number of documents, not previously disclosed and not sworn to, in support of his position that the action could not be determined on a summary basis; and, finally but of most significance, Mr. Merchant offered evidence at trial that the trial judge determined was false and misleading.

[10]            As to the final point, the respondents refer to Brown v. Lowe, 2002 BCCA 7, in which Southin J.A. said (at para. 149):  “To give false evidence relating to the matters in question at any stage of the proceedings is a grave matter.  By “false”, I do not mean “erroneous”; I mean knowingly untrue.”  The falsity of Mr. Merchant’s evidence is commented on by the trial judge at several points in his judgment and is referenced by the majority judgment in this court.  There is no need to particularize it here.

[11]            The evidence as a whole clearly supports the conclusion of the trial judge that the legal basis for the awarding of special costs was established in this case. 

$75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 119 Comments on $75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision.  Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.
In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145]        Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas.  I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time.  To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities.  The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health.  The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146]        Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine.  Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery.  Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147]        Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148]        Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident.  This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident.  At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident.  I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149]        There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder.  I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150]        With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154]        Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve.  I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake.  Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches.  Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier.  I bear in mind as well that she has suffered a right frozen shoulder, but  that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155]        The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident.  In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.

 

ICBC Soft Tissue Injury Claims Round Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 48 Comments on ICBC Soft Tissue Injury Claims Round Up

As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court.  In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.
The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC.  This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.
All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages.  The Court made the following findings with respect to the Plaintiff’s injuries:

(a)        That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;

(b)        That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;

(c)        That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;

(d)        That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;

(e)        That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;

(f)        That when the trapezius muscles in the neck are overworked they become stiff and painful;

(g)        That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;

(h)        That torn ligaments do not spontaneously heal; and,

(i)         That prior to the collision Mr. Jacobsen did not suffer from neck pain.

In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:

[26]            In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.

[27]            Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days.  He is a fit and healthy senior citizen who clearly anticipates living many more years.  The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep.  He begins his days feeling weary and drained rather than rested and energetic.  This compromised start affects all aspects of his daily life.  It has taken the lustre off his so-called golden years.

[28]            In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.

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The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005.  The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:

[29]            At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back.  There are no objective findings with respect to her injuries.

[30]            I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination. 

[31]            While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location.  She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….

[33]            I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident.  The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program.  While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony. 

[34]            She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active.  While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing.  One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.

On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.

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The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005.   The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial.  The court summarized the injuries as follows:

[25]            I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back.  He has testified to these injuries and much of what he says is supported by other testimony.  Several practitioners found objective signs upon palpitation.  Two found his body type susceptible to such injuries.  I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery.  I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.  

[26]            I am satisfied that he is now able to perform the tasks necessary for a gas fitter.  I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic.  While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….

[34]            Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.

ICBC Injury Claims, Lawyers and Settlement

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(Please Note:  The Case discussed in this article was overturned by the BC Court of Appeal on May 7, 2010.  You can click here to read the BCCA’s reasons for judgement)
As an ICBC Injury Claims Lawyer I have developed a particular habit when it comes to settlement of my clients claims.  I typically never bind my clients to a settlement until they sign a full and final release (the settlement contract ICBC uses in concluding injury claims).  This is my usual practice even if I receive firm instructions to settle an ICBC Injury Claim for a certain amount and I get a better settlement offer on the table.
Lawyers act as agents for their clients.  Lawyers can, therefore, bind their clients to a settlement.   Typically a client will give a lawyer authority to settle their claim for X dollars and the lawyer will attempt to get that amount or more.  If a lawyer accepts an ICBC settlement offer on behalf of their client the client is typically bound to the settlement, even if the client later wishes to get out of the settlement by not signing ICBC’s full and final release.
When deciding whether or not to accept an ICBC settlement offer, like many important decisions in life, people sometimes second guess themselves and change their mind.  For this very reason I typically negotiate on a non-binding basis making it clear to ICBC or ICBC’s lawyers that if a settlement is agreed to in principle it is never binding on my client unless and until they sign the full and final release.  This gives clients one last chance to change their mind which is never a bad option to have.
If such a term is not part of the settlement negotiations then a client may be bound even if they get cold feet and decide not to sign ICBC’s settlement contract.  Reasons for judgement were relased today (Lacroix v. Loewen) discussing exactly such a scenario.   In Lacroix the Plaintiff gave her lawyer instructions to accept a settlement offer.  The lawyer then did accept ICBC’s settlement offer.  The client, after speaking with some friends, decided not to proceed with the settlement and did not sign ICBC’s settlement contract.  The client proceeded with her Injury Claim and ICBC brought an application to dismiss the lawsuit on the basis that it was already settled.
In the end Mr. Justice Williamson permitted the claim to continue finding that after the accepted offer ICBC insisted upon a new term which was not part of the agreed settlement thus undoing the agreement to settle. But for this fact, it appears, the Plaintiff would have been bound to the settlement.  Mr. Justice Williamson summarized the law relating to offer and acceptance of ICBC Injury Claims and the required paperwork that flows from such a contract as follows:

[14] In Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62, 59 D.L.R. (4th) 114 (C.A.), McEachern C.J.B.C., speaking for the court, said at 70:

In these matters it is necessary to separate the question of formation of contract from its completion. The first question is whether the parties have reached an agreement on all essential terms. There is not usually any difficulty in connection with the settlement of a claim or action for cash. That is what happened here and as a settlement implies a promise to furnish a release and, if there is an action, a consent dismissal unless there is a contractual agreement to the contrary, there was agreement on all essential terms.

The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

[15] In the case at bar, the question becomes whether the defendants, in sending over the cheque for the settlement sum along with the release documents, insisted upon terms or conditions which had not been agreed upon or were not reasonably implied in these circumstances.

[16] There is no doubt upon the affidavit material filed by the plaintiff that when ICBC offered the plaintiff $7,000 via her counsel Mr. Mickelson, she told Mr. Mickelson to accept that offer.  He did.

[17] It was after a conversation with friends that the plaintiff telephoned Mr. Mickelson again and told him that she would not accept the offer.

[18] The plaintiff says that the documents, which she saw only after purporting to withdraw her acceptance, show that Mr. Mickelson did not follow her instructions.  She had instructed him to make an offer at $6,500, plus user fees, plus all of her expenses, an offer that would have amounted to $7,692.  However, she points out that according to the ICBC adjuster’s notes, Mr. Mickelson did not make an offer of $7,692.  Instead, he countered ICBC’s offer of $5,500 with an offer of $7,000.  Thus, the offer that he made was $692 less than the one authorized by the plaintiff.

[19] Nevertheless, when Mr. Mickelson told the plaintiff that ICBC had made an offer of $7,000, it is undisputed that she said she would accept ICBC’s offer.

[20] In these circumstances, I cannot see how the fact that the offer was $692 less than what was originally authorized matters.  The fact is that there was $7,000 on the table.  Her solicitor advised her to take this offer and she did.

The lesson in this case is to make sure that when you give your lawyer settlement instructions understand that he/she can make a binding commitment on your behalf based on these instructions.  Better yet,if you don’t know your lawyers negotiation tactics consider asking him or her to negotiate on a non-binding basis giving you, the client, the final say when the claim settlement paperwork is presented to you.

ICBC Injury Claims and Hit and Run Accidents

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Imagine being the victim of a hit and run accident in British Columbia and sustaining serious injuries.  You try your best to figure out the identity of the offending motorist but you get nowhere.  Your injuries significantly impact your day to day life and your medical expenses and wage loss are sky-rocketing.  Without knowing the identity of the other driver you have no one to sue for damages, so are you out of luck?  Not always.
In certain circumstances ICBC can be sued directly in the place of an unidentified driver.   Section 24 of the Insurance (Vehicle) Act permits ICBC to be named as a nominal defendant in certain hit and run accidents.  
Section 24 also has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.
Reasons for judgement were released today by the BC Supreme Court (Filsinger v. ICBC) where a Plaintiff who was the victim of a hit and run was awarded over $150,000 in damages as a result of serious injuries.  In doing so the court considered the duty to make ‘reasonable efforts’ to identify the offending motorist and summarized the law and the facts of the case as follows:

[17]            The defendant challenges whether the plaintiff took reasonable steps pursuant to s. 24(5) of the Insurance (Vehicle) Act to identify the owner and operator of the hit-and–run vehicle.

[18]            The defendant submits that the plaintiff decided not to co-operate and did not take the opportunity to investigate and identify the driver.  The defendant refers to Tessier v. Vancouver(City) (2002), 48 C.C.L.I. (3d) 273 (B.C.S.C.).

[19]            The leading case in the area is Leggett v. ICBC (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.), leave to appeal to S.C.C. ref’d (1993), 14 C.C.L.I. (2d) 100, where the British Columbia Court of Appeal made it clear that ICBC’s exposure to liability is limited to claims brought by those who could not ascertain the identify of the parties responsible, and not to parties who had the opportunity to identify the offending vehicle but chose not to do so.  In Leggett, unlike the case at bar, the plaintiff had spoken to the unidentified driver who had stopped at the scene of the accident.  However, the plaintiff in Leggett chose not to obtain particulars of the unidentified party, believing at the time that he had not suffered any injury.  The court found that because the plaintiff failed to make all reasonable efforts to determine the identity of the persons responsible, he could have no claim against the insurer.  

[20]            In Daniels v. Insurance Corporation of British Columbia (1985), 14 C.C.L.I. 172 (B.C.S.C.), the plaintiff was injured while riding his bicycle.  He testified that he had been riding at night with red reflective devices, and that he recalled hearing an automobile approach, but had no further memory until he awoke in hospital.  The defendant submitted in that case that the plaintiff had failed to establish that an unidentified motorist had been negligent in the collision.  The court held, at 175:

I find that a citizen having been involved in an accident, a citizen not trained in investigative procedures (if he reports the accident), he can properly expect the police authorities to carry out the necessary, reasonable investigation contemplated by Section 23 of the Insurance Act.  Therefore, I find that the Act has been complied with by this particular plaintiff and the action is properly brought.

[21]            Other cases of interest cited to me were Hocaluk v. Insurance Corporation of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360, Ball v. Insurance Corporation of British Columbia (1996), 37 C.C.L.I. (2d) 246 (B.C.S.C.), and Slezak v. Insurance Corporation of British Columbia, 2003 BCSC 1679, 5 C.C.L.I. (4th) 230.

[22]            While I would not describe the plaintiff’s efforts to locate the other driver as exceptional, on a balance of probabilities I find that he met the legal onus upon him to make a reasonable effort to find the driver.  He contacted his friend in the RCMP immediately, he met with the police the same evening and gave a statement and handed over a piece of evidence.  He published two newspaper advertisements many months after the fact, probably on the advice of his lawyer.  I note, however, that in his interviews with ICBC after the accident, he was not told that he had to do anything to find the other driver. 

If you are the victim of a hit and run collision in British Columbia and sustain injuries you should be familiar with Section 24 of the Insurance Vehicle Act and the limitations on ICBC’s liability as set out in this legislation.

BC Personal Injury Claims and the Duty to Mitigate

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If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages.  What this means is you have a duty to take reasonable steps to minimize your losses.  For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.
If you fail to mitigate your damages the value of your damages may be reduced accordingly.  In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.
But what if you can’t afford to follow your doctors advice?  What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it?  Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these.  Section 83(2) of the Insurance (Vehicle) Act reads as follows:
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.
Reasons for judgement were released today (Smith v. Tedford) highlighting this fact.  In this case Mr. Justice Grist made the following observations:

[3]                Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.

[4]                In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.

[5]                This is not a case of putting ICBC on trial.  It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.

In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages.  In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000.  This award was then reduced by 10% for failure to mitigate.  In coming to this conclusing the Court made the following analysis:

[110]        In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50.  In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.

[111]        The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case.  In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:

1.      that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;

2.      that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;

3.      that Ms. Job unreasonably failed to follow such a program and;

4.      the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.

[112]        Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms.  Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.

[113]        Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.

[114]        I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made.  On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery.  Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments.  The burden of establishing a failure to mitigate is on the defendant.  I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.

[115]        Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.

[116]        In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.

I wish I knew that before I settled my ICBC Injury Claim…

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You are injured through the fault of another motorist in BC.  You miss time from work.  You go into debt paying for therapies and medications.  You experience pain and your typical lifestyle is interfered with.  Then, as your injuries are slowly getting better you are approached by your ICBC adjuster to settle your claim.   The offer seems low but you are sick of dealing with the aftermath of your ICBC Injury Claim and you accept the offer.
Time goes by and your injuries linger.  You had hoped that you would get better but unfortunately things didn’t turn out as optimistically as you had planned.  You’re still missing time from work.  Your therapy expenses are ongoing and your doctor is running out of ideas.  Your actual expenses and wage loss soon exceed your ICBC settlement.  You regret settling your claim and then you call an ICBC Injury Claims Lawyer.  The Lawyer tells you the offer was unfair, your claim was likely worth several times more than what you settled for.  You eagerly ask if the lawyer will take your case and he/she responds “sorry, you signed a contract with ICBC saying you can no longer sue as a result of this crash, you can’t reopen your claim.”
As an ICBC Injury Claims Lawyer this is a scenario I unfortunately see all too often.  People often contact me after they’ve settled their claim.  Except in exceptional cases (for example where a settlement is obtained through fraud or by duress) ICBC Claims Settlements usually can’t be set aside.  I hate breaking this news to people if they’ve clearly been short changed by their settlement.
So, if I can impress one fact on anyone with an ICBC Injury Claim, it is this:  get legal advice before you settle your claim.  It doesn’t have to be from me.  It can be from any lawyer experienced handling ICBC Claims.  Shop around, find a lawyer who you can connect with and get a free ICBC Claims consultation.  BC has many very well qualified personal injury lawyers and many of them provide initial consultations free both of charge and obligation.  I’ve seen many experienced ICBC Injury Claims Lawyers spend many hours giving people free initial consultations, even in circumstances where the lawyer was not interested in taking the case.  
Getting anything of value for free is rare so why do ICBC Injury Claims Lawyers give Free Consultations?  It’s simply a matter of economics.  This is a competitive business and giving free consultations is almost a requirement for ICBC Injury Claims Lawyers wishing to stay competitive.  It’s a simple formula of supply and demand and the result is the availability of free consultations for you, the consumer.
So take advantage.  Get a free consultation before you settle your ICBC Injury Claim and help yourself make an informed choice before saying yes or no to ICBC’s settlement offer.